Q. I understand that, according to federal copyright law, I have an automatic copyright to any piece of art I create, but to be able to collect damages on copyright violations, I must actually register my copyright. Registering all my artwork would be quite expensive. Please suggest some practical guidelines on when it’s most prudent to actually register artwork with the copyright office.
Pat Kanzler, Eureka, CA
A. You’re right in saying that whenever an original work of authorship (including artwork) is put into a tangible form, it’s automatically protected by the federal copyright law. (See What Every Artist Should Know About Copyright.) You also correctly stated that before you can enforce your copyright, you have to register it with the United States Copyright Office.
This means you don’t actually have to register your copyright until you want to enforce it by filing a lawsuit for copyright infringement. There is, however, a big advantage to registering the copyright at an earlier date: The remedies available for infringement are much better if the work was registered before the infringement occurs (or if the work is registered within three months of the date the work was first published, in which case, the registration is retroactive to the date of first publication).
According to copyright infringement laws, the standard remedies for copyright violations include actual damages, that being the infringer’s profits or the amount the copyright owner can show was lost because of the infringement. The copyright owner can also obtain an order preventing future copying and requiring all infringing works, including molds, plates, and the like, to be destroyed. Unfortunately, proving what you lost can be hard, and the infringer may not have made much money on sales of the infringing products. Once you consider that you have to pay all the costs involved in litigation, you realize that enforcing your copyright could actually cost you a lot more than you can possibly ever recoup from the infringer.
Why Register Copyright Early
If, however, you register the copyright to your work before a copyright infringement occurs (or within three months of first publication), you are also entitled to recover the reasonable attorney’s fees you spend enforcing your copyright against the infringer. Also, you can choose whether you would like to be awarded your actual damages or statutory damages. Statutory damages are of no less than $750 and no more than $30,000, unless the copyright owner can show that the infringement was willful, in which case they can be up to $150,000. As you can see, there’s a strong incentive for registering your work with the Copyright Office at the earliest possible date.
The only recommendation I can make without having more information is that if the artist feels that the work is likely to be infringed, then early copyright registration is certainly a good idea. Note that, in some situations, there are ways to register works as a group to save money, so you might want to review the Copyright Office website (www.copyright.gov) or contact an intellectual property lawyer for more details.
This Ask the Experts Q&A, by Leonard DuBoff, first appeared in the July/August 2012 issue of The Artist’s Magazine (click here to order a subscription). Copyright laws are subject to change. This article reflects the laws in effect at the time the article was written.
Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.
You might also find these resources on federal copyright law and other legal or business topics helpful:
- What Every Artist Should Know About Copyright
- Copying Artwork
- Copying Photos
- Business and Legal Guide for the Visual Artist, 5th edition; by Tad Crawford
- Business and Legal Forms for Fine Artists, 3rd edition; by Tad Crawford
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