EVERYTHING YOU NEED TO KNOW ABOUT US COPYRIGHT
So, you created a work of art. Good for you. Do you own it? For how long? Are you going to sell it? For how much? Are you going to license it? Where? Really?
There is a ton of misinformation on copyright out there among artists, mostly because working artists are too busy making art to read about it and so rely on word-of-mouth of friends and colleagues. Regardless of what you WANT to be legally true, there are very real facts and precedents every artist needs to know to make a living. If you aren’t making a living off your art – then there really isn’t a need for a copyright.
The definitive resource for everything copyright related is:
It’s a really good one-stop shop for everything copyright related. This is where you file for your copyright – so you should expect them to have all the answers. Still, it can feel overwhelming to go there for the first time and it would be nice if someone put together a quick article to make it easier (like this one).
Registering a copyright is simple. I mean really simple. So simple that you will feel really dumb the first time through and even dumber the second time – but I’ll get to that later.
First, let me debunk a few myths:
“Getting a copyright is hard and expensive.”
Pretty much every other myth is based on artists being cheap and lazy and so make up excuses to not do it.
Go to Copyright.gov
It takes about 5 minutes and costs $35 for most things an artist would need. If you feel stupid now, good.
Don’t believe me? Click here: http://copyright.gov/docs/fees.html
If you want to learn more about how easy it is before visiting Copyright.gov, skip below to “How do I file for a copyright the quick and easy way?”.
“A copyright is a right granted by the Constitution to protect artists, etc.”
Sorry, not exactly. A copyright is the “right to copy something”. Yes, copyright law is described in the U.S. Constitution, but it’s not an inarguable mandate enforcing a just cause nor is it unique. The laws of most countries allow the reproduction of works of art, media, text, music, etc. to be controlled by the creators or their assigns (meaning something they legally turn over those rights to).
“The instant I create something, I automatically own the copyright to it.”
Not always. You see sometimes you are under a contract that stipulates that every work you do – even at home or on vacation – is owned by your employer or client. These types of clauses are common and can also fall under Work for Hire contracts, which is why I recommend never signing one.
Every single project – and I mean EVERY SINGLE PROJECT – needs a contract. Not a handshake, not a nod, not a “it’s on someone else’s desk and will get mailed shortly” – but a bonafide contract stating unequivocally who owns the work being produced.
“7) Consideration – Sketches, Payment, Deadlines
d) Copyrights and Grant of License – Upon final payment, Company will receive full copyrights of Project. Start and end dates for licensing are based upon date this Agreement is paid in full. Illustrator retains right to promote themselves as creator of the Project, and is allowed to submit Project for awards, publish the Project as limited edition signed prints and in portfolios and compendiums of Illustrator’s works.”
If the work of art being produced is personal – you still need to make sure you aren’t under contract anyway. You might remember the whole Bratz fiasco, whereby a woman working as a product developer for Mattel’s Barbie line secretly designed a line of dolls on the weekends and during her vacation. Then she quit and started her own business, stealing Mattel’s suppliers and distributors, and released Bratz onto the world. The court forced her to hand over the entire company and pay damages to Mattel for industrial espionage because her employment contract with her stated that Mattel owned every idea she ever had for the duration of the contract, whether it was on office hours or not.
If you don’t have such a contract, then you as the creator have the first right to file for the copyright. If you fail to do so, there is a chance that you may unintentionally give someone else the right to do so. Say you sell the original oil painting but didn’t file the copyright for it and now the owner decides that she loves it so much she going to use it for her business and files for the copyright. Now she owns it. Period. The law will say that the transfer for the original work of art is a physical transfer that can presume transfer of copyrights without additional documentation stating otherwise. It’s your word against hers. But if you filed for the copyright and hold that certificate in your hand, then that certificate is a completely separate document you hold that you did NOT sell and therefore proof that she does NOT hold the copyright of the work even though she possesses the original.
“You don’t have to register a copyright with the government – it’s just a formality.”
No. Nope. Wrong. Just wrong.
“A copyright and a trademark are the same thing.”
No. You don’t even file for each with the same government agency. Copyrights are managed by the US Copyright Office and trademarks are managed by the US Patent & Trademark Office (USPTO for short). Very different.
“I can mail a copy of the final art to myself, and that legally proves my creation predates someone stealing it.”
“I can get a Notary Public to validate my original.”
This is colloquially called a “poor man’s copyright” and it is not valid at all. The official word on it from the US Copyright Office is thus:
I’ve heard about a “poor man’s copyright.” What is it?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.”
Poor Man’s Copyright
Since getting a copyright is only $35, how poor do you have to be to cheap out on protecting a work of art you intend on making a living with?
“If I mash-up two different copyrighted works, I’ve created something unique and can copyright that.”
Ugh. No. That is a complete misunderstanding of the legal concept of a “Derivative Work”.
There’s a beautiful PDF from Copyright.gov explaining it all very simply:Derivitive Work PDF
But the gist is this quote:
“…To be copyrightable, a derivative work must incorporate some or all of a preexisting “work” and add new original copyrightable authorship to that work…”
So for you fan-artists out there, you CANNOT copyright someone else’s copyrighted work. Period.
It sound like a no brainer – but I hear it all the time.
What you MAY do is take a copyrighted work and make a new work of art out of it BY ADDING NEW MATERIAL. Simply adding additional copyrighted material isn’t something new. It has to be new. Putting Batman and Dr. Who together is infringing on TWO copyrights – and does NOT mean it’s an original work. Neither Batman or Dr. Who are new – so you did nothing. The law doesn’t care how obscure the copyrights are – it’s an infringement and you could owe damages to someone. Simply changing the color/s or line quality of copyrighted material doesn’t count either. Style is not considered NEW MATERIAL.
There is something called “editorial use” that might protect you from copyright infringement, which states that you are allowed to use copyrighted material in a way that changes the message from the original to something new. That “something new” is actually pretty daunting, since the only reason to co-opt a copyright is to use that work’s power for the benefit of that message. Superman’s “S” is a symbol of strength. Adding that to anything is applying Superman’s quality of strength to it and that doesn’t change the message – that uses the message exactly as it is. But maybe if one uses the “S” in an illustration as a symbol for all childhood idols that are put away in a toybox by a man turning away from his childhood, then you are not referring to Superman the character or his specific attributes but instead to the man’s childhood, innocence, and dreams. That is editorial use – and that final illustration could be copyrighted.
Having said all that, a copyright is not a trademark, and the fact that a copyright owner chooses not to sue you over it doesn’t change their ownership status. Marvel (and I think DC at this point) have publicly announced that they are not going to sue every artist in artist alley for copyright infringement – and that makes sense. To use a baseball term, artist alley is their Farm Team. If they need a new artist to draw Spiderman, why bother hiring some guy and training him when all they hove to do is walk out to artist alley and find some rapid fangirl who has already drawn Spidey 10,000 times? Other property owners are not so kind. A few years ago, Dr. Who North America purchased the exclusive rights to all Dr. Merchandise for the US and Canada and suddenly issued cease and desist letters to artist alley all over the continent. They legally had that right – but they seem to have backed off their stance. Mostly, I think they recognized that Dr. Who fans weren’t spending all their money on fan art and forgetting to buy their dolls, their T.A.R.D.I.S. replicas, and their sonic screwdrivers – and were in fact more likely to buy official Dr. Who merch while wearing a Tee-fury shirt. Although, they could change their mind at any moment.
“A copyright is forever until I sell it.”
“A copyright just goes away after awhile anyway.”
Erm… well this is complicated. Technically, copyrights do expire, but one can petition for extensions as long as someone has the money to do so. Disney, for example, has milked their copyrights LONG after they were intended to expire, but the US government keeps granting them extensions (or at least did so up until the publishing of this article). It’s because of Disney that the length of time a copyright is valid for keeps extending.
“How long does a copyright last?
…As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years…”
DC on the other hand, according to one industry watcher, was forced to update their content on their major properties because Superman’s copyright was about to expire and fall into public domain. Rather than confuse people about this one property, they apparently chose to confuse everyone about all 52 of their properties, and added enough new content to them all to completely refile for new copyrights (the NEW 52!).
To clarify, petitioning for an extension is not the same as filing for one. In this case, filing means that there is a process of existing paperwork in the current system that allows for the possibility of an extension. That does not exist.
“Do I have to renew my copyright?
…No. Works created on or after January 1, 1978, are not subject to renewal registration…”
But if you have the money and tenacity to try to change the law through your local Congressperson or Senator (like Disney), it is always possible. As long as there are legal precedents for extending copyrights, there will be legal options for artists to do so – but there is no guarantee that it will happen.
Enough of the bad news. Actually if you read all of that, it was GREAT news.
Copyrights are cheap, easy, protect the crap out of you, and legally prove to the world that you are a legitimate content producer who works will influence society for generations to come.
But the real question is:
“How do I file for a copyright the quick and easy way?”
Step One: Go to Copyright.gov or more specifically, the page for the electronic Copyright Office (eCO for short).
You can click the large link that reads Register a Copyright and then click Log in to eCO or you could just
click here: eCO Go!
Bookmark it for regular use.
Step Two: Register as a new user.
Click that tiny text link that reads If you are new user, click here to register.
Fill out the forms. You may have to wait for an email verification process that might take a few minutes.
Step Three: Log in
It’s 2015 – Do I need to explain how to do that?
Step Four: Try not to think too hard.
The eCO is a great site – but it can be intimidating. There are a lot of link you will never use – and some links that you think you will use but won’t.
After logging in, the site defaults to the “Open Cases” page. Occasionally, you might have logged out before finally submitting a Claim (e.g., power outage, client call, pick up the kids from school, paint not dry yet, etc.) and want to visit your “Working Cases” in order to update, amend, finish, and submit them.
Besides the “Open Cases” and “Working Cases” links, the only link you will use consistently is “Register a New Claim” under the heading “Copyright Registration”. Basically, you can pretty much ignore the rest unless you need to – which won’t be under 99% of circumstances. So when you ignore the irrelevancies, you have these 3 links to work with.
To understand the site better, every application or registration or submission for a copyright is called a “Claim” or a “Case”.
US Copyright law requires a physical document in your hand to prove Copyright ownership. You use the eCO to file for the copyright and then they mail you the certificate. Do not lose it. The system will not keep your data once the certificate has been issued. As annoying as this may seem in the age of information – at least it’s not hackable. Once you get it – I suggest you scan it for easy management and put the originals in a safe or deposit box.
The eCO system DOES:
Accept registration submissions for copyrights (called “Cases)
Accepts electronic files of artwork to be copyrighted (after the paperwork has been filled out)
Lists/Manages Working Cases until your paperwork and files are complete and ready to Submit. This allows you to log in and out repeatedly to amend your Case until ready to click the “Submit” button.
Lists/Manages Open Cases until accepted or rejected by the US Copyright Office
Deletes most data of closed Cases (it keeps a list of Case #, status, dates, titles, and fees paid)
The eCO system DOES NOT:
Save your application, images, or certificates in any way. Once it is approved, that data is gone.
Step Five: Register a New Claim
The eCO has a walk-through form that is intended to be as idiot proof as possible.
If you have any questions about what one of the terms mean on a page– like “only one author” then click on the link and a pop-up window will explain it to you in detail and they are really well written. No legal mumbo jumbo.
After you have made sure you’ve filled out the information correctly – which is really easy, you will be asked to “Add to Cart” and pay for the application. You must pay BEFORE submitting JPGs of the artwork. Once you have paid, it will bring you to another page entirely for you to do that. After you have uploaded your artwork files (just large enough to review – not high res), you must click a link to finalize the Claim and you’re done.
Pretty easy, huh?
Advanced Uses of the eCO
While kind of/sort of “advanced”, Saving an application as a “Template” is a really easy way to shorten the amount of time it takes to submit something.
Say you’re primary work is always original art in oil that never published and you keep all of the rights to yourself and you are always the only author. Great, fill that info out and save as a Template. Then all you will need to do in the future is select “Use a Template” instead of Register a New Claim”, then add the title, pay the fee, and upload the image. Done.
Read the Copyright.gov FAQs at: Copyright FAQ
Really. It answers everything very clearly.