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Homage or Rip-off Follow-up…Copyright information!

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Kim posted on Wed, Mar 26, 2003 12:59 PM

Tiki King posted a thread (https://tikicentral.com/viewtopic.php?topic=2962&forum=1&43) a while ago, discussing another carver’s lift of one of his designs and what to do about it. Fortunately, Tiki King was able to deal with this issue in a friendly way, and everyone was happy. However, since I just attended a workshop on copyright and trademarks for work, I thought I would pass along a few bits of information. You carvers and artists might want to be aware of this!

Please note—the details of copyright I am discussing are applicable to work protected by the United States copyright laws—folks in other places are entitled to similar protection, but the details are different. Trader Woody, emspace, tikifish, and other non-US based people should check with their local government office. Additional information, including instructions on registering copyrights in the US, is available at the Copyright Office’s web site… http://www.copyright.gov/.

Okay, copyright law in brief-ish overview…

Any original creative work fixed in a tangible format is copyrightable. Which means, if you make a creative decision—i.e., you are not directly copying another work, you make some creative change(s) to it, and you fix it in a medium—photo, film, text, carving—the work is copyrightable. The exact amount of “creative decision” or “creative changes” needed to take something from a derivative work (not copyrightable) to an original work (copyrightable) is somewhat debatable (as evidenced by the divided opinion on the TC Board in Tiki King’s case!) but generally, if you are not making a pretty exact copy of something, you can likely consider it an original work. Tiki King’s carving would almost certainly be legally considered an original work—he made several creative changes in his carving. The piece he was questioning, however, was a direct copy of his carving, and therefore was infringing Tiki King’s copyright.

You do not have to register a copyright in order for copyright to exist. Upon creation of the original work, copyright is immediately granted (but not registered) to the creator of the work. An exception for this is Work for Hire—work you create as an employee of another institution. In that case, copyright belongs to your employer. So, for example, (assuming that tikifish is a regular employee, not an independent contractor of a design or ad agency) the ads that tikifish creates for her employer, on her employer’s time, belong to her employer. But anything she creates on her own time belongs to her personally. If you’re an independent contractor, copyrights belong to you, unless there is a written agreement stating otherwise.

Owning the copyright on something gives you the exclusive right to copy, create derivative works, modify, sell, or display a work. Someone who does any of these things with your work without your permission is infringing your copyright. Tiki King’s carving was copied line-for-line and was being displayed for sale—a clear copyright infringement. However, unless Tiki King had registered his copyright on that carving, his only real recourse would be to talk to the guy, and ask him to stop. Which, in this case, worked fine, which is great. If someone infringes your copyright on an original work, and you wish to legally pursue the issue, your copyright must be registered with the copyright office. You can register copyright after learning of infringement (prior to bringing suit) but if you register copyright after learning of infringement, you will not be able to sue for attorney fees or statutory damages, only for actual damages, which will likely mean that it’s not worth it.

The good news is that it’s pretty easy & inexpensive to register copyright-- $30 a shot. Once your copyright is registered, you will have legal recourse if someone infringes your copyright—statutory damages for infringement are $500-$20,000 per copyright (higher for a knowing/deliberate infringement), and you can be compensated for attorney fees.

I’m not encouraging anyone to go on a litigation spree here—but with the time & effort that goes into the work people are doing, it might be worth considering registering at least some of your copyrights. If you put your heart & soul into a piece and someone copies it, you should have some recourse…



Thanks for your great info.! Now, I have a much better understanding of the topic.

It's important to register w/ US copyright offfice versus mailing a letter of your artwork to yourself (for the cancelled postage date), right? Paying the $30 is really the only legitimate authorization? My professors in art school never stressed the government registry. They said that a cancelled stamp envelope could be sufficient evidence.

[ Edited by: manic cat on 2003-03-26 13:46 ]

I was under the same impression as you, manic cat, you were covered if you sealed a photo of your work in an envelope and send it certified to yourself, and kept it unopened. But maybe that just gives you something to argue with in the event of a dispute, at a lower cost than the registration fee.

In any case, thanks for sharing this info with us, Kim. I'm sure there's a quite a few of us who learned something from it.

[ Edited by: purple jade on 2003-03-26 14:20 ]

Kim posted on Wed, Mar 26, 2003 2:42 PM

manic cat & purple jade, yeah, that "mailing it to yourself" thing was bandied about at my college too. That does offer you a little protection, but not much. What it definitely doesn't do is give you the ability to go after anything beyond actual damages. Since I bet (in most cases) the legal costs are a lot more than actual damages, if you're not registered with the Copyright Office, you're not going to want to shell out for legal fees, so, in practical terms, you have no recourse (unless you have lots of cash to burn on legal fees)!

Kim posted on Wed, Mar 26, 2003 2:47 PM

Oh, and I neglected to mention—if your work is something intangible, like performance or music, you have to set it into tangible format in order to copyright it—like an audio or visual recording of some type, or written sheet music or lyrics, or something along those lines…

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