How to Create & Protect Your Digital Copyright When Selling Online
Artists, crafters, designers, writers, singers, and creative people of every stripe sell their creations online every day. Whether you sell through your own website, an online marketplace such as Etsy or eBay, or at a local art fair, having a basic understanding of copyright law can be a tremendous asset.
Whether you are worried about others violating your copyrights or want to know if you can legally sell your “fan art,” a foundational background in copyright law is essential.
Please note that any discussion of copyrights or other legal issues is never a substitute for legal advice from a qualified attorney. If you need specific advice about a copyright issue you’re having, talk to a lawyer.
Copyrights are a kind of intellectual property, or IP. Intellectual property is property that arises out of a creative process, such as an artistic endeavor, act of invention, or any creation of the mind. As with personal property, IP owners have the right to use their property as they wish. At the same time, people who don’t own IP are not entitled to use it unless given permission by the IP owner.
Copyrights apply to works of authorship or artistic expression, such as articles, books, drawings, paintings, sculptures, films, songs, computer software, architectural plans, and even choreographed dances. Copyright owners have the exclusive right to use their protected properties, just as they reserve the exclusive right to use their car, shoes, or home.
The process of creating copyrights is simple. If you’ve ever written, drawn, or otherwise created anything, you already own copyrights to your creation. This is because copyrights get created automatically, as long as you meet two basic requirements:
A copyright is not a single protection. Rather, it’s a collection of rights and abilities that you, as the owner of a copyrighted work, enjoy. Like other forms of property, you can buy, sell, transfer, license, and give away your copyrights, or portions thereof, for any work. While there are some limitations on your rights as a copyright holder, such as fair use and first sale (see below), there are exclusive protections afforded to all copyright owners:
You, as the creator of an original work, do not have to register that work with the United States Copyright Office to own the copyright to it. As soon as you create your work, you are the copyright owner.
But owning copyrights and enforcing them are two different things. One of the strange aspects of copyright law arises from registration. Though the rights you have as a copyright owner take effect as soon as you create the work, and there is no requirement that you register the work to own the copyrights for it, you cannot file a lawsuit to protect your work unless you’ve registered it.
While you can take some steps to protect your work, such as filing a DMCA takedown notice, you cannot ask a court to issue an injunction or award you damages – by filing a lawsuit – until you’ve registered.
Registration of any copyrighted work is simple. You must register your work through the United States Copyright Office, and can do so electronically or via mail. Registration costs $35 to $55 if you do it on your own, or more if you hire an attorney to do it for you. Each individual registration takes between 6 and 15 months to process, after which you’ll receive notification that your work has been registered.
Registering a work conveys a range of benefits in addition to allowing you to file a lawsuit to protect your work:
Copyright infringement is when someone violates your rights as a copyright owner. For example, if you write a book, you have the right to control who sells copies of that book. If someone starts selling copies without your permission, that’s copyright infringement. As the copyright owner, you have several remedies available to you when this happens:
In some cases, copyright infringement can lead to criminal charges. Criminal copyright acts arise when the infringer acts willfully, and the infringement:
It’s also a criminal copyright violation anytime someone fraudulently makes or removes a copyright notice. For example, let’s say your friend gives you a manuscript she wrote. You read it, decide you like it, and start selling digital copies on Amazon. You aren’t the copyright owner, and because you are willfully violating the writer’s copyrights and trying to make a financial gain from your actions, you’ve committed a criminal act of copyright infringement.
Further, if you sell the book with a notice that you are the copyright owner, you’ve committed an additional offense because you’ve fraudulently claimed copyright ownership.
Unlike a civil case, you, as the copyright owner, cannot choose to file a criminal case. Instead, what you can do is report the suspected crime to law enforcement. If the law enforcement agency decides that criminal charges are warranted, they will file a criminal case. In that case, you may be asked to serve as a witness, but you are not responsible for filing a lawsuit or presenting a case to the court.
If you suspect a copyright crime has taken place, you can contact a local Federal Bureau of Investigations field office or file a complaint online. If you believe the crime has taken place online, you can file a complaint with the FBI’s Internet Crime Complaint Center.
The Digital Millennium Copyright Act, or DMCA, is a law that addresses how copyright infringement issues are handled when they occur online. Specifically, it allows online service providers a way to protect themselves from infringement issues that might risk their ability to operate online, while also allowing copyright owners to police and protect their works from infringement.
If you buy or sell online, or have been notified that your work violates someone’s copyrights, read about the Digital Millennium Copyright Act (DMCA) for a more in-depth look at how the DMCA can affect you. In the meantime, the DMCA allows you, as the owner of a copyrighted work, three basic options when you encounter online infringement:
There are a lot of commonly asked questions that routinely pop up. Some of these are based on the law, some are based on old laws, and some are based on nothing more than wishful thinking. Familiarizing yourself with these questions, and understanding the answers, will go a long way in solving many of the common copyright issues you’ll encounter.
One of the more common questions people have about copyright surrounds fan art. Fan art is anything people create that is inspired by, or based upon, a television show, book, movie, or almost any other form of timeline media.
For example, if you love the HBO series “Game of Thrones,” you might want to create something based upon it, such as drawings of your favorite characters. You might then try to sell those drawings on a site like Etsy. After all, you may have based your creation on an already copyrighted work, but your creation is original. Unfortunately, that doesn’t mean you can sell it without violating copyrights.
In almost all cases, fan art is copyright infringement. Unless you have permission from the copyright owner of the work on which you based your own work, you cannot make and sell fan art. If you do, you leave yourself open to a range of negative consequences, from DMCA takedowns to lawsuits, and even criminal prosecutions.
Some artists or copyright owners do not mind if fans make, or even sell, products based on copyrighted works, while others do. Unless you have permission from a copyright owner to make and sell fan art, it’s safe to assume that any derivative work you create is copyright infringement.
Fair use is a legal doctrine that permits some uses of copyrighted material without the consent of the copyright owner. As long as you use a copyrighted work for purposes of parody, education, news reporting, research, or criticism, you’re generally not committing copyright infringement. However, determining what is or isn’t fair use is not always easy to do, and there is no single test you can apply to determine if your work qualifies as such.
If you’re sued for copyright infringement, a court will determine whether fair use applies to you based on the circumstances. In other words, even if you think you are protected under fair use, a court may not see it that way.
There are four factors that courts look at when considering whether the use of copyrighted materials is fair use:
One of the more famous examples we can use to illustrate the murkiness of the fair use doctrine arose out of the 2008 election. In the months preceding the election, artist Shepard Fairey designed the now-famous Hope poster, which he based on a photograph of then-Senator Obama. The poster almost instantly became popular, with Fairey selling hundreds the first time he printed the image in poster form. The image was eventually approved by the Obama campaign and was later added to the National Portrait Gallery.
However, the Fairey poster was based on a photograph that Fairey didn’t own or have permission to use. The photographer, who was working for the Associated Press at the time, sued Fairey for copyright infringement. Fairey argued that his work qualified under fair use, and the two sides eventually settled the case.
Though the details of the settlement were largely confidential, the legal battle itself arose because Fairey never owned the copyright to the original image, and never had a license to create a work based upon it.
For those who are thinking about claiming fair use, the moral of the case is this: Even if you think what you are doing is fair use, you may only ever find out if you’re right after a lengthy and expensive legal battle.
Like fair use, public domain is a legal doctrine that allows people to use copyrightable material they did not produce. Public domain applies to some copyrighted or copyrightable works, but allows those works to be used by anyone without infringement. Public domain works can come to be in one of four main ways:
Once a work is in the public domain, anyone can use it for any purpose. However, not all public domain works are free to use. For example, original collections of public domain works can be copyrighted, as can derivative works based on public domain properties. So, if you see a collection of poems from a writer who died in the 19th century, the collection is likely protected by copyright, even though the original poems are not.
As a rule, unless you’re certain a work is in the public domain, it’s best not to use it without permission.
Similar to fair use, but less frequently encountered, is the idea of first use or first sale. Under the first sale doctrine, a buyer of a copyrighted item has the right to later resell that item without risking copyright infringement.
For example, let’s say you buy a book, take it home, and read it. After reading it you decide to sell it. You sign up as a seller on Amazon, list the book as a used item, and sell it for a small fraction of what you bought it for. While you do not own the copyrights to this book, you do not infringe on any copyrights since they were protected when you first bought the book. The subsequent resale is not protected by copyright law.
First sale does not give you the right to sell copyright infringing items. For example, you cannot design and sell a Star Trek t-shirt unless you have a license to do so, even if you are the first seller. But, you can buy vintage Star Trek items and sell them without a license and without risking infringement, because the items had previously been sold and protected by copyrights. Once sold, the items become subject to the first sale doctrine.
Let’s say you want to sell Harry Potter fan art on Etsy. Through your research, you discover there are already numerous Harry Potter-related items being sold, and all of them appear to be listed by creative crafters just like you. Over the coming months, you pay attention to the sellers to see if their listings get removed, but they don’t. The shop owners continue to list and sell the items without any apparent problems.
Unfortunately, this doesn’t give you permission to start doing the same. Whether or not anyone else is making, selling, or giving away an infringing work has nothing to do with you. When you choose to infringe upon a copyrighted work, it’s you who opens yourself up to the liability of copyright infringement. While others may be similarly violating the law, their violation does not give you permission to do the same.
Further, it is up to the copyright owner to decide what actions, if any, to take against infringing works. This includes deciding which works to take down or which sellers to sue. So, if you decide to sell an infringing work, the seller could choose to come after you, exclusively, and there is nothing you can do about it. That others are also selling infringing works is not a valid excuse if you ever have to defend yourself against an infringement claim.
This idea is a holdover from how copyright laws used to work. Until the late 1970s, copyright law required that the creator of an original work had to indicate, by use of a copyright notice, that the work was copyrighted. If there was no notice of copyright on the work, that work fell into the public domain.
The notices differed, but typically came in the form of a brief identifier, such as “Copyright 1965” or “© 1965.” Some also had statements like, “This work is copyrighted by Jane Smith. Any unauthorized use is prohibited.”
While many creators still use copyright notices, they are no longer legally required by United States’ copyright laws. Further, even if you find a work without a copyright notice that was produced prior to 1978 (when the original changes to the law took place), or prior to 1989 (when additional changes were adopted), that doesn’t mean the work falls into the public domain.
There are many reasons why an older work may not include a copyright notice but is still protected by copyright laws. The work may have been amended to correct the error, or the work you found may have been an unauthorized copy.
The idea that you can drop a copy of your work in the mail and obtain copyrights to it has been around for a long time. Sometimes called the “poor man’s copyright,” this idea is based on the thought that if you have a sealed envelope with an official stamp, you can prove that you are the actual author of the work.
While self-mailing sounds like a clever trick, it’s not very useful. If you want to register your work, self-mailing won’t help. Self-mailing a work is not mentioned anywhere in the copyright statutes, and the U.S. Copyright Office does not recognize it as a substitute for registration. As previously discussed, your legal options with a non-registered work are limited, and self-mailing doesn’t change that.
Further, if you want to establish a clear timeline for when you created the work, self-mailing might help, but there’s no guarantee, as mail can be tampered with easily. Also, the act of mailing something doesn’t make you the copyright owner, and unless you can show you are, self-mailing isn’t going to matter.
Finally, self-mailing to establish authorship is a strategy for a battle that is rarely fought since most copyright disputes don’t arise out of questions of authorship. Rather, they arise from questions of fair use, royalties, licensing, or other issues where the question of authorship is not a concern.
Copyright law can be confusing at best and infuriating at worst. It’s a world full of timelines, deadlines, terms of art, and ambiguous phrases. Even the most experienced copyright experts do not always agree on how far the law extends or what it means for the average creative person trying to sort it all out.
In other words, if you’re facing a copyright issue and need guidance, your only sure answer is to talk to an experienced intellectual property attorney. A good lawyer will give you a roadmap that can help you navigate the copyright world. Without that basic guide, you might find yourself lost.
Have you ever been confronted with a copyright issue? What happened and how did you resolve it?
Categories: Legal, Small Business
Mark Theoharis is a former attorney who writes about the intersection of law and daily life, covering everything from crime to credit cards. He mostly writes for legal publishers, marketing agencies, and law firms, but gets the occasional chance to publish fiction. When he is not writing, Mark restores vintage and antique typewriters, though his editors have made it quite clear that typed submissions are strictly prohibited.
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