Copyrights and Copywrongs

Dispelling the myths of copyright protection for Visual Creations

by John Keaton

The Importance of Copyrights

When you create a painting, a collage or any other visual piece, it is important to copyright the work. In so doing, you prevent others from infringing upon your pictorial, graphic or sculptural works and reproducing your intellectual property for their own gain. This also legally protects and enables you to decide when and where your artwork may appear. The authorship is your personal intellectual property during your lifetime plus
70 years. The rights to reproduce and utilize your images may also be inherited by your heir(s).

The "Poor Man's Copyright"

As a standard rule, the moment you sign and date a visual piece of your own creation, you are in fact copywriting and asserting your intellectual or creative copyright. If you mail the work in question to yourself, the postal stamp on the envelope is considered a " poor man's copyright ". This governmental stamp is considered a legal document since it in effect has passed through a government office and bears a date which can be offered as proof of the copyright creation date. This piece of mail should be left unopened to be fully effective.

Submitting an Official Copyright to the Library of Congress

Use Form VA for copyright registration of published or unpublished works of the visual arts. This form is downloadable or you may request forms by writing to the copyright office at:

Library of Congress
Copyright Office
101 Independence Avenue. S. E.
Washington, D.C. 20559-6000

As of 2005, there is a fee of $30.00 to submit your visual art creations. It is therefore advantageous to group and label your work as a "collection."

For example: JOHN KEATON Collection 1980-2004
You must include a copy of the work(s) along with form VA. Upon review and acceptance, the copyright will issue you a certificate that acts as proof of ownership of the creative property of your collection. It is significant to note that ownership of a physical work of art alone does not forfeit the copyright the copyright simply by selling a work. Section 2 of the 1976 Copyright Act cites:

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonrecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

Work for Hire

The full definition of "Work for Hire" is a work prepared by an employee within the scope of his or her employment. In other words if you are employed by a U.S. Company and pay taxes, you are considered "work for hire" and the copyrights created by you during your tenure are automatically transferred to the Company. The assumption is made that you are in fact selling the rights to your work in the form of a company paycheck.

Freelance Work: The Perilous World of Product Design.

From my perspective, the pitfalls of working freelance as an artist are many. If you are filing a 1099 to the IRS at tax time you are working freelance otherwise known as a "Sub-Contractor." First of all you will spend the majority of your time marketing your work and simultaneously keeping a roof over your head! This time is not always recoupable in the literal or physical sense.

Once you have established yourself as the "right" artist for the "right" project, you must set a price which is agreeable to both parties. Too high, you may find yourself looking elsewhere for work. On the other hand by cutting yourself short, the IRS will be happy to tax you for an amount which practically exceeds your entire earnings so you have not only lost time but also prostituted your artwork for the sake of exposure. Not exactly a pleasant situation.

Royalties, Residuals, and Licensing Agreements: A Better way, A Better Day!

A residual or royalty is paid to an artist for a particular creative property or visual creation. A great example of how this works is made very clear in the Music Industry. When you hear an artist or group on the radio, each time that song is played, the artist(s), recieves a percentage for the airing of that tune. While the percentage may seem very small, the more often it is plays, on a global scale, the accunulation of these "royalties" grows and with highly successful artists, this amounts to hundreds of millions of publishing dollars.

As a visual artist, there are similar possibilities available in the form of Licensing Agreements. The "Painter of Light" earns millions each year from the publishing rights to his cottage landscapes. While there are those that would argue that once an artist goes "Corporate" they have sold out and that their work is no longer viable in the aesthetic sense. It is neither art nor is it fine art. It is simply commercial work. One would be hard pressed for example to find a Jean Michel Basquiat Wall Clock, although an Andy Warhol T-Shirt and a Van Gogh calendar are most certainly on the market! When it comes to art tastes we will always vary and the references to what is truly art will remain an objective entity. One man's ceiling is truly another man's floor.

There are literally thousands of stories of artists who have created works that have been mass produced and generated sales in the millions. The artist may have recieved a small fee for their services and if they worked on a 1099 basis, or "Freelance" at tax time they will be required to pay the IRS a good portion of that fee just for the luxury and joy of working as an independent contractor.

Art is meant to be shared and artists need exposure to sell and promote their work. In the fiercely competitive world of art publishing and product design as it relates to the Gift and Retail Market, I would strongly urge aspiring artist and designers to pursue a licensing or royalty agreement as opposed to a one-time fee.

The rewards of being an artist are enormous and art is a gift which keeps on giving, so keep the faith and pursue your dream in spite of all the clouds, the sun will blaze through and lift your spirits and you will know that you have made the right choice.

"An Artist cannot fail: it is a success to be one." - Charles Horton Cooley

This article Copyright 2005 by John Keaton. All Rights Reserved.