Do you have copyright over your art ?

If you’re an artist wondering how to protect your work or prevent others from excerising copyright over it, this article is for you!

For the tl;dr, jump to the bottom!

What is Copyright ?

Copyright is a legal right that grants the creator of an original work, such as a piece of art or literary work, the exclusive right to control and profit from the use and distribution of that work. In most countries, copyright protection is automatic upon the creation of the work and does not require registration or the use of a copyright symbol (©) to be valid. However, registering a copyright with the appropriate government agency, can provide additional legal protections and benefits, such as the ability to sue for copyright infringement.

It also provides the copyright holder(s) with a bundle of exclusive rights, such as the right to reproduce, distribute, display, and create derivative works from the original work.

What works can and what cannot be copyrighted ?

Copyright laws vary by jurisdiction, the types of works which can typically be copyrighted are

• literary work
• visual arts
• music
• dramatic works ( such as plays, scripts, screenplays, and other dramatic performances)
• dance choreography (whether in the form of recorded dance performances or written choreographic notation)
• audiovisuhal works ( movies, tv shows, animations etc.)
• architectural works ( such as building designs, plans, and blueprints)
• computer software ( such as original software programs, including source code and object code, as well as databases and other software-related works)

Copyright does not protect facts, names, titles, slogans, or other short phrases, although these may be protected by other forms of intellectual property or trademark laws. It’s also important to check the specific requirements and limitations of copyright law in your jurisdiction, as they may vary by country or region. In some cases, works in the public domain or works with expired copyrights may not be eligible for copyright protection.

When do artists have copyright over their work ?

Artists or authors generally have copyright in their work as soon as the work is created in a fixed form. This means that once an artist creates a work, such as a painting, sculpture, photograph, or written piece, and fixes it in a tangible form, such as on canvas, paper, or a digital file, it is considered copyrighted.

It’s important to note that copyright protects the original expression of an idea or work, not the idea or concept itself.

Are there cases where artists don’t have copyright over their work ?

Artists may not always hold copyright over their art. Here are some instances:

Works created by employees in the course of their employment:

In some cases, if an artist creates a work as part of their job responsibilities as an employee, the copyright may be owned by their employer instead of the artist. This is known as “work-for-hire” or “employee-made works” in some jurisdictions. The details of work-for-hire arrangements vary by country and by the specific circumstances of the employment relationship, so it’s important to understand the applicable laws in your jurisdiction.

Works created with a valid assignment or transfer of copyright:

Artists may choose to sell, transfer, or assign their copyright to another person or entity through a valid contract or agreement. In such cases, the original artist may no longer have copyright ownership or control over the work, and the copyright may be owned by the person or entity to whom it was assigned or transferred.

Works in the public domain:

Copyright protection has a time limit, and once a work’s copyright term has expired, it enters the public domain. In the public domain, the work is no longer protected by copyright and can be used by anyone without permission or payment to the original creator. The duration of copyright varies by country, and it’s important to check the specific laws in your country to determine when a work enters the public domain.

Works with expired or invalid copyright:

If a work was not properly registered ( where requirement of registration exists) or published, or if the copyright term has expired, the work may not be protected by copyright. However, it’s important to note that copyright laws can be complex and vary by country, and it’s advisable to seek legal advice or consult the specific laws in your jurisdiction to determine the copyright status of a work.

If you create a work for someone else, do you lose your copyright over it ?

1. As an Employee

The ownership of copyright in a work created for someone else, also known as a “work made for hire” or “employee-made work” in some jurisdictions, depends on the specific circumstances and the laws of the relevant jurisdiction.

In many countries,if a work is created by an employee as part of their job responsibilities or within the scope of their employment, the employer is considered the legal author and owner of the copyright in the work, unless there is a specific agreement to the contrary. This is known as the “work-for-hire” doctrine or “employee-made work” doctrine. The employee is typically not considered the copyright owner and may not retain copyright in the work, unless there is a valid agreement that specifies otherwise.

It’s important to note that the determination of whether a work is considered a work made for hire or an employee-made work can be complex and depends on various factors, including the nature of the employment relationship, the specific tasks performed, and the applicable laws in the relevant jurisdiction. It’s advisable to consult the laws of your specific jurisdiction and seek legal advice if you have questions about the copyright ownership of a work created for someone else.

It’s also important to have clear and written agreements in place when creating works for others, especially as an employee, to specify the ownership and use of copyright in the work. Such agreements can help prevent misunderstandings and disputes about copyright ownership down the line.

2. As a Freelancer

As a freelancer or independent contractor, the general rule is that you retain copyright ownership in the works you create, even if they are created for someone else. Unlike the “work-for-hire” doctrine that applies to employees, where the employer is typically considered the legal author and owner of the copyright, the default rule for freelancers is that they retain copyright in their works.

However, it’s important to note that the specific terms of your agreement or contract with your client can affect the ownership of copyright in the works you create as a freelancer. It’s common for clients to include clauses or terms in contracts that transfer or assign the copyright ownership in the works to the client or limit your rights as the creator. Therefore, it’s crucial to review and understand the terms of any agreements or contracts you enter into as a freelancer, and to negotiate and clarify the ownership and use of copyright in your works upfront.

If there is no specific agreement or contract regarding copyright ownership, and you create a work as a freelancer or independent contractor, you generally retain copyright ownership in the work. This means you have the exclusive right to control the reproduction, distribution, display, and creation of derivative works from the original work, unless you transfer or assign those rights to the client or other parties through a written agreement.

How do you prevent your copyright fron being transferred or assigned to your employer / client ?

You can start by including certain provision in your contract or agreement with your client.

1. Clearly state in your contract or agreement that you retain copyright ownership in the works you create, and that no transfer or assignment of copyright is intended or implied. Use clear and unambiguous language to express your intent to retain copyright ownership.
2. Include a clause that specifically states that any transfer or assignment of copyright must be in writing and signed by both parties. This can help ensure that any transfer of copyright is explicit and requires mutual agreement.
3. Be cautious with any clauses or terms in the contract that may imply a transfer or assignment of copyright, such as granting “all rights” or “exclusive rights” to the client. Review and negotiate such clauses carefully to ensure they do not unintentionally transfer copyright ownership.
4. Specify the limited rights that are granted to the client for the specific purpose for which the work was commissioned, and clarify that such rights do not constitute a transfer of copyright ownership. For example, you can grant the client a non-exclusive, limited license to use the work for a specific time period, purpose, and/or territory, while retaining copyright ownership in the work.
5. You may also consider using a separate licensing agreement in addition to your contract or agreement, which clearly outlines the specific rights and permissions granted to the client without transferring copyright ownership.
6. Keep detailed records of all agreements, contracts, and communications related to your work, including copies of signed contracts or agreements, to establish evidence of your intent to retain copyright ownership.

What are moral rights, and how can you retain them even if you have to transfer your copyright ?

Moral rights are rights that are separate from copyright and generally protect the non-economic interests of creators in their works. These rights include

• the right of attribution (to be recognized as the author),
• the right of integrity (to prevent modification or distortion), and
• the right of disclosure (to decide when and how the work is disclosed or published).

Even if you transfer or assign copyright ownership of your work, you may still be able to retain your moral rights. To retain moral rights when transferring copyright, ensure that you use explicit language in your contract or agreement that clearly states your intent to retain your moral rights in the work, and that no waiver or relinquishment of moral rights is intended or implied. Clearly specify the scope of your moral rights in the contract or agreement, including the right of attribution, the right of integrity, and the right of disclosure. Specify that these rights are retained by you even if copyright ownership is transferred, and that they are non-transferable and non-assignable. Require proper attribution: Include provisions that require proper attribution of your name as the author of the work whenever it is used or published, and that prohibit the removal or alteration of your name without your consent. Include provisions that outline the remedies and enforcement mechanisms in case of any infringement or violation of your moral rights, such as the right to seek damages, injunctive relief, or specific performance. If you feel the need, you may also ask for inclusion of provisions that prohibit any modification or distortion of the work without your consent, and that require your prior written consent for any changes to be made to the work, even after copyright ownership is transferred.

Which are instances where you have to share your copyright ?

As a creator, there are certain instances where you may be required to share or license your copyright to others. These instances may include:

Collaborations

If you collaborate with other creators or artists to create a work, such as a joint artwork or a collaborative piece of writing, the copyright in the joint work may be shared among the collaborators, unless otherwise agreed upon in writing. You can learn more about protecting your rights in collaborative art projects here and here.

Commissions

If you create a work based on a commissioned request, where someone pays you to create a specific work, the copyright in the commissioned work may be shared or transferred to the person who commissioned the work, unless otherwise agreed upon in writing.

Work-for-hire

If you create a work as an employee within the scope of your employment, the copyright in the work may be owned by your employer, and you may be required to share or transfer your copyright to your employer, as per the work-for-hire doctrine in some jurisdictions.

Licensing

If you choose to license your work to others, you may grant them certain rights to use your work in exchange for compensation or other considerations. This may include sharing your copyright to the extent necessary for the specific purposes or uses for which the license is granted, as specified in the license agreement.

Collective works

If your work is included in a collective work, such as an anthology, compilation, or database, you may be required to share your copyright with other contributors or the person or entity who creates the collective work.

Can you use the copyright symbol © for your work?

The copyright symbol (©) can be used by the original creators or owners of copyrighted works, or by their authorized representatives. It is used to indicate that a work is protected by copyright, which grants the creator or owner exclusive rights to control the reproduction, distribution, display, and creation of derivative works from the original work.

The use of the copyright symbol is not required by law in most countries, as copyright protection is automatic upon the creation of an original work in a fixed form. However, using the copyright symbol can provide notice to others that the work is protected by copyright and may deter potential infringers from using the work without permission.

In many countries, the use of the copyright symbol along with the year of first publication and the name of the copyright owner (although optional ) can be beneficial in establishing evidence of ownership in case of copyright infringement disputes.

It’s important to note that the copyright symbol should only be used for works that are actually protected by copyright. It should not be used for works that are in the public domain, works that are not eligible for copyright protection, or works for which the copyright has expired. Misuse of the copyright symbol can result in legal consequences, including potential claims of misrepresentation or fraud.

Must you register your work to use the copyright symbol © ?

No. In countries where registration is not required for copyright protection, you can still use the copyright symbol to provide notice to others that your work is protected by copyright. You can place the copyright symbol (©), along with the year of first publication and your name or the name of the copyright owner, on your original works to indicate that they are protected by copyright.

Which are the countries that do not require copyright registration ?

The countries which have adopted the Berne Convention ( 170+) do not require registration of copyright for your work to be protected. You can review the list here. The Berne Convention for the Protection of Literary and Artistic Works, which is an international treaty governing copyright, does not require copyright registration as a condition for protection.

However, it’s important to note that while registration is not required for copyright protection under the Berne Convention, registering your artwork with a copyright office in your country may provide additional legal benefits and evidentiary support in case of copyright infringement or legal disputes. Registration can establish a public record of your copyright ownership and can make it easier to enforce your copyright in court.

TL;DR

What is Copyright?

• Copyright is a legal right that grants the creator of an original work the exclusive right to control and profit from the use and distribution of that work.
• It automatic upon the creation of the work and does not require registration, but registering a copyright can provide additional legal protections and benefits.
• Copyright provides the copyright holder with exclusive rights such as the right to reproduce, distribute, display, and create derivative works from the original work.

What Works Can and Cannot be Copyrighted?

• Copyright laws vary by jurisdiction, but generally, literary works, visual arts, music, dramatic works, dance choreography, audiovisual works, architectural works, and computer software can be copyrighted.
• Copyright does not protect facts, names, titles, slogans, or other short phrases, and some works may not be eligible for copyright protection if they are in the public domain or have expired copyrights.

When do Artists Have Copyright Over Their Work?

• Artists or authors generally have copyright in their work as soon as the work is created in a fixed form, such as on canvas, paper, or a digital file.
• Copyright protects the original expression of an idea or work, not the idea or concept itself.

Cases Where Artists Don’t Have Copyright Over Their Work

• Works created by employees in the course of their employment may be owned by their employer instead of the artist, depending on the laws of the jurisdiction and the circumstances of the employment relationship.
• Artists may choose to sell, transfer, or assign their copyright to another person or entity through a valid contract or agreement, in which case the original artist may no longer have copyright ownership or control over the work.
• Works in the public domain or works with expired or invalid copyright may not be protected by copyright.

If You Create a Work for Someone Else, Do You Lose Your Copyright Over It?

• As an employee, the ownership of copyright in a work created for someone else depends on the specific circumstances and the laws of the relevant jurisdiction.
• In many countries, if a work is created by an employee as part of their job responsibilities or within the scope of their employment, the employer is considered the legal author and owner of the copyright in the work, unless there is a specific agreement to the contrary.
• As a freelancer or independent contractor, the general rule is that you retain copyright ownership in the work you create, unless there is a valid agreement that specifies otherwise.
• It’s important to have clear and written agreements in place when creating works for others to specify the ownership and use of copyright in the work.

Note: It’s advisable to consult the specific laws of your jurisdiction and seek legal advice for accurate and up-to-date information on copyright and related issues.

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