There are many misconceptions concerning the use and
effects incurred by copyright law. “Copyright Law of the United States”,
published by the US government is 351 pages long. Although much of the
information doesn’t pertain to visual artists, that which does, is absolute, so
it pays to know how copyright effects what we do as illustrators for our
livelihood. Whether work is created digitally or traditionally the same laws
apply.
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| © 1995 Don Arday. |
#1 Copyrightable Art
All art is copyrighted from the moment it is produced or
becomes a fixed copy. Copyright means the right to copy. “Copyright protection
subsists … in original works of authorship fixed in any tangible medium of
expression.” In the case of digital art, the display of a work on a
monitor through a digital transmission constitutes the establishment of a copy.
“A work is 'created' when it is fixed in a copy.”
#2 Notice of Copyright
Before April of 1989, copyrighted art had to be accompanied
by a copyright notice. The word “copyright” or the familiar “©” symbol had to
be displayed with the artwork. At the present, all art is copyright protected whether it
contains the symbol or not.
Now that said, use of the word or symbol is recommended.
The use of it serves as a warning to possible copyright infringers, in this way,
it can authenticate and strengthen the protection of your artwork.
The copyright symbol is available on keyboards by the
keystroke <option g> or <alt g>. It is also available through the
Object Palette in many software programs. The correct form is: Copyright:
Date(s): Author/Creator/Owner. The word “copyright, the symbol ©, or the
abbreviation “copr” may be used.
#3 Original Work
A “work of visual art” is a
painting, drawing, print or sculpture, existing in a single copy, in a limited
edition of 200 copies or fewer that are signed and consecutively numbered by
the author, or, in the case of a sculpture, in multiple cast, carved, or
fabricated sculptures of 200 or fewer that are consecutively numbered by the
author and bear the signature or other identifying mark of the author.
For digital artists this still
applies. A digital painting or drawing illustration created in Adobe Photoshop,
Corel Painter, or any other image-based software, is considered a “painting”.
Digital drawings created in Adobe Illustrator, Corel Draw, etc., i.e. vector
illustrations are “drawings”.
#4 Copyright Law
Copyright law in small doses falls into the category of “civil
law”, meaning that your legal rights as the artist would have to be implemented
though the initiation of a law suit. However, large violations involving 10 or
more copies with a value of over $2500 is a felony, which falls into the
category of “criminal law”. In the case of all art, to display a work publicly
means to transmit it.
#5 Derivative Work
The derivative work concept is perhaps the most
misunderstood part of copyright law. The derivative work clause regulates the
use of copyrighted reference material. For some illustrators this can have a
great impact on the use of reference material. Copyright law supports the
making of derivative works, but only by, or through the permission, of the
copyright owner.
A “derivative work” is a work based upon one or more
preexisting works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which a work may be recast,
transformed, or adapted. A work consisting of editorial revisions, annotations,
elaborations, or other modifications, which, as a whole, represent an original
work of authorship, is a “derivative work”.
It is highly advisable to exercise caution when using
published work as a reference source. As alluded to in copyright law, every
photograph, artwork, artifact, etc. is copyright protected. And through the internet, gathering
reference copies of images has never been easier.
#6 Fan Art
Fan art is a form of derivative art. It is when another
artist uses original characters or settings created by the originating artist.
For instance, when an illustrator uses Spiderman as a straightforward character
in a promotional illustration. This kind of use requires the permission of
Marvel Comics. However the parodying or making fun of a copyrighted character
or situation does not require permission of the copyright owner. This falls
into the category of “fair use”, but it doesn’t necessarily mean you won’t end
up in court.
This is important to know. Fan art using settings and characters
from a previously created work could be considered a derivative work, which means the copyright would be owned
by the character/settings originator. So, if I did an illustration of
Spiderman, I would not own the copyright of my own work! And, any display
of my fan art Spiderman would be an unlawful distribution of a derivative work.
#7 Fair Use
Fair use is the use of a
copyrighted work, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use), scholarship, or
research. If the reason for use of a copyrighted work falls under this
description it is not an infringement of copyright. However, the
following factors go into determining whether the use would be considered fair
use: The purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes; the nature of the
copyrighted work; the amount and substantiality of the portion used in relation
to the copyrighted work as a whole; and the effect of the use upon the
potential market for or value of the copyrighted work. The fact that a work is
unpublished shall not itself bar a finding of fair use if such finding is made
upon consideration of all the above factors.
#8 Work Made for Hire
A “work made for hire” is a
work prepared by an employee within the scope of his or her employment; or a
work specially ordered or commissioned for use as a contribution to a
collective work; such as a movie, audiovisual work, a supplementary work, a compilation, an instructional text, test or
answer material, or an atlas.
A “supplementary work” is a
work commissioned for publication to support the work of another author. Illustrations
commonly fall into the category of supplemental work. Examples of supplementary
works by illustrators would be non-self authored commercial editorial illustrations,
commercial book illustrations, corporate illustrations, etc. Nearly every
commission could conceivably be a work made for hire, but only if agreed upon
by the illustrator and the commissioning party. All parties must expressly agree in
writing to the “work made for hire” designation.
Watch out. It is vitally important to
consider the following: If a work is "made for hire", the employer, not
the illustrator artist, is considered the legal author and owner of the
copyright for the work. Many publishing houses and magazine conglomerates are
adopting and enforcing “work made for hire” contracts. This may sound absurd,
but bound by one of these “work made for hire” contracts, the original
illustrator would have to get permission from the contractor to display or
publish the illustration.
#9 VARA
VARA also known as “The Visual
Artists Rights Act of 1990 or Statute
106, exclusive rights in copyrighted works. VARA protects the “moral rights” of
the artist as it relates to his or her creation. Only “works of visual art”, a
painting, drawing, print or sculpture, existing in a single copy, or in a limited
edition of 200 copies or fewer qualify for VARA benefits. VARA
gives the artist creator the exclusive rights to do or
authorize the following:
Concerning the Work (Statute
106)
The right to reproduce the
copyrighted work in copies; to prepare derivative works based upon the
copyrighted work; to distribute copies the copyrighted work to the public by
sale or other transfer of ownership, or by rental, lease, or lending; and in
the case of pictorial, graphic, or sculptural works, to display the copyrighted
work publicly.
Concerning the Creator
(Statute 106A)
Titled the “rights
of attribution and integrity”. The right to claim authorship of a work; to
prevent the use of one's name on any work the author did not create; to prevent
use of one's name on any work that has been distorted, mutilated, or modified
in a way that would be prejudicial to the author's honor or reputation, and to
prevent distortion, mutilation, or modification that would prejudice the
author's honor or reputation. Authors of works with "recognized
stature" may prohibit the work from being destroyed. These rights persist
for the life of the author.
#10 Copyright Registration
Copyright
registration serves to verify the ownership and date of creation of a work of
art with the authority of the United States Copyright Office. Registration of a
work does not constitute a “granting of copyright”. Copyright is automatically
granted when the work created and displayed. However, copyright registration establishes
a public record and adds proof of copyright ownership to aid in fighting
copyright infringement.
The US Copyright Office provides standardized forms. The
web locations are linked below. The basic registration fee is ($65) for a
single work or a group of works. Two or more individual works can be
registered on one application with a single filing fee under certain
circumstances, see below. Electronic
filings made online through the Electronic Copyright Office or “eCO” are
available at a reduced fee for ($35).
A
group of unpublished works can be registered as a collection if all the elements
of the collection are assembled in an orderly form, the
combined elements bear a single title identifying the collection as a whole, the
copyright claimant for each element in the collection are the same, and all the
elements are by the same author or, if they are by different authors, at least
one author has contributed copyrightable authorship to each element. All of
these conditions must be met and works registered as an “unpublished
collection” will be listed in the records of the Copyright Office only under
the collection title.
For published works, all
copyrightable elements that are included in a single unit of publication and in
which the copyright claimant is the same can be considered a single work for
registration purposes. An example would be a children’s book
with multiple illustrations.
Sources and Resources
US Copyright Office Website
Single Visual Arts Copyright
Registration Form VA
Single Visual Arts Copyright
Registration Short Form VAS
Group Visual Arts Copyright
Registration Form GRVA
Electronic Copyright Office
System
Copyright registration for
Works of the Visual Arts
Copyright Office Fees
