How do I get a copyright?
There is good news and bad news. The good news is that copyright protection occurs the exact moment you create a work and fix it in a concrete medium perceptible either directly or with the aid of a machine or device. So you own your copyright the moment, for example, you click the shutter on your digital camera and the image is saved on your memory card, or you hit save on your computer, put paint on canvas, draw your cartoon, or notate your choreography. The bad news is that if you don’t register your copyright within certain legal timeframes (see more on this under registration) you do not have the full protection of the law because you are limited in what legal remedies you may seek if your work is infringed (see section on infringement).
Work for Hire
There is one exception to the you-create-it- you-own-it rule and that is work made for hire. Work made for hire occurs when:
- You are an employee and you are making the work in the context of your job in which case your employer owns the copyright unless you’ve made a different written deal.
- You have signed a work made for hire contract for work, usually for commissioned or assignment work.
Work made for hire means that the person employing you or hiring you owns the copyright, not you. This phrase is often buried in an assignment document or a contract that a magazine or client gives you when they hire you. If you see that phrase in a contract and you sign it, you are giving up your copyright. Work for hire has to be in writing, so the person who hired you over the phone can’t call you later and say, “Oh, by the way, this was a work for hire deal.” It is unrealistic to think that you will never have to sign a work for hire contract, particularly when you are starting out, but at least know what you’re doing and try to negotiate a different deal, say an exclusive license for a specific period of time
Can I lose my copyright if I don’t put a copyright notice on my work?
No, you own the copyright whether you put a copyright notice or not, but it’s good business practice to place a notice. The internationally recognized symbol for copyright is © (Option G if you are running Microsoft® Office Word on a Mac® computer), but copyright notice can also be written as copr. or by spelling out “copyright” followed by the date and your name. Photographers working digitally should always put copyright information in the metadata because under the Digital Millennium Copyright Act (see section on the DMCA) removing metadata incurs penalties.
How do I lose my copyright?
You lose your copyright if you sign a work for hire agreement, or if you sign a contract in which you have agreed to “transfer” your copyright because legally “transfer” means you have relinquished all rights. You also can lose your copyright without realizing it when you enter a contest or post work on some free website. Always read the rules before you enter a contest or click the “Agree” button on a website onto which you are loading work because you may find a paragraph that grants the contest owner or the website owner the rights to any work you submit.
If you have transferred your rights you have an opportunity to get them back under “termination rights” provisions of the Copyright Act which allows copyright holders to terminate all grants, licenses or transfers of rights under specific rules. (Note termination rights do not apply to rights lost in a work for hire agreement.) For works created before 1978, the termination right occurs in year 56 after the transfer was made. For works created after 1977, you have a five-year window beginning at the end of 35 years from the date you transferred your rights. If you transferred rights for publication, your five year window begins at the end of 35 years from the date of publication or the end of forty years from the date you transferred publication rights, whichever ends first. These dates are precise, so you should be setting up your filing system right now and keeping copies of every agreement you sign about your work. For more information, go to the copyright office website and http://www.copyright.gov/title17/92chap3.html#304
Readings and Resources
See Community for Creative Non-Violence (“CCNV”) v. Reid. The Supreme Court interpreted the work for hire provision in this dispute over ownership of a sculpture commissioned by a nonprofit group. The court held that Reid, the sculptor was an independent contractor, not an employee, since sculptural works were not one of the categories of commissioned work listed in the Copyright Act, and because Reid had not signed a contract agreeing to designate the sculpture as work for hire. This case was a major victory for artists because it means that you do not automatically give up your copyright just because someone commissions or hires you to produce work.
Termination Rights: Links and Resources