by Paul C. Rapp, Esq.

Every artist ought to have at least an elementary understanding of copyright law. Second only to an artwork’s aesthetic qualities, it is copyright law that drives a work’s value and integrity. This is so because copyright law establishes and defines what it is that the artist owns of his or her work, both while the artist possesses the work and after the work has been sold, copied, displayed or performed. This article will hopefully shed some light on this deceptively complicated area of law and dispel common myths and misunderstandings about copyright law.

Copyright in a work is not a single right. Rather, copyright is a bunch of rights, including: the right to display (or perform or publish) a work; the right to make copies of a work; the right to distribute copies of a work; and the right to make “derivative” works of the original (works that are a variation, or are based on the original, like a screenplay to a book). An artist can sell or license one of these rights, a part of one of these rights, or groups of these rights, in any combination and with any restrictions that the artist requires. A lucky photographer could simultaneously license a single photo for a dentist’s billboard in Pittsfield; for Hello Kitty lunchboxes in Japan; for the cover of the Eminem Sings Jacques Brel CD; and for Hallmark Chanukah cards. And the photographer would retain the remaining copyrights to the photograph and would be able to continue to license it for other purposes.

Copyrights come into being upon the creation of the work in any tangible medium. I frequently speak with artists who believe that their works aren’t protected because they haven’t obtained a federal copyright registration. These artists tell me, with regret, that they haven’t “copyrighted” their works. This is an impossibility. Pursuant to federal law, a creator gets the copyright automatically when a work comes into being, whether or not the copyright is wanted or needed. The only conditions are (1) the work must be something that can be properly copyrighted, and (2) the work must exist in a fixed form. Let’s say saxophonist Sonny Rollins plays a solo in my living room late one night that is so audacious, so revelatory, that it would bring about world peace and cure cancer, if only everybody could hear it. Nobody records the solo. No copyright, and we all go back to a heightened state of alert and tense doctor’s appointments. Same scenario, except that I throw up a microphone and get the whole thing on my minidisk recorder. Sonny gets a copyright and together we save the world! Cool!

And these rights stay with the artist (who I shall refer to from here on as “you”) even if the original artwork doesn’t. The copyright is different than the thing copyrighted. Example: a slick Wall Street investment banker visits your gallery in June, and buys your largest and most expensive painting for $20,000, a number you put up there as sort of a joke. Mr. Banker tells you he’s going to hang the painting in Conference Room D back at The Ol’ Firm. He takes your business card. Come December, you receive a holiday card from The Ol’ Firm, and (surprise!) there’s a little reproduction of your painting on the card! Your copyrights have been violated. Mr. Banker bought your painting, but he did not buy your copyrights in the painting, specifically, the right to copy and distribute copies of the work. Those rights stayed with you.

So if all of this happens automatically when a work is created, what’s this federal registration business all about? Federal registration with the Copyright Office of the Library of Congress (download forms at www.copyright.gov) is a matter of registering the copyright you already own with the federal government. Receiving a certificate of registration does not mean that the government necessarily agrees that you own the copyright, however. The government is just acknowledging that you say you do.

So why register?

Registration gives you added protection against infringement or other abuses of your copyright. For one thing, registering a copyright creates a public record that you claim authorship of a work as of a certain date. This claim can be challenged by another creator, who can claim and try to prove that it’s not your work and/or that the work already existed as of the date you claim creation. But, registering your work (you need to submit a copy or photo of the work) creates good proof should any challenge arise. A commonly held (and too often repeated by people who should know better) misconception is that there is a registration alternative, the so-called “poor man’s copyright,” which you can get by mailing yourself a copy of the work and not opening the envelope. This is no substitute for registration and is of dubious value as evidence of anything. Save your stamps.

Second, should you need to go to court to protect your copyright, you’ll need to have the work registered first. Registration of a copyright is, in essence, the price of admission to federal court, where all copyright matters are heard.

Third, if your copyright is registered before an infringement of your copyright occurs, the law gives you a lot more ammunition to use in protecting your copyright. Potential damages facing the infringer increase and your burden of proof gets easier if you register early. And, should you be successful in a court fight, the violator can be ordered to pay your attorney’s fees. The looming possibility of these factors generally encourages a violator to come clean and settle an infringement quickly.

This is why, whenever an agitated artist appears in my office complaining that his or her works have been ripped off, my first question is always “is your work registered?” This is why there’s an indentation on the spot on my desk where I pound my head when the answer is “no.” Going after an infringer who has stolen from an unregistered work is almost always a losing proposition financially. We are left with having to quickly register the work, and then generally take what we can get in terms of getting the infringer to stop his activity, and perhaps with some puffing and bluffing, getting some nominal money damages. On the other hand, when a violated artist comes in registered, and registered before the infringement took place, I find myself with Park Place, Boardwalk, and all the utilities and railroads working for me even before the first Angry Lawyer Letter goes out. Life is infinitely easier, and the cotton is higher.

Registration costs: always check copyright.gov for current fees for registering by mail or on-line. Before you start staring out the window ruminating about the futility of it all, take note that you can register collections of unpublished works. Registering a collection is one fee (check copyright.gov for current fees) and each piece in the collection gets full protection as if it were individually registered. And it doesn’t matter how many pieces are submitted in a collection, so long as the works are all of the same medium, have the same author(s), and have yet to be “published”; that is, copies have not been made available to the general public.

You don’t need to register everything you create. If you don’t care if somebody copies your work (if you don’t intend to protect your copyright), don’t register. If you don’t think a work will ever be subject to copying (a preliminary sketch, a not-so-great version of almost anything), don’t register (unless you think your scraps will become valuable upon the future universal acclaim of your genius). But works that are going out in public, or are leaving your control for almost any reason, or that are being sold in multiples, or are going to be posted on the Internet are all good candidates for registration.

Understanding copyright—knowing what you own and how to protect it—is key to understanding what you have to make available to others, and knowing whether and how you’ve been ripped off. Registering gives you the tools you need to act effectively when you find somebody has violated your copyright. It’s tough enough to make a living as an artist; opportunities can’t be missed based on a misunderstanding of a couple of the basic facts of life.

© 2002 Paul C. Rapp

This article originally appeared in the Berkshire, MA region arts magazine, The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice. Paul C. Rapp, Esq. lives and works in Housatonic, MA, and teaches art and entertainment law at Albany Law School. He is a long-time associate member of the Albany, NY Chapter of the Graphic Artists Guild and regularly appears on behalf of the Guild as a member of The Copyright Forum on the WAMC-FM program Vox Pop. Paul is also a professional musician, playing drums for the rock band Blotto. Additional articles that he has written about intellectual property law can be found at www.paulrapp.com.