Protecting Your Copyright and Your Business
by Ginny Cascio
(Editor’s Note: On Wednesday, March 13 at our monthly MAA meeting, we were very fortunate to have as our guest speaker, Ginny Cascio, of McMillan Metro, P.C., a business attorney with a passion for advising artists’ on copyright and other legal issues. In this article, we have summarized the key points of her presentation. We would like to thank Ginny for sharing her time and her expertise.)
A common misconception in copyright law is that the artist must register his or her works to obtain a copyright. However, a copyright exists “in original works of authorship fixed in any tangible medium of expression” upon creation that can be reproduced, communicated, or received. Once you have created the work, it is automatically copyrighted under current copyright law. It is important to understand that only the actual expression is copyrighted. Facts and ideas do not have copyright protection. For example, if you conceive of a great idea for a painting and then communicate it to someone, they are free to use your idea. It is not copyrighted just because you “thought” of it.
So what are your rights related to a copyright protected work? You have the right to reproduce the work in copies or phonorecords. You may prepare derivative works bases on the original work. You may distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, sale, or lending. You may display the work publicly.
While artists are no longer required to register copyrights with the Copyright Office, registration of the copyright for your art provides some specific benefits:
1.If made within five (5) years of the publication or production of the work, registration is prima facie evidence of the validity of the copyright.
2.Registration permits you to file suit for infringement of your rights under the law.
3.Upon registration, you may be able to claim statutory damages and attorneys’ fees for infringement. Statutory damages can range from $750 - $30,000 per infringement; up to $150,000 for willful infringement or as low as $200 for innocent infringement.
One way to help maximize damages is to place a © notice on your work (ex. “© 2013 Ginny Cascio”). This reduces the infringer’s argument that it was “innocent” infringement because he or she had knowledge of your copyright.
Once a copyright expires, it goes into the Public Domain and anyone may use, copy, reproduce, or distribute it. Any published work created prior to 1923 is in the public domain. For works published between 1923 and 1978 or unpublished prior to 1923, you should consult with a copyright attorney to determine whether the work is in the Public Domain. It is important to remember that because an image appears on the Internet or in an old magazine, it does not necessarily mean it is in the Public Domain. For works created in 1978 or later, whether or not they are published, the copyright is for the life of the artist plus 70 years. If the work is for hire, anonymous, or done under a pseudonym, the term is 95 years from the date of publication or 120 years from the date of creation, whichever comes first.
Derivative Work
A derivative work is one produced based upon an original, copyrighted piece of artwork. You can obtain a copyright for a derivative work but only for the elements of originality that the artist adds to the original work. In such cases, you must have the permission of the copyright owner of the original work or it must exist in the Public Domain. The copyright of a derivative work only extends to the part that is legal (apart from the original).
Fair Use of Copyrighted Work
A key concept in the use of copyright work is that of “Fair Use”. Fair Use allows a person to use a copyrighted work for a limited purpose without permission from the copyright owner. It is a defense in a copyright infringement case. The Fair Use doctrine is most often preserved for uses considered to be commentary on the protected work, criticism of the protected work, news reporting, research, teaching, or scholarship in general. There are four factors governing Fair Use:
1.The purpose and character of the use, including whether such use is commercial in nature or is for non-profit educational purposes.
2.The nature of the copyrighted work.
3.The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4.The effect of the use upon the potential market for or value of the copyrighted work.
It is important to understand, though, that the law surrounding this doctrine operates within shades of grey, and it can be very difficult to predict whether or not a court would agree with an assessment that a use is Fair Use. If you want to use a copyrighted work, please consult with a copyright attorney to assess your risks.
Employee vs. Independent Contractor: Work for Hire
Typically, an artist owns his or her copyright but there are situations where this is not true. If an artist works for a company as an employee and produces artwork as a function of their employment, the copyright for that product belongs to the employer unless there is a separate contract the determines the ownership.
If you are an independent contractor, the employer owns the copyright IF: (1) the work falls into one of the nine categories of copyright law (a contribution to a collected work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas); and (2) the parties sign a contract that the employer owns the copyright. The independent contractor may also license or assign the copyright in a signed writing.
Protecting Your Art Business
Since many members show their work in galleries in the Washington area, the following are some important questions that you need to have answered. There are divided into Consignment Contracts and Terms and Conditions.
Consignment Contracts
If you are showing in a gallery or other display area that requires you to sign a consignment agreement, the following questions should be clearly answered before you sign any agreement.
1.With whom are you working?
2.How does the Gallery make sales?
3.Who is the Gallery’s client base?
4.Where does the Gallery get its funding?
5.Which works will you consign?
6.Who will determine the price?
7.Will you have artistic control over the exhibit of your work (placement, lighting, etc.)?
8.How are you getting paid (Net/Gross) and when?
9.Who is responsible for shipping and storage costs?
10.What is the term of the consignment?
11.What will the Gallery do to support and advertise your work?
12.Is the work exclusive or specific to a geographic region?
13.Will you be required to turn over any private internet sales or inquiries to the Gallery?
14.Will the work be covered by insurance?
15.Will you allow a limited license of your copyright for marketing purposes?
16.When and under what conditions can the contract be cancelled?
17.What happens if the Gallery goes bankrupt? Limit transfers of your work to pay creditors.
18.Can the Gallery assign the contract to others?
Terms and Conditions
As you work with Galleries or other entities to display your work, be sure you understand the following points of the contract:
1.What are the business terms? Percentages of sales, etc.
2.What service or good will you provide?
3.How and when will you be paid?
4.When and where must you deliver the work?
5.Will you allow returns? Or grant a warranty?
6.Do you need to collect sales and use tax? Or is the Gallery doing it?
7.When and on what conditions can you terminate the contract?
8.Will the work be covered by insurance (yours or the Gallery)?
9.Who will own the copyright?
10.If you must sue to protect your rights, do you want to collect attorneys’ fees?
11.How do you want to resolve disputes?
These are representative of the issues but are certainly not all inclusive. Each situation will present its own special issues and challenges.
Common Questions
At the completion of the presentation, there were a number of questions regarding the application of copyright law to the work of MAA members. Some of which are repeated below.
Q.When I sell a painting, who retains the copyright?
A.When you sell a painting to a customer you are not relinquishing your copyright. The buyer is purchasing the original piece of art but the artist retains the copyright. That means that you may produce prints, notecards or other versions of the artwork for sale or distribution. I recommend that you prepare a brief statement to this effect that can be provided to your buyers at the point of sale.
Q.What are my rights when placing work in a Gallery?
A.If you place a piece of your art in a gallery, your copyright is protected unless you sign an agreement to the contrary. The Gallery may not make commercial use of your artwork without your express permission.
Q.I often work from photographs. Should I be concerned about copyright issues?
A.Yes. If you are working from photographs that are not your own, it is always better to assume that someone else owns the copyright. You should consult with a copyright attorney to determine if the material is in the Public Domain.
Q.Should I be collecting and reporting sales and use taxes when I make a sale?
A.Yes. Since you are operating a business, you probably need to collect sales and use taxes. You should consult with your CPA or the State of Maryland Comptroller to determine how and when to collect these taxes.
Q.How long is my copyright valid?
A.Your lifetime plus 70 years?
Q.Can I use images published prior to 1923?
A.Yes, they are considered to be in the Public Domain.
Q.Do you recommend that I register all of my artwork with the Copyright Office?
A.Yes, because of the potential benefits, such as statutory damages. However, the cost can be daunting for more prolific artists. Please consult with a copyright attorney to determine the best way to maximize your protection but minimize your costs.
For more information about these issues, please contact Ginny Cascio at 240-778-2308 or
Disclaimer: The information in this article is provided for general informational purposes only and is not, nor is intended to, constitute legal advice. You should not act or rely on any information in this article without seeking the advice of an attorney.