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Art and Copyright by Anastasia Winslow

Have you wondered whether you should be doing something to protect your artwork from being copied? Or whether buyers of your paintings are allowed to make prints of them and sell them? Here are answers to these and some other commonly asked questions about ART & COPYRIGHT.

Q. What do I have to do to get copyrights in my artwork?

A. Basically nothing. Under the copyright law, an artist is protected as soon as his or her original work is "fixated in a tangible medium," that means, as soon as the brush hits the canvas. The basic requirement for obtaining copyrights is originality. An artist can only get copyrights in his or her original expression, i.e., that which originates from the artist and is not copied from someone or something else.

Q. Do I need to get approval from the Copyright Office to protect my work?

A. No, not unless you are filing a lawsuit. You need to get a copyright registration certificate if you want to sue someone for copyright infringement. It is not necessary before that, although it is advisable. Certain legal rights can be lost if a registration certificate is not obtained within three months of the first publication of your work. For example, you could lose the right to recover attorneys’ fees in an infringement case, or to recover statutory damages that occurred before a registration certificate was obtained.

Q. Is it a complicated process to get a copyright registration certificate?

A. No. It’s actually rather simple. It basically involves filling out a two-page form and sending the form to the Copyright Office with $20.00 and three copies of your work. If you call the Copyright Office, they will send you forms to fill out along with a step-by-step "how to" instruction booklet.

Q. Is my work protected if I put it in a magazine or on the Internet?

A. Theoretically, yes. Increasing the circulation of your work legally does not erode your copyrights. It does not mean someone is more entitled to copy your work. In fact, one could say it increases your rights. To sue someone for copyright infringement, you could prove an accused person copied your work by showing (1) a substantial similarity between your work and theirs and (2) access to your work. An increased circulation of your work, through the Internet or otherwise, could make it easier for you to prove access.

On the other hand, from a practical point of view, publicizing your work makes it more available to others to copy it without your knowledge. This means your copyrights may be violated, and if you do not know about it, there’s really not anything you can do — until you find out. So as a bottom line, whether you want to place your work on the Internet or in other publications depends on your own views about how much control you personally want to maintain over who sees your work.

Q. When I sell my work, does the buyer have the right to copy it or take and sell photos or prints of it?

A. No. Selling a painting, sculpture, or other artwork is a sale of the object only. The sale does not convey copyrights, unless you specifically agree to do that. This means the person who buys your work has no right to make copies of your work or even to adapt it into another form. For example, the buyer of a painting cannot photograph your work or make posters of it and sell the photos or the posters. The buyer of a sculpture cannot copy it to make molded versions of the sculpture, whether they be simulations or plastic, miniaturized versions of the sculpture. Only you as owner and author of the copyrights can do that. You do not need a contract with the buyers to retain these rights. And if you find that one of your buyers has reproduced or adapted your work without your permission, you are entitled to sue him or her for copyright infringement.

Anastasia P. Winslow is an intellectual property attorney in Princeton, NJ, where she practices patent and copyright law. She also is an adjunct professor of copyright and patent law at Seton Hall University School of Law in Newark, NJ.

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