When to Protect Creative Work

Deciding whether and when to invest your time and money to protect creative work may seem like a challenge. It's actually an easy decision if your goal is to earn a living from your art. If any one of these three situations applies to you, you should plan to take the next steps in protecting your work:

• You intend to make money from your work.
• Someone has stolen your work. 
• You have already sold your work.

Answering "yes" to any of those scenarios should prompt you to file an application for copyright registration on your work. 

Benefits of Copyright Registration

The regularly touted benefit of copyright registration is the possibility of recovering statutory damages of up to $150,000 per [willful] infringement and attorneys fees in litigation. A less frequently emphasized benefit is that the registration certificate is the physical document that embodies the group of intangible rights in your work, rights that can be licensed to generate multiple revenue streams.

Having a chance to recover statutory damages and attorneys fees from an infringer is powerful leverage in court, but the reality is that most cases of infringement never get that far. Federal litigation is extraordinarily expensive and the possibility of a significant recovery in an enforcement action rarely supports the upfront financial investment in litigation. 

The more realistic enforcement benefit that comes from having a copyright registration in hand is being able to issue effective takedown notices to website hosts, search engines, and social media platforms where the infringing material is found. The registration certificate is the best evidence that you are the owner of the original creative work.

The three steps for a productive workflow designed to protect creative work are:

1.  create;
2. publish; and then
3.  apply for registration within three months of publishing.

Publication, in the copyright sense of the word, means making your work available for sale or further distribution.

Published works require separate applications unless they are published in a "unit of publication" and not available separately. The filing fee for an application for a single work is $35. 

A group of unpublished works can be filed using a group application. The filing fee for a group application is $55.  Depending on your style, you may be able to design your workflow to protect creative work like this:

1. create;
2. apply for registration; and then
3. publish.

There are creative professionals who finish a work, then publish it immediately. Many authors work this way, even when working on a book series. There are others who create the individual works in a collection, then publish the collection all at once. An artist who is preparing for a show, for example, may release all new work when the show opens. In that case, the artist could register the work before the show opens using a group application (limit 10 works per group application). If the work was not available for sale before the opening, the opening would be considered the day of publication.

There are different rules for photographs. 

Failing to file a copyright application on the creative work you intend to be the foundation of your business is like opening a retail store and not locking the door when you leave for the day.

If someone has already taken your creative work and reused it for themselves or commercially, the fact that they took it is a signal that the work has value. It may not be a strong signal, but it is a signal nevertheless. The more your work is taken by others, the stronger the value signal.

Even if you never intended to sell that work or did not expect to profit from it, the fact that someone else has used it indicates that it has potential to generate revenue.

You may think the horse has left the barn and that it is too late to take protective action for a piece that has already been taken or infringed by someone else. Not true. There is still a benefit to protecting that work by filing an application for copyright registration even after it has been taken and used by others.

Initially Ramirez, whose online name is Whynne, was pleased that his doodle was being shared.  He told his mom about it and she encouraged him to file for copyright registration which he did in 2010. Since then, by policing the uses of his work and enforcing his rights, he has earned as much as $10,000 to $15,000 a month in licensing fees.

Trollface was embraced by the Internet. The fact that it was shared widely was a strong signal of its value. Filing for a copyright registration on work that was never intended to be monetized gave Ramirez the business foundation for a licensing program on the cartoon.

Work that you have already sold or given away is the third category of work that deserves to be protected. Remember that although you may have sold the piece, you haven't sold your rights.

There are three reasons to file an application for copyright registration on work that has already left your possession:

1. Work that has been bought by someone has a strong value signal. Likewise, work that you've given away is highly valued by you.
2. Registering work that has been sold helps you build a market for your work.
3. Protecting your work now will help you build a legacy.

Copyright registrations are the seminal pieces of paper that help you build a marketplace for your work. Registrations along with good records of your sales become the basis for creating a creative career catalog. Knowing who bought your work and for how much can help you price licenses for that work and for pieces created later.

Copyright's inheritance value has served the family of the author of Rudolph the Red-Nosed Reindeer very well. For an in depth look at the power of copyright in your estate, check out the discussion I had with Joanna Penn on the Creative Penn: What Happens When an Author Dies.

Professionals protect the assets that make them money. Your revenue generating assets are your creative works. The decision to protect them so you can continue to build your creative business and make a living from your work should be an easy one.