Home | Copyright | Understanding Copyright: 10 Things You Must Do
Copyright

Understanding Copyright: 10 Things You Must Do

Copyright

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.

Copyright
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, www.copyright.gov/newsnet.

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 *

{{Privy:Embed campaign=133844}}

The Latest From Artrepreneur

  • Why Storytelling is Crucial for Artists

    Artists who identify and satisfy our ongoing search for meaning by describing art they create have already discovered this crucial truth: artists that engage in storytelling create a compelling reason for collectors and admirers to invest in their […]

  • Is Virtual Reality the Future of Art?

    As virtual reality takes hold of the film industry, artists, galleries, and cultural institutions are incorporating VR art as a component of their program or practice. We take a look at this growing trend in the art world. The post Is Virtual […]

  • Craft An Art Director Portfolio That Gets You Booked

    A well-curated art director portfolio is what potential clients and hiring managers are really paying attention to when looking for new talent. Creative Circle recruiter Gabriela Williams offers her insight for putting your best work forward. The […]

  • Four Artist Open Calls to Apply to This Summer

    Artists seeking to get their work in front of gallerists and collectors might consider applying to an open call this summer. From London to Miami, find out what curators are looking for in these four artist open calls and get your work in front of a […]

  • Four Communication Skills Every Art Student Should Master

    As an art student, you are quickly learning that effectively communicating your artistic vision is key to your success. Here, we review the four communication skills every artist should master, from interpersonal and writing skills to becoming a […]

  • How [and Where] Can I License Artwork?

    Licensing art is a common practice among artists seeking additional revenue streams. Here, we discuss the details of a typical artist licensing agreement and offer suggestions for companies you may want to approach with your work. The post How [and […]

  • Aerial Photographer Antoine Rose on Self-Funding, Selling Work

    Producing work is arduous, expensive and often challenging for Antoine Rose, a fine art aerial photographer that's shot aerial images of some of the world's most bustling landscapes. Here, he goes into detail about how he finances each project, and […]

  • How to Develop a Buzzworthy Artist Branding Strategy

    Apart from talent, artists require a certain level of “buzz” in order to progress to new levels of recognition in their art careers. Creating an artist branding strategy can elevate your work to a wider audience, and generate new interest and […]

  • Five Emerging Asian Artists to Watch

    In recent years, contemporary Asian artists are finding greater recognition in the eyes of the Western art market. We review the emerging Asian artists to watch, including Phi Phi Oanh, Donna Ong, and more. The post Five Emerging Asian Artists to […]

  • This Service Connects the Emerging Photographer With New Clients

    If you're an emerging photographer looking for steady work, Wonderful Machine can help you get your work in front of thousands of potential clients. Find out how this monthly subscription service can help you streamline your art business. The post […]

  • An Animation Artist’s Journey from College to Career

    Animation artist Mack O'Conor used his time at art school to hone his technical skills and develop his professional goals. Here, he shares his advice for navigating the college experience, from developing a solid portfolio to choosing the right art […]

  • Searching for Studio Spaces? Heed These Five Tips

    From location and ventilation to the community working within, artists searching for studio spaces should consider a variety of factors before signing on the dotted line. Independent artists and studio managers share their best strategies for […]

  • How Can I Fund Art Exhibitions and Other Projects? [Part I]

    We review the necessary steps artists seeking to fund art projects must take before they solicit financing partners, and review three key methods frequently used to fund art projects – self-funding, crowdsourcing, and fiscal sponsorship. The post […]

  • Award-Winning Makeup Artist Julie Teel’s Rise From Fashion School to Film Set

    Entirely self-taught, makeup artist Julie Teel went from studying fashion design to working as a key makeup artist on shows like 30 Rock and Gossip Girl. Here, she shares her advice for navigating the industry, from landing word-of-mouth referrals […]

  • Creative Placemaking: Art as a Genesis for Civic Transformation

    Metropolitan growth across the United States is often fueled by access to arts and culture. Artists play a pivotal role in this phenomenon, known as creative placemaking. Here, we discuss creative placemaking as a way to engage residents locally […]

  • How to Earn Your Living as a Travel Photographer

    The prospect of traveling the world while getting paid to work may seem farfetched, but these two photographers have the ticket to landing freelance creative work across the globe. Here, Andy Donohoe and Michaela Trimble share their advice for […]

  • A Recruiter’s Advice for your Video or Motion Design Reel

    Creative Circle recruiter Brooks Rowlett sifts through hundreds of motion design reels and video editor portfolios each week. Here, he shares his best advice for motion designers and video editors looking to land their next big gig. The post A […]

  • From Tattoo Artist to Brand Empire: The Rise of the Ink Mogul

    The savvy tattoo artist uses brand recognition to launch a multimedia business. These four artists have leveraged their underground celebrity status to build a brand empire, complete with product lines, book deals, and TV contracts. The post From […]

  • Exploring the Intersection of Art and Technology

    The advent of technology is re-shaping the practice of art. These educational institutions, artists, and startups are exploring art and technology's convergence in today's increasingly digital world. The post Exploring the Intersection of Art and […]

  • Work with an Artist Mentor to Get Your Career on Track

    Many of the world's most recognized artists sought inspiration and guidance from their peers. Gain insight into your practice and learn about the business of art by finding an artist mentor whose career aligns with your own vision for success. The […]

  • Why Artists Need to Make Copyright Registration a Priority

    Sharing, posting, and distributing your work online is easier than ever - but often times, visual artists find themselves dealing with online piracy issues as a result of that practice. Initiating a copyright registration routine can curb the […]

  • How Artists on Social Media Can Grow Their Following

    By sticking to the tenets of the social media pyramid, artists on social media can develop an engaged audience. The post How Artists on Social Media Can Grow Their Following appeared first on Artrepreneur. […]

  • How [and Where] to Submit an Art Fair Application

    Submitting an art fair application doesn't have to be an arduous process. We break down which fairs are currently accepting submissions, and how you should apply. The post How [and Where] to Submit an Art Fair Application appeared first on […]

  • The Paperwork Behind Your Art Business [Part I]

    In this ongoing series, we'll review the various documents needed to get your art business up and running. First up: Crafting your artist proposal. The post The Paperwork Behind Your Art Business [Part I] appeared first on Artrepreneur. […]

  • A Creative Career Coach Outlines a Strategy for the Working Artist

    Marc Zegans coaches artists planning the next move in their art careers. Here, he shares his proven approach for developing your practice as a working artist. The post A Creative Career Coach Outlines a Strategy for the Working Artist appeared first […]

  • Artists Who Failed – And Found Success Anyway

    Some of the world's most successful artists weren't always so revered. Meet five artists who failed to develop their art careers during their lifetime. The post Artists Who Failed – And Found Success Anyway appeared first on Artrepreneur. […]

  • How Do Online Content Moderation Policies Treat Nudity in Art?

    As Facebook's online content moderation policies come under fire, we review creative platform Orangenius' policy on nudity in art. The post How Do Online Content Moderation Policies Treat Nudity in Art? appeared first on Artrepreneur. […]

  • Self Employed? Five Ways To Get Into the Creative Habit

    Self-employed artists don't always leave room for inspiration. Boost productivity and get into the creative habit with these proven strategies. The post Self Employed? Five Ways To Get Into the Creative Habit appeared first on Artrepreneur. […]

  • A Creative in a Corporate Organization: Related Group’s Art Department

    In this ongoing series, we explore the creative roles available in the most unlikely of corporations. Our first installment talks to Patricia Hanna, the Art Director of Related Group. The post A Creative in a Corporate Organization: Related […]

  • Five Alternative Income Strategies for Independent Artists

    Independent artists shouldn't have to go hungry. We explore five alternative income streams to keep your art business on track. The post Five Alternative Income Strategies for Independent Artists appeared first on Artrepreneur. […]

  • Creative Designer Cat Lo on Executing Your Vision

    Creative designer Cat Lo works in a variety of design mediums. She shares her insight on balancing client expectations with creativity and setting freelance rates. The post Creative Designer Cat Lo on Executing Your Vision appeared first on […]

  • How One Graphic Designer Lands Gigs with the World’s Most Recognized Brands

    Graphic designer Carolina Niño shares her insight on working with brands like Adidas and Wired, while dishing on her recent collaboration with Colombian music group Bomba Estereo. The post How One Graphic Designer Lands Gigs with the World’s […]

  • Need a UX Portfolio? Recruiters Share Their Do’s and Dont’s

    A UX portfolio that well-documents your process will definitely get you noticed by creative recruitment professionals, says Creative Circle recruiter Elizabeth Calabrese-Mahnken. The post Need a UX Portfolio? Recruiters Share Their Do’s and […]

  • How One Designer Landed a Celebrity Endorsement to Launch Her Brand

    A celebrity endorsement by JBalvin has set emerging indie brand Collab Store on a path to viral success. The post How One Designer Landed a Celebrity Endorsement to Launch Her Brand appeared first on Artrepreneur. […]

  • Need Affordable Studio Spaces in New York? chashama Can Help

    By re-purposing out-of-use properties across New York, chashama can offer artists affordable studio spaces in the city. The post Need Affordable Studio Spaces in New York? chashama Can Help appeared first on Artrepreneur. […]

  • Why Companies Like Nike Are Shifting to Design Led Business

    While working at companies like Nike and The Gap, Lydia Hummel noticed a need for a shift toward design led business that allows creative designers to predict consumer trends. The post Why Companies Like Nike Are Shifting to Design Led Business […]

  • Five Takeaways from TEFAF’s Report on the Art Market

    The TEFAF report illustrates the challenges facing today's art market. These are the top five findings affecting artists and gallery owners. The post Five Takeaways from TEFAF’s Report on the Art Market appeared first on Artrepreneur. […]

  • How Visual Artists Can Land Public Art Commissions

    Government leaders share their best tips for responding to a Request for Qualifications and landing public art commissions. The post How Visual Artists Can Land Public Art Commissions appeared first on Artrepreneur. […]

  • Bill Chisholm’s Finely-Tuned Strategy for Landing Gallery Representation

    Painter Bill Chisholm has grown a successful art business by crafting a formulaic approach to gallery representation. The post Bill Chisholm’s Finely-Tuned Strategy for Landing Gallery Representation appeared first on Artrepreneur. […]

  • Can Sharing Political Views on Social Websites Harm Art Careers?

    Artists find that sharing political art or views on social websites can sometimes have negative consequences for their art careers. The post Can Sharing Political Views on Social Websites Harm Art Careers? appeared first on Artrepreneur. […]

  • ICYMI: The Week in Art News May 7-12

    This week in art news, Damien Hirst stirs controversy at the Venice Biennale, and an artist admits to stealing someone else's work. The post ICYMI: The Week in Art News May 7-12 appeared first on Artrepreneur. […]

  • Why Sotheby’s Institute Art Business Degrees Fast-Track Art Careers

    Find out why Sotheby's Institute grads are uniquely positioned to excel in the art business. The post Why Sotheby’s Institute Art Business Degrees Fast-Track Art Careers appeared first on Artrepreneur. […]

  • Frieze New York Reports Record Crowds and Million-Dollar Sales

    The sixth annual Frieze New York art fair welcomed over 200 galleries to Randall's Island Park. The post Frieze New York Reports Record Crowds and Million-Dollar Sales appeared first on Artrepreneur. […]

  • Shokunin Gives Artisan Products a Global Sales Platform

    Richa Agarwal worked in apparel design before founding Shokunin, a global platform to artisan products and their makers. The post Shokunin Gives Artisan Products a Global Sales Platform appeared first on Artrepreneur. […]

  • ICYMI: The Week in Art News May 1-5

    This week's art news for the art entrepreneur: The Met Gala doesn't disappoint, and New York voters have to choose their favorite design. The post ICYMI: The Week in Art News May 1-5 appeared first on Artrepreneur. […]

  • Photographer Robert Farber on Maintaining Commercial Success

    Whether fine art, fashion or advertising photography, Robert Farber has managed to maintain decades of success as an artist. The post Photographer Robert Farber on Maintaining Commercial Success appeared first on Artrepreneur. […]

  • Hung Yi: The Taiwanese Artist Transforming Public Art

    Hung Yi, a force in the Taiwan art landscape, is taking his penchant for public art installations to various cities across the U.S. The post Hung Yi: The Taiwanese Artist Transforming Public Art appeared first on Artrepreneur. […]

  • Five Challenges Facing The Art Entrepreneur

    There are a variety of challenges facing today's art entrepreneur, but they don't have to sidetrack an art business. The post Five Challenges Facing The Art Entrepreneur appeared first on Artrepreneur. […]

  • ICYMI: The Week in Art News April 24-28

    This week in art news: Sotheby's takes a hit, a muralist is caught red-handed, and Christie's makes a shift in their art business strategy. The post ICYMI: The Week in Art News April 24-28 appeared first on Artrepreneur. […]

  • Two Russian Artists Give Their Take on the Russian Art Market

    Nastya Varlamova and Luliian Melian tell Artrepreneur that emerging Russian artists still struggle to gain international acclaim. The post Two Russian Artists Give Their Take on the Russian Art Market appeared first on Artrepreneur. […]