The Graphic Artists Guild (the Guild) is pleased to be part of the NoD community and looks forward to posting a column twice a month focusing on the business aspects of the graphic art world. The Guild is a community of working artists who, like you, want to excel and have an active voice in the graphic art world. Our book, The Graphic Artists Guild Handbook: Pricing & Ethical Guidelines, is considered the industry bible – a comprehensive and informative resource for all graphic arts professionals. Come join us at www.graphicartistsguild.org.
Below is Part 1 of an excerpt from an upcoming Graphic Artists Guild White Paper PDF about common copyright myths and misconceptions. Anyone working in the graphic arts industry needs to have a working knowledge of copyright and what it affords the graphic artist, but before discussing some of the most common myths and misconceptions, a few basic facts about copyright might be helpful:
- Copyright refers to a form of protection provided by the United States Copyright Law to authors of original works, including literary, dramatic, musical, artistic, and certain other intellectual works.
- The law protects both published and unpublished works.
- Ideas cannot be copyrighted, unless they are expressed in a fixed (or tangible form), for example, a manuscript, a written or recorded musical score, a painting, etc.
- Copyright includes not just one right, but a bundle of rights. The 1976 Copyright Act generally gives the owner of the copyright the exclusive right to do the following:
- To reproduce the work as copies or phonorecords (cassette tapes, CDs, vinyl disks, etc.);
- To prepare derivative works based upon the original work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly (in the case of sound recordings, by means of a digital audio transmission); and
- To display the work publicly.
Only the owner of the copyright can authorize others to do the above.
- Copyright protection starts from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.
- Although registration of a creative work is not required for copyright protection to go into effect, the bulk of benefits of copyright protection that the copyright law provides to creators are available only through formally registering the work with the U.S. Copyright Office of the Library of Congress. Briefly, these benefits include:
- Establishing a public record of claim to authorship which is a necessary prerequisite to asserting any copyright claim in court.
- Prima facie evidence of copyright ownership in court, if the work is registered any time from its creation to 5 years after first publication (known as “timely registration”). With timely registration, the burden is on the infringer to disprove the copyright’s validity, rather than on the creator to prove that the copyright is valid.
- Option to elect to recover statutory damages (those set by law) for infringement instead of any actual damages the creator can prove, if the work is registered within 3 months of publication or prior to a particular infringement. Statutory damages can be substantial (from $750 to $30,000 per work, as determined by the court). If an infringement is determined to be willful, statutory damages can go as high as $150,000 per work. Additionally, such registration allows the prevailing party to recoup attorney’s fees at the judge’s discretion. If a creator has not registered within 3 months of publication or prior to infringement, the creator can only receive actual damages (money lost to the creator because of the infringement) or the defendant’s profits, whichever is greater.
Part 2 of Copyright Myths and Misconceptions will explore some common usage related myths that graphic artists run into in their daily business dealings.
