Copyrighting and Protecting Your Work
The information contained on this page constitutes information and not legal advice. The reader assumes all responsibility for any and all use of this information. Please consult an attorney for specific questions. This page may be updated periodically.
This page contains information to answer common questions artists may have about copyright and intellectual property. To inform All Public Art that someone on All Public Art.com is infringing upon your intellectual property, please refer to Intellectual Property Policy.
What is intellectual property?
Intellectual property is an umbrella term referring to commercially valuable creations of the mind. These creations include inventions, artwork, symbols, names, and designs. Intellectual property protection options include copyrights, trademarks, and patents. The appropriate protection option depends on the work itself. For example, a copyright may protect creative expression such as a painting, a book, or a jewelry design. A trademark may protect a word, logo, symbol, or design that identifies the creator of a product. A patent may protect new technological innovations.
What is a copyright?
In the US, copyright is a form of protection grounded in the US Constitution for original works of authorship fixed in a tangible medium of expression. Copyright protects, for example, literary, dramatic, musical, and artistic works, such as paintings, sculptures, poetry, novels, movies, songs, computer software, and architecture. Copyright covers both published and unpublished works. With exception, copyright protection exists from the moment of creation and lasts until 70 years after the death of the creator.
How is a copyright different from a patent or a trademark?
In the US, copyright protects “original works of authorship,” while a patent protects inventions or discoveries. Copyright protects creative expression, whether that expression is in the form of, for example, a painting, a book, or a sculpture. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
For example, I don't have to open a box of cereal or read the ingredient list to know the quality of the cereal. By looking at the logo on the box I know who made the cereal and I know what to expect. The logo on a cereal box is probably a trademark while the artistic design on the box is probably a copyright. The cereal is probably breakfast ... or lunch ... or dinner. Okay, the cereal is every meal.
When I have a copyright, what rights do I have?
Generally, the owner of a US copyright has the exclusive right to and to authorize others to:
- Reproduce the work;
- Prepare “derivative” works based on the work;
- Distribute copies of the work;
- To perform the work publicly, in the case of, for example, musical works;
- Display the work publicly, in the case of, for example, visual works; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
What is a derivative work?
A derivative work is a copyrightable creation, which is based on one or more existing works. Only the holder of the copyright of the original can produce or give permission to another to create the next version. A derivative work usually involves a transformation. For example, a film based on a book is likely a derivative work.
What is not protected by copyright? US copyright protects expression. Copyright does not protect ideas. Copyright does not protect facts, systems, or methods of operation, although it may protect the way these things are expressed. Copyright does not protect titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, coloring, or mere listings of ingredients or contents.
Copyright does not protect the mechanical or utilitarian aspects of a design. A “useful article” is an object having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing, furniture, machinery, dinnerware, and lighting fixtures. A useful article may have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair might be protected by US copyright, but the design of the chair itself might not be protected by copyright. Some designs of useful articles may qualify for protection under the US federal patent law.
Finally, US copyright does not protect works that are too old, and therefore have fallen into the public domain.
What is the public domain?
For US works created after January 1, 1978, copyright protection generally begins at the moment of creation and lasts 70 years after the death of the author. After this time, the work loses protection and falls into the public domain. Certain works that were created but not published or registered with the copyright office before January 1, 1978 lose protection 50 years after the author’s death.
Even if a work is in the public domain, under private-property laws, the owner may still restrict access to the work. For example, Vincent Van Gogh’s painting “Starry Night” is in the public domain, but an image produced by the Van Gogh Museum in Amsterdam is protected. When in doubt, you may want to ask permission before you use a pre-existing work.
How do I know if my design is an unprotected idea or copyright protected expression?
Pursuant to the idea/expression doctrine, US copyright protects only the expression of the idea — not the idea itself. It may be difficult to draw the line between an idea and expression.
Do I have to file any forms for copyright protection?
No. In the United States, copyright protection automatically exists from the moment the work is created. However, it is suggested to register your work with the US copyright office. It is highly suggested to register your work within three months of publication (posting an image on the Internet may constitute publication).
Why should I register my work if copyright protection is automatic?
If US registration is made within three months after publication (posting an image on the Internet may constitute publication) and prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Statutory damages are set by law and therefore are easier to prove than actual damages, where you would have to prove, for example, lost profits. In other words, if you register for copyright before your work has been on the Internet for three months, and someone infringes, it may be easier to prove that you've been harmed.
If you register after the three-month window, you will not necessarily be entitled to statutory damages or attorney’s fees. You will have a heavier burden of proof as you will have to show actual damages, which are difficult to prove.
Also, when you register for copyright you will receive a certificate of registration (to show your family and friends) and registration creates a public record (so that strangers can look it up). If registration occurs within 5 years of publication, it is considered excellent evidence in a court of law.
Wait, do I even own the copyright in the work I created?
Maybe not. If you prepare a work as within the scope of your employment (a work made for hire) your employer might be the “author” of the work. Also, if you prepare a custom commissioned work for certain uses and you expressly agree in a signed written instrument, the work may be considered a work made for hire. In these cases, your employer or the person who commissioned the work might be entitled to the copyright rights. The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
How do I register for copyright protection?
Electronic US copyright registration currently costs $35 (fees are subject change), consists of one form and requires zero lawyers. The current forms are found for free on the US Copyright website, www.copyright.gov.
After I fill out the form and send it in, how long will it take to get my certificate?
According to the copyright office, it can take up to six months to receive your certificate of registration in the mail. You read that right, six months.
What is a copyright notice? Do I need to put one on my work?
A copyright notice is a placed on work in order to inform others of copyright ownership. You may place a copyright notice on your work even if your work is not registered with the US copyright office. A copyright notice generally consists of the symbol or word “copyright” or “copr.” or the symbol “©” and the name of the copyright owner, and the year of first publication, for example, ©2016All Public ArtIn the United States it is not necessary to mark your piece as being copyrighted, although it is suggested. Just because a work does not have a copyright marking or copyright notice does not necessarily mean it is in the public domain and free to use without obtaining prior permission.
What is my liability if I sell counterfeit (knockoff) goods?
All Public Art prohibits the selling of counterfeit goods. Please do not sell them. A seller may be held liable for selling counterfeit products if the seller knows or has reason to know that the products are counterfeit. If the seller fails to inquire about the authenticity of the products, for fear of what such inquiry may yield, this may constitute knowledge. Once knowledge has been established, a reseller of counterfeit products may be held liable for counterfeiting.
How can I allow someone to use my work?
As explained above, the owner of a copyright has the exclusive right to reproduce, distribute, perform, publicly display and make a derivative work. The copyright owner may enter into an agreement with another individual and grant this person one or more of these rights. It’s up to the two parties to agree upon the details, for example, what rights to grant, what timeline is appropriate, and what, if any, fees to charge.
When I sell an item, what happens to my copyright?
When you sell or give away a copyrighted item, unless you have a contract specifying a transfer of one or more of your copyright rights, you are only selling the physical item, not any of your rights. For example, generally when I sell a necklace, I am only selling the piece of jewelry. The buyer is not entitled to the exclusive right to duplicate the necklace without my express permission.
However, pursuant to the first sale doctrine, the buyer of a lawfully made item may re-sell that item or otherwise dispose of the possession of that copy without the express permission of the copyright holder. For example, when an individual buys a necklace from me, that person may re-sell that necklace without getting my permission.
What’s the fair use defense?
In the US, the fair use defense is a way to defend an allegation of copyright infringement. In essence it’s a way of saying “yes, I infringed, but I have an excuse.” The fair use defense rests on the theory that an individual should be excused due to public policy reasons such as the copying benefits society due to educational purposes or if the copying is considered commentary, criticism, news reporting or scholarly reports. If the copying is for commercial use (if an artist copies and sells the work), this fact often weighs against the finding of fair use.
Many artists use the fair use defense as a loophole to copy. This is not wise. Artistic uses are not explicitly protected by fair use. The fair use defense is complicated and difficult to prove.
May I use a tiny bit of someone else’s work in my work?
In some cases, US courts will permit copying, even without conducting a fair use defense analysis, if the amount copied is extremely small (de minimis). The theory is that this type of copying does not rise to the level to constitute infringement. A court may examine whether an average audience would recognize an appropriation as a qualitatively and quantitatively significant portion of the copyright holder’s work as a whole. Just like with fair use, there is no bright line test for determining a de minimis use.
What is copyright infringement?
Generally, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Someone may infringe even without making any money.
What do I do if I think my copyright has been infringed?
It can be frustrating to discover a similar piece of art to yours. However, ideas are generally free to copy. And the line between an idea unprotectable via copyright) and expression (protectable via copyright) may be difficult to draw. Artists may be inspired by other artists, previous art, and the world around them. For example, Cezanne is thought to have inspired Picasso’s cubism period and Boucher, Fragonard and Watteau inspired Renoir.
Also, US copyright protection does not preclude another author from creating independently authored, yet identical, works. Copyright does not protect everything. For example, copyright does not protect facts, processes or utilitarian aspects of a design.
If you see infringement of your copyrights or other intellectual property rights on All Public Art, you may contact the other person to try to work it out or talk to an attorney. You may also provide All Public Art with the information specified in All Public Art's Intellectual Property Policy. All Public Art cannot provide you with legal advice or legal representation. Please speak with a licensed attorney in your jurisdiction for legal advice.
What if All Public Art receives a copyright or intellectual property policy complaint about me?
When All Public Art receives a notice that complies with our Intellectual Property Policy, All Public Art may remove the material claimed to be subject to infringing activity. Then All Public Art may notify the All Public Art member and provide the All Public Art member with details of the notice, including the complainer's email address or other contact information.
What if All Public Art receives multiple copyright or intellectual property policy complaints about me over time?
All Public Art may be required to suspend or terminate your account.
What’s the worst that could happen if I infringe?
Please don't purposely infringe. Even if you do not have substantial assets, you may be forced to cease publication, shut down your website, or even to destroy all copies of art that include copyright infringement.
How much do I have to change in order to claim copyright in someone else's work?
There’s a myth that US law states if you change a certain percentage of someone else’s work, you will be able to claim a copyright in that work. This is a myth. Only the owner of the copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, without the owner’s consent you cannot claim copyright to another’s work, no matter how much you change it.
What if I’m outside of the United States?
This information relates to the law of the United States. However, the United States has copyright relations with most, but not all, countries throughout the world, and as a result of these agreements, the US honors certain other copyrights. For a listing of countries and the nature of their copyright relations with the United States, visit www.copyright.gov and see Circular 38a, International Copyright Relations of the United States.
What if I don't see answers to my specific question?
As you're probably aware, the law is very complicated and may vary from situation to situation, place to place, and even judge to judge. These topics have been argued and theorized by legal researchers, attorneys, and judges for many years. And laws are always evolving. And sometimes a factor that may seem unimportant may be actually very important. As always, do your research, exercise good faith, treat others as you would want to be treated. If you need further assistance, talk to a licensed attorney. This page may be periodically updated to incorporate new issues that arise.
Where can I get more information?