Friday, July 21, 2017

Bo's bLAWg - Cost Benefit Analysis of Copyright Registration, and Derivative Works


MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco.  He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo,
I have two questions if you don't mind. I am a casual print-on-demand artist for about eight years now. I have never registered my work for copyright.

1) Let's say I have about 100 designs published over time with about 30% of them actually sold through PODs. Am I understanding correctly that each design would now require a separate copyright at this late date? I do not know the dates of each uploaded image.

2) In the event I use the same design and change out the text in the picture do I copyright the design only or copyright each rendition including text? This question applies to color only changes too.

I bring in at most one to two thousand dollars of income a year. It seems like it is very costly for me to go back and copyright them at this late date. I currently don't license my work but have been approached several times over the years to consider it. I didn't have the time and knowledge back then but could be interested in the future.
“Anonymous”


Dear Anonymous,
First Q:   I agree that it is likely unduly expensive for you to individually register if you have in fact “published” your 100 +/- designs at different times, so would not be eligible to register them as a group such as “My Best Designs of 2016.”  You read last month’s bLAWg closely and are certain that the 70% that have never sold have in fact been ‘published”?  http://annietroe.blogspot.com/2017/06/bos-blawg-copyright-registration-of.html

As I mentioned last month, the designs must have been offered online or otherwise with the purpose to distribute copies to people who will license it for merchandise and further distribution.    If you have ‘merely’ displayed your designs online on your own website and not did necessarily specifically offered them to be licensed, some or all of the 70 might still be unpublished. And, as I mentioned last month, unpublished works can be registered in a group under a single fee if they are all yours alone.

Assuming that it is clear the 70 unlicensed designs were in fact clearly offered for licensed use, and they were not posted in groups that would qualify for registration together because they have the same publication date, then, to save money, I recommend that you focus on the designs that have been licensed.  It is likely that those designs will have broader public dissemination and thereby be more vulnerable to infringement. If a group of those 30 were licensed together, then they too could be registered as a group rather than individually.

Otherwise, pick and choose among the 30 as to popularity and quality and begin your registration efforts with those, since presumably, they are the ones that are most likely to be infringed, so you want the statutory benefits that accrue with registration before infringement for at least those.  Once you prevail on a copyright infringement claim, you may well be able to afford registration of all the designs you have ever created!

As for the changed designs, Q2, unless the text is sufficiently ‘creative,’ like an original poem, and not just a quip or caption, the short answer is yes, you would likely want to register the new work as appropriate. However, if the text you use are mere catchwords or phrases, mottoes, slogans, or short expressions, such verbiage is not eligible for copyright
(See https://www.copyright.gov/circs/circ34.pdf )

If the text is a new poem, but being used in conjunction with a previously registered image, it would be eligible for its own registration on the TX (text) application form, not as VA (Visual Art).

If you are just changing the color scheme to a previously registered design, I would say that you need not re-register the new color scheme.  Indeed, merely changing the color scheme is not likely eligible for a new registration as it lacks sufficient ‘new creative expression.’ 
(See https://www.copyright.gov/circs/circ34.pdf  ) 

It is interesting to note what the Copyright Office does offer as examples of derivative works of visual art that should be registered:
•  A sculpture based on a drawing;
•  A drawing based on a photograph, and
•  A lithograph    based    on a painting.

What all three of these have in common is that they truly transform the pre-existing artwork from one ‘medium’ to another.  Anything short of that level of transformation may not require a new registration.  What this means to me is that the new color version of your design has full copyright protection by the original registration, since it does not qualify for its own registration.

So, to the extent that this applies to a large number of your designs, maybe you can save some application fees after all!


Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com
© 2017 mjbogatin 


Have a legal question? email it to info@AnnGraphics.com. I will forward it to Bo. It might be a blog post! You can search "Bo's bLAWg" to read more posts. I am looking forward to your comments and thanks for sharing this great information on social media.

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2 comments:

  1. Annie and Mr. Bogatin, thank you so much for all of these articles. They are very helpful and informative, especially as to the finer points and questions we often have. Just want to let you know how much I appreciate it!

    ReplyDelete
    Replies
    1. Sarah! THANK you SO MUCH! I forwarded your comment so Bo is sure to see it :)

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