November 2011

The Internet and Intellectual Property

A bit of a rant stemming from a claim I saw, which is reproduced in part since the post was removed, and it’s unimportant which blog it came from:

”[…] once you upload a photo or anything really to internet (sic), whether your intellectual property or not, you really lose all copyrights (sic) unless you have a distinct legal contract of copyright from a law office prior to posting it online […] UH HELLO ANYONE CAN DO WHAT THEY WANT ON THE INTERNET!”

This is in regards to the United States; other countries may have similar laws, but I’m not certain. Disclaimer: this post is not intended to be legal advice, but rather a consolidated and easy-to-understand explanation of common myths about the internet & intellectual property. If you need help with something relating to intellectual property and copyright, please seek licensed legal council.

Now, it’s a very common misconception on the internet that anything posted on it is fair game for people to use. Whether it be a photograph you put online, digital art, something you write, whatever — people think that if it’s online, you can use it.  This misconception stems in part from the belief that copyrights must be registered with the Copyright Office in order for copyrights to “count”.  Another part of it is that people mistakenly believe that the internet somehow negates copyright.

I, for one, was terrified a few years ago when I started posting my art online - terrified of art thieves and being powerless to stop them.  For a while, I fell prey to these mistaken beliefs, slapping enormous copyright text on my art but not doing a thing when the art was stolen.

Then I did research.

The second belief, I really can’t say anything about other than people have the weirdest ideas when it comes to the internet and culpability. The internet is a medium, like television, or radio, or newspaper - posting things on the internet doesn’t make it a free-for-all.  

The first belief I can expand on why it’s incorrect, but first I want to expand on the phrase “intellectual property”. Intellectual Property, or IP, refers to “creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.” (1) The link has more info, but for those who don’t feel like clicking it, IP has two categories: the first is “industrial”, which (as the label suggests) deals with things like patents, industrial designs, etc.  The second is “copyright” (oddly named, imo) which deals with artistic endeavours.

I will be speaking specifically in regards to artistic endeavours; it could be extrapolated to apply to the industrial portion as well, but I am not well versed in that arena and I would like to avoid misstating anything.

Here’s the thing: even if you post your art on the internet, it still belongs to you. It doesn’t matter, even, if you put a copyright watermark or signature on it. All it needs is to meet both these conditions:

  • The piece must be original in that the work was done yourself, and you did not copy someone else’s work.
  • You must have a tangible copy of it - canvas, paper, hard drive, USB, etc.

[[ Note: Fanart is, and always will be, tricky. On the one hand, you do the work yourself. On the other hand, it’s using likenesses and ideas created by someone else.  Claim fanart with caution. Most places will respect your IP even if it’s fan art, provided you did the work yourself (this is why AMVs are constantly being taken down from YouTube; putting copyrighted clips to copyrighted music, while time consuming and inspired, isn’t original work under this definition), though in larger cases the “originating” creators may take notice and issue a cease & desist ]]

On January 1, 1978, a law was passed that classified works that fit the above requirements as copyrighted the moment it is put into tangible form.  Anything created on or after this date is protected by this law.  Your rights are exclusiveYou control when, how, and if someone uses your work.  There is an exception on copyright for ‘fair use’, but you control whether or not you want to allow that. You still retain these rights even if you sell your work, unless you also sell the rights. Yes, there is a limitation on how long this lasts, but that is seventy years after your death.

On March 1, 1989, another law was passed that abolished the need to register with the Copyright Office in order for your copyright to remain protected. You don’t need to do it, though depending on your work it might be beneficial (which I will get into in a moment). If you are a US artist, anyone who tells you that your work needs a certificate or some sort of paperwork in order to be copyrighted is wrong

Now, there are advantages of applying for a registered copyright. In the event of a lawsuit, for example, if you win your claim and had a registered copyright prior to the suit,  you can have your court & attorney’s fees paid for and any statutory damages paid for as part of your settlement. If you file for a registered copyright after the suit, you’re still entitled to payments for damages suffered (which can be a difficult thing to sort). (2, additional sources within source)

[[ Note: Registration, however, is $45 USD.  It may not be a prudent thing for a small-time commission artist to register copyright for every piece they make, but it is their prerogative.  If you make, say, one piece a day for a month and register each piece, you’re talking about $1,350 USD.  It may or may not be worth it: use your best judgement. ]]

The point is, you are entirely within your rights to determine what permissions you allow for your work, and then to demand that people who go against these terms stop using your work. At the very least, any artist in the US can (again, your country may have similar laws) and if someone tries to tell you otherwise, feel free to direct them to this post.