Copyright for Craftspeople

by Tad Crawford

opyright protects you as a craftsperson from having your art stolen by someone else. As the copyright owner, you may either allow or prevent anyone else from duplicating or making derivations from your work (such as a photograph based on an image of yours). Your copyright lasts for your lifetime plus another 70 years, so a successful work may benefit not only you but your heirs as well. If you sometimes create commissioned works, make sure you don’t sign a work-for-hire contract or assign all rights in your art because then the commissioning party would own the copyright and gain its benefits.

Illustration by Johanna Hantel

Licensing rights
To license any exclusive right of copyright (which means only the licensee can do what the license allows), you or your authorized agent must sign a written license. If no written license is signed, then the usage can, at most, be non-exclusive, which allows you to license the same usage to more than one party. You should license limited rights of usage in your copyrights, limiting the rights by the type of product or medium, duration of use and territory of use (including whether the image can be used on the Web). All rights not licensed should be retained by you as the creator. After the description of what rights are licensed, your contract should provide, “Any usage rights not explicitly licensed hereunder are reserved to the artist.”

Registration
You don’t have to register your art to obtain your copyright, because federal law gives you the copyright from the moment that you create a work. However, registration with the Copyright Office is currently $30 and will help you in the event your work is infringed. The Copyright Office has numerous helpful circulars that can be requested or downloaded from the Web site.

Copyright notice
It’s no longer necessary to place copyright notice either on unpublished or published works of art. Since March 1, 1989, the absence of copyright notice cannot cause the loss of the copyright. However, the lack of notice may give infringers a loophole to try and lessen their damages. So it’s still wise to place copyright notices on your works (especially when published) as a visible symbol of your rights as copyright owner. A copyright notice has three elements: (1) “Copyright” or “Copr” or “©”; (2) your name; and (3) the year of first publication.

Infringement
Your work is infringed when someone uses it without your authorization. The test for infringement is whether an ordinary observer would believe one work was copied from another.

The damages for infringement are the actual losses of the person whose work is infringed plus any profits of the infringer. In some cases (especially if the work was registered before the infringement), the court can simply award an amount between $750 and $30,000 for each work infringed. If the infringement is willful, this can be increased to as much as $150,000. Contrary to the beliefs of some Internet enthusiasts, copyright laws do apply to the Internet and unauthorized use of art on a Web site is an infringement.

If you use someone’s copyrighted work without their permission, you always run the risk of infringing that person’s copyright. The test for infringement is whether an ordinary observer believes your work to be copied from the other person’s work. If you or someone else changes the work to such a degree that an ordinary observer will not see any copying — such as by altering the original work and adding new creativity to it — it’s not an infringement. Keep in mind that there’s no percentage test — such as changing 25 percent or 50 percent of the original work — that will guarantee the original work has been changed enough. Also, in some cases the copying will be obvious, but it still may not be an infringement because it is what is called a “fair use.”

Fair use
A fair use is a use of someone’s work that is allowed under the copyright law. Four factors are used to determine whether using all or part of another artist’s work is a fair use: (1) the purpose and character of the use, including whether or not it is for profit; (2) the character of the copyrighted work (if it’s news or factual, fair use is more likely to be found, whereas using fantasy or entertaining works makes a finding of fair use less likely); (3) how much of the total work is used in the course of the use; and (4) what effect the use will have on the market for or value of the copyrighted work. If you want to avoid potential copyright infringements, you can seek written permission from the person who created the art that you’re copying. You would then be a licensee with the right to create and sell images of that art.

Public domain
Since copyright is for a limited term, after the copyright term has ended, art becomes part of the public domain. Works in the public domain may be freely copied by anyone. Works published in the United States in 1922 or earlier are in the public domain. Later works might also be, but have to be reviewed on a case-by-case basis.

Permissions
To obtain permission to publish works that are not in the public domain and cannot be used as a fair use, you should use a simple permission form. This would set forth what kind of project you’re doing, what writing you want to use, what rights you need in the material, what credit line and copyright notice will be given, and what payment, if any, will be made. The person giving permission should sign the permission form. Both “Legal Guide for the Visual Artist” and “Business and Legal Forms for Crafts” have appropriate permission forms.

Tad Crawford is an attorney, publisher and author of “Legal Guide for the Visual Artist,” “Business and Legal Forms for Crafts,” and “The Artist-Gallery Partnership” (Allworth Press). More information about his books and other books to help artists can be found at the Allworth Press Web site at www.allworth.com/Pages/SC_AC.htm.

---