Here’s my October Scene Magazine column. Yes, you’ve seen the title before if you’ve visited this site, and yes, the content is much the same, although I included a bit more about submittion of groups of works under a single registration and single registration fee.
If you’re concerned that you can’t afford the $45 per registration, then check out the page for group registrations for visual arts at the Copyright Office Web site HERE. You can also do group registrations for other types of creative works.
—
$45 Creative Insurance Policy
© 2006 Kevin E. Houchin
I got a call the other day from a young woman who was pissed. She had been hired by a magazine to write an article for $1,000.00 – $500 up front and $500 on approval. She received the first check for $500 and sent the magazine editor a draft. Much to her dismay, the editor didn’t like her draft and canceled the contract. She, per the agreement, kept the $500 and the both went on their merry ways.
I’m sure you know where this is going – I did.
A couple of months after the rejection, her article turns up in the magazine with minimal (at least according to her) edits. She’d been ripped off! Righteous indignation flowed from her voice. I then asked the big question: “Did you register the article with the U.S. Copyright Office when you submitted the draft, or when they rejected your work?”
“No,” she replied.
I sighed, and then started sharing the bad news. In the U.S., copyright protection vests in the tangible expression of your creativity, at the moment the expression becomes tangible. You have legal rights without needing to register the work. However, without registration before the infringement, those rights are basically limited to “actual damages” which can be hard to prove in most cases. In the current example, actual damages are easy to prove because they would simply be the unpaid portion of the contract, $500. The kicker in this situation is that each party has to pay their own attorney fees. So, while my pissed-off author had a legitimate case, there was no economic justification to spend more in legal fees trying to win the case than she had hope of ever recovering in court, not to mention the time it would take out of her schedule.
“So, what should I do next time?” she asked.
“Pay the $45 copyright registration fee on any work that has a reasonable possibility of getting used without your permission.” I responded.
One of the best business deals on the face of the planet is our federal copyright registration system. For a relatively minor fee of $45 you can move from probably having no economic justification for enforcing your rights, to possessing very powerful incentives to motivate compensation for the use of your work.
Here’s how it works. If you’ve created something original, by yourself or as part of a team, such as a song, article, book, painting, drawing, graphic design, sculpture, photograph, movie, dance, even a floor plan or an architectural elevation – practically anything “creative” – all it takes is $45 and the completion of a simple two-page form (available at www.copyright.gov) to protect your work.
Registration is easily worth the money because if you register before the infringement occurs two big things change. First, instead of having to prove actual damages, the judge can simply pick a number she thinks is fair somewhere between $750 and $150,000 per infringement. Second, attorney fees are on the table. Now there’s an economic justification for going after the infringer, even over just $500. If my author in the example had spent the $45 and registered her draft, I could have written the magazine on her behalf demanding the $500, plus a few hundred dollars extra to cover the willful infringement and my attorney fees. Knowing that they would probably only lose MORE if this goes to court would have been a strong incentive for the magazine to pay up.
Whenever I tell this story to artists, musicians, and photographers the next question is always, “Does that mean I have to register EVERY work I create?! That would really add up and I don’t sell that much or at a high enough price to justify the $45.” Of course I can understand their positions. Registering a copyright is like buying an insurance policy; you have to find a balance that fits your risk tolerance. My rule is to register things that I feel are likely to have enough exposure that someone might want to use them – with or without my permission. If you’re a photographer, then register the works that are published in magazines or make it into juried shows. No matter what your media, you should register published works. Many times, you can register several published works as a set under one $45 registration fee.
If you have a bunch of unpublished work, you can register all of those as a set under a single registration fee. Depending on your level of output, you might do this monthly, quarterly, or whenever you get a bunch of work together. The effort in this situation is organizing the submission of a bunch of work all at once, because it’s time consuming to catalog 200 photos into one submission it’s harder to get over the inertia of organizing the single large filing for $45 than it is to pay more filing fees and do smaller sets as you go along through the year. It really comes down to how you want to spend your time versus how you want to spend your money.
The bottom line is to register as much of your work as you can afford and try to protect the rest through your contracts. I’ll write more on those contracts in a later column.
##
Kevin E. Houchin is a copyright, trademark, arts & entertainment, and business development attorney located in Fort Collins, Colorado working with creative people and businesses all across the United States. To contact Kevin Houchin, call 970-214-6808 or email him at kevin.houchin@houchinlaw.com.