Copyright for Protection and Profit

Knowing your rights, as a visual artist, is very important and copyright is one of THE most important rights you own.  Otherwise known as “Intellectual Property”, you are the rightful owner the minute you take something from being an idea into something tangible.  From thinking about making a sculpture to the moment you start to make it, it’s yours.  In 1978, the United States changed the law to make that possible without formally registering your copyright.  In 1989, they made it possible for you to own the copyright without using © (the copyright symbol).

The proper way to use that symbol is ©Your Name, Year, All Rights Reserved.  It’s important because then you will reserve all of the international conventions that the United States has with other countries. I’ll talk about that in a minute.

The U.S. Copyright office often refers to things that are copyrighten as “published or publishing.”  By their definition published means “Making Public.”  So if you put a painting on a wall for exhibit you are “publishing” it or “making it public.”

It is also important to distinguish between public and private use.  Private Use is when someone takes your work, prints it or shows it to their friends and doesn’t make a profit on it.  Very often I hear “What if someone uses my image for the wall paper on their computer?”  Guess what? That’s Private Use. Artists that ask this are interested in making a profit. The most you’ll make is $1.00 so is it really worth worrying about that anyway?

Public Use or infringement of Public Use is when someone takes your work, claims it as their own.  The moment you need to worry about it is when they make a profit from that endeavor.  However, it is important to develop a number in dollars that it would take for you to pursue this in court.  Remember that there are court and legal fees.  I usually advise $5000 or more.

You should register your work with the U.S. Copyright Office however.  Let’s say someone does infringe upon your rights and then you register it.  All that you’ll be able to recover is the money that they made from it.  That’s it. However, if you register long before someone infringes upon your rights you can collect the money they made from it, legal fees and statutory damages.  Statutory damages is money for your time and effort as well as emotional stress that this action took upon you.

You can register your copyright on the Copyright Office’s website: http://www.copyright.gov It is $35 if you register online. If you register by mail it is more.  That is as of this posting. I recommend checking the copyright office website for more information.

It is important to know the exact definition of copyright from the U.S. Copyright Office so here it is [with explanations].

DEFINITION OF COPYRIGHT FROM THE UNITED STATES COPYRIGHT OFFICE

Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to the authors of “original works of authorship” [the artist would be the author in this case] including literary, dramatic, musical, artistic and certain other intellectual works, Section 106 of the 1976 Copyright Act generally gives the owner of the copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords [i.e. Giclees, computer prints or print on demand]

• To prepare derivative works based upon the work [Collage artists beware!]

• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental or lease or lending

• To perform the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works [Don’t forget digital art, video art and performance art]

• To display the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual works [in other words a buyer cannot exhibit your work without your permission]

• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

In addition certain authors of works of visual art have the rights of attribution and integrity as described in section 106A, see Circular 40, Copyright Registration for Works of Visual Arts.

Just a few more explanations.  Although you may sell an original work to a buyer they are only purchasing that work.  They are not purchasing the intellectual property and the rights that come with it.  Only you have the right to reproduce or alter it.  Not all buyers will be aware of this so I always recommend stating your rights on the back of an invoice upon delivery.  If someone wants the rights to reproduction, they will have to enter into a licensing agreement with you or pay you a lot of money for that right.
The advent of the internet brings up the question of your rights as an artist around the world.  There are international conventions with just about every country in the world.  Some of these conventions include the Berne Convention and the World Trade Organization and you can find out more in Circular 38A, available on the US Copyright Office website.

A list of some of the countries that do not recognize these conventions follows.  Notice that most of these countries either have internal conflicts, poor governmental infrastructure or are just plain hostile towards the West.

Afghanistan, Bhutan, Comoros (unclear), Eritea, Ethiopia, Iran, Iraq, Kiribati, North Korea (unclear), Nauru (unclear), Nepal, Pelau (unclear), Samoa, San Marino, Sao Tomé and Principe (unclear), Seychelles (unclear), Syria (unclear), Tuvala (unclear), Vanuatu (unclear), Yemen (unclear).

We can also count most countries in the Middle East in the list because of the changing situation there, especially recently.

LICENSING
Licensing is the part of copyright where you get to profit and to increase your visibility.  In some cases to increase the worth of your original art.  Many artists don’t like to think of commercial production of their work.  Take a moment to think of the benefits I mentioned and you’ll see that licensing can actually be a good thing.

Technically licensing means that as a holder of a copyright you have the right to benefit and profit from your work (even after the original is sold) whether it is registered or not. [The prime reason to get fantastically perfect images of your work]. You may want to visit the Licensing Division of the U.S. Copyright website for more information.

Licensing means that you give a publisher, producer or manufacturer the right production, distribution and marketing of your work. Sometimes all three and sometimes just production.  Usually this is in a certain geographic area for a certain period of time.  A good licensing agreement will state that and will state a way for you to get out of the agreement should the publisher, producer or manufacturer not hold up their part of the agreement to your satisfaction.  I always recommend having a lawyer look at contracts such as these before signing just to be sure everything is in order.

The best producers will not only manufacture your work but they will have a marketing and distribution mechanism in place.  A good example is: AmericanGreetings.com or Hallmark.

Marketplaces for licensing are as wide as the imagination.  Just to get your imagination going here are a few:
Greeting Cards, Prints, Print-on-Demand, Calendars, Collector Plates, Book Covers, Children’s Books, Animation, Stamps, Stock Photography and Illustration (see iStockPhoto.com), CD Covers, Surface Design, Jigsaw Puzzles, Needle Craft and Stitch Kits, Stationary and Gift Products (go into your local gift store and you’ll get the idea), Tableware, Mat’s, Mouse Pads, Coaster, Wall Coverings, etc.

What about digital formats?  That’s endless to.
Such as Computer Games, Wall Paper, Mobile Formats and with the advent of digital tablets it’s amazing what you can do. Also iPhone or Digital Tablet Cases and Covers.

If you are thinking about approaching a manufacturer with a formal licensing contract and system in place know the market in full first.  Read trade publications, look them up online, do your research.

Then develop a packet with your resume, artist statement, articles written about you and whatever other materials about your work you can scrounge up.  Also include mock-ups of your work and additional images that the manufacturer might be interested in.  For example: if you want someone to produce greeting cards, make a few up on your inkjet printer.  You can also get things printed up on demand.

You can also enter into an informal Licensing Agreement.  Print-on-Demand is usually an informal licensing agreement. Such as having Zazzle.com make up prints of your work that you market and distribute yourself.  They will only be allowed to manufacture your work on a certain product of your choosing will do no more than that.  You will be responsible for bringing in sales.

A formal licensing agreement with a company that has everything in place may be contracted in one of several ways.  Either you’ll get an up front payment, royalties or both.  Sometimes you’ll get an advance payment and after that amount is recovered you’ll get royalties.  These are all standard.

Now you know about Copyright and how to protect and profit from your art.  These are the facts, no myths here!  I hope that you will feel more secure.

RESOURCES MENTIONED IN THIS ARTICLE
U.S. Copyright Office – www.copyright.govAmerican Greetings – www.americangreetings.com
Zazzle.com – www.zazzle.com/artists
iStock Photo – www.istockphoto.com