A Helpful Summary of Copyright Info
Written
by Poppy Evans
(originally found at this link: http://www.graphicsguru.com/privacypolicy.php)
If you find a seed catalog at a flea market dating back to 1920, can you
use the illustrations within it? Can you make a drawing from a photograph
of a tree you find in a magazine?
Who owns the rights in these situations? What are your rights as an artist?
Contracts between artists and art buyers present a formidable challenge
of legalese and business terminology that are difficult for even the
most experienced artists to decipher. Here's what you need to know.
Q: What is a copyright?
According to the dictionary, copyright is "the exclusive legal right
to reproduce, publish, and sell a literary, musical or artistic work." Technically,
anything you produce is copyrighted as soon as you produce it if it falls
under the category of being a literary, musical or artistic work. As the
owner of a copyrighted work you own the rights to its reproduction, display,
distribution and adaptation to derivative works. Ideas, on the other hand,
need to be patented or otherwise protected. You can't copyright an idea
for a "Bald Guy" line of apparel, but you can copyright the "Bald
Guy" illustration that will appear on it to protect yourself from
having another person copy it.
Q: What constitutes copyright infringement?
Anyone who copies a protected work owned by someone else or exercises an
exclusive right without authorization is liable for infringement. The
penalties for copyright infringement are very high, as much as $100,000
for each act of "willful infringement," meaning that you knew
you were copying someone else's work but did it anyway.
Q: What is a copyright notice?
A copyright notice consists of the word "Copyright" or its symbol ©,
the year the work was created or first published, and the full name of
the copyright owner. It should be placed where it can easily be seen, on
the front or back of an illustration or artwork. It's also common practice
to place your printed copyright notice on slides or photographs sent to
potential clients or galleries by affixing labels to slide mounts or to
the back of photographs.
Q: Why should I place a copyright notice on my work?
The symbol © is primarily a warning to potential plagiarizers. Works
published before 1989 must carry a copyright notice to be protected under
copyright laws. Works published after that time don't need to carry a copyright
notice to be protected by copyright laws. Although, according to today's
laws, placing the copyright symbol on your work isn't absolutely necessary
to claim copyright infringement, it's always in your best interest to have
used this symbol as a warning if you do take a plagiarizer to court.
Q: Should I register my copyrighted work with the U.S. Copyright Office?
The moment a piece of work is created, it is copyrighted material. The
benefits for registering your work are basically procedural and can give
you additional clout if an infringement does occur and you decide to take
the offender to court. In fact, without a copyright registration, it may
not be economically feasible for you to file suit to protect your copyright.
You'd be entitled only to your damages and the infringer's profits. These
may not equal the cost of litigating the case. Registering your work before
or shortly after publication is important, because you need to register
your work before litigation occurs.
Q: How do I apply for a copyright?
To register your work with the U.S. Copyright office, call the Copyright
Form Hotline at (202) 707-9100 and ask for package 115 and circulars 40
and 40A. (Cartoonists should ask for package 111 and circular 44.) You
can also write to the Copyright Office, Library of Congress, Washington
DC 20559, Attn: Information Publications, Section LM0455. Registering your
work will cost $20.
Q: Why do I need to learn about transferring copyright?
Transferring a copyright on a temporary basis is how artists make a living
off their work. Savvy artists who understand how this works can reap financial
benefits by collecting more than one fee for the art they produce. There
are many types of transfer rights that can be negotiated. When you sign
an agreement with a magazine for one-time rights to an illustration, you
are transferring part of your copyright to the magazine. In this instance,
ownership of some of your exclusive rights are transferred because you've
given the magazine the right to use your illustration one time. As evidence
that the transfer has taken place and permission has been granted, you
sign a contract or other document stating the terms of the transfer agreement.
Q: Why is it important to negotiate rights?
Negotiating the rights for an assignment is just as important as negotiating
the fee. If you fail to do this, you could be throwing away future opportunities
to promote and profit from your work as well as jeopardize your relationship
with your client through misunderstandings.
Q: What happens when I agree to a contract that allows my client "one-time
rights" to my work? How does this differ from "first rights" or "exclusive
rights"?
"
One-time rights" means the artwork is "leased" for one use.
The buyer has no guarantee he is the first to use the art. If your client
wants "first rights" he should expect to pay slightly more for
the privilege of being the first to use the art. "Exclusive rights" means
the buyer can use the art exclusively in his particular market. With an
agreement of this type, your art may be used exclusively by the buyer in
the greeting card industry, but you would retain the rights to sell the
art to a magazine because it would be used in a noncompeting market. In
all of these instances, the rights revert back to you after use.
Q: What are reprint rights, subsidiary rights and promotion rights?
Reprint or serial rights give a publication the right to print your work
after it has already appeared in another publication. Subsidiary rights
cover additional rights purchased such as including an illustration in
the second printing or paperback edition of a book. Granting promotion
rights allows your client to use your work for promotional purposes. In
the case of an editorial illustration, this would apply if the article
where the illustration appears is subsequently reprinted and used as a
subscription premium. Artists granting reprint, subsidiary or promotion
rights should check their contract to see if they will be paid a percentage
of the original price when a reprint is made. Industry standards range
from 25-50%.
Q: A client has asked me to illustrate a series of cartoon characters
for animation as "work for hire." Will I lose my claim to future
use of these characters?
Be careful when agreeing to this contract. It means you won't own your
copyrighted work—your client will. As an artist, you would be surrendering
all rights to use these character illustrations in the future, plus any
claims to additional compensation through royalties if the animation becomes
a big success. "Work for hire" contracts are often used if the
work involved is a contribution to a collective work such as a motion picture
or animated cartoon. "Work for hire" also refers to artwork produced
as part of your employment, but as a freelancer, you won't be entitled
to any type of employment benefits if you agree to these terms—you're
just missing out on the opportunity to realize additional income you deserve.
Q: What's an "all rights" contract?
This involves selling or assigning all rights to a piece of artwork for
a specified period of time. The buyer has no limitations placed upon use
of the art during an agreed-upon time period, but when that time period
has ended, rights revert back to the artist.
Q: Can anybody use a copyrighted work after the artist who created it dies?
Copyright protection lasts for the life of the artist plus 70 years. For
works created by 2 or more people, protection lasts for the life of the
last survivor plus 70 years. For works created anonymously or under a pseudonym,
protection lasts for 100 years after the work is completed or 75 years
after publication, whichever comes first. Older artistic creations which
are no longer protected by copyright fall into a category called public
domain, and can be used by anyone without permission. This means that uncredited
illustrations and photographs found in printed materials published prior
to 1925 can be used without copyright restrictions. Other work in the public
domain and not protected by copyright is work created by the U.S. government.
Q: I want to do some drawings of Frank Sinatra and sell copies. What are
the rules when it comes to illustrating celebrities?
First of all, if you're not working from your own photographs or memory,
you need to obtain permission from the photographer who created the photo
you will be using as reference material. (You do not need to get permission
from photographers if you create portraits or caricatures based on dozens
of photographs from different sources and you are careful to not to include
elements that would make it obvious you copied from a particular photograph.)
Secondly, under the rights of publicity, Frank Sinatra had exclusive right
during his lifetime to control the use of his image in prints, poster,
etc. The rights of publicity aren't covered under copyright law, but are
covered by state law and may vary from state to state. In most states,
these rights pass to the heirs after the individual's death, so you're
likely to run into legal problems if the distribution of your Frank Sinatra
drawing is on a national level. In this case, you would be wise to obtain
permission from his heirs.
Q: Can I use someone else's photograph as reference material for a painting
I'm creating?
If you're copying a photograph, you must get the photographer's permission.
Photographs are protected by copyright laws just as illustrations are.
Even though it's in a different medium, you're violating the photographer's
copyright if you copy a photograph in your painting. If a photographer
grants permission to use one of his photos as a reference, he may also
require that you credit him when your painting is completed. However, if
it's not in your agreement, you aren't under legal obligation to do this.
Q: Can I draw a sculpture I recently saw in a gallery and use it as an
illustration subject?
You can't draw the sculpture without contacting the artist and getting
written permission. A sculpture, like a photograph, is a copyrighted piece
of art.
Q: The photograph I want to use as a reference is from a stock photo I've
paid for as a "one-time" use situation.
Can't I create an illustration from it if I've paid for these rights?
Your "one-time rights" in this situation apply to using the photograph
in a piece of published material—not re-creating it as an illustration
for which you could ultimately claim exclusive rights. The stock agency
is strictly a licensing agent in this agreement. You still need to obtain
permission from the photographer before using a stock photo as the basis
for your own illustration.
Q: If I see a photo of Mount Fuji in National Geographic, can I develop
an illustration from this?
Photographs that appear in magazines are usually copyrighted by the magazine
or by the photographer or sometimes by both. Under copyright law, the owner
of the photo's copyright has the exclusive right to this image. Again,
you would need to get permission from the magazine and/or photographer
in order to use it as the basis for your own illustration.
Q: When I do an illustration, I draw and paint images from a variety of
published photographs and combine them with backgrounds I've drawn from
other published photos. To protect myself, do I still need to get permission
from the photographers or publishers involved?
To constitute a copyright infringement, a "copy" must be "substantially
similar" to the original work. If your finished illustration looks
different from any of the originals you used as a reference material, you
shouldn't need to obtain permission.
Q: How does licensing work?
When you grant a license for a copyrighted piece of artwork you're giving
permission for an individual or company to make a derivative work—a
work derived from the original that produces a second-generation image
or product for a specific time period for a specific use. The derivative
work can take many forms; companies could feature your art on apparel,
notecards or products. Because derivative works are based on an original
and are usually created as products for sale, it's not unusual for the
creator of the original to receive royalty compensation.
Q: What are royalty fees?
Royalty fees are the percentage of the sales that an artist receives every
time a derivative work is sold, typically around 5-7% of the wholesale
price. Not all licensing agreements involve royalties, but it's always
in an artist's best interest to seek compensation of this type. Other things
to look for in an agreement are a say in quality control and product distribution.
Q: How do stock agencies work when they license the use of stock illustration?
What kind of compensation can I expect if I grant licensing rights of
my illustration to a stock agency?
Stock agencies grant a license for one-time use of an image to a user for
an agreed-upon fee. Stock illustration agencies generally have a contractual
arrangement with their artists that involves royalty compensation every
time the illustration is used. In most cases, this percentage will range
from 30-50%. Stock agencies will often take work originally commissioned
for another job, giving artists a way to generate additional income from
work that has appeared elsewhere.
Q: Can I create a duplicate of a painting I've just sold if another buyer
wants to buy it as well?
This depends on your arrangement with the art buyer. If you do not sell
the copyright to your painting and express this in writing, you can create
a duplicate of it. However, many art collectors purchase an original with
the belief that the work is unique and will remain so. The best way to
avoid trouble is to make clear in writing that you are free to produce
the same or similar piece for someone or have the buyer acknowledge in
writing that the piece was purchased with no express or implied warranties.
Q: Can I sell reproductions of a drawing after I've sold the original?
Selling a work of art is separate and distinct from selling your copyright
to it. Unless you sign a document to the contrary, your copyright isn't
transferred when you sell the drawing, meaning that because you own the
copyright to the original, you can legally sell reproductions of it.
© Poppy Evans
Please note that this is not intended to answer all questions about copyright and copyright laws can change. It's important to do your own research regarding the rights of your work and that of others. As of 2008 there are some proposed changes to copyright law (the proposed Orphan Works Act). Find out more at the Illustrator's Partnership Blog.
Click here for an excellent page about copyrights and copyright infringement