This article is by Brian Sherwin, Regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint and Art Fag City. You should submit an article and share your views as a guest author by clicking here.
The issue of copyright registration is always a hot topic among artists. Copyright registration can be an important aspect of marketing your art. The protection offered by copyright law is one of the best ways to secure the future growth of your art business. Copyright registration provides a strong foundation for future sales via means of prints and other merchandise-- and protects your creative investments if issues over who owns your images arise. Not only does copyright registration protect you-- it also protects art collectors who have invested in your artwork. It is something that all selling artists should do-- but I’m fully aware that most artists don’t.
I personally think that registering copyright of your artwork is important because if an art collector is serious about his or her art collection he or she will want to know that artwork in the collection is unique. In other words, to most art collectors the identity of the artist-- the person behind the art-- is just as important as the artwork itself. Luckily copyright registration under current law does well to protect your ‘art identity’, so to speak, in that it makes it harder for individuals to get away with using your name as well as reproductions or alterations of your artwork without your approval.
According to United States Copyright Law a work of art is considered copyright protected "the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.". However, formal registration-- which does involve a fee-- offers further protection and gives artists an advantage when copyright infringement is discovered. Thus, copyright registration is important because if your work is profitable chances are a would-be infringer will see profit in your artwork as well.
Think of it this way-- if copyright of your artwork is not registered it can potentially be harmful to your career if someone with better funding and legal representation decides to use images of your non-registered artwork. It can also-- in my opinion-- become an obstacle when dealing with art collectors who desire unique works of art. Without formal copyright registration you can end up competing against yourself, so to speak, due to an individual or company infringing upon your artwork. If copyright of your artwork is not registered prior to infringement you may end up in a difficult legal battle.
If your artwork has mass or commercial appeal you want to make sure that you and you alone profit from it. Again, in my opinion copyright registration secures your career as an artist as well as the investment serious art collectors have made in your artwork. If you want to be successful marketing your artwork you want to make sure to stop anyone who attempts to use your images on coffee mugs, T-shirts, and other mass-produced merchandise. This is especially true if you have developed a style that is unique to you. True, you can’t copyright a style of painting-- but if your style is popular among collectors you can indeed register those individual works in order to protect your interests.
Artists need to look after their best interest as well as the best interest of their collectors. That is why copyright registration is so important. It will help you to protect yourself from infringers who are most likely hoping that you are another artist who does not understand the importance of copyright registration. According to attorneys I’ve spoken with in the past, if your artwork is registered you have control of derivative works. Thus, even if an infringer alters an image of your artwork he or she still owes you for the use of said work and is placed with the burden of proving the legitimacy of the derivative work under the concept of ‘fair use‘. Chances are a judge or jury will not consider the infringers work to be parody or social commentary-- two huge factors concerning the concept of ’fair use’-- if your images are altered and used for a design on coffee cups that were produced merely for profit.
Sticking to the coffee cup example-- imagine that a copyright infringer ‘steals’ your image and uses part of it as a design on a coffee cup. The infringer then sells 200 coffee cups for $10 a piece by the time you discover the infringement. The infringer has made $2,000 in profit off of your art. Now lets say that after the cost of production the infringer has cleared $1,500 in profit off of your art. If your artwork is not registered the most you can hope to recover is $1,500. Furthermore, if your artwork is not registered prior to the infringement you can’t seek the expense of having to hire an attorney. However, if the artwork was registered before the infringement you are entitled to ‘statutory damages’ and the court will be authorized to award you attorney’s fees, as well as, other costs involved with litigation.
That said, ‘Statutory’ and ‘damages’ are two words that, when combined, make any infringer cringe. Those two words are your best friends when dealing with copyright infringers-- but they only have impact if the artwork is registered! If artwork is registered prior to being infringed upon an artist could potentially be awarded up to $150,000 per willful infringement due to ‘statutory damages‘. In other words, the infringer will most likely want to settle out of court, stop production of any reproductions of the art or merchandise involving images of the art, and give the artist a large settlement in order to prevent further debt. Thus, unless you want your collectors to reduce the value of your art to that of a mere coffee cup it is best to at least consider formal copyright registration. With registered artworks you can legally fight individuals who undermine the market for your art!
Why are copyright registered artworks such a heavy blow to copyright infringers? Simple. By registering your artwork you prove by ‘prima-facie’ that you created the image at a specific time. The registration documents provide sufficient evidence to prove that the artwork was created before the infringement. In other words, the burden of proving the legality of using your images is placed on the copyright infringer-- which is nearly impossible for an infringer to prove. Thus, for a minimal fee you protect your career as an artist while at the same time protecting the interest that art collectors have in your artwork.
Obviously it can become very expensive to copyright every work of art that you create. Thus, you want to decide which images are profitable. I’d suggest registering any artwork that you have sold to a collector in order to protect yourself as well as the collectors investment in your art. Furthermore, you can register several works of art under one title. However, keep in mind that there are specific guidelines to follow when registering a collection of works. You may also want to seek legal help if it is your first time registering copyright-- it can be very confusing at times. That said, my opinion is that the expense is a good investment in your career.
In closing, I’m not an attorney-- so don’t consider my opinion to be legal advice. Copyright law can be very complicated and more often than not how it is interpreted boils down to the personal opinions of a judge or jury. My suggestion that artists should register their artwork in order to protect themselves and their collectors is something I firmly believe is worthwhile for an artist to pursue. Consider my opinion on the matter to be an invitation to learn more about copyright registration and how it can protect you as well as your art marketing efforts. Copyright protection of art secures the business-side of your art as well as the integrity of your art.
Take care, Stay true,