Americans for the Arts

As an arts lawyer, I often advise on a variety of copyright issues. Many artists realize copyright law is crucial to protecting the value of their work, but beyond that, the details of how exactly to use copyright gets lost in the shuffle. I’m hopeful this post will clear up some common areas of confusion!

What is Copyright?

The fundamental right is fairly straightforward: copyright protects works of creative expression against unauthorized copying. U.S. copyright law has its basis in the Constitution (Art. I, § 8 cl. 8 for those keeping track) and is further codified in Title 17 of the U.S. Code. All this is simply to say that copyright is firmly established within U.S. law.

Copyright is an intellectual property right, or an intangible, nonphysical right. Put another way, copyright is separate and distinct from the personal property right to a physical work of art.

How do I get a Copyright?

Fortunately, copyright protection is easy to obtain: As soon as you create a work of art, that work is automatically protected by copyright! The key here is that, for your work to be protected by copyright, it must be “fixed in a tangible medium of expression.” In other words, your work must be committed to some tangible, perceivable, reproducible form.

This “fixation” is required because copyright protects the expression of an idea, not simply the idea itself. Because copyright protects works of creative expression against unauthorized copying, there must be reasonable limits. While we want to encourage creativity by letting creators control the dissemination of their work, we don’t want them to stifle creativity by trying to monopolize abstract ideas.

For most works of creative expression, fixation is pretty easy to grasp: A painting may be expressed on a canvas, a moment may be expressed in a photograph, a story may be expressed in a written manuscript, etc. In the case of performance art, such as a musical performance, choreography, or a theatrical production, for those works to be protectable, they must be recorded. Regardless of the medium, however, once the work is created and recorded, copyright takes effect.

What can I do with a Copyright?

Copyright grants the owner six exclusive rights:

1. The right to make reproductions of the copyrighted work;
2. The right to prepare derivative works based on the copyrighted work;
3. The right to distribute reproductions of the copyrighted work by sale, lease, etc.;
4. The right to publicly perform the copyrighted work;
5. The right to publicly display the copyrighted work; and
6. For sound recordings, the right to publicly perform the copyrighted work via digital audio transmission.

These rights are exclusive, meaning they belong solely to the copyright owner. The original copyright owner is usually the creator(s) of the work, but there are some limited instances in which someone else might be deemed the copyright owner. Most commonly, an employer often owns the copyright in works created by their employees.

In addition to exploiting any of these six rights on your own behalf, you also have the option to license a third party to exploit these rights. A license is simply permission for someone to exploit one or any combination of these rights. For example, if I’m a professional illustrator and I want a local comic book store to distribute prints of one of my illustrations, I would grant them a license to (1) make reproductions of my work, and (3) sell reproductions of my work. In exchange, they might pay me a flat fee or a percentage of their profits or gross receipts in the form of a royalty. That’s more of a business decision. I can also limit the scope of my license, for example, by time (1 year) or geography (U.S. only).

Most licenses are nonexclusive, meaning even if the copyright owner lets a third party use their work, the owner still has the ability to exploit their copyright themselves. In the case of exclusive licenses, only the licensee—not even the owner—has the right to exploit the work.

How do I protect my Copyright?

The first step in protecting a copyrighted work is to use a copyright notice. We’ve all seen one: “© 2020 Lucas Blackadar.” This puts the world on notice that you’re claiming copyright protection for your work.

An optional-though-recommended second step is registering your copyright with the U.S. Copyright Office. In registering your copyright, you provide a copy of the work to the Library of Congress and create a record of your ownership. Registration is relatively cheap and easy to do, and you can do it online. If you plan to widely disseminate or commercialize your work, it’s generally a good idea to register the copyright first.

Beyond that, if you find someone is infringing your copyright, or exploiting any of those six exclusive rights without your permission, you can enforce your copyright by demanding they stop (a.k.a. sending a “Cease and Desist” letter), or, if you have a registered copyright, initiating an infringement suit in federal court.

How do I avoid violating someone else’s Copyright?

When in doubt, it’s usually best to try obtaining permission (a license!) first. Depending on how you plan to use the work, you may have a justifiable fair use, but that’s a whole other can of worms!

This article only scratches the surface of copyright law, but there are hundreds of helpful resources that further explain basic concepts, including the U.S. Copyright Office itself, as well as their library of helpful Copyright Circulars.

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Hear more from this author on how artists can protect their work through copyright law in a recent Supporting Individual Artists Coffee Chat on ArtsU. Register now for anytime access to the webinar recording.