How and why to use copyright law to your advantage: The basics

If you’re an artist or a creative and you plan on making money on your creativity, or you just don’t want someone stealing your art, you need to leverage the law. Specifically, the tools of the copyright office, the copyright act, and basic contract law.

Every piece of expressive art that is fixed in a tangible medium is protected by copyright law. But there are things you need to do in order to use those laws to your advantage.

1) Get copyright registrations, and get them early.

When someone infringes on your intellectual property, it’s illegal. But you can’t actually sue them until you have your copyright registrations. But that’s not all. If you register your copyright early enough, either before publishing or within the first three months of release, the works become eligible for statutory damages. This is a penalty paid to you for infringing on your copyrighted work after it was registered.

Statutory damages for copyright infringement can be as high as $150,000 per infringement.

That registration becomes a huge piece of leverage. Because without it, the company that stole your artwork knows you don’t have any bite behind your bark. With it, they’re at your mercy.

2) Get your licenses and assignments straight.

Copyright licenses are essential to getting paid for the use of your work. If you’re a musician, you might get an offer from a record label that would assign your rights to it in exchange for money. You might also license your rights for money. These are different mechanisms with different consequences. Be sure to read and understand what you’re signing.

A license can be limited or perpetual, revocable or irrevocable, conditional or non-conditional. Exclusive or non-exclusive. The record company will want it as broad as possible. But you might want to keep some rights, or limit how long you sign them away for. The key is in the language of the license. Make sure you read it, understand it, and negotiate for what you want.

An assignment is a transfer of ownership. You are granting them all rights. This is often the case with record deals, book publishing deals, etc. (Caveat: you can potentially reclaim your rights after 35 years).

3) Read And Understand the contract.

If you sell your art as an artist, inevitably, there will be a situation where someone promises you a wheelbarrow of cash to use your art. A record deal, a distribution agreement, or something like that. When that happens, they will usually send you a very long, very dense document for you to sign.

Don’t. At least not right away. Read that thing to filth. You might find some very concerning clauses buried in there. Some examples of these are:

a. A perpetual license to use your likeness and the likeness of anyone else who has appeared in any promotional past material for marketing purposes. Along with a warranty that you have the right to grant that license.

That means you’re giving them permission to use not just your face but everyone that’s ever appeared in your marketing with you. And if they didn’t give you permission to transfer that right, the company could sue you.

b. A very broad indemnification clause, transferring all liability to you.

Indemnification clauses are great for you if used right. But a broad one-sided indemnification clause turns your deal into a liability.

But more importantly, there may be clauses that should be in there but aren’t, or clauses that you don’t understand. It’s always best to get any contract sent to you reviewed by a lawyer who knows ball.

To talk to an attorney who knows ball, book a free consult

For a more thorough guide on where to go and what you need to register your copyrights, get the free first chapter to the Creative Troublemaker’s Guide to the Legal Underworld.