With so many ways to share and publish online, it may seem virtually impossible to protect your work from being exploited.
But according to Robert C. Cumbow, an attorney for the Seattle-based law firm, Graham & Dunn PC, who works closely with creative professionals, there are a few simple measures you can take and details you should know to make sure you're not being exploited.
Owning copyright is extremely important if you want to have a say in how your work appears in publication and who gets to publish it. "The owner of the copyright is the one who gets to say whether anybody else gets to use the work or not," says Cumbow. When you sign a basic service agreement that says nothing about copyright, you retain the ownership of how your work is published and distributed. "When people ask me how to get a copyright of their work, I say, 'Congratulations! You already have it,'" says Cumbow.
The only way to transfer copyright to someone else is through writing. "Knowing who owns the copyright is not just a matter of who gets to use it, it's who exercises complete and total control of the work moving forward."
Whether you're creating a work as part of a group effort or you've been hired to make work for a company or individual, make sure to get a contract in writing before you even get started. "Get in writing some understanding of whether the copyright for the work you create is going to be owned by them or you," says Cumbow. While you will have the default ownership of copyright unless otherwise indicated, it's important to clarify everyone's expectations upfront.
Also, be sure to price yourself accordingly, depending on whether you own the copyright or not. "If they want to acquire the work and the copyright, they should have to pay more," says Cumbow.
When you sign a "work for hire" agreement, you don't own the copyright. This document comes with the implicit understanding that the copyright for the work belongs to whoever is hiring you to make it, says Cumbow.
That means that person or company has the right to decide how your work appears in publication, how it's distributed and where it's reprinted. Be sure this agreement includes a clauses that licenses the work back to you for limited use so that you can include it in your portfolio or on your website without issue.
Before you create a work with someone else, whether it's a design project, music collaboration, or writing a book together, it's critical to discuss who will have copyright ownership rights over the work and how royalties will be split down the line. "No matter how happy and excited and energetic about the work you are together, it might not always be that way," says Cumbow. "Come up with an agreement while you're still happy."
Without a written agreement, everyone creating the work is automatically a joint owner of its copyright. That means, for example, if you are writing a book with someone and don’t create a contract, both of you can independently exploit the work—selling rights to derivative works like a play or film, for example. What's more, this means you also must split all royalties 50-50. "A joint owner is not an owner of half," says Cumbow. "That means theoretically I could go to one publisher and sell it and you could go to another publisher and sell it."
Things can get nasty should you and your collaborator stop seeing eye-to-eye. Cumbow has seen broken collaborations take a turn for the ugly. Without a written agreement, all the creators share the copyright on a work, which means you have to share your booties even when you've broken all ties.
Creating an agreement will allow you to set the terms for who gets the copyright and how royalties will be split. Cumbow once worked with a troupe of nine people who collaborated to create a performance piece. The group decided that only one member would own the copyright and get the lion's share of royalties, but all the others had to be listed as contributors. "It can be whatever the authors agree on," he says. "The important thing is that something is written down."
While the copyright of a work might be yours unless otherwise indicated in writing, registering that copyright gives you the written proof you need should the work be exploited. Cumbow advises registering a copyright as soon as possible. You can easily do this online for between $35 and $55 per registration. For collections of work—a group of photos or series poems that go together, for example—you can often do a group registration to save on costs.
Many artists and creative professionals skip this step. But it's important for a number of reasons. First off, if you decide to sue someone for copyright infringement, you won't be able to do that unless you've registered your copyright. But waiting to register until an infringement happens also has its drawbacks. "The law has created some good incentives for registering your copyright before any disputes arise," says Cumbow.
If you go to court with infringement claims, you could get paid statutory damages, which cover your legal and court costs and pay you an amount of compensation per work that could range from $750 to $30,000, rather than just getting the cost of losses. Without a copyright registration before infringement, however, you won't get any of these benefits. "The theory is that the person who infringed didn't infringe just a copyright, they infringed a registered copyright and the government is going to do something about that," says Cumbow.
Unlike copyright registration, which has a cost, a copyright notice is completely free. The two are very different and not to be confused, says Cumbow. A copyright notice is simply a marking beside the work that indicates you own its copyright. Many people think you have to register a work to be able to do this, but that's not the case. What you do need is to include three elements in your copyright notice:
- The word "Copyright," the abbreviation "Copr." or a C with a circle around it
- The year of first publication
- Your name
Without these three elements, your notice won't be legally effective, says Cumbow. "Everyone who creates a work fixed in a tangible medium has a right to put that on a work and they should," he says. "It gives notice to the rest of the world that this is your work. People will think twice or more before they copy it."
If you see a violation of your work online, there are three simple steps you should take:
1. Make a screen shot or print the webpage with the date on it as a record.
2. Find out who is responsible for the website. A majority of infringement is done by people on sites that don't actually belong to them. For example, say your work is posted by someone else on Facebook.
3. Contact the owner of the website with the demand to have your work removed within a reasonable amount of time. The Digital Millennium Copyright Act requires website operators to take any such material down.
If you're feeling unsure how to act in a case of infringement, you can always call a copyright lawyer for advice. "Most attorneys who know this stuff are happy to help and they aren't going to charge a person for a question they can answer in 30 seconds," says Cumbow. Even if it'll cost you a small fee to get advice. "It's money well spent," he says.