Current federal law states that the right to copy, dis­trib­ute or reuse your own tangible and original work is presumed to belong to you; for clients to have any of these rights, the right to copy must be transferred to them. The spirit of this law is to invest you with the control over both the real and intellectual property and the profit­ability that comes from them. It is probably a good idea at this point to remind everyone that employed creative profession­als do not own copyright to the work created as employees, the employer owns it.

I am not a lawyer but, as a rep, my understanding of copy­right is in the day-to-day dealings with clients. There are three hot-button topics that I’d like to share with you:

1. Using the work of others.
2. Protecting your work.
3. Digital usage rights.  

To bring us all up to date, I sought the assistance of Tad Crawford, an attorney and author of more than a dozen books, including Legal Guide for the Visual Artist, and publisher and founder of Allworth Press (www.allworth.com).

USING THE WORK OF OTHERS
Copyright does not protect ideas or concepts. It protects origi­nal expression. Where do original ideas come from? This topic has been debated in other columns in this magazine, but from the “know your rights” perspective; let’s look at using the work of others to create your own original expression.

CA: How can the work of others be used to create new work?

Tad Crawford: If you use someone else’s copyrighted work with­out their permission, you always run the risk of infring­ing their copyright. The test for infringement is whether an ordinary observer believes your work to be copied from the other person’s work. If you change the work to such a degree that an ordinary observer will not see any copying—by alter­ing original work and adding new designs to it, you will be safe.Keep in mind that there is no percentage test such as chang­­ing 25 percent or 50 percent that will guarantee you have changed the original work enough. Also, in some cases your copying will be obvious, but it still may not be an infringement because it is what is called a “fair use.” If you want to avoid potential copyright infringements, seek written permission from the person who created the art that you are copying.

CA: What situation or case law illustrates where fair use protected a client who took work without permission?

Crawford: For example, an Annie Leibovitz photograph of a nude and pregnant Demi Moore used for the cover of Vanity Fair was not infringed by a Paramount Pictures poster adver­tis­ing Naked Gun 33 1/3: The Final Insult that used a very similar body with the head of actor Leslie Nielsen.The court pointed out that humor alone did not make a fair use, but that com­ment or criticism on the underlying image was also necessary.

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 is news or factual, fair use is more likely to be found, whereas using fantasy or entertaining works makes a finding off air use less likely); (3) how much of the total work is used in the course of the new use; and (4) what effect the new use will have on the market for or value of the copyrighted work.

PROTECTING YOUR WORK
Unless you state the rights that your clients will receive when they pay you, they don’t get any (or a federal court decides) so it’s best to always state usage to protect yourself and your clients.

Copyright notice is not required to own copyright, but it serves as a “no trespassing” sign. It’s highly recommended and easy to do. It should be placed on all artwork, promotions and every page of your Website and used in reproduction of your work whenever possible. The correct form for a notice is: “Copy­right [year] by [owner]” and you can use the symbol © in place of the word copyright. Though copyright registra­tion is not required to own copyright, it is also highly recommended.

CA: I know that phrases such as “buyout” are not specific enough. What must be included in the essential language of usage to best protect you?

Crawford: First of all, you, as the copyright owner, have the exclusive rights to reproduce work, license work, prepare deriva­tive works:perform work, and display work (the owner of a copy of the work can also display it). Anyone who violates these rights is an infringer whom you can sue for damages and prevent from continuing the infringement.To avoid ambiguity, you should spell out the rights transferred by type of use, media use, duration of use, geo­graphy of use and any other description that makes clear what the parties intend.

The usage rights can be subdivided as much as you wish, so you should license only the limited usage rights that meet your needs and the needs of your client. All rights (in which the client obtains all rights of usage) and work for hire (in which you sign away your status as creator and give the entire copyright to the client) should be avoided unless the remunera­tion justifies giving up everything.