The Art of Business: Copyright or Copied Wrong?

Digital material is as easy to copy as a bad haircut. Contractor agreements rarely specify who owns the rights to created material. And clients often ask creative professionals to look the other way when it comes to copyright infringement. So, what’s a self-respecting, law-abiding creative professional to do? Start by understanding copyright basics.

You as Creator
At first glance, the concept of a copyright is easy to understand: Pretty much any intellectual or artistic creation, except facts and ideas, is copyrightable. According to the Copyright Act this includes brochures, ads, business directories, photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips, cartoon characters, works of fine art, movies, animations, training videos, Web sites, and interactive multimedia works.

Generally, if you create a work, you own the copyright from the moment of creation. The only way you can lose copyright is if you sign it away in writing. Even though you don’t legally need to, it doesn’t hurt to attach that little © to your work. To dispel any doubt, register your copyrights with the Copyright Office of the Library of Congress. It costs $30 to register each work, and you’ll have to send along a copy (what the Copyright Office likes to call a “deposit”) of your work. If it’s visual, a photo will do. If it’s digital the Office likes CD-ROM.

So far, so simple. But everything changes if you’re working as a contractor under a “work-for-hire” agreement. In such cases, you almost always give up the copyright of the work to the employer or commissioning party. (In most cases, by the way, a retroactive work-for-hire agreement is void; you must sign an agreement prior to commencing development of the product.)

How do you keep from losing ownership while working for a client? Simple, do not sign a work-for-hire agreement. Instead, license the work to the client — for eternity if you want — but there’s no reason to sign away a copyright if you don’t want to. You can base your licensing fees on any number of criteria, including the reach of distribution, quantities, or frequency of use; how the image will be used; and the length of time of use, to name a few.

Even if you don’t think you’re signing a work-fore-hire agreement, it’s a good policy to check to see if copyright language has been added, particularly if you’re creating a work that you feel may have potential beyond the scope of the project. Even better, insert into the contract copyright language that’s beneficial to you.

If someone infringes upon your copyright, you can file a civil lawsuit in Federal district court. In cases of willful infringement for profit, you can talk to the U.S. Attorney about a criminal investigation; just don’t hold your breath.

The U.S. government is hip to the online revolution and has made it possible to register Web sites and multimedia programs other than computer programs and databases (these are handled separately). Here’s the caveat: The registration only extends to the copyrightable content of the work as received in the Copyright Office and only for the content published on the date given on the application.

Say what? In other words, if Web site content changes, the new content is not copyright under the original registration. If a Web site should change every day, legally the owner has to re-register the site with the copyright office every day. That’s not very practical, so in most cases, it’s simply not worth using this formal registration procedure. The work is protected — remember — the moment it’s created and posted. For more (and there’s lots more) on online registration see Circular 66.

You as Violator
You’re creating a Web site, and you want to combine material created by others — music, graphics, photographs, and Flash animations, for example. Just because it’s technically easy to copy these works doesn’t mean it’s legal. In fact, you can start with the supposition that it’s illegal. Unless you’re working on a very high profile project, it’s doubtful you’ll get sued for big bucks if you’re found to be in violation. But the owner of the copyright can sue to prevent the distribution of your product. But what if you use only a snippet of text or a small corner of a photograph? While it’s true that copying a small amount of anything is technically not copyright infringement, it’s difficult to know where “small copying” ends and copyright infringement begins. There are no dramatic lines in the sand.

Plus, legally, only the creator of the work has the right to modify that work. So even if you alter the photograph beyond recognition by cropping it, coloring it, and adding elements here and there, technically it’s still considered copyright infringement.

There are exceptions to the rule, including, most commonly, the right to manipulate royalty-free images purchased from an agency. Typically, such agency agreements allow you to incorporate royalty-free images in other works or otherwise modify the images as you see fit (just don’t try to resell them on T-shirts and postcards). Terms and conditions vary, so always check the fine print when working with a stock agency.

Yes, there are circumstances when you don’t need a copyright license. The most common is called fair use, which makes license exceptions for, among others reasons, purposes of criticism, comment, news reporting, teaching, scholarship, and research.

You also don’t need a license if the work is in the public domain. And you don’t need a license to copy facts or ideas from a protected work.

But why worry? Actually it’s easy to license most material, and in many cases, it can be done for free or a nominal fee. If you know whom the copyright owner is, contact the owner directly. If you don’t, ask the Copyright Office to conduct a search of its records for a fee of $65 per hour. Find out more by reading the Copyright Office’s Circular 22.

It’s good business practice, and if your client balks, explain the possible consequences — monetary damages and a halt to distribution.

In truth, unless there’s a good deal of cash or prestige at stake, most artists and writers will not take the time, energy, and money to sue you or your client for copyright infringement. And this may lead to the belief that copyright infringement is somehow a condonable action. But us creative types have to stick together and if we don’t want others ripping us off, we shouldn’t set an example by ripping each other off.

Heartbreak Hotel
Oh, yeah, what does Elvis have to do with Copyright Law? Click here to find out..

Read more by Eric J. Adams.