Art Law: What Artists Need To Know About Copyright

[originally posted on 4/17/2010 ]

Cara Dehnert Huffman, JD

Copyright law can be confusing, especially with the abundance of misinformation circulated. In a perfect world, artists, art dealers, art lovers, and everyone else in the art community would live in harmony and there would never be any conflicts.  Unfortunately disagreements do arise. Therefore, in the event of a copyright conflict, artists should be aware of what their rights are.  This series of articles will explain, generally, the basics of copyright law for artists.

First Things First: What is a copyright, what rights is an owner entitled to, and what are the benefits of registration?

What is a copyright? According to the United States Copyright Office, copyright is a “form of protection provided … to the authors [artists] of … literary, dramatic, musical, artistic, and certain other intellectual works”.  In other words, copyright is protection provided to the creators of intellectual (intangible) property, which includes art.

Think of owning a copyright like owning a car: they are both property. This analogy may not be popular among artists; however, it is an easy way to illustrate an important point. Similar to how a person cannot legally take a car for a drive without the owner’s permission, someone cannot use a copyrighted work for any reason without permission (there are a few exceptions, most notably Fair Use, which will be addressed in a subsequent article).  In both cases, using the property without permission is stealing. Although you cannot see or touch a copyright, that does not mean that the owner cannot sell, lease, lend, give away, or preclude others from using it just like a tangible piece of property.

That said, art is more diverse than other types of property.  Unlike a car, a work of art has two separate and divisible property rights: the actual work itself and the copyright therein.  An artist can sell, give away, or otherwise transfer the actual physical work of art, yet he/she still maintains ownership of the copyright, unless stated otherwise in writing.

It is also important to understand that not all creative works are eligible for copyright protection.  In order for an artist to be protected, the art must be an original work fixed in a tangible medium.  This means that the work, while not deemed novel or unique, must not be copied and must somehow be recorded.  A painting is recorded when the paints hits the canvas or other material; a photograph is recorded when it is either imprinted on film or created as a digital file.  Conversely, an impromptu speech is not eligible for copyright protection on its own, unless it is recorded by video camera, audio, etc.

If a work meets the above requirements, the copyright owner is entitled, for a limited time, to five exclusive rights: reproduction (copying), distribution (sharing), derivative works (creating new works from the original work), display, and performance. The copyright in the work immediately becomes the property of the artist who created it, and only the artist (or those deriving rights through the artist) can rightfully claim any of the above listed rights.

Although a copyright attaches immediately upon its creation, there are further steps that an artist should take in order to secure stronger protection.  The most notable of these is registering the work with the United States Copyright Office.  In the case that someone does infringe and the artist files a successful lawsuit against that person, timely registration gives the artist the potential to be awarded more money as well as the possibility of the court requiring the infringer to pay the artist’s attorney’s fees.  Lawsuits can be costly, so having the other side pay for the artist’s lawyer is a substantial benefit combined with whatever award he/she receives.

What qualifies as “timely registration” varies depending on the work, namely whether or not the work has been offered for sale or other transfer; therefore, the safest option is to register a work immediately upon its completion.

Registration of a copyright is a relatively simple process.  Most works can be registered online.  The artist should go to the United States Copyright Office’s website, found at: www.copyright.gov and follow the instructions for his/her type of work.  Online registration usually costs $35 per work, however, some types of work (i.e. photographs) are eligible to be registered as a compilation for one fee, so long as they were all created by the same person and in the same year.  Some types of work must be registered by mail, and in those instances, the fee is slightly higher.

Coming up: Copyright Duration

For more general information regarding anything presented in this article, visit the applicable Circulars presented by the United States Copyright Office, found at http://www.copyright.gov/circs/.

Disclaimer: This article is meant for general, informational purposes only and should not be used in lieu of professional legal advice for individual circumstances.  Every situation is unique.  If you need legal advice, please consult an attorney.  This article in no way establishes an attorney/client relationship between its author and reader.