Editors note: Are you protected? For most people the legalities of whether or not your work is protected are illusive at best. This excerpt from the 14th edition of The Graphic Artist’s Guild Handbook of Pricing & Ethical Guidelines helps navigate the murky waters of copyright law for designers.
Because current copyright law automatically “protects” original artwork from the moment it is created, even without a copyright notice, an artist always has the right to assert a claim for copyright infringement even if he or she has not previously registered the work in question. This is an improvement over previous law, when copyrights could be lost permanently if a work was published without registration or with incorrect notice. Artworks are protected, whether or not they are published or registered. However, the bulk of the benefits that the copyright law offers to artists are available only through formally registering the art with the U.S. Copyright Office of the Library of Congress.
Benefits of registration
Registration establishes a public record of the artist’s claim to authorship and is a necessary prerequisite to asserting any copyright claim in court. As long as a work is registered any time from its creation to five years after first publication (known as “timely registration”), then the court will consider this timely registration to be prima facie evidence of copyright ownership. Prima facie evidence means that the burden is on the infringer to disprove the copyright’s validity, rather than on the artist to prove that the copyright is valid.
The benefits of registration increase if a work is registered within three months of publication or prior to a particular infringement: the artist is entitled to recover statutory damages for infringement. Additionally, such registration allows the prevailing party to recoup attorney’s fees at the judge’s discretion. This is useful when evaluating whether an infringement is worth pursuing.
Damages are considered by a court only after infringement has been proven. If a work has been registered in a timely fashion and before an infringement has occurred, the court determines recovery by multiplying the number of works infringed times an amount specified by the copyright statute: a sum between $750 and $30,000 that the court considers just. Because this range is determined by the statute, these are called “statutory damages.” If the copyright owner can prove to the court that the infringement was willful and not inadvertent, the statutory damages may be increased to $150,000 per work infringed. Because damages are based on the number of works infringed, not on the number of infringements of a single work, in some situations it would be more advantageous to go for actual damages; for example, if a defendant copied one of your designs onto greeting cards, then put it on coffee mugs, then on t-shirts, and sold millions of each, the defendant is still only liable for one award of statutory damages. Obviously, in that situation you would go for actual damages instead, which would be higher.
Thus, there are many incentives, both positive and negative, for following the procedures and ensuring timely registration. If a work is not registered within five years of publication, registration will not be considered prima facie evidence by the court. Additionally, if an infringement occurs before registration, the right to attorney’s fees and statutory damages is lost. Recovery will be limited to the amount of actual damages that can be proven: essentially, whatever profits may be attributed to the infringement. That puts a major burden on the artist pursuing an infringement claim because he or she will have to prove the infringer’s gross profits. After that, the infringer must prove what portions of the profits are not attributable to the copyrighted work. Since an artist never knows when an infringement may occur, it is prudent to register early. Not only are statutory damages easier to obtain than actual damages, they can run much higher.
For more great info on legal rights, salary ranges, business practices and more check out the new edition of The Graphic Artist’s Guild Handbook of Pricing and Ethical Guidelines, available now at MyDesignShop.