How To Copyright Digital Art

35 dollars each art work. That seems so expensive to do that. Gosh! I wonder about artwork flatten work like for design bundles. So each 35 is seems far stretch??? Doesn’t it? What if you have so many artwork and can’t afford for one?

5:45 US Copyright Registration Money Damages & Attorney Fees: If your infringed work was “timely” registered with the US Copyright Office (USCO), either BEFORE the infringement began OR registered WITHIN three-months of its first-date of publication, you can pursue statutory damages ($750 to $30,000 and up to $150,000 for willful copyright infringement) and attorney fees against the infringer (the infringer may have to pay your attorney fees and legal cost post trial, at the court’s discretion). See 17 USC § 412 (Registration as prerequisite to certain remedies for infringement).

If you miss either of these two very time-sensitive windows to register, you can ONLY pursue “actual damages,” typically the missed licensing fee (usually what you would have charged), and the disgorgement of profits the infringer made (if any!) from unlawfully reproducing your work. Importantly, you’re responsible for your attorney fees and other legal costs! As a rule, any money damages received from an out-of-court settlement or post-trial will NOT cover your attorney fees, making it, too often, uneconomical to pursue copyright infringers without having a timely registered copyright in-hand.

Even if you miss those two deadlines to register, still get them quickly registered so they are best protected going forward against the next copyright infringers.

According to an American Intellectual Property Law Association report (2019 Report of the Economic Survey, at I-208, 2019), the average cost to litigate a US copyright infringement action is $397,000 (I believe that’s from trial to appeal). The 2022 fees to litigate is now over $500,000. So, unless your wealthy, you’d better have timely registered your copyright claims or affixed “CMI” (see WATERMARKS in my other posting) to have a chance to pursue money damages against US-based infringers.

Watermarks: If you choose not to register your works with the US Copyright Office, at the very least affix them with a cool-looking/artistic watermark/logo, robust metadata, your copyright attribution (name and URL/handle), and/or other “Copyright Management Information” (CMI).

US-based copyright infringers who KNOWINGLY remove, cover up, or change CMI to hide their copyright infringing actions or induce others to infringe, can be responsible for your actual damages & lost profits OR $2,500 to $25,000 in statutory damages plus your attorney fees (at the court’s discretion). See 17 USC §§ 1202-1203.

Copyright attorney, Andrew D. Epstein, writes, “We recommend always attaching a watermark or other copyright management information [CMI] to all works that you distribute. Although you do not need to have a copyright registration to recover under the DMCA [CMI], we always recommend [timely] registering your photographs with the Copyright Office to be able to qualify for maximum awards for copyright infringement ($750 to $150,000 per infringement, plus costs and attorney’s fees).” http://www.photolaw.net/did-someone-remove-the-copyright-notice-from-your-photograph.html

International Creatives: It can pay lots of dividends for international creatives (Berne Convention countries) to register their works with the US Copyright Office (USCO). I have to believe that a “Certificate of Registration” issued by the USCO could be used to help prove your copyright authorship in your country’s court system, especially if your country doesn’t have a formal copyright registration system. I also have to believe that a court outside the United States would respect & honor certified documents issued by the US Copyright Office, an official United States government entity.

So, quickly registering your artworks with the USCO could be prudent in helping you prove your copyright creation & validity in your own and other countries.

3:35 US Copyright Registration & Filing Fees (current as of February 23, 2023): If you’re registering ONE work (un-/published) where you solely authored ALL artistic components of your work (there are NO co-authors), and you’re the copyright claimant to your work, and you’re NOT incorporating any third-party creative content (licensed or not), and you’re not a corporation or LLC (your work is not a work-for-hire project), and is not a derivative or collective work, then it’ll cost you $45 to register one work via the “Single Application.” See https://www.copyright.gov/circs/circ11.pdf and https://youtu.be/MkBiPQNDVBc

Otherwise, you’ll have to register your ONE work (un-/published) using the “Standard Application” at $65: See https://youtu.be/6gNkssUfYas

To save money on registration filing fees, you can “group-register” from two to ten UN-published works (no time limit) within the same category (like visual artworks of paintings, drawings, illustrations, etc.) and submit them on one registration application for a single filing fee of $85 using the “Group Registration of Unpublished Works” (GRUW). Just do NOT include any published works. See the following links: https://www.copyright.gov/gruw & https://youtu.be/eR14iSM4esQ

US Publication Definition: “Publication” typically means your work has been released and made available (or offered) to the public for licensing, selling, sharing, downloading, or for further distribution (either for free or for payment). The day you deliver your work to your client or a stock photo library or the day you list it is likely the official date of its first-publication. If you’re just “displaying” your work on-line that’s not for sale (like on a website portfolio), then the work is likely un-published. See Circular 1 (Copyright Basics, page 7) for the statutory definition of “Publication”: https://www.copyright.gov/circs/circ01.pdf

Write back if you need information on registering photographs and literary works (blogs, posted on-line articles, etc.) with the US Copyright.

2:15: USA Copyright Proof: When US and international creatives “timely” register their artworks with the US Copyright Office (USCO), either before publication or within five-years of first-publication, they are statutorily granted “presumptive legal proof” (prima facie evidence) that they have a valid copyright, and the facts stated in their copyright registration application (who’s the copyright author, claimant, year of creation, year of first-publication, etc.) will be deemed valid, unless disproved. See 17 USC § 410 (Registration of claim and issuance of certificate).

The US copyright registration system is very much a vetting process that helps authenticate your copyright validity. It’s not necessarily about having a RAW or original file or computer/digital time-stamp that proves your copyright creation – a US federal judge MUST see your issued copyright “Certificate of Registration” (that the USCO will mail you) to have “legal standing” (the right to sue copyright infringers in federal court).

Your mailed Certificate will include your “effective date of registration,” the official US government date stamp. That’s how you help PROVE your copyright ownership & creation to infringers, publishers, social media platforms, and others (notwithstanding third-party independent created works that may resemble your original work).

If you contact US-based copyright infringers, they will undoubtedly demand proof of your copyright claim. Showing them your Certificate (its registration number) is how you help prove when you created your artwork & your copyright ownership claims.

If you’re able to register your creative works more QUICKLY, either BEFORE the copyright infringement begins OR WITHIN three-months of first-publication of the work (publication is typically the first day you list, sell, license, share, or further distribute the work to the public), you can pursue LARGER money damages and potential recoupement of your attorney’s fees & legal costs against non-Fair Use, non-judgement-proof copyright infringers.

If a US-based copyright infringer is exploiting your work, and you contact a (US) copyright attorney for legal assistance in pursuing the infringer for money damages, the attorney’s first, second, or third question to you will be, “Did you ‘timely’ register your works with the US Copyright Office?” I hope you answer, “yes”!

Joshua Kaufman, a Washington, DC copyright attorney/litigator, sums up copyright registration in the first 20-seconds of his YouTube video. He also addresses the economics of NOT timely registering your creative works: https://youtu.be/cBOKkrleY3Y

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