How To Legally Protect Your Artistic Creation: License Your Art

The end is sometimes just the beginning. For an author, the last page of a novel opens a whole new chapter in the publishing process and business of distributing the work. In today’s digital world, the instant gratification model has become the norm for consumers, and as such, many will happily download a book for free. But what if you haven’t authorized your original work to be given away for free online? What protections do you have, or can you get?

“When a client walks into my office and says, ‘I wrote a novel, and I’d like it copyrighted,’ I say, ‘Congratulations, you already have one,'” attorney Robert Cumbow says with a laugh.

The protections offered by copyright law attach to a piece of art, computer code, and more, once your work has been put into tangible form. Copyright registration protects all intellectual or creative works from being used without the creator or owner’s permission. A copyright is a property right that is created simply by creating something.

The Foundation: Copyrighting Your Art

To protect your copyrighted work further, there are a number of things you can do. The first is a notice of the copyright. “There are three elements to a proper copyright notice, and without all three, it’s invalid,” says Cumbow.

The three elements are:

• A representation of the word copyright in one of three forms: ©, Copyright, or Copr.
• The author, artist, creator, or owner’s full name
• The year that the piece was created

This notice must be placed on the work in some way. “For a book, it’s rather simple,” Cumbow says. “It’s often found just after the title page, and they call it the notice page for the very reason that you are giving notice of your copyright and a number of other things to the world. For other works — a photograph, a sculpture, a painting — it can be tougher to affix the c in a circle to the work without changing it in some way, but doing so offers a creator more protection.”

Visual artists commonly place a watermark on their works to protect them. Another option is to include an attribution in the metadata of digital art. This can also help identify infringers and make it easier to take legal action.

Each of these layers of copyright protection can help establish that you were the original creator of the work. And if you’re able to prove that you did so at a certain time and someone used it as their own without your permission after that, you have a legal basis to stop them.

What Is Art Licensing?

U.S. Copyright law says that “works that are not fixed in a tangible form” or “improvisational speech that has not been written down” do not have protection under copyright. Other works of art, such as literary, musical, graphic, audiovisual, and even architectural works, can be copyrighted and licensed by artists.

“They can license them to one corporation or one individual for exclusive use or nonexclusive use,” says New York intellectual property attorney Amy A. Lehman. “If a corporation is looking to license an image — let’s say, Nike wants to license an image that a photographer took in an advertisement — they might limit that license for one year, because after a year, they’re not going to keep using the same ad. Or they might want it forever. So what the artist can charge will vary based on the terms of that license agreement.”

Key Terms in a Licensing Agreement

Licensing deals often depend on the parties’ interests and objectives, according to Lehman. Artists may feel they’ve encountered a one-off opportunity, and no one else will want to license their work in the future. Some companies pay more money for long-term deals. Lehman says a license can also be limited to a geographic area.

She advocates that artists understand art as part of the entertainment industry. “The only way for artists to make a living is to be able to monetize their art,” she says. “Many artists are not getting great training. … They go out in the world, and they work for free, or they think, ‘Oh, this is my opportunity. I’ll just do it for nothing now, and they’ll pay me later,’ and then they never really are able to do it as a business. Art is a business. But art isn’t treated that way.”

A license agreement, like any contract, includes clauses that provide mechanisms for ending the agreement if the other party breaches it. If you need help negotiating a license or believe that your license has been breached, reach out to an experienced intellectual property attorney.

Types of Licensing (e.g., Exclusive, Non-Exclusive)

A licensing agreement must specify the type of license to be granted. An exclusive license grants the exclusive right to specified uses. You cannot grant those use rights to any other party. This can be unduly restrictive of your rights, as it limits your ability to monetize your art in a potential market. A non-exclusive license lets you grant usage rights to multiple parties.

A sole license is a hybrid of these two types of licensing. You can continue to use your work, but you can’t license it to anyone else. A limited license imposes parameters on how the licensee may use the artwork. For example, it could be for a specific geographic area, time period, or purpose.

Sublicensing rights allow the licensor to grant rights to a third party. This right should be carefully considered and reviewed to avoid uncontrolled distribution of your work. The copyright owner relinquishes a substantial portion of their intellectual property rights.

Negotiating Royalties and Fees

Royalties are the licensing fees someone pays for the right to use another’s intellectual property. There may be:

• Flat fees: Single, one-time payments
• Per-use fees: Paid based on the number of times a good or product is sold or manufactured with the intellectual property
• Percentage royalties: Based on another metric agreed upon by the parties

Several factors influence royalty rates. Exclusivity, duration, territory, and scope of use will factor into the cost. Artists whose work is in greater demand can request higher rates. When negotiating rates, determine the lowest amount you are willing to accept. The U.S. Copyright Office can provide guidance on fee structures, but it is up to the parties to agree on their own terms. You could request an advance payment, minimum guarantees, or auditing rights. Consider flexible agreements that combine a flat upfront fee, royalties, and renewal fees. There could be a royalty escalator that increases the fees based on sales milestones.

For artists to protect themselves, consider adding these types of legal terms:

• Reporting and payment frequency
• Penalties for late payment
• The right to audit books
• Remedies for underpayment or non-payment

How To Stop Others from Using Your Work Without Permission

If you find someone using your work, Cumbow recommends contacting them and asking them to stop. If that means removing it from a website or retracting a publication, sometimes people will do so voluntarily. If that doesn’t work, an intellectual property attorney can offer legal advice. If you truly wish to protect your masterpiece, you should register your copyright with the U.S. Copyright Office. The process is fairly simple and relatively inexpensive.

“The important thing to note is that, to file a lawsuit on a copyright, the piece must be registered with the [U.S.] Copyright Office,” Cumbow says. “On top of that, the damages that a creator can obtain are far greater if a copyright is registered.”

A creator may receive the damages caused by the unauthorized use of their artistic work, or they can collect statutory damages, which are often much larger, and attorney’s fees associated with the litigation. But you can only do this if the copyright is registered. “It’s better to file sooner rather than later because you may not be able to claim all of the statutory protections if you wait until someone steals your work,” Cumbow adds.

Despite the existence of legal protections, copyright law also includes defenses. A defendant may assert fair use, which permits limited use of copyrighted material without permission. This would constitute a derivative work, in which new visual art is created from an existing work. An example of this is a parody of an artist’s original song, published on social media platforms.

The Role of a Licensing Agent or Qualified Attorney

If you’re concerned someone may infringe or profit from your original works of authorship, the best way to have peace of mind is to register with the copyright office, says Lehman. You do not need a lawyer to register. You can go to the U.S. Copyright Office’s website and follow the instructions.
If you suspect someone is using your art even after you registered it with the U.S. Copyright Office, contact an intellectual property attorney to protect your rights.