Instant Protection is the Biggest Lie in Copyright
That might be a bit strong. Perhaps the notion of instant protection is not a lie, but it is misleading. And the idea that there is instant protection in copyright is misleading writers and artists smack into problems.
By calling "instant protection" a lie, I've got your attention and that's what's needed here -- your attention and your action.
Every article on the basics of copyright law for artists, writers and other creative professionals has something like this in the opening paragraphs:
Copyright protection subsists from the time the work is created in fixed, tangible form. The copyright in the work of authorship immediately becomes the property of the author who created the work.
from Copyright Basics at Artists Rights Society. Let's set aside for the moment that using the word "subsists" makes artists sweat and think, "Is this math? Is there going to be a quiz?"
Let's focus on the half-truth that is spread internationally:
In countries that are signatory to the Berne Convention (the USA, the UK, Europe, and many other countries), the creator owns copyright by law, automatically, as soon his/her work is fixed in tangible form. The minute you write down the words, you’re protected by copyright. No further action on your part (such as copyright registration) is required.
from Copyright Basics at Science Fiction and Fantasy Writers of America.
The maxim of instant copyright on creation is true (even if the folks at SFWA are known for making things up). But it is only half the story. The other half of the story, in the words of Sallie Randolph, a lawyer known for her advocacy of the rights of writers, is:
[E]nforcement and protection of copyright rights takes effort . . .
Specifically, copyright protection requires registration, monitoring and enforcement. It doesn't happen instantly as if by magic.
Creators Coming Late to the Starting Line
The news is filled with stories of artists and writers who failed to register their work with the Copyright Office, or in the case of Kelly Mark, the Canadian Intellectual Property Office. Somebody came along and snagged their work. Then the race was on to protect their work retroactively while trying to shut down the infringer at the same time.
Street Art in Detroit
First, we have the story of the urban artist Rime who, in 2011, created a fabulous work of street art he calls "Vandal Eyes." He made a video depicting the creation of his mural on a building in Detroit.
Then on May 4, 2015, Katy Perry showed up at the Met Ball wearing a black dress on which the only design was "Vandal Eyes," complete with Rime's tag. The next day, Rime filed for a copyright registration on his art. Then, on August 5, Rime filed his copyright infringement lawsuit against the designer of the dress.
By not having filed for registration before the infringement took place, Rime sacrificed his right to obtain damages of up to $150,000 per infringement ("Vandal Eyes" was also on the tuxedo worn by Katy's escort). Instead, Rime is going to have to prove how much profit the designer made from using his art or that he was actually damaged by the infringement (couldn't get any other licensing deals, for instance). That's a hard case.
Neon in Toronto
Next is a Canadian artist named Kelly Mark who, in 2006, created a bold piece in neon that reads, "I CALLED SHOTGUN INFINITY WHEN I WAS TWELVE."
While roaming around on the internet one day, she found a picture of a neon piece in a Toronto restaurant with the same message. While she may have protected her right to the front passenger seat in a timely manner, she failed to register her art with the Canadian Intellectual Property Office.
The inability to recover statutory damages is not Ms. Mark's problem (Canadian law is different from US law on this point). Ms. Mark's problem is that short phrases aren't subject to copyright protection. Her work is a short phrase. If she had registered her work immediately after she created it, she'd be able to argue that she has always considered her piece protectible art.
Having a registration certificate would have been bold support of the argument. Instead, she is scrambling to catch up to protect her work.
Copywriter in California
Finally, I'd like to share the story of Chris Marlow, a copywriter living in California. This happened to her a while ago, but I only learned about when she commented on our Facebook page.
Chris discovered her not released publicly ebook on Amazon with someone else's name on it. A Nigerian national had hunted down the page (not password protected) on her website where she kept the book for her clients and took it, put his name on the cover and uploaded it to his Amazon account. And Barnes & Noble. And Books-a-Million. Everywhere.
As Chris dug further, she learned that this internet thief was quite sophisticated. He had made a substantial investment in his theft. He purchased an ISBN number for her book and was also selling it as a hard copy.
In order to convince the booksellers that she was the true owner and author of the work, she needed a copyright registration which she did not have. So instead of having the evidence she needed for an immediate take down of her work, she had to register the copyright then go back and request the take down. In the meantime, the thief continued to sell her book under his name.
After this episode, Chris's number one recommendation to professional writer's is to "Get your work copyrighted."
Copyright Practice Tip
For the best protection, file a copyright application on your work within three months of publication.
Build Registration into Your Workflow
Each one of these creative professionals failed to appreciate the protection power you get by having the copyright registration in hand. Instead of applying for registration as part of the process of creation, they relied on copyright's biggest lie.
Don't get caught chasing down an infringer without your registration in place.
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