The Artist’s Race for Instant Protection | Creative Law Center

The Artist’s Race for Instant Protection

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.

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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.

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.

About the Author

Kathryn Goldman helps artists, writers, and other creative professionals make a living from their art by teaching them how to protect their work and enforce their rights. She is an attorney who writes these posts to help you be more thoughtful about intellectual property and the law when you write your stories, create your art, and build your business.

  • Thom Reece says:

    Here’s a quick question that I get asked a lot… but really do not know the answer to, Kathryn… “Should we copyright written plots/outlines that we expect to complete a full written work from… prior to writing the book(s)?”

    • Kathryn Goldman says:

      Great question, Thom. I’ve had clients that wanted me to do that for them. Mostly because they were aiming for a Hollywood deal and were shopping the idea heavily. It might be a good practice if the plot idea is being shared widely for whatever reason. But remember, copyright doesn’t protect the idea, only the expression of the idea. So, I’m not sure how much protection is actually afforded by an early filing of a skeletal work.

  • Nick Aumiller says:

    Ms Goldman —
    Thank You for making the copyright issues visible and current. My quandary – copyrighting everything I do will take me broke @ $ 35 a pop.

    • Kathryn Goldman says:

      Depending on how you work you may be able to file a group application to cover a collection of pieces for $55. A group application can be used to protect all pieces published on the same day. If you create a collection of paintings for a spring show, for example, you could consider them published on the day your show opened. All the work in the show could be covered by one application. A little planning would save you a lot of money.

      Group application rules are more generous for photographers who can protect up to 750 images published in the same year with one application.

      I’ve always loved your work, Nick.

  • Annette Berkovits says:

    Hello Kathryn:
    I’m reading your blog for the first time and am so happy to have “found” you. Such great advice, given with a real spirit go generosity.
    Does a writer need to copyright her novel’s title (If she thinks it’s unique and interesting) before sending the manuscript out to prospective publishers. You’ve already answered the question as to timing the copyright application for th entire work, which would probably include the title. But my question applies to titles specifically.
    Thank you!

    • Kathryn Goldman says:

      Annette,

      Unfortunately, novel titles cannot be protected by copyright. Some titles can be protected by trademark, like Twilight or Harry Potter, but those are exceptions.

  • Peter DeHaan says:

    Since a book is never really finished and can be updated even after it is published, at what point should the copyright be filed? And will the filing need to be updated each time a change is made to the book?

    • Kathryn Goldman says:

      Peter,

      Minor revisions to a work do not trigger the need for a new registration. If you add a significant amount of new material, file a new application on the new material. There is a place in the application where you exclude the pre-existing work.

      As a practical matter, I would say finish your book. Put it down. Let it be. And start a new book. I think your readers want the next book, not revisions to the old one. Just my opinion, here.

      Kathryn

  • Edward says:

    I have a logo that was designed and donated to a non-profit I worked for. The non-profit has since ceased to operate and the graphic artist has passed away. I had verbal permission from the creator to use it but am uncertain as to my legal standing. How would I check to see if the design was being used by someone else and if not, what steps would I need to take register it myself?

    • Kathryn Goldman says:

      Edward,

      That’s an interesting question that touches on both trademark and copyright. If there is no writing transferring the copyright to the defunct non-profit, then the rights are owned by the estate of the designer. With respect to trademark, you can a company like Thompson CompuMark to do a search to see if anyone else is using it.

      You have to start digging for the answers.

  • Art&Creative_av says:

    When I speak to local and international creatives, I summarize their rights under US copyright law with two simple words: Passive & Active.

    1) Those “original works of authorship that are affixed” receive automatic, PASSIVE copyright protection, i.e., limited protection that makes it really, really challenging to pursue substantive damages against infringers.

    2) I identify “timely” registered works as having ACTIVE copyright protection, i.e., LEVERAGE to help negotiate quick and favorable settlements against the use of unlicensed works (not within the scope of Fair Use).

    If you’re a creative who enjoys having problems & headaches in life, skip registering your art with the US Copyright Office.

    • Kathryn Goldman says:

      That’s a useful way to think about the effect of choosing to register or not. When I incorporate that explanation into my lectures and future posts, I’ll be sure to give you credit.

      Thank you for commenting.

  • Kathy Crouch says:

    UM, never mind the question I just didn’t read the other questions and answers close enough.

  • Kathy Crouch says:

    Question. When do you apply for a copyright? As soon as you start writing the story? Or before you publish it or plan to share with an agent or editor? I read the blog and it made me wonder.

  • Anil says:

    I read your posts regularly – and save it – in a separate directory. Thank you. I have published my book in India, copyrighted it in India. Now am planning to sell in US and elsewhere to (through Amazon.com). From one of your replies above – I take it – I do not have to again apply for copyright in US. Will appreciate a reconfirmation. Thanks & Regards..
    Anil

    • Kathryn Goldman says:

      Anil,

      Once you publish your work in the US, having the US copyright registration will entitle you to the additional remedies of statutory damages and attorneys fees should you ever have to pursue a case of infringement in the US. These are powerful remedies and perhaps worth registering in the US. US registration is not needed to bring a lawsuit because you have complied with India’s (a treaty country) law on copyright registration.

      Having the Registration from India, however, will give you proof of ownership that will make it easier to enforce your rights in ways other than through a US lawsuit (DMCA, for example).

      Kathryn

  • Lydia says:

    So, for someone writing a book, I can’t register a copyright until it is published/completed right? What if I’m writing an ongoing story that I post parts of each month? Do I have to copyright each chapter as it comes out? How would I copyright the whole series because it isn’t finished yet, I’m writing it as I go?

    • Kathryn Goldman says:

      Lydia,

      There are circumstances under which you can file a single registration for a group of works that could apply to a serialized novel. A single copyright application for a group of works can be made if all the works are made by a single author and the works were first published as individual contributions to periodicals (including online periodicals) in a 12 month period.

      There are a few other technicalities in a group registration, but that may be your answer.

      Kathryn

  • Lee Jackson says:

    Thank you for the article! A quick question—at what point during the novel writing process would you recommend filing the application? After the first draft? After *each* draft? (I can see the fees piling up for each application to cover new/changed material.)

    • Kathryn Goldman says:

      Lee,

      File the application for copyright registration right after you publish your novel. There’s generally no need to register drafts.

      Kathryn

  • Dianne Greenlay says:

    Thanks for writing about this topic, Kathryn. I found this piece especially interesting, as you gave both an American AND a Canadian example. I am wondering what I should do with my novels- as I (a Canadian author) publish through CreateSpace ( American publisher), upload my novels to CreateSpace’s expanded distribution ( available for sale in several different countries including Canada and US, but also the UK, France, Germany, India and Mexico, etc) and am now in the stages of pitching my novels for adaptations to American and Canadian film company executives. Should I register copyrights for the novels in both Canada and the US?
    Thanks for all of the information that you offer on this blog. I look forward to each installment.

    • Kathryn Goldman says:

      Dianne,

      Each of the countries you mention (as well as most others) are members of the Berne Convention which is the most important international copyright treaty. Every Berne country is required to offer a minimum standard of copyright protection in their own country to works first published by nationals of other Berne countries.

      Your novels are uploaded to CreateSpace, but CreateSpace is not considered a publisher. You are your own publisher. If your books are made available for sale in the US first, they would be considered as first published in the United States or, alternatively, as a first US edition. In either case, you can file for registration in the US which provides you with a few more benefits than filing in Canada. But you do not need to file in both US and Canada.

      Great question.

      Kathryn

      • Dianne Greenlay says:

        And a great answer! That was a question that had been nagging me since i published my first book a few years ago. Not knowing what to do until now, I had just stuck my head in the sand and hoped I’d never have a bad situation come up that I’d have to deal with.
        Thanks so much for the clarification, Kathryn!

  • Laura Brennan says:

    Great article, as always. I have a question, and was wondering if you or any of your readers had an answer: I am starting to shop my novel around to literary agents, so I’ve been scoping out their websites and reading blogs and advice — all good stuff. But to my surprise, several times I’ve read that I should NOT copyright my novel before sending it out. I mostly work in film, where I copyright everything, so I had planned to copyright the novel. Do you have any thoughts about this, or why they should say I should wait to have the publisher copyright it? I assign my rights when a film is made, I’m not quite getting why this should be different. Thanks!

    • Kathryn Goldman says:

      Laura,

      It’s a great question. The only reason to copyright a work you’re shopping to agents is if you have a fear that you are being scammed in some way. Legitimate literary agents are not going to steal your work. Their reputation is too important to them.

      If you were to copyright your work while shopping it, another registration would be needed after publication in any event.

      On the issue of assigning your rights to the publisher — remember that everything is negotiable. Rights can be sliced and diced to produce multiple income streams. Check out this series of posts I wrote on that subject: Publishing Contract: Understanding Key Provisions.

      Good luck and keep me in the loop!

      Kathryn

      • Laura Brennan says:

        Thanks, Kathryn! I’m not at all worried about agents stealing my work — my goodness, they have enough on their plates! No, I was just surprised. I thought it was due diligence on the part of the writer to get everything copyrighted.

        Thank you for the clarity — and the quick answer!

  • Mary Ann Bernal says:

    Thanks, Kathryn, for the great reminder. While I always register my work immediately, a lot of people don’t. I shall be sharing this article.

    • Kathryn Goldman says:

      Hi, Mary Ann,

      In each one of those stories, the artist or writer failed to recognize the value of their work by not registering it until after the infringement occurred. It’s a shame when professionals self-limit their rights.

      Thanks for sharing the post with your tribe.

      Kathryn

  • Mariann Seriff says:

    Excellent advice, Kathryn. We once did a book design pro bono as a favor to a graduate student to help with her thesis. Later, we discovered a series of books using our design and art being sold in gift shops. Nothing was done to alter or hide that it was our design (but we were not credited, of course). When we questioned the grad student she said she was thrilled she had found a publisher interested in her book and had handed over the design files to the publisher at no charge — because that was what they asked for. Or course, we had no written agreement with the student so had no legal leg to stand on but it was irksome that this publisher took advantage of this new author and was making a nice profit off her (and our) work. Live and learn.

    • Kathryn Goldman says:

      Hey, Mariann,

      So good to hear from you! It must make you nuts when things like that happen. What is the saying, “No good deed goes unpunished.”

      When things like that do happen, you have to balance the pros and cons of enforcing your right to stop the publisher from using your design. In the future, all “free” work should include a statement on delivery that the copyright in the design work remains yours.

      Thanks for the comment.

      Kathryn

  • Thom Reece says:

    Very informative and important article for every writer, author, artist, and all other creative professionals. Thank you, Kathryn.

    • Kathryn Goldman says:

      Thanks, Thom,

      This week, I felt like the stories just kept coming and everybody needed a reminder.

      Kathryn

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