Understanding Copyright: 10 Things You Must Do


Most artists understand that copyright law is the foundation of their business – without the protection that copyright law gives us, it would be (even more) difficult to monetize creative work and make a living. Because of that, there is no shortage of advice on copyright issues targeted at artists, and sometimes it can become a little overwhelming to keep it all straight.

Fortunately, you don’t have to know it all – that’s what lawyers are for – but you should have a working knowledge of the basics. What follows are ten sound copyright-related practices that every artist should know.  If you remember nothing else about copyright . . . remember these.

1. Understand the Scope of Protection.

Copyright protects original works of authorship fixed in a tangible medium of expression. In photography, that often gets translated to mean that you own a copyright in an image (an original work of authorship) as soon as you press the shutter (fixing it in a tangible medium of expression). While that’s generally true, copyright still requires a modicum of creativity, so images that are produced purely by mechanical means, or that don’t have much creative input, are afforded less protection. Similarly, if someone frames and establishes the technical parameters (e.g., aperture, focal length, shutter speed) for a particular shot, but enlists the assistance of another person to literally press the shutter, then the copyright would very likely vest in the person who set up the shot, because it was he or she that had the creative control that was merely executed by the assistant.

Copyright Chris Reed
by Chris Reed

Copyright does not cover ideas, short phrases, titles, slogans, and the like, and it doesn’t extend to the physical manifestation of copyrighted works. For example, while copyright law makes it unlawful to make a copy of a book and give it to a friend, it can’t stop me from giving the book itself to my friend (or loaning, renting, selling, etc.), even though the book contains a copyrighted work.

2. Include a Copyright Notice on Your Work.

Although a copyright notice isn’t required to receive copyright protection anymore, including one can make it more difficult for an infringer to claim his or her copying was “innocent.” While being an “innocent infringer” does not absolve the defendant of liability, it can reduce the damages award such that it may not be worth bringing an enforcement action in the first place. As Steve Schlackman noted in an earlier Art Law Journal article about use of a copyright notice, the notice is also important because under the Digital Millennium Copyright Act (the DMCA), it’s unlawful to remove copyright management information, including a copyright notice.  If a notice is removed in the course of an infringement, you could bring not only an infringement claim but also a DMCA claim, which carries with it the possibility of damages above and beyond those available for the infringement.

The proper form of copyright notice is the circle-C copyright symbol (©), the year of first publication, and the name of the copyright owner. Strictly speaking, because copyright notice isn’t required for copyright protection anymore, the precise form isn’t as important as it used to be. Still, there is a strong likelihood that a defendant’s lawyer would argue that a notice not following the form prescribed in the statute, 17 U.S.C. § 401, is ineffective for purposes of removing the innocent infringer defense.

3. Register Your Copyrights

You aren’t required to register your work with the Copyright Office to have copyright protection it is required to sue for copyright infringement (for U.S. works), and timely registration – that is, registration made either before an infringement, or within three months of publication – is required to be eligible for statutory damages and attorney’s fees. Being eligible for statutory damages means you can recover monetary damages from an infringer (up to $150,000 per work infringed) without having to prove how much you lost, or how much the infringer gained, as a result of the infringement. Being eligible for attorney’s fees allows the court discretion to order the infringer to pay for your lawyer (assuming, of course, that you prevail). Many lawyers won’t touch infringement cases unless the work at issue is registered because the actual value one infringement is typically so low that it cannot justify the cost of bringing suit.

4. Understand Your Copyright Registration Options.

You don’t necessarily have to register each work separately. At $55 per application, registering every single work individually would be cost prohibitive for most artists (especially photographers). Fortunately, the copyright office has established two batch registration options to help. For published images, you can file a group registration, and for unpublished images you can file an unpublished collection  While the two are very similar, there are some differences; namely, you are required to provide more information on an application for a group of published images because the law requires you provide the date of first publication for each item in the group.

As of this writing, the Copyright Office accepts electronic applications for unpublished collections, but still requires paper applications for published groups (rumor has it the Office will be launching an electronic application for published groups very soon, so keep an eye on its website for the latest news).

5. Understand the Published versus Unpublished Distinction.

Deciding whether your work is published or unpublished (and figuring out the date of first publication) can be a pain, but the Copyright Act provides good reasons for the distinction. In a digital world the idea of “publication” might seem a little arcane, but the difference is important for more than just determining which form to file with the Copyright Office.  Whether a work is published or unpublished is a consideration in some fair use cases, and certain limitations on the copyright owner’s exclusive rights apply only to published works, for example, and for works made for hire, the length of copyright protection is determined by the publication date.

Although there are various views throughout the copyright community, one dominant school of thought, and the one I follow personally, is that if you post an image to the Internet and encourage or allow users to make copies of the image – either electronically or by purchasing prints or products bearing the image, or something like that – the image is published.

If, however, you make it explicit that making copies is prohibited (through copyright notices or terms of use that expressly limit the user’s rights) and/or take technical steps to prevent people from making copies (through technical measures such as disabling the right-click function), then the image may be unpublished.

6. Keep Good Records.

Registering your work with the Copyright Office is an important step, but keeping records of your registrations is just as important. If your work is ever infringed upon, your lawyer will want to see the documentation that your work is properly registered. Keep copies of your registration certificates in a safe place, ideally both in hardcopy (as you’ll receive from the Copyright Office) and electronically. Also keep a copy of whatever deposit materials you send to the Copyright Office along with your registration – if you send a zip file with a dozen images in it, then keep a copy of the archive file; if you send a PDF contact sheet, keep a copy of it.  If you’re faced with bringing an infringement action, you’ll already be under a lot of stress, and hunting through boxes trying to find your certificates will only make things worse.

7. Beware the Terms of Service.

Copyright notice
Library of Congress

Perhaps nothing inspires fear, uncertainty, and doubt in the minds of photographers faster than the topic of website terms of service. A website’s “terms of service” is essentially the contract between the website and its users. Of most importance to photographers are the clauses that typically grant to the website a very broad license to use the images that you upload to the site. While many view these clauses with great skepticism, perhaps concerned that Instagram or Facebook will suddenly become the next great microstock agency, the reality is that in most cases the companies that include these broad so-called “rights grabs” in their terms simply because they need them to make their websites work. Most big commercial websites do not connect directly to their end users, instead they channel the site’s content through various intermediaries such as content delivery networks. The broad license ensures they have the rights necessary to authorize the intermediaries to deliver the site as a whole, which includes the images uploaded by its users.

I can’t tell you what to think of each site’s terms of service, but you should educate yourself about the terms of the websites you use (or are thinking about using) and make a decision for yourself in light of your own business objectives. Also be mindful of the fact that terms of service can change frequently, and often you’re deemed to have agreed to them by simply continuing to use a website after receiving notice of the change. One resource to help you keep up with it all is Terms of Service; Didn’t Read, a relatively new website that assesses the terms of service for a variety of the most popular photo sharing services.

8. Know Your Enforcement Options.

The unfortunate reality is that copyright infringement is rampant on the Internet. The ease with which images can be freely downloaded, copied, and re-uploaded or used in new types of digital content, coupled with a general sense among many Internet users that if something appears online, it’s free for the taking, has led to a widespread infringement problem for photographers. It’s easy to want to sue everyone you see who’s using your image without permission, but another reality is that litigation tends to be very expensive, and typically not economical. There are other ways of enforcing your rights, such as sending takedown notices under the DMCA, sending a cease and desist letter, or sending settlement demand letter.

To help photographers navigate their enforcement options, a company called ImageRights has developed a web-based platform that crawls the web and identifies potentially unlicensed image uses. Upon the photographer’s request, ImageRights can help assess whether a particular use is worth targeting for an enforcement action, and through its global network of attorneys, pursue the claim.

9. Know Where toLook.

US Copyright Office registration certificate.

There is a wealth of information about copyright law and registration practice available for free. The most authoritative source, but also perhaps the most complex, is the Copyright Act itself, contained in Title 17 of the U.S. Code, which is the foundation of U.S. copyright law. Also relevant, particularly for registration matters, are the Copyright Office regulations, contained in Title 37 of the Code of Federal Regulations, and the Compendium of Copyright Office Practices, Third Edition, which is almost certain to have the answer to your registration question somewhere in its 1,200+ pages.

To help distill a lot of the information in the law, the regs, and the Compendium, the Copyright Office has published dozens of informational circulars that answer specific questions about copyright generally and copyright registration specifically. You can also call the Copyright Office directly at 877-476-0778 or 202-707-3000, but be aware that while the Office can answer general questions, its staff cannot provide legal advice.

If you’re interested in non-government sources, the Copyright Alliance offers a wealth of information, as does the American Society of Media Photographers.

10. Be Heard.

The Copyright Office is the principal administrator of the Copyright Act, and its director, the Register of Copyrights, is the primary advisor to Congress on copyright-related issues. As such, she’s regularly interested in hearing from stakeholders – including artists – on how the system is working (or isn’t working), and often those views get presented to Congress in the form of recommendations for change to our copyright laws. The Office recently completed inquiries intomass digitization and orphan works, and the need for a small claims court for copyright owners, for example. As of this writing, the Office has an open inquiry specifically on issues relating to visual artists.

Your voice as a creator is enormously important to the Copyright Office. Consider filing comments or, passing along your views to your advocacy group of choice (e.g., ASMP, PPA, etc) to make sure that their organizational comments best represent your interests. You can keep yourself up to date on new Copyright Office proceedings buy signing up for NewsNet, the Office’s email newsletter,

You might also consider joining the Copyright Alliance as a grassroots member (it’s free). The Alliance, which is a group of like-minded creative professionals, and organizations who represent them, often sends its members alerts about ongoing copyright policy discussions and opportunities to be heard.

About the author

Chris Reed

Chris Reed is a Los Angeles-based photographer and lawyer. He practices copyright law in the  media and entertainment industries and is the author of Copyright Workflow for Photographers: Protecting, Managing, and Sharing Digital Images from Peachpit Press.

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]