MJ Bogatin (Bo) of Bogatin, Corman & Gold answers some of your questions surrounding the business of Art Licening. - THANKS BO!
Q: Is it ok to show work (to public, manufacturers, art directors…) if you have not gotten a certificate showing the work is registered at the us copyright office. I understand it is taking a long time to get one.
A: Yes, it is okay. Even though online registration is presently taking up to eight months for the Copyright office to complete, the short answer is that your copyright registration will ‘relate back’ to the time your application was filed as long as it included all particular information, specimens and fees that are required. This is established by the Copyright Act itself, Title 17, Section 410(d) The Copyright Act can be accessed online at http://copyright.gov/title17/circ92.pdf . See also the Copyright Office FAQ on this issue at http://copyright.gov/help/faq/faq-what.html#certificate
However, you do not need to have submitted an application for registration of copyright, much less received your certificate, to have a valid copyright interest in your artworks. First, as long as there is sufficient original creative expression, you have a copyright at the time of creation. Registration with the US Copyright Office simply adds valuable statutory protections that you would not otherwise have, and, if your unregistered artwork is infringed upon, you may not be able to afford to bring a lawsuit without registration protection. These statutory protections include: 1) the right to elect statutory damages of up to $150,000 for a willful infringement of your copyright instead of being limited to “actual damages” which may consist only of the infringer’s profits – if any; and 2) the right to ask the court to have the infringer pay your legal fees and costs, which you would otherwise have to bear yourself. (See Copyright Act Sections 504 and 505.)
Copyright law allows an Author/Artist to have three months from “publication” of her artwork to apply for registration, per Section 411(c)2 and 412. So, even if your work were infringed upon by your distribution or imagery to art directors and manufacturers for potential licensing and/or sale, if you file your registration application within that three month window and your registration is subsequently granted, you will have the indicated statutory benefits. That means you would not only be able to threaten a $150,000 willful infringement claim under Section 504(c), but a Copyright litigation attorney would likely take the matter on a contingent fee basis(!)
I should not fail to note that the Copyright Office recognizes a limited right of display of artworks other than for licensing or sale. Such personal displays would not count as ‘publication’ and thus extend the opportunity to register within three months of a “legal publication.” However, it is likely to be argued that your showing the artwork to the “public” is ultimately for the purpose of obtaining a sale or licensing opportunity. Accordingly, to be safe, I recommend pursuing registration within three months of any first potential “publication” to people or entities that might make use or the imagery without a license from you.
If you have further questions about this that you want to direct to me personally, I can be contacted through my website linked below.
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
Thank you so much Bo! EVERYONE, watch for Bo's post next month. If you don't want to miss these, I will post a link in my newsletter or follow this blog :-)