The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.

By Liz Velander

As part of its ongoing series about the copyright licensing process, Artomatic hosted a virtual panel for visual artists last week to discuss how to protect their creative works. The panel focused on explaining key concepts of copyright law pertinent to visual artists and sharing resources that they can use to learn more about the basics of copyright protection. It also touched on common pitfalls among visual artists when it comes to protecting their creative works, including those that befall joint authors, and common misconceptions about fair use.

The panelists included CPIP Director of Copyright Research and Policy Sandra Aistars and Jaylen Johnson, Attorney Advisor at the U.S. Copyright Office, and it was moderated by Kim Tignor, Executive Director at the Institute for Intellectual Property & Social Justice.

Prof. Aistars explained that there are three important things visual artists should know about copyright law. First, the requirements for copyright protection. Copyright law protects original works of authorship that are fixed in a tangible medium. An “original” work means that it was created independently and not copied from somebody else. Prof. Aistars noted that “this doesn’t mean the work has to be absolutely novel—if you have two artists who independently create something that is substantially similar, without copying from each other, both of those works are protected by copyright.”

Prof. Aistars also clarified the distinction between ideas and expression, noting that copyright law only protects the expression of ideas, not the ideas themselves. Visual artists cannot “copyright the idea of painting a field of sunflowers,” but they can protect “the precise rendering of that work, the nuances of brushstroke, the layering of the paint on the canvas” because those are all elements of expression. A work must also be fixed in a tangible medium of expression, Prof. Aistars continued, which could include paper, canvas, or a digital medium. If a work meets all these elements, it is protected by copyright and the visual artist obtains a variety of exclusive rights that allow her to make a living from her creative pursuits.

The second important thing to know about copyright law, according to Prof. Aistars, is that copyright protection is automatic. A visual artist does not need to register a work with the Copyright Office to receive protection. Instead, copyright protection exists from the moment the artist sets a work down in a tangible medium of expression. However, Prof. Aistars noted that it is a good practice for visual artists to register their works with the Copyright Office. Registration gives copyright owners additional benefits and makes it easier for people to find the copyright owner to license her works.

Finally, Prof. Aistars explained that it is important to understand that a visual artist retains the copyright in a work when she sells a copy of it, even if it is the only copy she has ever created. Selling a copy does not transfer the underlying rights the artist enjoys as a copyright owner. Prof. Aistars pointed out that “you’re not transferring the rights to make copies of the work, print them up on t-shirts and postcards, and sell them on the internet to whoever buys the copy of your work—unless you enter into a separate agreement with that person.”

Ms. Johnson noted that the Copyright Office is an excellent resource for visual artists who want to learn more about copyright protection. As the primary agency in charge of administering copyright law, the Office advises Congress, facilitates rulemaking, assists in litigation efforts, serves on international delegations, and administers the nation’s registration and recordation system. In celebration of its 150th anniversary, the Office recently launched a new initiative called Engage Your Creativity that pulls together a variety of resources for creators. Ms. Johnson stated that the initiative is a great way to become familiar with the many resources available to the public through the Office’s website.

The panelists also identified common pitfalls visual artists encounter during the creative process. Many occur because artists are not sure what qualifies as fair use of a copyrighted work. Prof. Aistars explained that “fair use exists so artists can build and comment on existing works in their own work, and in so doing add to our cultural dialogue and engage with one another in artistic conversations.” She advised artists to treat fair use as the Golden Rule: “Think about the way you would feel if someone uses your work the way you’re proposing to use someone else’s work, and then be very honest.”

The courts have four factors that they evaluate together to determine whether a use is fair or not. Codified in Section 107 of the Copyright Act, the four factors are: (1) the purpose and character of the use, including whether such use is commercial or educational; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. However, since these factors are neither dispositive nor exhaustive, courts typically explore fair use claims in an open-ended, case-by-case manner. This is an area where artists run into trouble, Prof. Aistars explained, because “there are no bright lines. There’s not a set rule that you can use this much, but no more. Artists are trying to make the best decisions they can, and sometimes that isn’t the decision the court would’ve made.”

The panelists noted that another common pitfall arises with jointly created works. Under the Copyright Act, the authors of a joint work are co-owners of the copyright in a work. Each author can do whatever she wants with the work, as long as she accounts to the other. This is a problem when a collaborative relationship goes south, or if one author wants to use the work in a way that the other author disagrees with. Prof. Aistars advised visual artists to put an agreement in writing prior to starting a collaborative relationship.

Copyright law may seem like daunting subject to visual artists, but it can be easily understood with the right information. In closing, Ms. Johnson emphasized the importance of making resources accessible and engaging in public outreach because “copyright is for everybody.”