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

  • Developing an Artist Network Can Lead to New Opportunities

    Developing an artist network builds camaraderie within your local community and enhances the possibility of landing new opportunities.The post Developing an Artist Network Can Lead to New Opportunities appeared first on Artrepreneur. […]

  • A Primer for Self Publishing in the Arts

    Whether self-publishing materials on your artistic practice or extending your creative work to digital publications, we’ve selected expert advice to guide you in producing written materials.The post A Primer for Self Publishing in the Arts […]

  • What ArtTactic’s Art & Finance Report Reveals About the Art Market

    The Deloitte and ArtTactic Art & Finance Report offers some keen insights into the state of the art market. Discover which findings spell good news for working artists.The post What ArtTactic’s Art & Finance Report Reveals About the […]

  • Inside the Evolution of Art Finance

    How does an art collection turn into wealth? Companies like Athena Art Finance Corp. and Art Money are making it easier to cash in on this billion-dollar industry.The post Inside the Evolution of Art Finance appeared first on Artrepreneur. […]

  • What Every Artist Should Know About Shipping and Insuring Artwork

    Shipping and insuring artwork is a necessary step if you're transporting your work to exhibition spaces or collector's homes. Here's how to choose the best options for your needs.The post What Every Artist Should Know About Shipping and Insuring […]

  • The Essential Guide to Photographing Your Artwork

    For the working artist striving to make a sale or land that open call, being able to present your work in professional images is key. We offer an exhaustive guide to photographing your artwork.The post The Essential Guide to Photographing Your […]

  • Stefan Draschan’s Captivating Photography Series Border Obsession

    Photographer Stefan Draschan painstakingly observes everyday life. The photographer tells Artrepreneur that his newfound success as an emerging photographer was born from a desire to kick bad habits.The post Stefan Draschan’s Captivating […]

  • An Art Entrepreneur’s Guide to the Freelance Side Hustle

    Freelancing while working full-time is a great way to build your creative business. Artrepreneur breaks down the side hustle for the budding freelance creative business or art entrepreneur.The post An Art Entrepreneur’s Guide to the Freelance […]

  • How to Implement a Powerful Art Marketing Strategy

    How can artists implement an art marketing plan that’s both measurable and effective? Artrepreneur reviews some proven marketing strategies for artists.The post How to Implement a Powerful Art Marketing Strategy appeared first on Artrepreneur. […]

  • A Guide to Eliminating Artist Debt and Sticking to a Budget

    The average working artist faces student loans and other debt. We ask several financial experts how they coach artists through managing artist debt while budgeting for their creative business.The post A Guide to Eliminating Artist Debt and Sticking […]