Copyright FAQ

OK, I've had it up to here with the disinformation and misinformation being thrown around DeviantArt about copyright, and am doing something I've threatened to do for a long time, which is to write up a FAQ about US copyright law. I'm posting it here for beta-ing: if you see something that I've gotten wrong or if you have another question which you think should go on here, let me know.

This will be posted to DA after I make sure I've got my info correct, and after any further questions that anyone has are answered. :)

ETA: It's been posted to DeviantArt now. Also - please feel free to discuss, but since part of my aim in making this FAQ is to cut down on the amount of non-lawyer speculation about what copyright is and isn't, I'm not going to add anything to it unless I have a citation or opinion from a legal professional. Argue and speculate at will in the comments, though!

Also, please note that this is U.S.-centric. I made a decision not to add anything from other countries because there's so much information out there it could get unwieldy. You are encouraged to create your own FAQs for your countries.

Be sure to check the comments - people are leaving some good links to useful information.

ETA 2: This is getting passed around the fanfic community, so I wanted to make it clear that it started as a FAQ for visual artists and that my experience has been with the visual arts, and so it is loaded heavily towards the visual arts, and thus some things do not apply to the written arts. Please keep this in mind when using it as ammunition in forum wars. No FAQ or amount of discussion with people who aren't legal professionals can be a substitute for going to the U.S. Copyright Office yourself and looking it up. Their FAQ is pretty clearly written.

Copyright Tutorial

First, a note on spelling and grammar:

It is spelled "copyright." That is "right" as in "rights you have under the law," not "write" as in "put words on paper" or "wright" as in "person who makes something." Copyright. You may copyright something and you may exercise your copyright. A work may have a copyright or be copyrighted but never copywritten - that's a meaningless word coined from copywrite. Copywriting is when you write copy (text for an ad, for example) and has nothing to do with the rights involved in intellectual property.

There. Now that's over, I can take off the grammar snark hat and get on with the tutorial.

How are you qualified to talk about it?

I'm a librarian. We deal with copyright all the time. My previous job was as a slide curator, where I had to prevent students and faculty from breaking copyright law by duplicating slides of artwork, and in the course of that I talked to copyright lawyers and read a lot about it. So, while I am not a lawyer and this is not official legal advice, it is informed advice and, as far as I know, correct as of the day of posting. (Copyright law is, of course, subject to change.)

Where can I go to learn more about copyright?

If you are not in the US, your country's government probably has a web site for their copyright office, and that would be the first place to look.

If you are in the US, the U.S. Copyright Office is the first place to go. Their FAQ has clear, simple answers to the most frequent questions asked.

If you want another explanation of copyright, and a really good discussion of what the Doctrine of Fair Use is and what it is not, the University of Texas' Crash Course in Copyright is the place to go.

The Harvard Law School Art Law page has a information and links on copyright and the law as it specifically relates to the visual arts.

I'm not in the US. Do I need to know about US copyright law?

It's not a bad idea to know. Most countries are part of the Berne Convention, which is an international agreement that says they will respect the copyright laws of the other countries in the agreement. It doesn't hurt to have an idea of what those laws are.

What is copyright?

Copyright is a form of protection given to works of art, the expression of intellectual works, and several others, that gives the copyright owner the right to do or authorize a number of things, including reproducing the work, make derivative works from it, to distribute or sell copies of it, to perform or display it in public, to claim authorship (creatorship) of the work, and to prevent any distortion or modification of the work that might be prejudicial to the creator's reputation.

That means, for your own original works of art, you and nobody else can: make copies. write sequels. make different versions. sell it. give it away. perform it. display it. claim to be the creator. stop someone from doing things you don't approve of with it, or authorize someone to do all of the above.

Copyright does not protect inventions, discoveries, or ideas (although anything you write about them may be protected). Patents protect inventions and discoveries, and trademarks protect symbols, designs, and words that identify goods and services as coming from a particular source (i.e., a company logo and slogan).

How do I copyright something?

Copyright is automatically assigned to you once your work is fixed in a tangible form. Tangible form is data on a disk, words on a piece of paper, markings on a piece of paper, and so on. You do not have to do anything, because you automatically own the copyright.

What is copyright registration?

When you register a copyright, you deposit a copy of the work with the U.S. Government Copyright Office, and pay them a fee. This is a way to prove that you are the copyright owner of a work, but it is by no means the only way to prove that.

Do I have to register my copyright?

No. All registration does is give you the ability to sue for standard monetary damages. You can still sue someone for copyright violation if you have not registered the work, and you can even sue for monetary damages. You're just likely to get more money if you register it than if you don't, and it makes it easier to prove that yes, you own the work in question.

Should you register your copyright? That's something you have to decide for yourself, but unless you're creating something that's near publication quality, it's probably not worth it. If you can afford the fee and it makes you feel better, go right ahead, but if you don't, no need to worry about it.

Does "poor man's copyright" work?

"Poor man's copyright" is the name of the practice of putting a copy of your work into an envelope, mailing it to yourself, and storing it unopened in order to prove that you created that work before that date at a later time. It has never been tested in a court of law, so there is no proof that this method will work. If it makes you happy to do it, go for it, but do not fool yourself that this is a proven method of asserting your copyright. Want proof? How about the U.S. Copyright Office's own word on the matter? (scroll to near the bottom of the page.)

Do I have to put the copyright symbol on a work of art?

Before 1989, works had to have a notice of copyright on them, but that is no longer the case. It's not a bad idea, however, because it serves as a reminder to others that you are asserting your copyright.

I write fanfic or draw fanart. Can I copyright it?

Good question. Fanfic and fanart are what we call derivative works, and the right to produce or authorize derivative works lies squarely with the copyright owner. However, while the characters and world do not belong to you, the method of expression does. This means that if you write a Harry Potter fanfic, none of the Harry Potter characters are yours, but the words you use to talk about them are. And your original characters belong to you, of course. Fanart is a greyer area, because the visual expression of a character is that character, for all intents and purposes. That does not mean that someone has a legal right to post your fanart on another board and claim they made it, it just means that if you tried to get a lawyer involved they probably wouldn't take the case because it would be too complicated to figure out where the owner of the characters' copyright ended and yours began. You are free to write and draw for your own personal enjoyment, and many copyright owners don't object to small-scale selling of artwork you created if the poses are original (small-scale being the operative word here), but that is entirely up to their discretion.

But I'm not making a profit on my fan work! Doesn't that make it fair use?

Not automatically. There are other things that have to be considered before a work of art can be considered fair use. For a really good explanation of this, go to the University of Texas' Crash Course on Copyright and read the Fair Use of Copyrighted Material page, especially the Four Factor Fair Use Test. Pay VERY CLOSE ATTENTION to the fourth factor in the test, which is: "Avoids payment for permission (royalties) in an established permissions market." There is a well-established licensing market for books, anime, manga, TV, movies, and other works, and fan works avoid paying for permission to use the characters, backgrounds, and situations in them.

I have a photograph/painting by someone else and re-drew it/painted it/painted over it. Since I changed it from a photo to a drawing, I own the copyright, right?
Or: I changed it by 10% (15%, 20%, 25%...), so that means it's a new work, right?

No. There's a misconception that the law says a work can be changed by a certain percent and be considered an entirely new work. This is wrong. Only the owner of the work can change it or authorize someone else to change it. Here is the U.S. Copyright Office FAQ that deals with this.

Changing it from a photo to a painting, or from a painting to a sculpture, or anything like that still makes it a derivative work, and thus a violation of copyright if done without permission. The Copyright Office's Circular 14 clearly spells this out and gives as examples of derivative work and sculpture based on a drawing and a painting based on a photograph. There was a court case where the sculptor Jeff Koons created a work based on a photograph. He was sued for copyright infringement and lost. The Wikipedia entry on the case. The text of the Second Court's decision in the case. The Harvard Law School Art Law page has images of the photograph and sculpture.

Don't I have to defend my copyright in order to keep it?

Not really. You're thinking of trademarks, which you do have to actively defend in order to keep. But this is a copyright tutorial and not a trademark tutorial, so I shall refer you to the U.S. Patent & Trademark Office for more information on that.

Can I copyright an original character, even though I don't have a picture?

Your character may be copyrighted as part of a textual work - this is not standing by itself, but as part of a longer work - as long as the character has sufficient originality. This may be accomplished with a specific name and distinct appearance, as defined by the court in the Gaiman vs. MacFarlane case, but it must have more distinctiveness than a stock character to it. Read about character copyrights and Gaiman vs. MacFarlane here, in an article by the attorney Ivan Hoffman (the first part deals with trademarks - scroll down to the copyright section).

The exact point at which the character goes from an uncopyrightable stock character to a copyrighted original character is fuzzy - best to spend some time developing that character's appearance, history, and personality to make sure. The character will be better for it, anyway.

I paid an artist for a drawing of my character. Do I own the copyright on that picture?

Not necessarily. It's a grey area because the artist owns the copyright on the picture while, if you've done your character-creation work right and have a longer work that the character is part of, you own the copyright on your character. But the artist may own the copyright on the visual representation of that character. It's really, truly, for the best to talk about this and get it in writing before money changes hands. If you don't want the artist to have the ability to sell prints of that picture, you need to talk to the artist when you're commissioning them. Most artists are happy to assign the copyright to you, often for an additional fee to compensate for income they will not get from selling prints of the image.

I sold a work of art to someone, and they're selling it! I don't want them to do that! Or: I want a cut of that!

Unless you have it in writing or you live in California*, under U.S. law, the owner of a work of art may sell the original piece of art as they wish and do not have to give the original artist a cut, even if they do not own the copyright. They cannot make copies of it, nor may they claim that they created it, but they may sell or dispose of the original work of art. The moral of this is: make sure you put your wishes in writing before any money changes hands.

* In California, the artist or the artist's heirs (until 20 years after the artist's death) are entitled to 5% of the resale amount of the work of art unless the resale price is less than $1000, or if the resale price is lower than the original sale price. A summary of the California law by the lawyer Ann Avery Andres. Basically, the majority of you will never have to deal with this, because most people on DeviantArt are not selling anywhere near the $1000 range.
Tags: copyright

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    Does anyone know what search terms I can use to find the sort of outdoor rug/mat that I can just hose off when it's dirty, and can be left outside in…

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