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As an artist, it is essential for you to understand your rights in your creations, and what to do if you believe those rights have been violated. Whether or not art is your livelihood, you should take the steps necessary to ensure your ownership of your work.
Volunteer Lawyers for the Arts (“VLA”) is a 501(c)(3) not-for-profit legal services organization, based in New York City. VLA aims to alleviate the financial burdens that New York’s artists encounter in accessing legal resources by providing resources for legal advice and assistance, referrals to attorneys who work pro bono for qualifying artists, and educational programs on legal topics.
In this guide, we will discuss the basics of copyright law, what it does and does not cover, and steps you can take to help prevent copyright infringement of your work. Since intellectual property is a complex and ever-evolving area of law, it is important to consult an attorney if you have a specific legal issue related to your art. Please note that the information in this guide should be used for educational purposes only, and should not be construed as, or serve as a substitute for, legal advice.
— Laura Levin-Dando, Staff Attorney at Volunteer Lawyers for the Arts
Copyright is a type of intellectual property that protects original works expressed (the legal term is “fixed”) in a tangible form. This includes a broad range of creative works, such as photographs, visual art, audio recordings, sheet music, novels, and screenplays. If you expended creative effort to make something, you created it independently without copying someone else’s work, and it is embodied in a physical format, it is probably already subject to copyright protection without you needing to take any other steps. However, you should read on to learn the benefits of formally registering your copyright.
Copyright does not extend to every single instance of creativity, however—most notably, copyright does not extend to intangible ideas (i.e. ideas that exist only in your head, and not in a tangible form), no matter how original they might be. You also won’t receive copyright protection for facts or instructions, even if you dedicated substantial resources to discovering those facts or perfecting the instructions. Additionally, themes and devices that are stereotypical to a genre cannot receive copyright protection. These devices, called “scènes à faire,” are essential elements in a type of work, so giving one artist a monopoly over one of these devices would unfairly censor others’ expression in the same genre. Common examples of scènes à faire in plot-driven works like books and films include the boy-meets-girl narrative in the romantic comedy genre, or the use of spy gadgets in a spy novel.
Because of the intricacies of copyright law, even the deceptively simple question of whether a work is protected by copyright in the first place can be complicated. It is always important to speak with an attorney✳ (more on this at the bottom of this guide) if you believe your work has been infringed upon.
Now, let’s say you designed an original print. As the print’s creator, you have certain exclusive rights, which include, but are not necessarily limited to, the rights to reproduce, distribute, display, sell, and create derivative works of the original. Derivative works are not exact copies, but are creations based on an already-existing work—for example, translations, adaptations, or reproductions of the image in a different format.
But how do you actually obtain these rights in the print you designed? Under the most recent version of the U.S. Copyright Act (which went into effect in 1978), copyright automatically attaches once a work is fixed in a tangible medium of expression. Therefore, once you clicked “save” in Adobe Illustrator, or put your pen down after hours at the drafting table, you are officially a copyright owner. If you want, you can place a “copyright notice” on your work (such as, for this article, © 2018 Volunteer Lawyers for the Arts), but you don’t need to do this to retain your copyrights.
The benefits of registering your copyright
While copyright protection exists the moment you create the work, it is a good idea to register your copyright with the U.S. Copyright Office, which you can do with a few clicks and payment of a fee of approximately $35-$55 at www.copyright.gov. If you plan to license, share, or otherwise publicize a work, it’s especially important to register your copyrights. Artists who create a high volume of works may find it cost-prohibitive to register every single work, and there are some ways to avoid excessive or unnecessary cost in registering copyrights. First of all, you can prioritize works that are higher value to you or have a higher chance of being ripped off by others. Also, it might be possible for you to register certain works in batches, and thus pay only one fee for the registration of multiple works. There are some limitations to that option, so it’s best to research or consult with an attorney to decide the best option for you.
Registering soon after you create a work grants a whole host of benefits, including a public record of your copyright and the ability to file a lawsuit for infringement. As an added bonus, if you registered your work within three months of publishing or distributing it to the public, or before any infringement takes place, you can recover “statutory damages” if your work is infringed. Statutory damages can amount to anywhere from $750 to $150,000 per work, depending on the facts of the case. If you don’t manage to register your copyright before an infringement takes place, all is not lost; you just likely won’t be able to claim statutory damages. But before you think about diving into a lawsuit, let’s take a step back and discuss infringement generally.
Infringement can take several forms, including unauthorized reproductions, copying in the form of a derivative work, or offering a work for download without the owner’s permission. This is the moment every artist dreads: seeing your original design (or something that looks just like it) pop up on t-shirts, or appear on a chain restaurant’s seasonal marketing campaign.
To establish a case for copyright infringement, you must be able to show that (1) the infringer had access to your work (i.e. the infringer had a direct way of seeing your work in the wild), (2) the infringer actually copied your work (vs. coincidentally making something that resembles your work), and (3) that the copy is “substantially similar” to yours. Since every infringement case is very fact-specific, you might want to discuss the issue with an attorney before you take any action on your own. An attorney will probably ask you to provide your copyright registration certificate (if you have one), proof that the infringer had access to your work, and an explanation of the creative elements that are similar between your work and the claimed infringement.
Remember, there might be elements of your work that are not protected by copyright, such as scènes à faire or facts, so a work that seems very similar to your own may not actually be infringing. Also, if there is no evidence that the other party ever saw or had access to your work, you may have a difficult case for copyright infringement. If they independently created a work that just happens to be similar to yours, they probably have just as strong a right to their work as you do to yours.
An attorney may also ask you for documentation as to how this infringement has affected your own income. Recall our discussion on statutory damages; if you register your work within three months of its publication (that is, three months before selling or distributing it, such as by posting it on your website or social media account) or before the infringement takes place, you can automatically receive statutory damages if a court finds in your favor. If you did not register your copyright within the prescribed time frame, you are no longer eligible for statutory damages, but you can still potentially recover “actual damages” by proving lost income as a result of the infringer’s actions. This can be a complicated process, especially for new artists who haven’t sold very much work yet, but you can work with an attorney to fully understand your options. (Again, every copyright infringement should be looked at on a case-by-case basis, so an attorney will need relevant information to assess the merits of your case and help to calculate damages.)
While a lawsuit might seem like an effective way to assert your rights, it is an expensive and time-consuming process. Between initiating the lawsuit, serving the defendant, conducting discovery, and potentially hiring expert witnesses, a lawsuit can cost you thousands of dollars, and that’s before you pay attorney’s fees.
If you do file a lawsuit, it is essential to work with an attorney who specializes in intellectual property law. Depending on where you are located, specialized attorneys may charge anywhere from the low to high hundreds of dollars per hour, and while a court may order the other side to pay your attorney’s fees if you win (and that’s a big “if”), you will likely need to invest money upfront. In addition to the financial investment associated with a lawsuit, it’s also a time-consuming and emotionally draining endeavor; you might see yourself rehashing this dispute in court for years. While litigation is an effective tool and important for people to have their disputes heard, you should also know that about 97% of cases are settled or dismissed before they even reach a courtroom.
Before you file a lawsuit, there are other tactics you can try, which can be far more effective and efficient than litigation. First, you can contact the infringer directly to inform them that their conduct infringes upon your copyright, and to ask them to stop (known as a “cease and desist letter”). There’s a very solid chance that the infringer may not even know that they were doing anything wrong, and they will take action to correct the mistake. In this case, you won’t need to resort to sending a scary letter from an attorney. You may also be able to directly negotiate a licensing agreement, turning infringement into a business opportunity. However, if the infringer refuses to cooperate, have an attorney send a letter on your behalf. If the infringer sees that you hired a professional, they may take the issue more seriously. An attorney who specializes in intellectual property law can also more easily navigate the conversation with the infringer and hopefully get the issue resolved more smoothly than if you were to try to do it on your own.
If your design or artistic property was posted on a website, you can contact the internet service provider (ISP) hosting the infringing content and have them take it down. This applies to sites that host third-party content, such as YouTube and Facebook. Under the law, these sites must have takedown procedures in place for copyright holders to have their work removed, if it was posted without the owner’s permission. A simple online search should provide you with clear instructions for how to submit a takedown request on any online service or site.
In an ideal world, everyone would respect each other’s intellectual property rights as much as we respect rights to personal property. Although having your car stolen is probably not something you worry about every day, it’s an unfortunate reality that for many artists, particularly those who share their work online, unscrupulous individuals will copy or share work without permission. So while you can’t necessarily prevent such behavior with 100% certainty, there are some risk-mitigating measures you can take.
First of all, if you share your work online, you can upload lower-quality images, watermark the image, or, on some websites, disable the right-click function that allows users to copy or save an image from a website (or a combination of the three). You can also affix a copyright notice to your image, which can serve double duty of notifying users of the owner of the work, and watermarking the image. And, when possible, you can include your contact information near or on the image, to make it simpler for individuals to contact you for permission to use your work. This can limit the possibility of people using your work without permission, using the excuse that they didn’t know how to seek permission.
Furthermore, contracts are an excellent tool for ensuring ownership in your creative work, especially if you are working with an employer, hiring employees, collaborating with friends, or licensing your content to third parties. Many cases of copyright infringement are a result of miscommunication, and having clear paperwork in place can help preemptively resolve any misunderstanding as to copyright ownership. If you employ an intern to help you with your design work, or license your work to a magazine, make sure you have a contract in place that identifies who owns the rights to any work being produced.
No artist wants to find a reproduction of their work on somebody else’s website, or for sale on a t-shirt on some company’s ecommerce page. By understanding your inherent copyrights, registering any widely distributed works within three months of publishing them, and knowing how to respond to copyright infringement, you’ll be taking steps to ensure the integrity and security of your creative work. And, if you ever need help sussing out the particulars of an infringement situation, you can always contact Volunteer Lawyers for the Arts, which offers legal consultations and referrals at low cost to qualifying artists. To learn more about VLA and the services we offer, visit www.vlany.org.
✳ A note on finding an attorney to speak with: you can always get in touch with VLA or other similar non-profit legal-services organizations for help with this. Asking your network for attorney recommendations can also be a good way to generate a lead, as can searching for local attorneys online through reputable resources like the American Bar Association. You should focus your research on small boutique law firms or solo practitioners to see who might be the right fit for you. Larger law firms generally only work with clients who are referred to them, but smaller firms and solo practitioners tend to be more flexible in the way they bring on new clients. Really, finding an appropriate/good attorney is just like finding a specialist in any area, whether it be an accountant, doctor, mechanic, or plumber. And, similar to other specialized professionals, attorneys’ fees can vary greatly. For general legal advice and assistance, some may charge an hourly fee (which can range from the very affordable to the VERY NOT affordable), some may charge a flat rate, and some may do a first free consultation. When you call an attorney, ask for their rate upfront, and don’t be afraid to ask them if they ever offer a reduced rate for independent artists—many smaller law firms or solo practitioners will.
Laura Levin-Dando is the Staff Attorney at Volunteer Lawyers for the Arts (VLA), where she advises artists on a range of issues including disputes, contracts, intellectual property matters, and corporate and not-for-profit formation and governance. Laura also teaches and facilitates VLA’s educational programs. Laura received her J.D. from George Washington University Law School, and she graduated summa cum laude from Yeshiva University, where she studied history and music. As a lover of all things creative and a lifelong musical theatre nerd, Laura feels very fortunate to be able to help artists from all disciplines through her work at VLA.