May Issue 2002
LEGAL Q & A - for the Arts
by Edward Fenno, Copyright Attorney
Question: Is it true that I have a copyright in my painting or photograph without registering it with the government? If so, why bother registering it?
Answer: It is true. Visual artists have a copyright in their works the minute the paint hits the canvas or the image is recorded on the negative. The legal terminology is that copyright protection begins when the artist's creation is "fixed in any tangible medium of expression." This "fixing' also includes such things as recording the creation on a compact disc or in a computer program.
As to why it is important to register a copyright - an artist cannot enforce the copyright in a court of law without registering it with the United States Copyright Office. Thus, if you find that someone is infringing upon your copyright (i.e., copying your artwork), you will not be able to sue to protect yourself until you have registered the copyright. Artists can still ask the infringer to stop, or send a "cease and desist" letter; but if these don't work, the artist must register the copyright before suing.
While you may register your copyright after
infringement has begun, timely registration (discussed below)
provides at least two very important benefits:
1. If you win the suit, the infringer may have to pay for your
attorney's fees; and
2. You may be entitled to "statutory" damages.
Attorney fees are obviously very important. Full-blown lawsuits
cost thousands of dollars. Artists that don't register their copyrights
on time will have to pay their own attorney's fees. For artists
that do register on time, infringers are much more likely to settle
a suit early for fear of having to pay increased attorney's fees
of the artist later in the case.
With respect to "statutory damages" - artists that have registered on time, but have trouble proving either how much they would have made off of their artwork absent the infringement ("actual damages") or the amount of the infringer's profits from the copying ("profit damages"), can turn to federal statutory law to set a compensation amount for the artist ("statutory damages"). These amounts generally range from $750 to $30,000 for all infringements of a given work of art by a particular infringer. In cases of intentional infringement, statutory damages can be increased to $150,000 per work. Thus, if someone made postcards by intentionally copying two photographs by an artist who timely registered copyrights in those photographs, the artist might be entitled to $300,000 plus attorney's fees as compensation - even if the artist is unable to prove how many postcards the infringer sold. Of course, not all awards will be this high. The court has discretion to tailor the award to what is fair under the circumstances. Still, the possibility of such an award may make settlement more likely.
As to when to register a work - timely registration for a "published" work is before the later of (a) three months after the date of first publication, or (b) the beginning of the copyright infringement at issue. "Publication" takes place when the artwork is distributed to the public or offered for sale or lease. For unpublished works, timely registration is any registration before the beginning of the infringement. Again, you may still register your copyright after these deadlines, but you won't have a chance at attorney's fees or statutory damages if you miss the deadlines. Thus, the best idea is to register the work before offering it for sale or otherwise "publishing" it.
Registration is inexpensive and relatively
easy. The application fee for registration of a work of visual
art is currently only $30. Filling out the registration forms
is about as difficult as filling out tax forms. Some artists do
it themselves, and some have their attorney handle it. Forms and
instructions are available from the United States Copyright Office's
website - (www.loc.gov/copyright). Click on "Registration
Procedures" under the General Information heading. Form VA
is the general form for visual artists, although sometimes Short
Form VA can be used instead.
The registration process tends to take about six months. If you
are being infringed upon and need to get the registration more
quickly, you should contact your attorney. Expedited registration
is usually available, but it is significantly more expensive than
timely registration - both in registration fees and attorney's
fees.
Edward Fenno is an intellectual property and media attorney with the law firm of Moore & Van Allen. He represents a number of artists, as well as clients in the publishing and technology industries. He will be a periodic contributor to Carolina Arts on legal issues for artists. Fenno can be reached in Charleston, SC at 843/ 579-7040.
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