How do you protect your artwork from theft? How do you make sure that you get paid for it and someone else doesn’t? What do you do with your copyright once you have copyrighted art?
Digital photography, and other digital art forms, can be reproduced online and by most any computer millions of times, perfectly. This is both one of the great capacities of digital arts, and one of their drawbacks. Once digitized, your work can be published and seen with greater ease than any other art form. But once online, it could be difficult if not impossible to know if someone has copied your work and sold or repackaged it without your permission.
Advice#1: relax.
There’s so many millions of photographers in the world that until you’re famous or publishing a lot, it’s quite unlikely that someone will steal and then use your artwork. It’s probably more likely that you’ll be hit by lightning or win the lottery. That much said, a little information goes a long way. And the more professional you become, the more important it is to know these basics.
When is your work copyrighted?
The moment you make the artwork it is copyrighted. It’s yours. Copyright is automatic.
Quite simply you don’t have to do anything for your work to be copyrighted. Nothing. Just do all the usual things such as backing up your files and you really don’t have to worry about it much. But if you ever need to prove your copyright in a court of law, then you need a public record of your copyright. This is extremely easy to do online. You can go to the government copyright website and for a fee you can submit pictures online for full registration. The website for all things copyright is http://www.copyright.gov There you’ll find full directions for copyright and the online center for copyright submissions at http://www.copyright.gov/eco/
But I hope you don’t copyright each photo one by one. You could do that, but it’d cost you $35 per registration – 20 of your best photos would cost $700. Ugh!
Here’s how to copyright a hundred photos for less than $100: batch together an entire body of artworks as a large project. So for example, you could take a set of 100 related photos, and compress them into one large ZIP file using a compressing utility like PKZip (http://www.pkware.com/software-pkzip/file-compression) PKZip is shareware – it has a free demo but then eventually you’d need to buy software (around $50) or find some other compressing utility. Then you upload the zip file of your entire set of photos to the US Government Copyright office, fill out a form online, and pay the online copyright fee ($35). In eight or nine months the government sends confirmation that your set of works is fully registered for copyright. Easy!!
Of course if you really aren’t publishing your photos anywhere, then it’s unnecessary to register your copyright – everything’s copyrighted the moment you make it, automatically. You should really only bother to register and pay for copyright online if you’re going to be publishing the work widely where people might see it and steal it.
For a while it used to be that the artist had to sign the artwork and put the year and the copyright symbol on it, for example "Gregory Scheckler © 2010." Many artists still do this although it is no longer necessary, thank goodness, because such signatures and symbols are dreadfully ugly on top of carefully composed photos!
The issues surrounding theft of images. copyright, fair use and artworks does imply a few other things:
- As an artist, as a professional, you should create your own artworks and not steal anyone else’s artworks. Not only is it best for your creativity to make your own work, it's best legally.
- Give credit where credit is due, cite sources.
- If you have a website you can decide how you post images, so they can be copied or so that they can’t (many pro photographers use a ‘Flash’ photo album that prevents copying of images).
As I said before theft of images is rare. But it does happen. It’s worst when it’s from artist to artist. For example, the painter Shephard Fairey is being sued by the Associate Press for stealing a photo of President Obama, which Fairey illegally used to create his famous ‘Hope’ poster. (click the link to get a series of articles about Fairey and the case at BoingBoing.net. I’m not a fan of Fairey’s work, but the issues are complex indeed). Artist Jeff Koons got skewered in the courts for having stole a photo of puppies which was a violation of the ‘fair use’ clause. Probably the main reason that both Fairey and Koons got sued is that they’re both rich. And they stole art from artists or organizations who had intended to profit from the artworks – in other words, varying levels of profit and serious money were involved in each case. After all ownership and money are at the core of copyright, because ... what do you do with your copyright?
You sell it.
You sell it.
To be more precise, you sell the versions of the artwork along with variations of the rights to copy the art.
When you agree to publish your photos somewhere, you are allowing the publisher to buy the rights to use the photo. Doing so is often called 'licensing.' Artists often sell
When you agree to publish your photos somewhere, you are allowing the publisher to buy the rights to use the photo. Doing so is often called 'licensing.' Artists often sell
- Limited Non-Exclusive Reproduction Rights
- Unlimited Non-Exclusive Reproduction Rights
- Exclusive Reproduction Rights
So for example suppose you had a nice set of landscape photos that a publisher would like to use for a set of greeting cards. You would arrange and negotiate the kind of reproduction rights that meets your needs. In most cases, you would only sell limited, non-exclusive rights (sometimes called ‘one time publication rights’) for a simple fee – say $1,000 for the publisher to have the right to use five photos for the greeting cards for one run of the cards. Non-exclusive rights means that you can still sell the image to other venues, in galleries, etc. Exclusive rights means only the publisher can use the image – I’d encourage you to never sell exclusive rights. Well, unless you getting a ton of money for them. Similarly you would only sell unlimited rights for big money, because without limitations the publisher can make millions of copies of the artwork for any purpose. Every artist must of course decide what the pro’s and con’s of each situation are depending on the job and your own need for pay.
All of this brings up basic copyright and licensing Advice#2: if you have a contract and you don’t understand it, hire an arts lawyer to help you.
And advice #3: have a contract.
You can find many examples of licensing and rights agreements online by googling ‘photograph license agreement’ Here's a random sampling: fairly straightforward by Andrew Stottsan; detailed by Carl Schneider; less formal by Marilyn Coey. You might notice from these examples that when the photographer sells a photo, she is not necessarily selling the entire copyright. Also to illustrate what this looks like, here’s the actual text of a licensing contract from a small job I once did for a record company for an album cover. Note how despite the apparent global terms, this contract specifies ‘non-exclusive’ except for my agreement not to sell the image for any other sound recordings. This is a standard boilerplate contract:
All of this brings up basic copyright and licensing Advice#2: if you have a contract and you don’t understand it, hire an arts lawyer to help you.
And advice #3: have a contract.
You can find many examples of licensing and rights agreements online by googling ‘photograph license agreement’ Here's a random sampling: fairly straightforward by Andrew Stottsan; detailed by Carl Schneider; less formal by Marilyn Coey. You might notice from these examples that when the photographer sells a photo, she is not necessarily selling the entire copyright. Also to illustrate what this looks like, here’s the actual text of a licensing contract from a small job I once did for a record company for an album cover. Note how despite the apparent global terms, this contract specifies ‘non-exclusive’ except for my agreement not to sell the image for any other sound recordings. This is a standard boilerplate contract:
=============== start contract ===============================
From: (Company address removed)
June 30, 2009
To: Gregory Scheckler
(address removed)
RE: (product removed) / Gregory Scheckler Artwork Agreement (1510.09-ART)
Dear Gregory,
The following, when signed by you and by us ("company"), will confirm our agreement
with you:
1. You hereby represent and warrant that you are the sole author and owner of ONE (1)
piece of art, a copy of which is attached to this agreement as Exhibit "A" and by this reference made
a part of this agreement (the "Material"). You hereby grant to COMPANY a worldwide, perpetual,
irrevocable license to exploit the Material in packaging, promotion, publicity, marketing materials,
and merchandising including merchandise for sale for the COMPANY artist professionally
known as “ARTIST” (“Artist”), including the non-exclusive right to reproduce, distribute,
display publicly, and make derivative works of, the Material, and including the non-exclusive
worldwide publication rights and the non-exclusive rights to use the Material in connection with the
Artist for any purpose and in any medium, now known or devised in the future, perpetually and
throughout the world. As between you and COMPANY, you shall be the owner of the copyright in the
Material, subject to COMPANY's non-exclusive rights to use the Material as described herein and the
restrictions on your use of the Material as described herein, and provided that notwithstanding the
foregoing COMPANY shall be the owner of the compilation copyright in the Artist's records and
related materials embodying the Material. You hereby irrevocably authorize, empower, and appoint
COMPANY your true and lawful attorney (a) to initiate and compromise any valid claim or action
against infringers of COMPANY's rights with respect to the Material; and (b) to execute in your name
any and all documents and/or instruments necessary or desirable to accomplish the foregoing.
COMPANYwill give you ten (10) days notice before signing any such document in your name.
COMPANY may dispense with that waiting period when necessary, in COMPANY's judgment, to
protect or enforce its rights, but COMPANY will notify you in each instance when it has done so. The
power of attorney granted under this paragraph 1 is coupled with an interest and is irrevocable.
2. As full consideration for all rights granted herein in and to the Material and your
representations and warranties contained herein, COMPANY will pay you (inclusive of any sales, use
or other applicable taxes)
(a) (fee stated here)
3. You hereby represent and warrant that you have not and will not use and/or license
or otherwise dispose of rights in the Material to any other third party in connection with the
exploitation of, the marketing advertising and promotion of sound recordings.
4. You warrant and represent that (a) you have the right and power to enter into and
fully perform this agreement; (b) no use of the Material by COMPANY or its licensees for any
purpose authorized hereunder will violate any law or infringe any rights of others; (c) you have not
done or permitted and will not do or permit any act or thing which shall or may impair in any
manner the rights herein granted; (d) there is no litigation, dispute, claim or action in connection
with the Material; (e) COMPANY will not be required to make any payments in connection with the
Material or its use, except as provided in paragraph 2 above; and (f) you will execute such further
instruments as COMPANY may require to effectuate the purpose and intent of this agreement. You
will indemnify COMPANY and any licensee of COMPANY against all claims, damages, liabilities, and
expenses (including reasonable counsel fees and legal expenses) arising out of any breach of your
representations and warranties.
5. This agreement contains the entire understanding of the parties and will be governed
by the laws of the State of California applicable to contracts entered into in California and entirely
performed there. No change of this agreement will be binding upon COMPANY unless made by an
instrument signed by an authorized signatory of COMPANY. Company may assign its rights under
this agreement in whole or in part. You will perform under this agreement as an independent
contractor and not as Company's agent or employee.
Exhibit A (artwork attached)
======================= (end contract) ==============================
More difficult than any of these legal issues, of course, is finding people and publishers who will pay for your artwork. For that you’ll need to contact galleries, publishers, artists and editors for advice, basic business connections, etc. Probably the easiest way to get a lot of addresses and phone numbers in one place is to get a hold of the most recent version of Photographer’s Market. Then start sending out your best photos or other artworks, and keep at it. Once you have 6,000 rejections in a row you can give up. Until then, keep seeking paid work.