today’s final biz ladies post is a MUST READ for any new or seasoned designer who has ever wondered about copyrighting their designs. besides tax and legal issues, this is the topic i get asked about the most every day: what is a copyright? how do i file one? do i qualify for one? when do i need a license to use someone else’s work? if you’ve ever asked yourself these questions, today attorney amy j. everhart will be answering all of your questions. i can’t stress how important even the basics on these topics are and today amy will be sharing a wonderful crash course in copyright fundamentals. if you’re a designer who creates original work, then this is a must read. thank you so much to amy for her hard work on this article!
amy j. everhart founded her nashville, tennessee, law firm to counsel clients in the creative industries, entrepreneurs, inventors, business owners and others in the areas of copyright, trademark, entertainment, the arts and the internet. she is also the author of the copyright, trademark and entertainment law blog “lightbulb moments“.
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Copyright 101 for Designers
By Amy J. Everhart
As a designer, your designs are your lifeblood. Just as a jeweler keeps his jewels in a locked display case, you should safeguard your designs. I don’t mean the physical product embodying your designs, but the intangible right to them: the copyright. Yet maybe because a copyright isn’t something you can see or touch, creators often neglect to safeguard it. An understanding of the copyright basics goes a long way toward protecting why you’re doing this in the first place: the art.
What is a copyright? Skip ahead if I’m getting too “101” on you, but it never hurts to start at the beginning: What is a copyright in the first place, and why should you care if you have one? A copyright protects creative works, including works of visual art, and is actually a bundle of rights. In the case of a work of visual art, a copyright includes the rights to copy, display, sell, perform and make derivative works from your work.
When do I have copyright protection? The minute you create a design and it’s embodied in a tangible medium (meaning no longer just an idea in your head but sketched out on paper or something you can touch), you, as the author, own the copyright to that design. This is true even if the work is not registered with the U.S. Copyright Office and even if you don’t place a copyright symbol (©) on the work. But, as you can see below, doing both is important even if not required for copyright protection, because it will enhance and maximize your protection.
Do I need to register my design with the Copyright Office? You don’t have to register your work with the Copyright Office to acquire copyright protection. So why bother slogging through that frustrating registration process, not to mention spending the money it costs to register? Three reasons: 1) registration within five years of publication gives you a presumption of ownership; 2) registration is a prerequisite to filing a lawsuit for copyright infringement; and 3) registration makes available certain infringement remedies that might not be available to you otherwise, including the potential to recover attorneys’ fees and “statutory,” or a specific range of, damages Congress built directly into the Copyright Act. Also, don’t wait until someone has copied your work to register it. You’ll want to file that copyright-infringement lawsuit immediately and not have to wait for the Copyright Office’s stamp of approval on your registration. Also, you generally can’t seek attorneys’ fees or statutory damages unless you register the copyright before the work is copied.
How do I go about registering? The U.S. Copyright Office has gone high tech and now offers an online registration option. Go to www.copyright.gov and click on the “Electronic Copyright Office.” From there, you can find tutorials, options for paper registration (tempting, but I recommend the electronic system) and a link to enter the online registration system. If you can get past the “select a password” segment without pulling out your hair (I have a few bald spots from the picky system’s rejection of no fewer than 15 proposed passwords), the online system should navigate you through the registration process. As a designer, you’ll likely be registering a work of visual art, although your design may fall into a different category, such as multimedia, so you’ll want to read the various categories to make sure you register your work in the right one.
Do I need a copyright notice? As a designer, who wants to muddle their work with legal symbols? Once upon a time a copyright notice (©) was required for copyright protection. Nowadays it’s not, but, like registration, it has its own perks, notifying others that you claim rights to the work and precluding a defendant in a copyright-infringement lawsuit from successfully claiming innocent infringement.
Who owns the copyright? Remember, the rule is that the creator is the original owner of the design. The only way to transfer copyright ownership is to do so in a signed writing. Likewise, you should always clarify with a client in writing who owns the copyright. Clients might believe that, because they’ve paid for a work, they own the copyright to it. If you want to reserve your right to the copyright, make sure you and the client both understand that to be the case in a signed writing and that the same writing clarifies how the client may use the work.
What about designs created by employees? There is one exception to the rule that the creator originally owns the copyright: Employees who create a work within the scope of their employment do so as a “work made for hire” for the employer. In that case, the employer owns the design. Regardless of this default rule, if you’re the employer, you should still, for purposes of clarification and certainty, have your employees sign an agreement up front transferring to you the copyrights to all works created on the job. (If you’re the employee, try to carve out rights to use the work at least in your portfolio.) What about independent contractors you retain to design for you? A writing clarifying ownership is even more important in that case, because independent contractors don’t qualify as “employees” for purposes of the “work for hire” rule.
When is your use of someone else’s work fair, and when do you need a license? When can you use someone else’s work in yours without a license? Unfortunately, this is a question without an easy answer. For starters, not every element of art is protectable by copyright. Raw ideas and stock themes are not protectable and are fair game to anyone. Second, you can use works that are in the public domain, meaning no one owns them. The trick is to determine whether the work really is in the public domain. Simply because you find clip-art online with the website owner’s promise that it’s free doesn’t necessarily make it so. The only way to know for sure is to get permission from the owner of the work. At least make sure you have a warranty as to ownership from the clip-art provider, and, even then, use at your own risk. Finally, not every copy is infringement. Certain uses of others’ copyrighted works may be fair and not require a license, depending on several factors: 1) whether your new work is “transformative” or alters the original work with new expression, meaning or message (such as comment, criticism or parody); 2) the nature of the work (factual works are more likely to be found fair than fiction or creative works); 3) the quantitative and qualitative amount of the original work used and how much of your work uses the original; and 4) whether your work usurps the market of the original. Whew! Got that? The rule of thumb: When in doubt, get a license.
So there you have it — now that you have the building blocks to protect your art, you can get back to creating it. Of course, your legal circumstances are as unique as your designs, so keep in mind that the information in this article is meant only as a reference tool and not as legal advice, and some of the legal concepts discussed may be subject to exceptions and qualifications.
Amy J. Everhart founded her Nashville, Tennessee, law firm (www.aeverhart.com) to counsel clients in the creative industries, entrepreneurs, inventors, business owners and others in the areas of copyright, trademark, entertainment, the arts and the Internet. She is the author of the copyright, trademark and entertainment law blog “Lightbulb Moments,” located at www.aeverhart.com/lightbulbmoments.