Most artists understand that copyright law is the foundation of their business – without the protection that copyright law gives us, it would be (even more) difficult to monetize creative work and make a living. Because of that, there is no shortage of advice on copyright issues targeted at artists, and sometimes it can become a little overwhelming to keep it all straight.
Fortunately, you don’t have to know it all – that’s what lawyers are for – but you should have a working knowledge of the basics. What follows are ten sound copyright-related practices that every artist should know. If you remember nothing else about copyright . . . remember these.
1. Understand the Scope of Protection.
Copyright protects original works of authorship fixed in a tangible medium of expression. In photography, that often gets translated to mean that you own a copyright in an image (an original work of authorship) as soon as you press the shutter (fixing it in a tangible medium of expression). While that’s generally true, copyright still requires a modicum of creativity, so images that are produced purely by mechanical means or that don’t have much creative input are afforded less protection. Similarly, if someone frames and establishes the technical parameters (e.g., aperture, focal length, shutter speed) for a particular shot, but enlists the assistance of another person to literally press the shutter, then the copyright would very likely vest in the person who set up the shot because it was he or she that had the creative control that was merely executed by the assistant.
Copyright does not cover ideas, short phrases, titles, slogans, and the like, and it doesn’t extend to the physical manifestation of copyrighted works. For example, while copyright law makes it unlawful to make a copy of a book and give it to a friend, it can’t stop me from giving the book itself to my friend (or loaning, renting, selling, etc.), even though the book contains a copyrighted work.
2. Include a Copyright Notice on Your Work.
Although a copyright notice isn’t required to receive copyright protection anymore, including one can make it more difficult for an infringer to claim his or her copying was “innocent.” While being an “innocent infringer” does not absolve the defendant of liability, it can reduce the damages award such that it may not be worth bringing an enforcement action in the first place. As Steve Schlackman noted in an earlier Art Law Journal article about the use of a copyright notice, the notice is also important because, under the Digital Millennium Copyright Act (the DMCA), it’s unlawful to remove copyright management information, including a copyright notice. If the notice is removed in the course of an infringement, you could bring not only an infringement claim but also a DMCA claim, which carries with it the possibility of damages above and beyond those available for the infringement.
The proper form of the copyright notice is the circle-C copyright symbol (©), the year of first publication, and the name of the copyright owner. Strictly speaking, because copyright notice isn’t required for copyright protection anymore, the precise form isn’t as important as it used to be. Still, there is a strong likelihood that a defendant’s lawyer would argue that notice not following the form prescribed in the statute, 17 U.S.C. § 401, is ineffective for purposes of removing the innocent infringer defense.
3. Register Your Copyrights
You aren’t required to register your work with the Copyright Office to have copyright protection it is required to sue for copyright infringement (for U.S. works) and timely registration – that is, registration made either before an infringement or within three months of publication – is required to be eligible for statutory damages and attorney’s fees. Being eligible for statutory damages means you can recover monetary damages from an infringer (up to $150,000 per work infringed) without having to prove how much you lost or how much the infringer gained as a result of the infringement. Being eligible for attorney’s fees allows the court discretion to order the infringer to pay for your lawyer (assuming, of course, that you prevail). Many lawyers won’t touch infringement cases unless the work at issue is registered because the actual value of one infringement is typically so low that it cannot justify the cost of bringing suit.
4. Understand Your Copyright Registration Options.
You don’t necessarily have to register each work separately. At $55 per application, registering every single work individually would be cost-prohibitive for most artists (especially photographers). Fortunately, the copyright office has established two batch registration options to help. For published images, you can file a group registration, and for unpublished images, you can file an unpublished collection While the two are very similar, there are some differences; namely, you are required to provide more information on an application for a group of published images because the law requires you provide the date of first publication for each item in the group.
As of this writing, the Copyright Office accepts electronic applications for unpublished collections but still requires paper applications for published groups (rumor has it the Office will be launching an electronic application for published groups very soon, so keep an eye on its website for the latest news).
5. Understand the Published versus Unpublished Distinction.
Deciding whether your work is published or unpublished (and figuring out the date of first publication) can be a pain, but the Copyright Act provides good reasons for the distinction. In a digital world, the idea of “publication” might seem a little arcane, but the difference is important for more than just determining which form to file with the Copyright Office. Whether a work is published or unpublished is a consideration in some fair use cases, and certain limitations on the copyright owner’s exclusive rights apply only to published works, for example, and for works made for hire, the length of copyright protection is determined by the publication date.
Although there are various views throughout the copyright community, one dominant school of thought, and the one I follow personally, is that if you post an image to the Internet and encourage or allow users to make copies of the image – either electronically or by purchasing prints or products bearing the image, or something like that – the image is published.
6. Keep Good Records.
Registering your work with the Copyright Office is an important step, but keeping records of your registrations is just as important. If your work is ever infringed upon, your lawyer will want to see the documentation that your work is properly registered. Keep copies of your registration certificates in a safe place, ideally both in hardcopy (as you’ll receive from the Copyright Office) and electronically. Also, keep a copy of whatever deposit materials you send to the Copyright Office along with your registration – if you send a zip file with a dozen images in it, then keep a copy of the archive file; if you send a PDF contact sheet, keep a copy of it. If you’re faced with bringing an infringement action, you’ll already be under a lot of stress, and hunting through boxes trying to find your certificates will only make things worse.
7. Beware the Terms of Service.
Perhaps nothing inspires fear, uncertainty, and doubt in the minds of photographers faster than the topic of website terms of service. A website’s “terms of service” is essentially the contract between the website and its users. Of most importance to photographers are the clauses that typically grant the website a very broad license to use the images that you upload to the site. While many view these clauses with great skepticism, perhaps concerned that Instagram or Facebook will suddenly become the next great microstock agency, the reality is that in most cases, the companies that include these broad so-called “rights grabs” in their terms simply because they need them to make their websites work. Most big commercial websites do not connect directly to their end-users. Instead, they channel the site’s content through various intermediaries such as content delivery networks. The broad license ensures they have the rights necessary to authorize the intermediaries to deliver the site as a whole, which includes the images uploaded by its users.
I can’t tell you what to think of each site’s terms of service, but you should educate yourself about the terms of the websites you use (or are thinking about using) and make a decision for yourself in light of your own business objectives. Also, be mindful of the fact that terms of service can change frequently, and often you’re deemed to have agreed to them by simply continuing to use a website after receiving notice of the change. One resource to help you keep up with it all is Terms of Service; Didn’t Read, a relatively new website that assesses the terms of service for a variety of the most popular photo-sharing services.
8. Know Your Enforcement Options.
The unfortunate reality is that copyright infringement is rampant on the Internet. The ease with which images can be freely downloaded, copied, and re-uploaded or used in new types of digital content, coupled with a general sense among many Internet users that if something appears online, it’s free for the taking, has led to a widespread infringement problem for photographers. It’s easy to want to sue everyone you see who’s using your image without permission, but another reality is that litigation tends to be very expensive and typically not economical. There are other ways of enforcing your rights, such as sending takedown notices under the DMCA, sending a cease and desist letter, or sending a settlement demand letter.
To help photographers navigate their enforcement options, a company called ImageRights has developed a web-based platform that crawls the web and identifies potentially unlicensed image uses. Upon the photographer’s request, ImageRights can help assess whether a particular use is worth targeting for enforcement action and, through its global network of attorneys, pursue the claim.
9. Know Where to Look.
There is a wealth of information about copyright law and registration practice available for free. The most authoritative source, but also perhaps the most complex, is the Copyright Act itself, contained in Title 17 of the U.S. Code, which is the foundation of U.S. copyright law. Also relevant, particularly for registration matters, are the Copyright Office regulations contained in Title 37 of the Code of Federal Regulations and the Compendium of Copyright Office Practices, Third Edition, which is almost certain to have the answer to your registration question somewhere in its 1,200+ pages.
To help distill a lot of the information in the law, the regs, and the Compendium, the Copyright Office has published dozens of informational circulars that answer specific questions about copyright generally and copyright registration specifically. You can also call the Copyright Office directly at 877-476-0778 or 202-707-3000, but be aware that while the Office can answer general questions, its staff cannot provide legal advice.
10. Be Heard.
The Copyright Office is the principal administrator of the Copyright Act, and its director, the Register of Copyrights, is the primary advisor to Congress on copyright-related issues. As such, she’s regularly interested in hearing from stakeholders – including artists – on how the system is working (or isn’t working), and often those views get presented to Congress in the form of recommendations for change to our copyright laws. The Office recently completed inquiries into mass digitization and orphan works and the need for a small claims court for copyright owners, for example. As of this writing, the Office has an open inquiry specifically on issues relating to visual artists.
Your voice as a creator is enormously important to the Copyright Office. Consider filing comments or passing along your views to your advocacy group of choice (e.g., ASMP, PPA, etc.) to make sure that their organizational comments best represent your interests. You can keep yourself up to date on new Copyright Office proceedings by signing up for NewsNet, the Office’s email newsletter, www.copyright.gov/newsnet.
You might also consider joining the Copyright Alliance as a grassroots member (it’s free). The Alliance, which is a group of like-minded creative professionals, and organizations who represent them, often sends its members alerts about ongoing copyright policy discussions and opportunities to be heard.