The Artist’s Guide to Copyright Law
There’s likely nothing more disappointing to an artist than surfing the internet or walking down the street and seeing reproductions of paintings, drawings or photographs they put their creativity, time and energy into being displayed or even sold without their permission. If you’ve found yourself in this situation, one of your first thoughts is likely what your legal options are and how you take advantage of them. The answers come from federal copyright law, which provides robust protections for artists in order to promote creative expression.
In most cases, as soon as you put pen or paint to paper, or, in the case of a photographer, from the time you take your photograph, you possess the copyright to your work. The law specifically provides that as soon as a work of original art is created in a fixed, tangible medium, your work is protected and you possess the rights provided by federal copyright law which include the right to reproduce the copyrighted work, the right to prepare derivative works based upon the original, the right to distribute copies to the public and the right to display the work publicly. One exception to this general rule of copyright ownership is that if you have been hired to create a work, by default the copyright owner is the individual or entity that hired you, unless you have contractually agreed otherwise.
While the common misconception that you need to register a copyright with the federal government to have any protection is false, there are many reasons why you should register your work with the United States Copyright Office. Registration puts potential infringers on notice that you have created the work and ensures there is a public record of when the work was actually created. Prior notice from registration increases the damages you may be able to collect for infringement and avoids unnecessary disputes about whether you created the work before the infringer and whether the work is still covered by copyright due to the duration limits. Currently, for work created on or after January 1, 1978, copyright protection lasts for the duration of your life plus 70 additional years. In the case of a work made for hire, the duration of protection differs, and a work may be protected for up to 120 years after its creation.
It is important to remember that copyright law does not grant you exclusive rights to use your original work. If you sell the original or copies of the work, you no longer have ownership rights in the sold work. For the most part, the owner can do what they please with the artwork you created as long as they are not violating the specific protections provided by your copyright. There are also exceptions to copyright protections that fall under what is known as “fair use.”
An individual or entity may be able to use your copyrighted work to engage in criticism, news reporting, teaching, scholarship and research. If these uses sound broad and undefined, that is because they are. There is no formula for what constitutes a “fair use” of a copyrighted work, but rather a list of factors that need to be considered in a copyright infringement case. Some of these factors include whether the use was for commercial or non-profit educational purposes, how much of the original work was used, and the effect that the use has on the potential market for or value of the copyrighted work. At its core fair use is meant to ensure that copyright protection cannot be wielded like a sword to stifle new and original expression or claim any ownership rights over ideas. Since there is no formula, a skilled lawyer will use the wealth of case law available to convince an infringer, or if necessary a court, that the use of your work does not fall within fair use.
Whether creating art is your professional occupation or simply a hobby, copyright law protects your artwork and ensures that your heirs and descendants are able to profit off any market for your artwork for many years after you pass.
Michael Pegues, Vice-Chair of Polsinelli PC’s Intellectual Property Litigation practice, draws upon over 25 years of intellectual property experience to advocate, counsel and advise his clients.
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