Understanding copyright law is essential for visual artists. At the Guild of Natural Science Illustrator’s conference last week in Boulder, CO Viva Moffat ran a workshop on contracts and copyright which was packed to the gills. Moffat is the Associate Dean of Academic Affairs and Associate Professor at the University of Denver’s Sturm College of Law, and the schooling she gave us on basic copyright law was extensive (although perhaps not by lawyers’ standards). I went into the workshop thinking I knew pretty much all I needed to know to successfully negotiate contracts involving the creation of new work as well as the relicensing of old work. Moffat’s in-depth examination of the nuts and bolts of copyright law had me surprised at several points. Here are the top five things I came away with.
1. Copyright is not an inalienable right. Our rights are defined by the 1976 Copyright Act, and like any other law, that can change (and has in large part thanks to one very famous mouse. Visual artists may also be familiar with more recent hostile attempts to change Copyright law in the name of Orphan Works). So you are well advised to understand your rights today and stay abreast of any changes proposed for the future. After all, this is the crux of our livelihood.
Fun fact: The original Copyright Act of 1790 only covered maps, charts, and books and provided copyright protection for a maximum of 28 years — 14 years upon publication with the option to renew for a second 14-year term if the author was still alive.
2. Copyright only protects certain kinds of work:
And you only have certain rights to these works under copyright law. Specifically, you may reproduce the work, make derivative works, distribute copies by selling, renting, or leasing the work, and perform or display the work publicly. But copyright does NOT protect a work before it has been “fixed” even if it falls into one of these categories. So if I tell you about the world’s most amazing illustration idea I have and while I’m busy yammering to the world about it you go and execute it, I’m out of luck. In other words, you can’t copyright ideas. Other things you can’t copyright: procedures, facts, common knowledge, slogans, phrases, titles and more. There’s an exhaustive list here.
3. Calculating when copyright expires is trickier than you might think. Before Moffat’s class I always added 70 years to the date of creation to figure out when a particular copyright expired, but that’s flat out wrong. It’s also wrong to add 70 years to the date of publication. In truth, copyright protects work for the life of the author plus 70 years. So to calculate the expiration of copyright for a particular work you must know when the author died. That means copyright expiration is ambiguous for all living authors… until they die. Frustrating? Perhaps. But we artists thrive on ambiguity, right?
4. Work-for-hire agreements aren’t as scary as you think. If you are an image-creator, you have probably heard of the term “work-for-hire.” If not, in the simplest terms it means that you agree to sign over the copyright entirely to whomever you are creating for. In freelance illustration circles, this is generally discouraged unless you can charge a premium for giving up authorship and all your rights in the process. What I learned from Moffat was that work-for-hire agreements are very difficult to fall into – unless you are employed by someone and you are creating work eligible for copyright protection for your job, there’s no way someone can claim ownership of your work unless you sign a contract that declares the work is work-for-hire. So educating ourselves is key. If you know to look for this term in contracts, you can push back and negotiate until you are satisfied with the outcome.
5. You must register your copyright before you can sue for infringement. I had no idea! Luckily, registering your copyright is remarkably easy especially if you’re clear that the works you’re registering were not made under a work-for-hire arrangement. Besides protecting you in the event that your work is infringed upon, all registered works are automatically included in the Library of Congress, which if you think about it, is a cool way to leave your mark on our country’s history. You can bundle collections of work into one registration application to make things easier and more cost-effective. So, for example, if you created 100 illustrations in 2013, there’s no need to register each separately at $35 a pop. You can bundle them into logical groupings like “2013 Paleontological Illustrations – Pen and Ink” and “2013 Symbiartic cartoons” instead. The form for Visual Artists is here; all other forms are here.
While you’re registering, also check out the very helpful pamphlets explaining the ins and outs of copyright law in plain English. They’re a great resource. Happy registering!