Jaburg Wilk


Protect Your Artwork

Categories: Intellectual Property, Article

protect artwork with a copyright

As an artist or a photographer, your most valuable assets are your creations. An artist's work can end up on someone else's product, marketing piece, or website, without the artist's permission and without the artist ever earning a royalty. The piece may even have been modified or there might be no credit disclosing who created it. Many artists and photographers feel there is not much they can do to stop that, or just do not know how to protect themselves. Did you know that $30 and a few minutes of your time could mean the difference between preventing your creation from being stolen or standing by helplessly? Or that you cannot file a lawsuit unless you register the copyright on your work? This pamphlet will arm you with the knowledge you need to protect your artwork or photographs, and put to rest some common myths.

First Line of Defense: Copyrights

Works of art are automatically protected by copyrights. Copyrights protect the expression of an idea. Ideas may be expressed in artistic forms such as photographs, songs, poems, sculptures and paintings. Copyrights give the author or artist the exclusive right to copy, distribute, publicly perform, and make derivative works from the protected work. When you sell a piece, you are selling the tangible parts of it, like the canvas and the frame, but you are retaining ownership of the image itself. The purchaser obtains an implied license to use the image for personal use. Your sale of a painting or a photograph does not give the purchaser the right to copy, distribute, publicly perform, and make derivative works of that image. That means that if a third party purchases your painting and, without your permission, hangs it in a gallery and charges an admission to view it, they have exceeded their licensing rights and violated your copyright. Likewise, derivative works are protected - an important concept for an artist to understand. It is not acceptable to recreate someone else's work by simply making some modifications. It is a common misconception that as long as you change a piece by a certain percentage, it is not an infringement. Actually, there is no such test. The question is whether the second creator simply used the idea or concept, or if he or she began with the original work and then made modifications to it. The latter is a derivative work.

Who Owns the Copyright in Comissioned Work?

Copyrights are owned by the creator of the work and not by the person who commissioned the work. Someone other than the artist can own a work only if it is under the statutory definition of a "work made for hire," or if the copyright is assigned in writing. If the artist is an employee who creates the work in the scope of his employment, the employer will own the piece. If the artist is not an employee, then the person who hires the artist will own the work only if the copyright is assigned to her in writing or if the work was "a work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." Photographs, paintings or sculptures that are not commissioned for use as a contribution to a collective work cannot be works made for hire but can still be assigned through a written assignment of the copyright.

Copyrights last for 70 years from the death of the author. If the work was a work made for hire, its term is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. Once the term expires, the work belongs to the public and can be used by anyone.

Protecting your Copyright

There are two important steps to protect your copyrights. The first is to simply sign your painting or add a copyright notice to it. A copyright notice should look like this: © 2004 Maria Crimi Speth. The year should be the year that the work was created. The name should be the legal name of the owner. This notice puts others on notice that the work is protected by copyright and is not in the public domain. The second way to protect your copyright is to register the copyright with the Library of Congress. The benefits of copyright registration are that (1) it can be used to prove ownership; (2) you cannot file your lawsuit until your copyright is registered; (3) if you register before an infringement, you can recover your attorney fees if you win a lawsuit; and (4) if you register before an infringement, you can recover up to $100,000 per violation without proving actual damages.

Not only is registration beneficial, it is not expensive or difficult. Log on to the Library of Congress website at www.loc.gov, click on US Copyright Office, click on Publications, and click on Forms. While you are in the Publications category, you might want to read more about copyright protection in the many publications available online and for downloading. Choose the form that applies to your type of work. For paintings, photographs, and sculptures, choose Form VA (with instructions). Follow the instructions to fill out the form. Send the completed signed form, two copies of your work (one if it has not been published) and $30 to the address in the right-hand corner of the form.

In approximately eight months, you will receive the copyright form back from the copyright office stamped as registered. An often-asked question is whether each piece must be separately registered. After all, $30 is not so inexpensive if you have hundreds of images. The copyright office does allow the combined registration of all photographs created in the same year as long as the date of publication of each photograph is identified either on the image or on a cross reference sheet. You can also register a collection of works, such as a book of photographs, a book of poems, or a book of sketches. You should be cautious since you can decrease your level of protection over individual pieces by including them in a collection. Your prize pieces should be separately registered and your collections should not be too large.

Even if you have limited time or financial resources, there are basic inexpensive steps that you can take to protect your creative works. If your work is infringed, consult an attorney to determine whether you can recover damages or stop the infringement. It may be an old cliché, but an ounce of prevention is worth a pound of cure!

Founded in 1984, Jaburg Wilk offers extensive experience, diversity in practice areas and the ability to think like a business owner. We are an Arizona mid-sized AV rated law firm, the highest rating that a law firm can receive. Our attorneys, paralegals, and other support staff meet our clients' diverse legal needs and provide exceptional service through our 21 Fundamentals which comprise The JW Way.