TOP TEN THINGS YOU NEED TO KNOW ABOUT COPYRIGHTS
Joshua Kaufman, Esq.
Justin Pierce, Esq.
- What does copyright protect?
Copyright is a form of intellectual property law that protects original works of authorship including literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
- When is my artwork protected?
Your artwork is under copyright protection the moment it is created and fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device. For example, as soon as you draw or paint a picture on paper or canvas, your artwork receives copyright protection.
- Do I have to register my artwork with the US Copyright Office?
No. Registration is voluntary. Copyright exists from the moment the work is created. There are, however, important benefits for registering your artwork with the US Copyright Office.
- What are the benefits of registering my artwork with the US Copyright Office?
There are several benefits for registration of your artwork. Registration of your artwork allows you to have the facts of your copyright on the public record and have a certificate of registration for each artwork. Registration allows the copyright owner to recover actual and statutory damages from an infringer. Actual damages are usually nominal and relatively small, however a registered copyright owner may receive up to $150,000 in statutory damages. A registered copyright owner also receives attorney’s fees in successful litigation. The federal district courts have the power to issue injunctions (orders) to prevent or restrain copyright infringement and to order the impoundment and destruction of infringing copies. Also, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law.
- How do I register my artwork?
To register artwork, you need to submit a completed application form, a non-refundable filing fee of $30, and a non-returnable copy or copies of the artwork to be registered by mail to: Library of Congress, Copyright Office, 101 Independence Avenue, SE, Washington, DC 20559-6000. You may obtain forms and more information about filing copyright application forms by calling the Copyright Office at 202-707-3000 or viewing their web site at www.loc.gov/copyright.
- What is a work made for hire?
Generally, the person who creates the artwork is its author, however, the exception to that principle is the work made for hire. A work made for hire is a work prepared by an employee within the scope of his or her employment; or a work specially ordered or commissioned in certain specified circumstances. This rarely applies to artworks. Work for hire agreements must always be in writing. When a work qualifies as a work made for hire, the employer or commissioning party is considered to be the author.
- Do I have to use my real name, or may I use my pen name on the copyright registration forms?
There is no legal requirement that the author be identified by his or her real name on the application form. If you file under a fictitious name, check the "Pseudonymous" box at space 2.
- How long does copyright protection last?
For artwork created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years. In the case of joint artwork, the term lasts for 70 years after the last surviving author’s death. For anonymous and pseudonymous artwork and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first.
Artwork originally created before January 1, 1978, but not published or registered by that date has automatically been brought under the statute and now given federal copyright protection. The duration of copyright in these artworks will generally be computed in the same way as for artwork created on or after January 1, 1978: the life-plus-70 or 95/120-year terms will apply to them as well. The law provides that in no case will the term of copyright for artwork in this category expire before December 31, 2002, and for artwork published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.
Finally, for artwork created and published or registered before January 1, 1978, copyright was originally secured either on the date artwork was published with a copyright notice or on the date of registration if the artwork was registered in unpublished form under the law in effect before 1978. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105-298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years.
- Do I have to place the copyright notice on my artwork?
The copyright notice is an identifier placed on copies of the work to inform the world of copyright ownership. Copyright notice can take any of these three forms:
- © followed by a date and artist’s name.
- "Copyright" followed by a date and artist’s name.
- "Copr." followed by a date and artist’s name.
The use of copyright notice is optional for works distributed after March 1, 1989. Use of the copyright notice, however, is still recommended because it puts the world on notice of your rights in the artwork. Use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the US Copyright Office.
- What do I do if someone copies my artwork or infringes my copyright in the artwork?
You may seek to protect your copyrights against unauthorized use by filing a civil lawsuit in Federal district court. If you believe that your copyright has been infringed, consult an experienced copyright attorney. As you know from our discussion in question 7 above, it is well worth it for a registered copyright owner to file a lawsuit against a copyright infringer; because he or she, if successful, may recover attorneys fees and court costs, in addition to actual and statutory damages. In cases of willful infringement for profit, the US Attorney may initiate a criminal investigation.