If you are an artist who is curious about protecting your original work, there are certain steps and rules to be aware of to protect it. Welcome to copyright law.
Copyright law governs and protects the expression of an original and particular form that is fixed in a tangible medium. 17 U.S.C. s. 102(a). It prevents others from copying and using the original work without the express permission of the owner. Whether it be photography, architecture, art, or books (this is not exhaustive), creators need--and should--obtain protection for their work. The author has the right to reproduce, distribute, display publicly, and perform publicly their own original works. The author also may have the right to prevent others from stealing and monetizing it.
Absent registration with the U.S. Copyright Office, an owner may not have the right to enforce their rights to pursue damages for infringement. Justice Ginsburg’s U.S. Supreme Court decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019), noted that the lack of registration with the U.S. Copyright Office will preclude an owner from advancing his or her case in court in the event he or she believes there is an infringement on their original work. Per Justice Ginsburg, “registration occurs, and a copyright claimant may commence an infringement suit, when the Copyright Office registers a copyright [as opposed to the delivery of “the application, copies of the work, and fee . . .”]. Upon registration of the copyright, however, a copyright owner can recover for infringement that occurred both before and after registration.” Id. at 886-87. See also 17 U.S.C. s. 411(a).
This also serves to eliminate the common myth of mailing original work to yourself in a self addressed, stamped envelope as a means to copyright things. That’s because it is NOT registration if you draw something, then mail it back to yourself via the U.S. mail. Sure, it may help establish the date of creation with the post-mark, but that is all it can do.
Once registered, copyright law protects the expression for the life of the individual author, plus 70 years thereafter. 17 U.S.C. s. 302(a).
Further, please note that copyright protects the form of an expression. But it does not protect an idea. For example, if you collaborate with other people on a project, and many ideas are presented, but not acted on, and then one person runs off with it and monetizes it, the idea that was taken from you and used may not be actionable as a copyright infringement. Thus, it may be appropriate to have all parties sign Non-Disclosure Agreements (“NDA’s”) prior to the meetings to ensure the protection of ideas within the confines of such collaborative meetings. Otherwise, ideas are free game, and are non-actionable.
Now, let’s say you have some original work that you want to register. There are a few threshold questions to ask. Who owns the copyright? Is it an individual artist, or a business? Did someone create an artistic slogan for you, then did you use it for your business? The artist may wish to copyright their work, and grant you a license to use the work within the business enterprise. Thus, the business may not be the true holder of the copyright, and may not be entitled to register it solely as the business’ property, absent an agreement stating otherwise. If the work is, indeed, yours or the business’, then it may make sense to save this form and start an application with the U.S. Copyright Office. If the business is the entity listed as the owner, then it will also be imperative that the business maintain good standing wherever it may be principally located to do business (ex: filing annual reports with the state’s secretary of state to maintain good standing).
(As a side note, a business may also have a source identifier mark that they may wish to use as a trademark, which is a separate area of law)
Additionally, let’s say you are a part of a choreography and want this work copyrighted. Was the choreography recorded? Were the steps and sequence of work broken down and fixed into images and written instructions? That may be a fixed medium that you may wish to seek federal protection for.
Finally, the U.S. Copyright Office also has the right to reject your application if they do not believe that the work is original or copyrightable. The work might not be original enough, or there could be an error in the application. But that should not stop someone from at least trying to obtain registration.
In sum, keep in mind that if you do not register your fixed form of expression with the U.S. Copyright Office that you are losing federal protections. If you are the owner of original works, that would be recognized as copyrightable forms of expression, then you should consult with any attorney about how to protect it.
The aforementioned material is for general purposes only, and should not be construed as legal advice or an all-encompassing guide to U.S. Copyright law. Intellectual Property law is a vast subject matter, thus you should consult with a licensed attorney in the event you have a question about your intellectual property or are facing a claim for infringement.
-Niles and Kyle