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Copyright Registration Law and Your Art

Pros and Cons of Registering Your Art

Pretty much all artists believe their art is automatically copyrighted the instant it's completed and protected from acts of infringement-- and they're right, it is. According to United States Copyright Law, and quoting from the copyright.gov website, your art is considered copyright protected from "the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device." Sounds like everything's peachy and you're covered, right? Not so fast.

Yes, your art is automatically copyrighted, but believing that no further action is necessary in terms of formally registering it with the United States Copyright Office can be a major mistake. According to Copyright Law, formally registering works of art is far more advantageous over not registering them in several very substantial ways. Before getting into specifics here, be aware that only certain types of art are likely to be infringed upon. Most art has little or no appeal to infringers. Why? Because infringers almost always do what they do to make money, and tend to only steal images that are capable of generating income in one way or another. However the opposite can also take place-- where infringers take images to use on websites or in film sets where the benefits or profit potential may be less straightforward. No matter what the circumstances, the broader the appeal of your art and the easier your imagery and compositions are for people to recognize, understand and appreciate (and appropriate), the more concerned you should be about registering them. This is especially true if your images are so attractive that people actively attempt to take and display them in various ways.

Now should all artists register every single work of art they create? Not really. In fact, few artists are truly at risk, especially those who produce more abstract or conceptual works, art with substantial cognitive components, art that's difficult and nonproductive from monetary standpoints to copy or reproduce, and art with limited commercial appeal. The basic question you should ask yourself is this-- "Am I vulnerable to someone taking my art, copying and reproducing it in a big way and making lots of money?"

The artists who have to be most concerned about infringement are those whose images or designs have somewhat of a mass or commercial appeal, and are easy and conducive to being copied-- particularly onto other mediums such as T-shirts, coffee mugs, shoes, bags, skateboards, or similar types of mass-produced merchandise that have the potential to be salable across wide ranges of the population. Having a large online following may be a determining factor as well. Also vulnerable is art with creatures, characters or settings that could conceivably be "borrowed" and replicated in films, animation, comics or video games... or even in the work of other artists. Having a large online following may be a determining factor as well. If you've got a respectable fan base and make art with any of these characteristics or components, registering the copyrights is generally recommended.

Another indication that copyrighting your art would be a good idea is if you've developed a particular type of look or composition or subject matter that is identified as being uniquely yours, especially if it's becoming increasingly popular with collectors. Although you can't register "style" itself, you can register any number of works of art that are done in your own unique style. This protects you against infringers who decide to copy one or more of them for their own personal benefits. Imitation is the sincerest form of flattery, they say, but if it begins to detract from your bottom line, then defending your interests will likely become necessary at some point. And the sooner you recognize that a possibility exists for appropriating and capitalizing on your artworks, the better.

So OK-- let's get started. Why go through the process of formally copyrighting your art? Four basic reasons:

1. Suppose someone reproduces some aspect or characteristic of your art without your permission. If the art was not registered prior to the infringement, you are limited to the infringer's profits as your damages. For example, if an infringer prints your art on T-shirts, sells 500 of them and makes a clear profit of $10 per shirt, you're limited to that $5000 profit as the amount you can recover (if that $5000 profit is before costs, your limitation will be even less-- that is, whatever profit remains after subtracting all costs of production). If on the other hand, you have registered the art, you are entitled to "statutory damages" of up to $150,000 per willful infringement, and you can elect to take that instead of actual damages (a clear choice in our hypothetical T-shirt example). Statutory damages are punitive in nature, but only available as an option to you if you register the copyrights on art before the infringement.

2. If the art is registered prior to the infringement, then in addition to statutory damages, the court is authorized to award you attorney's fees plus other incidental costs of litigation. You are not entitled to obtain a judgment that includes these costs or fees if the art was not registered prior to the infringement.

3. If a work of your art is infringed on and it's not registered, you have to go ahead and register it anyway before you can bring a copyright action in federal court (file a federal case). So you see, you aren't saving anything by not registering it in advance-- it has to be registered regardless if you intend to take legal action; registration is a procedural requirement in that regard.

4. Registering your art in advance of an infringement proves prima-facie that you created the image when you say you did. In other words, the registration documents constitute sufficient evidence to prove the art was created before the infringement. Without a prior registration, the date of creation could be contested; the infringers could maintain that you actually created it later than you did. So it all shakes out like this... With prior registration, the burden of proof is on the infringer to demonstrate that they created their work either before or independently of you creating yours. Without prior registration, the burden of proof is on you to demonstrate that you created the work first, and that they willfully appropriated it for their own purposes without your consent. That's a huge difference.

For these reasons, attorneys are far more likely to take infringement cases on a contingency fee basis when the art has been registered prior to the infringements. Resolving claims on registered works of art is always easier for attorneys and copyright holders because the documented prior registration constitutes conclusive proof that the creation of the art predated the infringement. Attorneys have far greater leverage moneywise as well, particularly in terms of being able to seek statutory damages and be reimbursed for their fees. On the flip side, attorneys tend to avoid cases involving unregistered art, especially on a contingency basis, because not only is the total award limited to amount of profit made by the infringers, but without prior registration, proving the creation of the art predated the infringement can also get complicated. Either the amount of profit made by infringers has to be large enough for attorneys to consider taking a case on a contingency basis or they will expect you to pay their costs and fees out-of-pocket as the case progresses.

Whether you decide to register your art or not, the least you can do is to make your copyright clear to everyone concerned. Place a notice on your website that all images are copyright protected. This notice should include the copyright symbol (c), the year (very important) and your name. Place copyright notices on each individual work of art as well (you can do this either on the front, or on the back if you feel the notices might in some way clash with the compositions).

Procedures for registering your copyrights are beyond the scope of this article, but here are a few quick tips on where to go and how to get started:

Go to www.copyright.gov. Click "Register" link just below the top menu bar. That will take you to a page where you click a link to the type of art you create (Visual Arts, for most artists). Regarding options for filing, doing so online is far superior to filing by mail, with the entire process taking about 2-3 months from start to finish. Registering by mail can take two years or longer. For online registration, click the link below the "Electronic Copyright Office (eCO) Registration System"-- "Register a Visual Arts Work"-- and follow the instructions. You will either have to sign in if you already have an account, or create an account if you're a first time user just starting out. Then simply follow the instructions to register your specific type of art.

For frequently asked questions about copyrights go here.

Those of you with multiple works of art to register can take advantage of an option called "batch or group copyrighting" which allows you to copyright any number of related pieces in a single filing, no matter how many artworks are involved. The following link provides complete information about copyright services and fees.

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Thanks to MJ Bogatin of www.bcgattorneys.com for his generous assistance with this article. He's an intellectual property attorney with emphasis on arts and entertainment. Thanks also to Mat Gleason and to David Trulli for their assistance.

Disclaimer: Please be aware that I am not an attorney and that the contents of this article should in no way be construed as legal advice. If you have any questions of a legal nature, consult an attorney.

(art by Valentin Popov)