The Professional Practices for Artists

Artists and Copyright

This is the fourth in a series of articles sponsored by the CAA Committee on Intellectual Property (CIP), in which a hypothetical question is posed on some aspect of rights, permissions, fair use, and related topics. We provide a short answer on the legal aspects of the question, followed by commentary from a practical perspective. This feature is intended to provide general information and does not constitute legal advice. If you have specific legal questions, please contact an intellectual-property attorney.

Q: I am a visual artist working in the United States. I create paintings and works of art on videotape. How do I copyright my work?

A: Artworks created in the US on or after January 1, 1978, are automatically protected by copyright from the moment they are fixed in tangible form (on canvas, paper, video or audio tape, hard drive, floppy disk, maquette, and so on). You need not register with the US Copyright Office to secure copyright.

A threshold requirement for copyright protection is that your creations must be “original works of authorship.” “Original” in this context means that you created the work independently and did not copy someone else’s work. (An artwork can be protected by copyright even when it is substantially the same as another work, as long as it was created independently, without having copied the other work.)

Copyright law gives you exclusive rights over all uses of your work, subject to certain limitations and exemptions—including fair uses by others—for a period of time. In the US, your works would be subject to copyright for a period of 70 years after your death.

By exclusive rights, we mean that you have the right to authorize reproductions of your work, such as by means of a photograph or a copy of your video; the preparation of derivative works—modifications—based on your works; and the public performance of your work (such as in a museum or other public space, or through a broadcast). You will retain all of these copyright rights even after you sell the work itself (the painting or a copy of the videotape), unless you have specifically agreed to license those rights to the buyer (or someone else).

Historically, including a copyright notice was necessary to maintain copyright protection, but this requirement was abolished March 1, 1989. Even so, to put the world on notice that you own the work (potentially important if you were to sue for copyright infringement) it is prudent for you to affix a copyright notice to the painting (it can be on the back), on the outside of the videotape case, or at the beginning or end of the video work. (Of course, a copyright notice can also be affixed to a three-dimensional work such as a sculpture.) The copyright notice consists of the symbol (c); the word “copyright” or abbreviation “copr.”; your name; and the year the work was published (i.e., a copy was first distributed).

If a copyright notice is affixed to the work, no one can claim that they “innocently infringed” your work. Avoiding a claim of “innocent infringement” can be important because courts can reduce significantly the damages that an “innocent infringer” would have to pay to you if you won your case against the infringer.

Even though you need not register your copyright to secure protection, registration with the Copyright Office does offer certain benefits and advantages. Registration is an absolute requirement before you can bring any legal action against an infringer. Moreover, if you had registered the work prior to the time of an infringement, then, if you win the suit, you can apply to the court for the infringer to pay your attorney’s fees and court costs. Importantly, you also may choose to recover “statutory” damages (which may range up to $30,000 for an infringement, or $150,000 for willful infringement). If you register the work after infringement takes place, you can only obtain the “actual” damages you suffered. It can be difficult, however, to determine “actual” damages (see below).

Registration with the Copyright Office is relatively straightforward and inexpensive ($45). It is important that you use the right form, depending on the type of work; for example, there are separate forms for works of visual art (such as a painting) and audio-visual works (your videotape). You must fill out the information completely and accurately. Forms are available from the Registrar of Copyrights, United States Copyright Office, Library of Congress, 101 Independence Ave. SE, Washington, DC 20559-6000; 202-707-5959;

CIP Commentary

Copyright laws were revised in the United States in 1976 and again in 1988, when legislation was passed enabling the US to join the Berne Convention for the Protection of Literary and Artistic Works, the most comprehensive international copyright treaty. By adhering to the Berne Convention, the US signaled to the rest of the world that its law is aligned consistently with international standards. Some confusion persists about the rules regarding a copyright notice that apply to artworks created in the US prior to the 1976 and 1988 revisions. The date of an artwork’s creation in the US determines which rules apply: a copyright statute enacted in 1909 covers work created before 1978; the 1976 statute applies to works created after January 1, 1978. Under the 1909 Act, a copyright notice was required to obtain and maintain federal copyright. The 1976 Act mitigated the harsh result of an omission or defect. The Berne Convention Implementation Act eliminated notice as a condition of copyright protection for works created after March 1, 1989. The 1998 Copyright Term Extension Act (a.k.a. the Sonny Bono Act, after its congressional sponsor) extended the term of copyright for work created after December 30, 1977, from the life of the artist plus 50 years to life plus 70 years.

Copyright guidebooks can be unreliable and misleading if they are out of date. The most recent publications by the US Copyright Office and organizations such as the Volunteer Lawyers for the Arts are your best bets for trustworthy information.

It is also helpful to recall that copyrights give artists the right to authorize copies of a work. In this way, they enable the artist to earn income from the sale of copies, which can be a significant benefit, especially for artists who work in media such as video. An artist who creates unique paintings usually earns his or her primary revenue from a one-time sale. Other uses, such as reproductions, may be licensed to produce income. The beneficiaries of licensing copies of unique objects are often well-known artists whose works are reproduced in books, posters, and the like. Some forms of art, such as video, artist’s books, sound art, and digital-format art, may be created in an edition or be licensed by the artist for exhibition in various venues. An infringer who distributes copies of a videotape or digital file may be undercutting the artist’s primary source of income from the work. An artist who works in film, video, or digital media would be especially well advised to register his or her creations with the US Copyright Office.

Rules of Thumb

  1. Works of art created in the U.S. after January 1, 1978, are automatically protected by copyright once they are fixed in a tangible medium

  1. You are not required to place a copyright notice on your work to preserve copyright protection. If your work is infringed, however, the presence of a copyright notice may assist you to overcome an infringer’s claim that his or her use was “innocent.” Damage awards for innocent infringement are significantly lower than damages for willful infringement. The determination of infringement is made through a lawsuit

  1. It is not necessary to register your work with the US Copyright Office to obtain protection under the US copyright law. Registration, however, offers significant advantages if any infringement occurs after the work is registered

Registering Copyright

“Go register everything you have” advises the Seattle artist Jack Mackie. Mackie’s recent experience in court with an infringer can be an eye-opener for artists who forego formal registration for their copyrights. Since artwork created in the US after 1977 is automatically protected by copyright, the rationale for filling out US Copyright Office registration forms (which must each be accompanied by a $45 registration fee) seemed obscure to Mackie, as it does to many of his peers.

The artwork involved in the case Mackie v. Reiser1 is Mackie’s Dance Steps, a locally famous set of bronze footprints embedded in a Seattle sidewalk that maps steps to dances such as the tango. In addition to names of the dances, bronze plates next to each set of steps include Mackie’s copyright notice. Without Mackie’s knowledge or permission, a designer for the Seattle Symphony incorporated a photograph of the work into a 1996 promotional brochure, adding color and altering a few details of the work to enhance her design. When Mackie complained, the symphony’s lawyers initially denied that the design violated Mackie’s copyright. By the time the case came to trial in 2000, the symphony’s attorneys admitted infringement; the issue to be resolved at trial was the damages Mackie might be awarded. Because the work had not been registered with the Copyright Office when the infringement occurred, the artist was only entitled to “actual” damages.

The puzzle for all concerned was: How could this sum be determined? How was Mackie’s potential income from this copy of his work directly or indirectly affected by infringement? Symphony lawyers argued that Mackie should be awarded $1,000, the fee charged by a stock photo house for a photograph of his work. The judge agreed with the symphony, even though the photo house had been marketing the image without Mackie’s consent. The judge ruled further that Mackie’s reputation was not harmed by the infringement.

Mackie was awarded $1,000. Because his copyright was not registered prior to the time of the infringement, he could not collect reimbursement for his legal fees, which amounted to more than ten times his award. Mackie appealed the ruling, hoping to avoid establishing a precedent justifying low payments for future artists in similar circumstances. The appeal was denied: according to the judge, “first there must be a demonstration that the infringing acts had an effect on profits,” an effect Mackie and his attorney were unable to quantify in terms of “actual damages.” Had Mackier’s copyright been registered prior to the infringement, he might have been awarded up to $30,000 in statutory damages, or as much as $150,000 if the infringement was shown to be intentional, plus, at the judge’s discretion, reimbursement for his legal fees.

1. Mackie v. Reiser, 296 F.3d 909 (9th Cir. 2002).

Originally published in College Art Association  News 29, no. 2 (March 2004): 4–5.

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