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Copyright Questions and Answers for Artists

by Sarah Feingold, Esq.

Disclaimer: The following information does not constitute legal advice. The reader assumes all responsibility for the use or misuse of the information. The author shall not be held liable for any losses or damages arising from the use of any of this information. Due to possible amendments to the copyright law, the information presented here may change with time. The author reserves the right to make changes and assumes no responsibility on behalf of the reader. Consult a licensed attorney in your area for specific advice.

Q: What does a copyright registration entitle me to?

A: Copyright registration provides the best evidence of a valid copyright, establishes a public record, and enables you to take legal action against copyright infringement. It does not provide absolute protection from infringement, nor does it guarantee fame and fortune.

Q: Copyright protection is automatic once a work is "fixed" (completed), so why register with the United States Copyright Office?

A: You receive a Certificate of Registration that establishes a public record that is the single best evidence of a valid copyright. It also allows you to take legal action against copyright infringement. If you register within three months of publication and before someone infringes on your work, you have a better chance of collecting certain damages and attorney's fees in court. If registration occurs within five years of publication, this is also considered excellent evidence in a court of law. Copyright registration is also beneficial for licensing purposes.

Q: What is a "poor man's copyright?"

A: A poor man's copyright is the practice of mailing a copy of your work to yourself and not opening the envelope when you receive it. There is no provision in the copyright law or the practices of the Copyright Office regarding any type of protection known as the "poor man's copyright." Many people believe that this is an affordable alternative to copyright registration, but it isn't. It can be easily faked and I have yet to hear of a "poor man's copyright" success story.

Q: How do I obtain an international copyright?

A: There is no such thing as an international copyright. However, due to certain agreements like the Berne Convention and the Universal Copyright Conversion, many, but not all, countries honor United States copyrights. For questions concerning a specific country, consult an expert in foreign copyright law.

Q: How do I know if a work by another party has copyright protection?

A: Copyright protection attaches automatically once a work is "fixed" (completed); no copyright markings or notices are necessary. Generally, if the work does not say otherwise or you are not sure of the age of a work, you're generally safe in assuming that it has copyright protection. You may choose to search the Copyright Office catalogs and records in many libraries to see whether a work is in fact copyrighted. Or you can do it in person at the Library of Congress, James Madison Memorial Building, 101 Independence Avenue SE, Washington, DC 20559-6000. The Copyright Office staff can also do a search for you for a fee. The Copyright Office does not offer search assistance over the Internet.

Q: What if I want to use someone else's work in my own?

A: Generally, if a work is copyrighted and not in the public domain, you should definitely ask permission before you using it. However, there are many defenses, like the fair use defense (borrowing only small portions of the work for purposes such as commentary, criticism, news reporting, or scholarly reports), that may help an artist. If you are not sure who owns the copyright, do some research (see Q/A above). Also look to see if the work is under a licensing contract. There are literally hundreds of companies that buy and sell art licenses.

Q: Will I have to pay to use someone else's work?

A: That depends. Some artists appreciate the publicity and freely grant you permission to use their work. Others might opt to charge you.

Q: What do I do if I think someone has infringed on my copyright?

A: As the holder of the copyright, it is your duty to police your work. If you find someone has violated one of your exclusive rights, you decide how to proceed. If you believe that your copyright has been infringed on, you anticipate a legal dispute, and you don't have a US copyright registration on the works, get one. A Certificate of Registration (or a rejection of an application for copyright) is a prerequisite for US authors, including artists, who want to sue for copyright infringement in federal district court.

Before taking legal action, you can explain the problem to the other party and ask them to enter into a licensing agreement. Or you could politely ask then to stop. You could also choose to ignore the issue all together. In any case, you may want to consult an attorney. You may be entitled to free legal advice from Volunteer Lawyers for the Arts.

Keep in mind that ideas are generally free to be copied, though the line that divides ideas from expression can be difficult to define. Copyright does not protect facts, processes, utilitarian aspects of a design or simple shapes. Also, copyright protection does not preclude another author from creating independently authored, yet identical, works.

Q: Can I use part of someone's work if I change the work?

A: In general, you may not use someone else's work without their consent no matter how much you change it. However, under the fair use defense, you may use small portions of a work for purposes such as commentary, criticism, news reporting, or scholarly reports. Under the "de minimis" doctrine (see Q/A below) an individual may use a portion of the work if the alleged copying is extremely trivial. Keep in mind that these defenses are usually very difficult to prove.

Q: Can I use a tiny bit of another person's copyrighted work?

A: According to the "de minimis" doctrine, an individual may use a portion of the work if the alleged copying is trivial. The test is whether an average audience (or jury) would recognize that part of the work as a qualitatively and quantitatively significant portion of the copyright holder's work as a whole. The less significant, the more likely the use will be allowed. There is no standardized test for determining a de minimis use.

Q: What if I want to make a collage?

A: Copyright laws apply to collages. The easiest way to avoid copyright issues is to only use materials you own (for example, your own drawings), copyright-free or public domain materials, works you have permission to use, or images licensed with a Creative Commons derivatives/commercial use license.

Q: If I put my work online, can someone steal it?

A: Posting your work online may make you feel like you're encouraging copying, but the benefits are that the resulting Internet traffic may be great for exposure or sales. Many people will of course see your work, and though you may feel like the exposure may lead to copying, you have to reconcile that with the upside potential. The alternative and only sure way to ensure no one will ever be influenced by your artwork or tempted to copy it is to either never create any artwork at all or if you do create, to never show it in public-- neither of which make a whole lot of sense.

For more information, visit Sarah Feingold's website Copyright for Artists.

(art by Cornelius Völker)