Understanding Copyright Basics 

What is Copyright? 

Copyright is, literally, the right to make copies. But it is much more. Copyright grants creators certain exclusive rights to their original works. Those works can include music, audio-visual works, photography, fine art, literature, software, architecture, choreography, and more. In the U.S. and most jurisdictions, copyright protection is automatic upon the creation of an original work, as long as it is fixed in a tangible medium (like a painting affixed to canvas, a sculpture formed out of marble, or a digital file residing on your hard drive). But that protection is significantly limited without a copyright registration.   

What Does Copyright Protect? 

Copyright protects the expression of ideas, but not the ideas themselves. This means that while you may be inspired to paint the same landscape that hundreds of others have painted before you, your unique expression, style, and concept will be protected. For example, most Western movies have some of the same common ideas – people on horses in a dusty, dry land, good guys and bad guys, a disagreement at a saloon, a shootout, etc. While nobody can own the idea of a Western, each individual expression of that idea is a protectable creative work. Similarly, while Andy Warhol’s work may inspire you to create garishly colored silkscreens of consumer products, doing so is entirely legal unless you copy Warhol’s actual works of silkscreened soup cans, Coca-Cola bottles, and the like. You have simply expressed the same idea, but in your unique creative way, and you will be entitled to copyright protection.    

Copyright grants the creator of an original work a bundle of exclusive rights in that work, including the following: 

• Reproduction: The right to make copies of (reproduce) your work; 

• Distribution: The right to sell or distribute copies; 

• Public performance: The right to perform your work publicly (relevant particularly for music); 

• Public display: The right to display your work publicly (for example with fine art); and 

• Derivative works: The right to create adaptations of your work. 

Tips for Protecting Your Art 

1. Register Your Copyrights!

First and foremost, let us dispel a common myth: the so-called “Poor Man’s Copyright” – where you mail yourself a copy of your work to rely on the postage date stamp as proof that you created a work by a specific date.  In short, the Poor Man’s Copyright gets you none of the benefits of federal registration.   

Even though copyright protection is automatic once an original work is affixed to a tangible medium, registering your work with the U.S. Copyright Office provides significant additional benefits crucial to any artist, including: 

• Legal proof: Registration serves as legal evidence of your ownership; 

• Ability to sue, secure a damages award, and secure an award of your attorneys’ fees: With a registration, at the time of infringement, you can sue for statutory damages and secure an award of the attorneys’ fees incurred if you are forced to bring an infringement suit.   

• For many artists, if a third party infringes your work, it can be very difficult to prove your actual monetary damages resulting from that infringement. This is particularly the case for artists without a track record of selling and licensing their work. But with a registration in hand, at the time of an infringement, the copyright owner can dispense with the effort of proving actual damages and, instead, opt for statutory damages, which are increased if the judge finds that the infringement was willful.   

• Also, with registration, at the time of infringement, a copyright owner can seek and secure an award of the attorneys’ fees incurred in bringing the legal action.  That means that the infringer, in addition to paying his/her/their attorney, may have to pay the fees of your attorney as well.   

• Bottom line, infringement of a registered copyright exposes an infringer to the obligation of paying a significant monetary award in addition to the fees generated by all attorneys in the matter. This gives the registered copyright owner significant leverage, incentivizing early settlement of the claim.   
• Public record: Registration creates a public record of your copyright, deterring potential infringers.

2. Keep Detailed Records

Rather than rely on the “Poor Man’s Copyright,” maintain documentation of your work process as well as publication of your work.  Ideally, maintain the following: 

• Sketches and drafts: Save preliminary sketches, drafts, and notes. 

• Dates of creation: Keep track of when you created each original piece, and even portions thereof. 

• Exhibition and publication records: Document where and when each of your works is displayed or published. 

These records can help establish your ownership and the timeline of your creative process. 

3. Use Watermarks

Once your work is in digital format, it is easily moved around the world in seconds. If you share your work online, consider using watermarks. A watermark is a visible overlay identifying you as the author of that work. While a watermark will not prevent someone from using your work without your authorization, it makes it clear who the copyright owner is and, especially if the infringer tries to remove it, in the context of a copyright infringement suit it can significantly bolster your assertion that the infringement was willful, perhaps leading to a higher damages award. 

4. Generate Revenues from Licensing Your Work

If you wish to allow others to use your work, enter into a written license agreement specifying how your work may be used and how you will be compensated for allowing that use. Licenses can be exclusive (only party X can sell prints bearing an image of the work) or non-exclusive (grant the same right(s) to multiple parties). A license is a legal agreement that should clearly state the license granted, how long that license lasts, the reporting and accounting obligations of the licensee, and how the copyright owner will be compensated for providing that license, in addition to numerous other provisions. When a licensing opportunity arises, engage a copyright attorney to assist you in drafting that document.   

5. Understand Fair Use

Fair use is a legal doctrine that allows limited use of copyrighted material without the copyright owner’s permission under certain circumstances, typically for purposes of criticism, comment, news reporting, teaching, scholarship, or research. As an artist, be aware of how fair use might apply to your work and to the works of others, particularly if you engage in practices like remixing or sampling.   

6. Read Online Terms of Use

There are numerous online locations, including social media sites, that provide excellent platforms to showcase your work. But be very careful before posting your work. Check the platform’s Terms of Use because some platforms’ Terms provide that when you upload your work, you grant the platform a license to use it in various ways without your prior consent.  Consider whether you want to grant this license before posting and always include a copyright notice on your image. 

7. Know Your Rights When Selling

When you sell your art, clarify what rights you are transferring. The sale of an artwork does not automatically transfer copyright unless explicitly stated, in writing. For example, you may make 100 prints of your oil painting, but you are not selling or licensing your copyright in the original painting by selling these prints. Just because someone purchases a print doesn’t mean that they can make copies of the print to sell, distribute, etc. Always be clear in a sale whether the buyer receives only the physical artwork or if they also gain certain usage rights. 

8. Consult an Intellectual Property Attorney

If you’re unsure about any aspect of copyright, consider consulting with a copyright attorney. Every situation is unique, and an experienced intellectual property attorney can tailor your licenses and other agreements to your specific situation, help you with copyright registration, and guide you through potential legal issues. 

Conclusion 

A basic understanding of copyright is essential for working artists, enabling you to protect your creative work, assert your rights as a copyright owner, and generate revenues from your work. By understanding copyright basics and registering your work soon after creation, you can safeguard your art from infringement and put yourself in the best position possible should your work be infringed. As an artist, your creativity deserves protection. By implementing these tips, you can focus on what you do best – creating – while ensuring that your work is recognized, respected, and protected. 

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Authors Bio: 

Co-founders of intellectual property law firm Crown® LLP, Elizabeth J. Rest and Owen Seitel have a passion for Advising Creativity®. Elizabeth is a brand builder and portfolio protector, focused on trademarks and copyrights, and Owen has more than 30 years of experience with commercial endeavors, transactions, and disputes involving intellectual property and broader business matters. They can be reached at elizabeth@crownllp.com and owen@crownllp.com.   

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What is a Copyright?

In simple terms, copyright means “the right to copy.” A copyright holder has the exclusive right to reproduce an original creative work, which is usually a literary, artistic, musical, or educational work in physical form. The copyright holder may also authorize others to reproduce the work.

Examples of unique creative works that may be copyrighted include but are not limited to:

• Novels
• Poetry
• Short stories
• Screenplays and stage plays
• Set designs
• Costume designs
• Dance choreography
• Musical scores
• Musical lyrics
• Vocal works
• Instrumental works
• Software
• Web designs
• Graphic designs
• Art
• Clothing designs
• Architectural designs
• Textbooks and lesson plans

Copyright does not protect creative works that are not in physical or tangible form, such as ideas, discoveries, concepts, or theories. Creative works such as speeches, musical scores, and original ideas must be memorialized in a tangible medium of expression in order to be copyrighted. For example, original music must be written as a score or recorded. An idea for a sculpture must be sculpted. A poem must be written down.

What rights do I have if I am a copyright owner?

A copyright owner or holder has the exclusive right to:

• Reproduce the work
• Prepare derivative works based upon the work
• Distribute copies by sale or by rental, lease, or lending
• Perform the work publicly if it is a literary, musical, dramatic, or choreographic work, a pantomime, or a film
• Display the work publicly if it is a literary, musical, dramatic, or choreographic work, a pantomime, a pictorial, graphic, or sculptural work, and the individual images in a film
• Perform the work publicly by means of audio transmission if the work is a sound recording

These exclusive rights expire after 70 years after the copyright holder’s death in the U.S. Other countries differ. A work may be copyrighted whether it is published or unpublished.

How do I apply for a copyright?

Your work is copyrighted the moment you create it and fix it in a tangible medium of expression. Registering a copyright is voluntary, but if you must bring a lawsuit for copyright infringement, you must have a registered copyright. If you register your copyright within five years of the creation of the work, a court considers that prima facie evidence of ownership.

There are further benefits of registering your copyright. When you register it prior to any acts of infringement or within three months after its publication, you are eligible for statutory damages, attorneys’ fees, and court costs paid by an infringer should you have to sue. Also, you will be able to file your registered copyright with the U.S. Customs and Border Protection, who will help guard against imported infringing copies of your work.

Your copyright is registered as of the date the Copyright Office receives your application and a non-refundable filing fee.  

How can I monetize a copyrighted work?

Any or all of the copyright holder’s rights, or parts of those rights, can be transferred to someone else for a period of time or permanently. In the U.S., such a transfer must be made in writing and signed by the copyright holder or their agent. Transferring a right or rights on a nonexclusive basis does not require a written agreement.

A copyright holder can bequeath copyright in a will. If a copyright holder has no will, copyright can pass to an eligible party under the state’s intestate succession laws.

A transfer of copyright ownership by any means can be recorded with the Copyright Office through its Office of Public Records and Repositories, giving the new copyright owner some legal advantages if a dispute or unauthorized use occurs. 

What is a Trademark?

A trademark is a mark that protects words, phrases, symbols, or designs, or any combination of these, that identifies the source of the goods or services of the trademark holder and distinguishes the trademark holder’s goods and services from those of others.

A trademark is said to be an essential part of a company’s brand. When someone infringes upon your trademark by using it or something similar enough to cause customer confusion, this dilutes the power of your brand. It is important, therefore, to register your trademark to receive optimal protection under the law.

What rights do I have in my trademark?

Common law rights

If you do not register your trademark in your state or with the U.S. Patent and Trademark Office (USPTO), any protection for your trademark has flowed from your use of the trademark in your industry and geographic area.

State trademark registration

If you choose to register your trademark in your state, your trademark is protected in that state only. If you choose to do business across state lines, your trademark is not protected from infringement unless you register it in that state also or with the USPTO. 

Federal trademark registration

When you register your trademark with the USPTO, you have the exclusive right to use your trademark to identify your particular goods or services and to prevent competitors from using your trademark or something similar for the same goods and services anywhere in the nation.

You use the ® symbol to put competitors on notice that you have registered your trademark.

International trademark registration

There is no such thing as “worldwide trademark registration,” however, you can register your trademark in multiple countries through a treaty known as the Madrid Protocol. Completing a single application registers your trademark in all of the over 100 signatory countries. Bear in mind that registration is not automatically granted under the Madrid Protocol. Each member country’s trademark office will review your application and decide whether your trademark will be registered in that country.

How do I register a trademark?

You can apply online for trademark registration on the USPTO’s website. There you can determine whether anyone else is using your trademark or something similar and fill out your application for an examining attorney, who will review it and either approve or deny it.

If your trademark application is approved, keep in mind that you must continue to use your trademark in commerce, provide evidence to the USPTO that you are still using it, and file maintenance documents and fees at required intervals.

How can I monetize my trademark?

You can monetize your trademark by entering into a licensing agreement. The licensee will pay you as licensor for the use of your trademark under specified circumstances. Such an agreement should be in writing, signed by both parties, and registered with the USPTO. 

When drafting a licensing agreement, bear in mind that the law permits you to license your trademark only if you control the nature and quality of the goods and services bearing those marks. You should monitor the licensee’s use of your mark to protect your mark and the goodwill and customer recognition it represents.

As an artist, whether literary, visual or performing, you may need both copyright protection for your work as well as trademark protection for your mark in order to protect your brand. While applying for Intellectual Property (IP) protection can be done online, it is best to seek the help of an experienced IP attorney so that there is the greatest likelihood your work and your brand will be protected under the law.

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About the Author:

Veronica Baxter is a writer, blogger, and legal assistant living and working in the great city of Philadelphia. She frequently works with and writes on behalf of the busy NJ immigration lawyers in The Yao Law Group. 

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by Christine Schrum

In an ideal world, you’d spend all day in the studio and earn enough from your originals to pay the bills and have plenty left over for that Tuscan villa. But for many—OK, let’s be honest, most—artists, it just doesn’t pan out that way. These days, you have to be as good a marketer as you are an artist. That’s where art licensing comes in.

If you’re a purist, you might object to the notion of seeing your work reproduced in a print-on-demand basis, or on calendars, postcards, magnets and other items, but art licensing can open up a world of opportunities and revenue streams that help pay the bills—and bring you a great deal of exposure.

That said, artists should be cautious about some licensing hoops and pitfalls. Jay Landrum, an attorney with extensive experience representing artists, art publishers, licensors and licensees, discusses those traps with us.

Art Business News: Let’s talk about intellectual-property rights and copyrights. How much control do artists have over their own work?

Jay Landrum: By virtue of creating an original work, you automatically have a copyright. But it’s still a good idea to register the copyright with the U.S. Copyright Office, as that further establishes your rights. It’s a fairly simple thing, and, if you learn to do it yourself, your filings are not expensive at all.

ABN: How do trademarks differ from copyrights?

JL: With a trademark, you’re applying for the right to use a word or a set of words exclusively with a certain set of goods. For example, I couldn’t start a company tomorrow called Apple Computers, but I might be able start one called Apple Art Gallery.

I used to represent Thomas Kinkade, and he was widely known as “the Painter of Light.” This phrase is an example of a trademark’s use to brand an artist.

ABN: When we first talked, you mentioned that artists might also need to protect other kinds of rights, such as trade secrets or patents. Can you elaborate?

JL: In some cases, artists may have certain secrets or confidential things they want to protect. For example, let’s say you’re a sculptor, and you work with some sort of plastic- or rubber-type material, you’ve figured out a way of using it to create a unique product, and nobody else has figured it out. You might keep it a trade secret by limiting who knows about it, in which case, it’s yours as long as you keep it a secret and no one else independently figures it out. Or, you might decide to file a patent, where you reveal it to the world in exchange for a 20-year exclusive period of use.

Customer lists you have developed over time also have value and need to be protected. You can protect your secrets by having signed nondisclosure agreements before you reveal [those secrets].

ABN: Another topic you mentioned earlier is exclusivity. When and how should you give it to someone who wants to license your work?

JL: Whenever you go to license something with someone, they almost always want exclusive rights because they want to keep everybody else out there from competing. But, depending on who you’re licensing to, you may not want—or need— to give them exclusivity.

For example, say you’re going to license your artwork to a calendar company. You don’t want to give them exclusive rights to those images and not be able to license them on other products! But the calendar company might not want those images to appear anywhere else. So it’s always a balancing act. There are different ways you can handle this.

You might say, “I’m going to license you the right to put my artwork on calendars, and I’ll give you these 12 images. I promise not to give them to anyone else I do calendars with.” That’s image exclusivity. Or you can say, “I’m going to license you calendars, and I won’t license anyone else calendars, but that doesn’t mean I’m not going to license coffee mugs and magnets.” This is product exclusivity. The third way would be a distributionchannel deal. You’d say, “I’m going to license you to sell products in the Christian market but nowhere else.” Last, there is geographic exclusivity. You might say, “I’m going to license you the rights in the U.S., but I’m going to license this other guy in Mexico.” Many times, it’s a combination of several of these concepts. Basically, you’re trying to give licensees enough rights so it’s worth it to them to invest in the products without giving them more than they need and limiting your own opportunities. Keep in mind: An exclusive right to them means that you cannot give that right elsewhere, so be sure it’s worth it.

ABN: You really have to put your bargaining hat on!

JL: You really do. And part of how you ensure success is by setting up milestones. This [step] is critical, and it’s where a lot of artists fail. They fail to put provisions in their agreements that really hold the licensee’s feet to the fire.

For example, one thing you can do is say, “Look, if you think you’re going to make me $10,000 a year in royalties, let’s start with a $2,500 advance.” That way, the licensee has some pressure to perform at least well enough to make back their advance. The other thing to do is set some expectations, such as “If you don’t sell X amount or if I don’t get royalty payments of X per year, then I have the option to terminate the contract.” The other might be “If you don’t succeed, I have the option to move all of your exclusive categories into a nonexclusive arrangement.”

When you set milestones for the licensee, they know they have to commit and succeed, or they’re going to lose some or all of their rights.

ABN: I guess this segues into what you’ve described as “looking-over-their- shoulder rights,” right?

JL: Yes. Within licensing agreements, it’s important to be able to make sure licensees are holding up their end of the bargain. One of the ways you do that is by having a set of audit rights. For example, say you’ve gone into a deal with a licensee and you get a royalty check for a thousand dollars, but from what you can tell, they’re selling a lot more of the product out there! You want to be able to send an accountant into their company and audit their sales of your product to see how much is selling and ensure they’re sending you the proper amount of royalties.

ABN: So it’s about keeping people honest.

JL: Right. Lots of times, artists are not paid what they are due. Sometimes, it’s intentional; sometimes, it’s not. Often, just having that right to go in is all you need to keep the licensee honest.

Product-approval rights are another part of this. You want to have rights to approve the sample products your licensee is creating. You don’t want them to create products that don’t represent your artwork well. You want to see samples and make sure those meet your expectations. If you don’t reserve these rights, you have given away the control over how it looks, and you might not like the final product.

ABN: The last thing we were going to talk about was “sunset rights,” or post-termination rights. When a deal ends, what rights terminate immediately, and which continue?

JL: Whether it’s because a contract just ends, or because you terminate when it just isn’t going how you wanted, you need to focus on these rights before you sign the contract. You want to address these issues up front, like “How much notice do I have to give? Can they keep producing product afterwards? If the contract says I have to give thirty days notice, and within that last thirty days they go and print off another hundred thousand calendars, is that something I’m going to allow? When they sell it off, what are they allowed to do with it? Sell only within their existing channels, or through discount channels?”

When I negotiate licenses for artists, I don’t allow licensees to produce any more work once notice of termination is given. Then we give a limited number of days that they can sell things off. The other thing we always try to secure is the right to buy the inventory from them at a certain price, so we can keep it from being dumped onto the market at a discount.

ABN: Given all the hoops and pitfalls you’ve laid out, do you still recommend art licensing?

JL: Oh, absolutely! Some artists have a fundamental objection to it, and that’s fine, but I’ve seen artists have tremendous success through art licensing. You just need to be informed so you can protect your rights and proceed wisely.

Keep in mind that licensing can be a gateway that collectors take into higher-priced pieces. I can’t tell you how many times collectors have told me, “I started with a calendar, then I went to an open edition print, then a limited edition print, and so on.” If you don’t license, you don’t get that particular opportunity. It’s well worth pursuing.

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Six publishing and licensing companies united for the cause: U.S.-based Wild Apple and World Art Group; International Graphics and Kunstanstalten May AG of Germany; United Kingdom’s Rosenstiels; and Top Art in Italy.

“For any one of our small businesses, fighting copyright infringers on our own would be an overwhelming prospect,” said Lonnie Lemco of World Art Group. “Working together with other art publishers helps sustain our sense of mission, and it makes a much bigger impact on the companies stealing our artwork. It’s still difficult and expensive, but we are seeing some positive results.”

The coalition reported that many infringing companies were cooperative when asked to remove counterfeit artwork. Jinhan Fair organizers also assisted the coalition after receiving formal documentation of copyright ownership.

“The amount of paperwork we had to do to ‘prove’ legal copyright for some of our images was extremely time-consuming,” said Wild Apple owner John Chester. “But it was worth it to show an obstinate counterfeiter that we are serious about enforcing our copyrights.”

The Art Copyright Coalition will continue their work at the October fairs in China.

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