This post is an addition to a previous blog entry that goes into better detail about steps you need in order to act on issues presented in the following paragraphs. You can find the previous blog entry here.
Law in the United States is about as straightforward as warp drive technology. Copyright law is a constant issue for artists because it’s hard to understand. I have literally called the U.S. Copyright Office to ask a question on two separate occasions and received different answers.
However, recent events have caused me to be forced to clear up my own understanding of copyright laws in the United States.
Most of my experience has been with published work and copyrights, as I have been published a few times.* If you grant them LICENSE to your work for the sole purpose in the contract. I could license something for use / reproduction, derivative work production, distribution, etc. If I license a work to someone for use purposes, that does not give them the right to use it outside of those terms, and I could sue them if they do because they are violating my copyright. Before I license work, I have a lawyer look at their licensing agreement as a way to help me decide if I want them to use it for that purpose, and whether or not they have motives to do other things with my work. I’d highly recommend doing the same.
I register all my work, licensed, published, or unpublished, with the U.S. Copyright Office, and it is really important to do that. Unless work is registered prior to its theft, the artist cannot collect punitive damages if his or her work is stolen. If it is unregistered, it is still copyrighted; however, the artist can only collect actual damages. This means that the artist can only collect moneys they lost from the theft of the image, and it is the thief’s responsibility to prove they made profits of their own accord and not because of the stolen image.
The first thing I learned recently is that I really need to make a will. My work is worth more once I’m dead that it will ever be worth while I am alive. I imagine, without even getting my work appraised, that I could exceed the $1 million limit set by the IRS defining the point at which beneficiary has to pay estate tax. People who I name in my will would likely have no idea what to do with my work once I’m gone, and I need to outline it for them in the will. IE I need to say who I want to get all my printed work, paintings, digital copies, how much they are worth, and then even give directions for filing the paperwork.
I learned that you really do need to WATERMARK your work. The image I had stolen was one submitted under the stipulations that it not be watermarked, and it was a mistake to agree to that. Watermarking an image shows the users that it belongs to someone. Though you’re not required by law to put a copyright notice on your work anymore, a thief can claim it was accidental and he or she thought it was public domain unless there is a notice on the work, and that significantly reduces the amount of money you collect from the lawsuit.
If you can’t afford a lawyer, you can get cheap or free advice because of the Visual Artists Rights Act. If you Google it (or Bing it), there are resources available to residents of most states.
Lastly, I learned that copyrights solely belong to the “author” of the work unless it is written into a contract, and even then it might still belong solely to the “author.” A photographer maintains all rights to his or her own work unless it is “work for hire,” which means you are doing it for an employer. If you got a W2 because of the photography work you made, that is work for hire. Doing work for another person based on a contract is not work for hire. My work as a journalist is work for hire. My work as a freelance photographer is not work for hire. Another reason why someone else could own rights to the copyrighted material is if they contributed part of it, and it has to be a portion that can be copyrighted. A designer cannot own part of the copyright, nor can the model. However, the designer and photographer can have a say in how the image is used because it is their clothing or image being displayed.
A book I highly recommend purchasing: Art Law Conversations: A Surprisingly Readable Guide for Visual Artists by Elizabeth T. Russell
*The Albuquerque Journal, Arab San Diego, The Aztec, Department of Defense Reporting, Egypt Daily News, Gothic Beauty Magazine, The Guardian, Inked Magazine, Los Angeles Times, Maadi Messenger Magazine, Moderate Camel Chronicle, The OB Rag, The Oklahoman, Pinup Magazine, San Diego City Times, San Diego Union Tribune