Creative professionals need to use the tools at their disposal to protect and enforce their rights so they can profit from their work. Legal tools available for protecting creative rights include contracts and copyright. Practical business tools include things like using watermarks on your images, using metadata to monitor your portfolio, and only uploading low resolution files on websites.
By combining the right legal protections with suitable practical protections, creative professionals can construct a solid foundation for building a creative business.
Legal Tools: Copyrights v. Contracts
The dominant legal tool for protecting your creative work is the United States Copyright Act even if you are not a citizen of the United States.
Copyright protection is broader than protection written into a contract because you can protect yourself against people you do not know with copyright. Contract protection can be more powerful than copyright because a contract can be designed to fit the particulars of a situation. But to be enforceable, a contract must be agreed to by the parties.
Applications for copyright registration are easy to file making copyright protection accessible to creative professionals. Contracts are more expensive because they are more intricate, need to be tailored to specific situations, and often require a lawyer's help.
The purpose of copyright law is to promote creativity in society. The Constitution is specific about the copyright clause and calls for the progress of the useful arts — knowledge, learning, and creative work. It creates an incentive for creation by giving the creative community a set of exclusive rights in their creations for a limited period.
Essentially the law says, "We're going to give you a certain amount of time to commercially exploit your creative work exclusively but keep in mind that the only reason we're doing this is so that art continues to be made." The goal of the law is to protect creativity, not the creator. The rights reserved to the creator are exclusive, but not all inclusive. There are some uses of your creative work over which you have no control.
Copyright protects creativity.
The work doesn’t have to be very creative in order to be protected by copyright. A “modicum” of creativity is all that is required. But there has to be some creativity, something new, something original that is added to or created by the author in order for a work to be subject to copyright protection.
The work must be independently created by the author. Originality is “the bedrock principle of copyright” and “the very premise of copyright law.” That is what originality means, the origin is with you, the author.
To be protected, your work must be "tangible." Fixed in a tangible medium of expression.
Tangible is anything that you can touch, hold, see, feel.
Medium of expression means the work is in a form that allows it to be perceived, reproduced, or otherwise communicated, either directly or with the help of a machine or device (like a tablet, phone, or computer).
A digital file is considered to be tangible. Digital photography, digital art, or a digital file of written work are all considered to be tangible and protectable.
These are your rights.
Copyright is not just one right, it is a group of rights that belongs to the creator the minute an original, creative work is fixed in a tangible medium of expression.
In the United States, and in all Berne Treaty countries, copyrights exist immediately upon creation of the work.
Instant creation of rights does not mean instant protection for the creative work. Believing you have immediate protection is a trap for the unwary.
The rights in your group of copyrights are:
These rights can only be exercised by the creator, or by a person to whom the creator has transferred all or part of his rights in writing.
Which means if you sell your work, you have not sold your rights, you’ve only sold the work. The person who bought the piece of art (the sculpture, the photograph) has the right to display that particular piece of art but does not have the right to make copies of it. They cannot take a picture of or scan it and put it on this year’s Christmas card or coffee mugs, for example. If they want to do that, they need to secure the right to reproduce the work and the right to distribute it from you, generally in the form of a license.
Copyright Practice Tip
When an artist or author sells a piece, the physical piece is the only thing sold. You keep the bundle of rights called copyright. If the purchaser wants more than the piece itself, they need to obtain a license from you.
Things that are not protected by copyright because they do not have enough originality or creativity include short phrases or slogans, familiar symbols or designs, mere listings of ingredients or contents, lists of facts, and certain business forms.
Copyright is different from trademark.
Copyright law protects the creative expression of an idea.
Trademark law protects words, phrases, logos or symbols that act as source identifiers for goods and services. Think the Nike swoosh or McDonald's golden arches.
Some things are protected by both copyright and trademark — like Disney characters.
When you look at Mickey Mouse, you think Disney because that’s where Mickey comes from. Mickey is a source identifier for Disney. That’s what a trademark is, a source identifier.
But Mickey is also a creative expression of the idea of a mouse, and that’s copyright. So, Mickey has trademark protection and copyright protection.
Know Your Rights
With an understanding of what your copyrights are, you are in a better position to use them in a way that protects your creative work so you can profit from it.