When I speak about websites to artists the topic of copyright always comes up. So before I write more about websites I want to give you a brief overview of copyright law. It's not just for protection but for profit. In future posts I will go more into detail but I want you to feel absolutely, positively safe putting your work online. Make the choice, do you want to gain exposure for your work or do you want it to stay in your studio forever. After reading this I hope that you will feel safe enough to put your work out there.
Before we talk about copyright we must define the term “publishing” for artists. Publishing means “to make public.” In other words to put before an audience as in an exhibition, in print, online, etc. You will see and hear this term a lot if you decide to read the copyright documents from the U.S. Copyright Office. A work that is copyrighted can also be referred to as "intellectual property."
That said...From the moment you make any idea into a tangible form it is automatically protected under the United States Copyright Law as of 1978. Before March 1, 1989 the use of the copyright symbol © was mandatory on all works. It is not anymore. However, it is best to register it with the U.S. Copyright Office (you save money if you register online) right after you make it. Others may tell you otherwise, (for example to register it after someone else has used your work of art) but this is a bad idea. You also save because you can pursue lawyers fees and statutory damages if you were smart enough to register it prior to the infringement.
One of the questions I hear most is what if someone uses my work as the wall-paper on their computer or prints it out to show their friends. That’s called “Private Use” and that’s okay. Public Use means that they showed it to an audience, exhibited it and claimed it as their own in any way, shape or form publicly. What an artist has to worry about is whether the infringer made any profit off of the work, how much was that profit and will they continue to make a profit?
In that case it is important to formulate a number in dollars that it would take for you to pursue a copyright infringement in court. Remember that it will involve legal fees, time and emotional effort - even if you don’t have an attorney or decide to use one you will have costs, including the cost of registering the case in the courts. I usually advise $5,000 or more. To pursue a case successfully you will need an attorney. I can almost guarantee that a lawyer would not pursue your case for less than that.
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,” including
literary, dramatic, musical, artistic, and certain other intellectual works. This
protection is available to both published and unpublished works. Section 106
of the 1976 Copyright Act generally gives the owner of copyright the exclusive
right to do and to authorize others to do the following:
• To reproduce the work in copies or phono-records;
• To prepare derivative works based upon the work;
• To distribute copies or phono-records of the work to the public by sale or
other transfer of ownership, or by rental, 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; (including 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 audiovisual
work; (in other words a buyer can’t exhibit the work without your permission, as in “make public”) and
• 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 of the 1976 Copyright Act. For
further information, see Circular 40, Copyright Registration for Works of the
Visual Arts.
FIRST NORTH AMERICAN RIGHTS
First North American rights means that you give a publisher the right to be the first to publish and distribute your work. So if you are showing a piece in a gallery for the first time, you are most likely giving them First North American Rights to present your work.
FEES TO REGISTER:
$35.00 if you register through the U.S. Copyright web site
$45.00 generally by regular mail with the printable .pdf form from the U.S. Copyright website.
INTERNATIONAL COPYRIGHT CONVENTIONS: Where Your Work is Protected Around the World This works both to and from the United States.
You will notice that many of these countries either have internal conflicts, poor infrastructure or are just hostile towards the West. Countries the United States doesn’t have conventions with (as of January 2005):
Afghanistan, Bhutan, Comoros (unclear), Eritrea, Ethiopia, Iran, Iraq, Kiribati, North Korea (unclear), Nauru (unclear), Nepal, Palau (unclear), Samoa, San Marino, Sao Tomé and Principe (unclear), Seychelles (unclear), Somalia (unclear), Syria (unclear), Tuvalu (unclear), Vanuatu (unclear), Yemen (unclear) (We can probably currently count most countries in the Middle East because of the political transitions going on there).
You can get exact details on International copyright conventions such as the Berne Convention and the World Trade Organization in the Circular from the US Copyright Office website entitled Circular 38A, available on their website.
LICENSING: Using Copyright for Profit
As the holder of a copyright you have the right to benefit and profit from your registered or unregistered work of art. In order to license formally you will need to visit the licensing division of the U.S. Copyright office for information and fees. There are also ways that you can license informally.
Licensing means that you give a publisher or manufacturer the rights to production and distribution of your work of art in a certain geographic area for a duration of time. In formal cases you will sign a contract with the licensee. It is important to make sure that the contract benefits both parties and if you’re unsure consult a lawyer. Make sure that if the publisher doesn’t hold to their responsibilities as stated in a contract or agreement, there is a way out for you.
A lot of artists don’t like to think of commercial production of their art but think of the benefits. You ‘ll not only profit but you’ll get wider recognition and even boost the value of your work in some cases.
A good publisher will not only produce or manufacture the reproductions but have systems for marketing as well. A good example is AmericanGreetings.com
MARKETPLACES FOR LICENSING YOUR ART INCLUDE:
Greeting Cards, Prints, Print-on-demand, Calendars, Collector Plates, Book Covers, Children’s Books, Animation, Stamps, Stock Photography and Illustration, Music CD’s, Surface Design, Jigsaw Puzzles, Needle Craft and Stitch Kits, Stationary and Gift Products, Tableware, Mat’s Trays, Coasters, Wall Covering, etc. Not to mention use for computer games, computer wallpaper and stock images.
Know the market in full before endeavoring to go in. Read publications and know the in’s and out’s before you approach a manufacturer. Research! Research! Research!
In the case of a formal licensing agreement, you can receive royalties or get paid a flat fee up front. If you get royalties you can get a guarantee – meaning an upfront check – for a certain amount. You will begin receiving royalties after the company has made a return equaling the amount they paid you. Example you may sign a contract with a card company and get a $2000 check for letting them use your work and then receive royalties on any profits after that $2000 is made.
That said...From the moment you make any idea into a tangible form it is automatically protected under the United States Copyright Law as of 1978. Before March 1, 1989 the use of the copyright symbol © was mandatory on all works. It is not anymore. However, it is best to register it with the U.S. Copyright Office (you save money if you register online) right after you make it. Others may tell you otherwise, (for example to register it after someone else has used your work of art) but this is a bad idea. You also save because you can pursue lawyers fees and statutory damages if you were smart enough to register it prior to the infringement.
One of the questions I hear most is what if someone uses my work as the wall-paper on their computer or prints it out to show their friends. That’s called “Private Use” and that’s okay. Public Use means that they showed it to an audience, exhibited it and claimed it as their own in any way, shape or form publicly. What an artist has to worry about is whether the infringer made any profit off of the work, how much was that profit and will they continue to make a profit?
In that case it is important to formulate a number in dollars that it would take for you to pursue a copyright infringement in court. Remember that it will involve legal fees, time and emotional effort - even if you don’t have an attorney or decide to use one you will have costs, including the cost of registering the case in the courts. I usually advise $5,000 or more. To pursue a case successfully you will need an attorney. I can almost guarantee that a lawyer would not pursue your case for less than that.
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,” including
literary, dramatic, musical, artistic, and certain other intellectual works. This
protection is available to both published and unpublished works. Section 106
of the 1976 Copyright Act generally gives the owner of copyright the exclusive
right to do and to authorize others to do the following:
• To reproduce the work in copies or phono-records;
• To prepare derivative works based upon the work;
• To distribute copies or phono-records of the work to the public by sale or
other transfer of ownership, or by rental, 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; (including 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 audiovisual
work; (in other words a buyer can’t exhibit the work without your permission, as in “make public”) and
• 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 of the 1976 Copyright Act. For
further information, see Circular 40, Copyright Registration for Works of the
Visual Arts.
FIRST NORTH AMERICAN RIGHTS
First North American rights means that you give a publisher the right to be the first to publish and distribute your work. So if you are showing a piece in a gallery for the first time, you are most likely giving them First North American Rights to present your work.
FEES TO REGISTER:
$35.00 if you register through the U.S. Copyright web site
$45.00 generally by regular mail with the printable .pdf form from the U.S. Copyright website.
INTERNATIONAL COPYRIGHT CONVENTIONS: Where Your Work is Protected Around the World This works both to and from the United States.
You will notice that many of these countries either have internal conflicts, poor infrastructure or are just hostile towards the West. Countries the United States doesn’t have conventions with (as of January 2005):
Afghanistan, Bhutan, Comoros (unclear), Eritrea, Ethiopia, Iran, Iraq, Kiribati, North Korea (unclear), Nauru (unclear), Nepal, Palau (unclear), Samoa, San Marino, Sao Tomé and Principe (unclear), Seychelles (unclear), Somalia (unclear), Syria (unclear), Tuvalu (unclear), Vanuatu (unclear), Yemen (unclear) (We can probably currently count most countries in the Middle East because of the political transitions going on there).
You can get exact details on International copyright conventions such as the Berne Convention and the World Trade Organization in the Circular from the US Copyright Office website entitled Circular 38A, available on their website.
LICENSING: Using Copyright for Profit
As the holder of a copyright you have the right to benefit and profit from your registered or unregistered work of art. In order to license formally you will need to visit the licensing division of the U.S. Copyright office for information and fees. There are also ways that you can license informally.
Licensing means that you give a publisher or manufacturer the rights to production and distribution of your work of art in a certain geographic area for a duration of time. In formal cases you will sign a contract with the licensee. It is important to make sure that the contract benefits both parties and if you’re unsure consult a lawyer. Make sure that if the publisher doesn’t hold to their responsibilities as stated in a contract or agreement, there is a way out for you.
A lot of artists don’t like to think of commercial production of their art but think of the benefits. You ‘ll not only profit but you’ll get wider recognition and even boost the value of your work in some cases.
A good publisher will not only produce or manufacture the reproductions but have systems for marketing as well. A good example is AmericanGreetings.com
MARKETPLACES FOR LICENSING YOUR ART INCLUDE:
Greeting Cards, Prints, Print-on-demand, Calendars, Collector Plates, Book Covers, Children’s Books, Animation, Stamps, Stock Photography and Illustration, Music CD’s, Surface Design, Jigsaw Puzzles, Needle Craft and Stitch Kits, Stationary and Gift Products, Tableware, Mat’s Trays, Coasters, Wall Covering, etc. Not to mention use for computer games, computer wallpaper and stock images.
Know the market in full before endeavoring to go in. Read publications and know the in’s and out’s before you approach a manufacturer. Research! Research! Research!
In the case of a formal licensing agreement, you can receive royalties or get paid a flat fee up front. If you get royalties you can get a guarantee – meaning an upfront check – for a certain amount. You will begin receiving royalties after the company has made a return equaling the amount they paid you. Example you may sign a contract with a card company and get a $2000 check for letting them use your work and then receive royalties on any profits after that $2000 is made.
You can give the manufacturer the rights for a certain geographical area – such as the Northeast United States, or Europe, or parts of Asia – for a formal period of time. For example you would give a manufacturer the right to produce mugs with your work on it in the North Eastern United States for a period of three years. During that time you will agree that no other publisher will have the right produce mugs with your work on it in the North Eastern United States.
There is a lot involved but the benefits of licensing your work are considerable. You will get your name and your images before the public in a way that no other medium or venue can provide.
You can also produce products and sell and distribute them yourself. This is informal licensing. If you do things such as a print on demand Giclee you give the Giclee house the right to print your work for the duration of the printing. If you have a store on CafePress.com you will give them the right to manufacture and distribute products with your work on it until you decide to take the page down.
If you’re interested in pursuing a certain market you may want to develop a presentation package that you will send to a few distributors. For example: If you want to pursue someone like AmericanGreetings.com with your work, you can print greeting cards from your ink-jet printer, produce a professional looking package, including your resume, artist statement, testimonials, articles written about you and samples of your work on greeting cards. Perhaps you’ll want to include a few additional images that you think they may be interested in. This gives them an idea of how your work will look on a product in advance.. It also makes it more likely that they will be interested in your work because you are presenting your work and yourself professionally.
The key to success in licensing is to know your market, research, and approaching them professionally. The possibilities are as endless as your imagination so if this seems like something that would work for you, go for it.
• U.S. Copyright Office online: http://www.copyright.gov
• Publication #38A concerning international copyright conventions from the U.S. Copyright Office - and other downloadable publications from the U.S. Copyright Office.
• Library of Congress – where all registered copyrighted works are housed.
• Licensing Art 101: publishing and licensing your artwork for profit by Michael Woodward, ArtNetwork Press, 2010.
• Legal Guide for the Visual Artist (Fifth Edition) by Tad Crawford, Allworth Press.
Very interesting and helpful. Thank you.
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