Intellectual Property Law

Legal Guide for Artists: Understanding Copyright

Whether you are an artist creating work for yourself or another entity, it’s important to know the basics of copyright protections and how they will impact you as an artist.

Copyright refers to a type of protection offered to individuals who create “original works of authorship”. Copyright is protected by the U.S. Law under Title 17 of the U.S. Code and the protections cover a wide variety of tangible works. The Copyright Act of 1976 offers the basics to which creative works are and aren’t protected. Additionally, the act goes into detail regarding certain rules that must be followed in unique circumstances, for example, instances of “work for hire” agreements. Whether you are an artist creating work for yourself or another entity, it’s important to know the basics of copyright protections and how they will impact you as an artist. Let’s get into the nitty gritty about what you need to know in this legal guide for artists. 

What Can and Cannot Be Copyrighted?

Anything that is created in a tangible, fixed form (fixed meaning it’s printed, painted, or created in another medium and cannot be changed), is subject to copyright. Copyright can sometimes be mixed up with the term trademark but the two are distinctly separate from one another. For example, if you have an idea about a piece of artwork you want to create, or an idea about an artist name or artist brand you want to create but it is not in a fixed tangible form, it is not copyright protected. However, it could be trademarked. Trademark protection is offered to ideas, logos, symbols, designs, and other artistic creations that follow trademark guidelines or have a patent in place. Let’s take a closer look at what is and is not protected under copyright. 

What Is Protected by Copyright?

When you create a piece of artwork like a painting, drawing, or a digital image, that artwork is automatically protected by copyright because it’s in what’s considered a “fixed” form. U.S. copyright laws protect a variety of fixed works. While your artwork doesn’t necessarily have to include the copyright symbol on it, there are plenty of organizations and authors who will include a copyright sign on their work to remind the public that the work is copyright protected and cannot be redistributed for personal and financial gain. If your artwork is fixed in a digital form, like a graphic logo or graphic symbol, you may want to consider including the copyright symbol somewhere on the artwork. This gives your work added protection because it deters others from easily taking your digital work and violating your copyrights. Digital artwork is one of the most commonly copyrighted types of art because of how easy it is to infringe on another’s copyrights. For example, if you are a graphic designer, your digital design can easily be used on someone’s website, blog post, or social media without your knowledge or consent. By having the copyright symbol on your work, it reminds the public that your work should not be used without your permission. According to the U.S. copyright law, the following types of works are protected by copyright:

  • Literary works
  • Musical works, including any accompanying words
  • Dramatic works, including any accompanying music
  • Pantomimes and choreographic work
  • Pictorial, graphic, and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings, which are works that result from the fixation of a series of musical, spoken, or other sounds
  • Architectural works 

What Is Not Protected by Copyright?

If your artwork is still in its developmental stage, it is not yet protected by copyright. This is because copyright does not protect your work until it is in its fixed final form. Anything that is in its early development stage and is not in a tangible form is not considered to be protected by copyright. U.S. copyright law has guidelines on works that are not protected and they include the following: 

  • Ideas, procedures, methods, systems, processes, concepts, principles, or discoveries
  • Works that are not fixed in a tangible form (such as a choreographic work that has not been notated or recorded or an improvisational speech that has not been written down)
  • Titles, names, short phrases, and slogans
  • Familiar symbols or designs 
  • Mere variations of typographic ornamentation, lettering, or coloring
  • Mere listings of ingredients or contents

How To Navigate Trademarks As An Artist

Intellectual property is a broad term used to describe what someone creates (whether it is an idea or a tangible invention) and it gives ownership to the person who created the work. As an artist, U.S. law allows you to protect your intellectual property through things like patents, trademarks, and copyright. A patent protects your work or idea from being used by another while a trademark allows you to have control over how recognizable names and symbols attached to your brand or work are used by others. 

Unlight copyright protections which automatically are granted once an artist creates a work, a trademark is a type of protection over your work that is only available once you register your work for a trademark certificate (this is different from a copyright registration). When you hold a trademark certificate, you can keep an individual or entity from using your trademarked symbol, design, logo, or slogan. 

Once you have a trademark certificate, this is your best legal defense in proving you have intellectual property rights over an artistic symbol, design, logo, or slogan. As an artist, you can use another person’s registered trademark in works that you design. However, your use of another’s trademark needs to be done in a way that changes the trademark through your creative design process and it should not be meant to disparage the trademark or its owner. 

How to Navigate Fair Use as an Artist?

In its simplest form, fair use paves the way for freedom of expression by allowing an individual to artistically rework another’s work. Aside from the world of art, the practice also allows an individual to use a work for teaching purposes, research, and news reporting. If you or another artist wants to claim fair use over another’s copyrighted artwork, then your use must be done in a limited capacity and for a “transformative” purpose, meaning you are changing the original work and not just copying it directly. Section 107 of the Copyright Act provides the basis of fair use and highlights four factors that should be considered when determining whether or not fair use is actually in play. These factors include the following: 

  • The purpose and character of the use: Creating artwork that uses another’s artwork for educational purposes or for non-profit use is generally considered fair use. But if you are using someone else’s artwork for monetary gain, you are violating fair use. 
  • Nature of the copyrighted work: This standard of measure looks at how the work benefits the greater good in terms of factuality and falsehoods. If your artwork creates a misleading narrative or paints the artist in a false manner, there is less leeway. 
  • The amount and substance of the portion taken: The general rule with this factor is the less you take, the more leeway you have with fair use. However, if you take what is considered the “heart” of the work, you may not be protected by fair use. 
  • The effect of the use on the potential market: This factor takes a look at whether or not your use of a copyrighted artwork will take away or deprive the original owner’s of opportunities. Typically, depriving an owner of monetary gain is a surefire way to void fair use and be tangled in a lawsuit. 

If you will be using someone else’s creation for your own creative work, then you need to make sure that you are doing so in a manner that provides commentary, criticism, or parody. It’s also important that if you are reimagining someone else’s artwork and creating your own, that you do not use the “heart” of that person’s artwork. For example, the swirls in Van Gogh’s Starry Night would be considered the “heart” of that painting, and recreating your own work that directly copies without interpretation that aspect of the painting would be a violation of fair use. 

Who Can Claim An Artwork’s Copyright? 

Typically, the copyright for any creation generally belongs to the artist or the artists who created the work. If two artists worked together to create a single piece of work in a merged form, then both those authors would be able to claim copyright over that work. However, if multiple artists work on something in a collaborative way such as different illustrations in a book, then those artists would claim copyright on the aspects of the work that they created individually.

Who Claims Artwork in “Work for Hire” Situations?

Another interesting dynamic of copyright is the concept known as “work for hire”. Work for hire is a term used to describe the exception to the copyright rule of artists being able to claim ownership of their own artwork. If an entity hires an artist to create a specific work for them such as a painting, or a graphic design, then that entity that hires the artist is allowed to claim copyright because they are paying the artist to commission that work. The author in a work for hire situation would not be able to claim copyright over their work. Typically, a contract or agreement is signed in a work for hire situation. Not having one in place opens the door wide open for legal complaints. 

In a more general sense, the work for hire rule also applies to employees who create work as part of their regular job duties. However, work for hire is generally applied when an organization or an agency seeks out an individual to create a specific piece of work for them. Some materials that are typically generated for work for hire end fall under this will include the following:

  • Supplementary work
  • An instructional text or manual 
  • A test and answers that go along with it
  • Contributions to a motion picture or sound work. 
  • An atlas
  • A translation or transcribed work
  • A contribution to a collective work

How Do I Get a Copyright for My Artwork?

Although copyright protections go into place automatically once your work is “fixed” you may want to go a step further and get a copyright registration for your work. Registering your copyright gives you the proper ammunition to proceed legally if your work is ever used in a manner that violates its copyright protections. In order to take legal action against someone or an entity for violating your copyright protections, your copyright needs to be registered. 

Registering your copyright will also increase the value of the copyrighted work. It does so in the following manner: 

  • It creates a public record that shows you are the owner of the copyright.
  • It establishes prima facie evidence that your copyright is valid according to the identity of the owner and other facts listed in the registration certificate. 
  • You cannot file a lawsuit against an entity for infringement unless you have your copyright registered.
  • You can seek statutory damages as well as attorney’s fees. Statutory damages are applied to infringements that have registrations in place before the infringement occurred or if the work was published within the last three months. 
  • Copyright registration allows you to participate in a U.S. Customs and Borders Protection Program that allows Border Patrol agents to capture any goods that violate your copyrights.

In order to register your work, you will need to visit the Copyright Office and fill out the proper applications. A standard application is used to register one copyright, but there are different processes to register multiple works. 

When you are registering your work, you will be asked to provide a copy of the work. This copy is not returned to you. When registering, there is also a copyright fee, this fee is dependent on the method you apply for your copyright as well as the type of copyright you are registering. 

What Do I Do If Someone Illegally Uses My Work?

There are a couple of options you may go with if you realize someone is illegally using your work. The first option is to reach out to the person or entity and tell them that they are violating your copyrights. This is often done formally through a cease and desist letter. If the illegal activity stops, no further action is needed. Typically, many people, especially individuals, do not have a solid understanding of copyright law and will often break copyright without realizing it. 

Somebody Infringed On My Copyright, What Can I Do?

If you feel that the first method is not the appropriate response for your situation, or you have tried it, but the illegal use of your copyright continues, you can take it a step further by taking legal action. 

The Copyright Office can give you guidance as far as what is on record for your copyright, but they serve as a record of office and not as an outlet to file complaints or grievances. If you feel that there has been a criminal infringement of your copyrights, then you may be able to seek assistance by contacting the Intellectual Property Program of the Financial Institution Fraud Unit for the Federal Bureau of Investigation. When it comes to copyright infringements, the FBI typically deals with cyber infringements related to violations of digital and electronic works as well as intellectual property crimes. 

If you are seeking to file a complaint of criminal infringement of your copyrights you may proceed one of two ways: 

According to Section 501 of the copyright law, “anyone who violates any of the exclusive rights of the copyright owner is an infringer of the copyright or right of the author.” In all cases, seeking legal recourse can only be done with registered copyrights. If your copyright is not registered, you can do so immediately. 

What Is and Isn’t Considered Copyright Infringement?

Copyright infringement is dependent on a couple of factors, but there are typically two violations. They include direct and indirect copyright infringement. 

Direct infringement is when a person or an entity uses your work without your permission. This may happen when a substantial amount of work is used and there is a violation of fair use. Direct infringement also happens when an individual or entity gives another individual or entity the ability to infringe on your copyrights. 

Indirect infringement happens when an individual or entity deals with works that have already infringed on the creator’s copyright. An example would be an individual or entity sharing or selling an article that has already violated copyright laws. 

In addition to direct and indirect infringement, not giving proper credit or not following fair use practices can constitute copyright infringement. 

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