Art Law Corner: Should I Register My Visual Art?

Should I register my visual art with the US Copyright Office?


A work does not need to be registered with the US Copyright Office to be protected by copyright. Should you register your visual art anyway? The short answer is “probably.” An original work receives some copyright protections automatically just by existing in the world but registering the work with the Copyright Office of the US Library of Congress is a straightforward process that can be highly advantageous if a dispute arises and is necessary if you want to enforce your copyright.


What is copyright?


Copyright is a form of intellectual property law that protects “original works of authorship fixed in a tangible medium of expression.” To quote the Copyright Office, “a work is ‘fixed’ when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.”


What can be copyrighted?


A wide variety of works in all fields of art and culture, including the visual arts, literature, music, drama, film, and architecture. The Copyright Office specifically states that these categories should be viewed broadly for the purpose of registering your work.


What cannot be copyrighted?


Copyright protects expression, but not ideas, methods, systems, concepts, principles, or discoveries. Works that are not fixed in a tangible form cannot be copyrighted. An example provided by the Copyright Office is a choreography that has not been notated or recorded. It also does not protect titles, names, slogans, familiar symbols or design, a listing of contents or ingredients, or mere variations of typographic ornamentation. The language of the statute states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

That said, it may be possible to copyright, for example, a map or technical drawing as a pictorial or graphic work, or a computer program as a literary work.


What are the benefits of registering my work?


It is required to take legal action. You have to register a work in order to bring a copyright action in federal court, so by registering your work immediately, you will be prepared if anyone infringes on your copyright.

Higher damages. If you register the work prior to your copyright being infringed, or within three months of publication of the work, you are eligible for “statutory damages” of up to $150k for a willful infringement (although that does not mean you will actually get $150k). Not only that, but by registering the work, you may also be entitled to attorney’s fees and other litigation costs, which means you will keep more of the reward.

Strong evidence of origination. There is little better evidence that you created your original work prior to the infringement than copyright registration documents. If your work is registered, it is then the infringer’s burden to demonstrate that they created the work before you registered it.


What are the drawbacks of registering my work?


The only real drawback is that it takes modest effort, time, and money to register your work. The registration fees are not exorbitant.


Conclusion


If you think there is any chance that someone will attempt to profit off of your original work, it is worth registering the work. Contact Jeff Kinkle to discuss any questions you may have and to start the process.


The information on this site is intended as general information only and not as specific legal advice.

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