Q. What is registration?
A. Although a copyright is created automatically when a work is created, there is a procedure for registering a copyright with the Library of Congress. Remember, registration is not required for copyright protection.
There are three benefits to registering a copyright. First, registration creates a public record of a copyright. Second, registration of a copyright is required in order to file a lawsuit for copyright infringement. Third, if a copyright is registered before there is an infringement or within three months after the first publication of a work, the owner of the copyright can claim certain alternate damages plus attorneyís fees. These alternate damages are called statutory damages and they can be awarded in a sum of up to $100,000 for willful infringements. The registration process itself, does not alter the fact that the owner of a copyright is always entitled to his or her actual damages plus any profits earned by the infringner. However, the suggestion that statutory damages and attorneyís fees are available can act as a catalyst for the quick settlement of a copyright infringement claim.
Q. How do I register a copyright?
A. Registration is accomplished by filling out a simple form, paying a small fee and sending one or two copies of the work to the Copyright Office. The number of copies generally depends on the whether the work has been published before registration. Basically, only one copy or photocopy needs to be sent to the Copyright Office for unpublished works. For published works, two copies of the work need to be filed. Also, several related works can usually be registered at the same time with the payment of only one $20 fee.
Forms can be obtained from the Copyright Office forms hot line at (202) 707-9100. Use Form VA for works of visual art and Form TX to register mainly textual material. Form SA is used for sound recordings. Request Circular 1 from the Copyright Office for general information about copyrights and Circular 40a for guidance as to how many copies of a work need to be filed.
Q. Should I register the copyrights to all of my works in Washington?
A. Not necessarily. It may be a good idea to register books, plays, musical recordings, portfolio photographs and illustrations and any other significant or important works. However, it may be cumbersome and expensive for a professional photographer who creates thousands of images each year to register all of his or her images. In this case, it may be sufficient to register only portfolio images, or images taken for clients with whom the photographer expects to have difficulties. Also, authors or musicians who produce relatively few works, may want to register all of their creations. It is also a good idea to register all writings and songs before sending works to prospective publishers or before public performance. This gives added protection in case of unauthorized usage.
Q. Has the Copyright Act kept pace with the computer age and changing technology?
A. Yes. The Copyright Act was designed to be responsive to all technological advances. For example, an illustration or photograph must be licensed for use on the internet. Similarly, an illustration or photograph taken off the internet without permission is as much an infringement as if the same image were taken from a magazine and used without permission. The unauthorized reproduction of a copyrighted work even if taken off the internet is still an infringement.
Q: What if I have an idea and I hire a photographer to execute my idea, pay for his or her expenses including models, film, processing, assistants and special equipment, does the copyright belong to me?
A. No. Usually, the person who creates the work ñ in this case, the person who trips the shutter -- owns the copyright. Of course, the parties can make other arrangements such as assigning the copyright or agreeing in writing to create the photograph on a work-for-hire basis. Also, under some circumstances there could be joint ownership of the copyright.
Q: If I buy a photograph or painting from a photographer or an artist for display purposes, can I use the image for any other purpose?
A. No. Mere ownership of a photograph, a painting or any other copyrighted work does not convey any right to copy or to use the work other than for personal use. For instance, a painting can be hung in a home or office but, absent permission, it cannot be copied, reproduced or used for any other purposes.
The law provides that the transfer of ownership of any material object that is protected by copyright, does not of itself, convey any rights to the copyright. For example, the purchaser of a copyrighted photograph, painting or poster, intended for display purposes, does not acquire any right to copy, reproduce or use the work other than for its intended purpose. Even if one were to purchase an original portrait that was specially commissioned, the purchaser would only be able to frame and display the work. Unless the parties otherwise agree, the artist owns the copyright and the work cannot be copied or reproduced. Thus, without permission, the subject of the portrait cannot even make a holiday card from the painting. Similarly, no one can photocopy an entire book without violating the copyright ownerís exclusive rights in the work. In fact, radio stations and jukebox operators have to purchase licenses to broadcast or play music even if they own the records they are using.
Q. What is a copyright notation?
A. A copyright notation consists of the word "copyright" or the international copyright symbol, which is the letter "C" within a circle, together with the year of first publication and the copyright owner's name. For example, a proper copyright notation for this work would be either of the following: c 1997 Andrew D. Epstein or "Copyright 1997 Andrew D. Epstein."
Q. Do I have to use a copyright notation on all copies of my work?
A. No. Since March 1, 1989, a copyright notation is no longer as absolute necessity of the Copyright Act. Nevertheless, it is still a good idea to do use a copyright notation as a reminder that the work is protected by law. Also, the copyright notation may act as a deterrent for would-be infringers. The regulations require that the notation be put in a reasonably conspicuous place. This could be on the surface of a phono record, the back of a photograph or the base of a sculpture.
Q: If a work does not have the word "copyright" on it, can I assume that the work is in the public domain and can be used?
A Probably not. The safest thing to do is to assume that all works are protected by copyright and that no work can be used or reproduced without permission. The reason for this is that since March 1, 1989, a copyright notation is not an absolute necessity for copyright protection.
Prior to this time, it was generally necessary to include a copyright notation on all works in order to maintain the copyright. In fact, before 1978 it was generally necessary both to use a copyright notation with a work as well as to register the work with the Copyright Office. However, since 1978 registration is no longer required.
Q. What is copyright infringement?
A. Copyright infringement is the unauthorized use of a copyrighted work. Even the simple act of photocopying a copyrighted image without permission can be an infringement. When there is an infringement, the owner of the copyright can sue for damages. All lawsuits for copyright infringement must be brought in federal court, not state court.
Q: If I change a few things in a copyrighted work by adding or taking something away, am I guilty of copyright infringement?
A. Yes. The right to make derivative copies is reserved exclusively to the copyright owner. While the idea for a work of art can be copied, the expression of the idea is fully protected. Sometimes, it is difficult to differentiate between an idea and an expression because the idea can sometimes get lost in the expression.
For example, one court had to decide if a pin made in the shape of a bumblebee was protected by copyright. The court said that the bumblebee was taken from nature and there was only one way to express this idea. Consequently, when there is only one way to express an idea, copyright will not prevent the copying of the expression. Furthermore, even though the pin was decorated with colored jewels, the placement of the jewels had to follow the form of the insect. Therefore, the jeweled bumblebee pin was not a expression that would be protected by copyrighted. The court held that it was an idea that could only be express in one way.
Q: If someone infringes my work, do I have to catch the infringer in the act?
A. No. It is not necessary to have finite proof that an infringer copied a work in order to prove copyright infringement. Infringement can be established simply by proving that the alleged infringer had access to the copyrighted work and that the offending work is substantially similar to the original.
The concept of substantial similarity is another tricky copyright concept. For example, making an illustration directly from a photograph without permission would be risking infringement. If the illustration were substantially similar to the photograph, there will be an infringement. The degree of similarity between an original work and a copy can cover a broad range from an exact copy to substantial similarity to some similarity to no similarity. The degree of similarity is a question for the court to decide. Common sense and good judgment must prevail.
Q. What are the damages for an infringement?
A. The owner of a copyright can always claim whatever damages he has actually sustained as a result of an infringement plus whatever profits were earned by the infringer from the unauthorized use of a work. In addition, if the copyright to a work which was infringed was registered with the Copyright Office either prior to the infringement or within 90 days after first publication, there are alternative damages that can be awarded. The owner of the copyright can elect to seek the greater of either his actual damages plus the profits earned by the infringer, or damages of up to $100,000 plus attorney's fees and court costs. The total damages that can be awarded by a court depends upon the degree of willfulness of the infringer.
For example, if a company has an agreement with a photographer to use certain photographs for one year only, the photographs can only be used within the one-year term. The company cannot use existing printed matter that contains any of the photographerís images beyond the one-year term. Simply, the continued use of copyrighted materials beyond the licensing period constitutes copyright infringement.
Q: Are there any times that I can use a copyrighted work without risking infringement?
A. Yes. The concept of fair use permits the utilization of copyrighted materials for certain purposes. For example, a newspaper can publish copyrighted works for purposes of reporting news and a teacher can make multiple copies of certain works for classroom use without risking infringement. In order to determine if a use is fair or is an infringement, one must determine how much of the copyrighted work is used and the impact this use will have on the potential market for the copyrighted work. If large portions of a copyrighted work are used or if the use lessons the potential market for the work, there will be infringement.
Parody is a form of fair use. In parody, an artist, for some comic effect or for social commentary, may closely imitates the work of another artist, as long as the new work ridicules or comments on the style or expression of the original. Thus, the rock group, Two Live Crewís song, "Ugly Woman," which was a rendition of Ray Orbisonís song, "Pretty Woman" was held to be a parody and not a copyright infringement.
Q: I make collages. Are there any problems that I might encounter?
A. Yes. If a collage artist incorporates any copyrighted material into the collage, there is a risk of infringement. In making a collage, it is fine to use your own work or work that is in the public domain. However, when collage artists take work from other artists, there is a risk of copyright infringement. As with fair use of copyrighted materials, one must inquire as to how much of the copyrighted work is used and the impact this use will have on the potential market for the copyrighted work. This is another instance where common sense and good judgment should rule.
Andrew "Drew" Epstein has been practicing law for twenty-five years. He continues to maintain a diverse law practice at 10 Winthrop Square in Boston. Telephone: (617) 482-4900. Drew specializes in representing commercial and fine art photographers, artists, writers, entertainers and businesses involved in the arts and visual imaging.
This pamphlet contains only a brief overview of the United States Copyright Act. It is not meant to be a substitute for specific advice from a competent lawyer.
Reprints: Printouts of this website are available directly from the author at 10 Winthrop Square, Boston, MA 02110; telephone (617) 482-4900 [FAX: (617) 426-5251]. Prices are $6 each, $50 for 10 copies and $100 for 25 copies. Add $5 for postage and handling to all orders and sales tax of 5% for orders delivered within Massachusetts. A portion of all proceeds will be donated to non-profit organizations such as the Volunteer Lawyers for the Arts of Massachusetts, Inc. or the Photographic Resource Center at Boston University.
Please Note: This website is designed to be read or to be sent to others in order to help inform the public about copyright law. Any reproduction of this website will constitute copyright infringement. Please respect the Copyright Act.
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