Copyright: The Beginner's Guide

If I change it 10% I own it!

Wrong.. Wrong, wrong, wrong.

Copyright can seem like a strange animal; common enough that you always hear about it, but as soon as you dive into the forest of details obscure terms can pop out like derivative work, fair use, or (god forbid) the Berne Convention. It would seem that many people don't even think about copyright until they either get their work stolen or steal others' work.

As a freelancer, it is important to understand how copyright works and how it can work for you since your living depends on it. As I understand it, copyright is an essential part of the contract writing process with clients. According to Jeremy Mchugh copyright is the commodity that illustrators are trading in, it is how we make money. In short, if all your contracts are low paying Work for Hire jobs you are left with near nothing to show for it.

The purpose of this post is to provide a quick beginning reference about copyright. Most of this information I got from episode 53 of the Ninja Mountain Podcast (A loose collective of freelance illustrators getting together and talking about the industry) so if you want to skip reading just go listen to that > Ninja Mountain

I mean, come on! It's a free podcast that I personally find invaluable. The guest speaker on that episode is Linda Joy Kattwinkel who is a lawyer, she also has written a ton of in-depth Q&A on the subject of visual arts and copyright. Those can be found here > http://www.owe.com/legalities.html.

In the world of the internet there is almost an unlimited amount of information floating around. Articles, designs, photos, and other artworks provide spectacular reference and learning material to artists. From the very beginning level artist, to the professional; we can learn almost anything we want when typed into Google. This also opens the door to people who can steal artworks and pass them off as their own.

So there are ways to protect yourself when this happens right? In short, legally speaking, yes there are. You can take them to court since the law is on your side but if you live in the USA in order to do that the work needs to be registered with the United States Copyright Office, but more on that later.

Key Terms

First- Some basic terms that you should know.

Copyright: Straight from the copyright office “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.”Copyright.gov 

Simple enough, just remember that anything tangible (can also refer to a digital file) is protected under copyright. So sketches, thumbs, and comps along with the obvious artworks. Ideas that have not be put in some tangible form do not count. Copyright includes the exclusive rights to reproduce, distribute, publicly display, publicly perform, and to make or authorize derivative works.

 

Work for Hire: (also Made for Hire)- The work that is created is owned solely by the client or the employer. This could be if you work for a company or if it is stated in your contract.

Fair Use: (also known as Trans-formative)The conditions that someone can use material that is protected by copyright. A work doesn't infringe the original's copyright if it is not for the original purpose. (Example: parody, education, criticism, etc.)

Derivative Work: Work that “derives” from the original work (example: comics or books to movies, fan comics, movies to games). The copyright holder is the only one who can make or authorize these.

Important to Know

Register your material with the United States Copyright Office. http://www.copyright.gov/

In order to enter court to enforce your copyright the work needs to be registered anyway, but there are benefits to registering before the infringement occurs.

1. . You have the option to get your attorney's fees awarded back to you when you win.
2. . You get the opportunity to have the court decide what to pay you, even if you have no records of what you loss or the amount of money the infringement made. (These are statutory damages)

Common Myths

Though there are lots of myths that are passed on about copyright I'm only going to address a few that I've heard and fell for. The first of which is what we started with-

1. “If I change it 10% (20%, 50%) it's okay and belongs to me.”: This one is a very common belief that I was surprised to hear is absolutely false. As Linda Kattwinkel states there is no actual legal way to measure such a change. If you can recognize the original artwork in it and don't have permission then it is an infringement in the eyes of the law.
2. “If you mail a copy of it to yourself and never open it it works as a copyright.”: I heard this one ages ago! This is apparently so false that it won't even hold up as evidence in court. It is only around 30-40$ to get it officially registered anyway.
3. “If I don't charge for it, it's not a violation of the copyright.”: When you distribute or use a work for free that can hurt the commercial value of the work and still infringes the copyright. I found this one, as well as some more myths, here http://www.templetons.com/brad/copymyths.html

So there you have it, a beginning artist's guide to copyright. To read the non-condensed information follow the resource links.

Resources

http://owe.com/visualartistsrights.html Visual Artist's Rights from Owen, Wickersham & Erickson, P.C.

http://owe.com/copyright.html Copyright from Owen, Wickersham & Erickson, P.C.

http://www.owe.com/legalities.html Legalities by Linda Kattwinkel

http://ninjamountain.blogspot.com/2010/02/episode-53-copyright-101-with-linda.html Ninja Mountain Podcast- episode 53

http://www.copyright.gov/ The US Copyright Office

http://www.graphicdesignblender.com/two-critical-legal-concepts-all-freelancers-have-to-know-to-be-safe Two Critical Legal Concepts all Freelancers Have to Know to be Safe, from Graphic Design Blender