“Law for Art’s Sake” Series #1
For visual and graphic artists, the primary intellectual property protection is a copyright. A copyright in a work gives the owner a package of rights including:
The right to copy or reproduce the work;
The right to sell, license, or distribute the work;
The right to use the work for new derivative works or adaptations;
The right to perform the work publicly; and
The right to display the work publicly.
The listed rights are exclusive to the owner of the copyright, meaning that only the copyright owner may perform or authorize another to do the activities listed above. Generally, anyone who engages in these activities without permission of the copyright owner is infringing.
So how do you get a copyright? The good news for most artists is that you probably already have one! In order for a work to be eligible for copyright protection, it must satisfy some fairly basic criteria. A work must be original and fixed by some tangible means of expression. In the legal world “original” has two meanings. First, it means that the work was made independently by an artist, or better yet, not copied from an already existing source. Second, “original” means that the work must display some minimal level of imagination or creativity. So a work must be both your own and somewhat creative to get a copyright.
A work must also be “fixed” in some tangible mean of expression to gain copyright protection. At first glance, this phrase appears to be more legal jargon, but the concept is really straightforward. “Fixed” just means that the work must be written, drawn, filmed, etc. in some manner that allows others to physically view it. For visual artists this is achieved the instant paint hits the canvas. For example, in October 2018, when famed street artist Banksy shredded his work “Girl With Balloon”, the physical painting itself (or potentially the remaining ball of shredded material) probably would have copyright protection under US law. This is because even though the work was destroyed, it was fixed in a physical manner for a sufficient amount of time for others to view it.
While there are other restrictions and exceptions to obtaining a copyright, if a work is “original” and “fixed”, the artist generally has a copyright. Nothing else is required. You don’t have to fill out an application or even publish the work to get a copyright. This means that for the average artist, you immediately have the package or rights that make up a copyright once your work is finished. However, that is not the end of the story. Most artists should also consider registering their copyrights to give them additional legal advantages and rights.