The Official Kunvay Blog

Learn how to navigate copyright and intellectual property ownership smartly so you own your work, and own your future.


The Media File that Could: Why Obtaining Full Copyright and Intellectual Property Ownership Matters

Your mother may have told you that sharing is caring, but sharing isn’t always caring when it comes to copyright and intellectual property law.

With the growing popularity of social media platforms, people are sharing images more than ever.

Unfortunately for the creators of the shared media files, few people understand that they are violating copyright law when they upload and post creative work without the authorization of the creator.

Sharing Isn’t Always Caring

One needs only log into Pinterest to find numerous copyrighted images that others have “pinned” or uploaded to the Pinterest website without permission from the image’s owner. Innocent though it may seem, every time an image is shared without the creator’s permission, a blogger, artist, photographer or graphic designer loses credit for her work and possible income that she could have generated from that work.

This proliferation of copyright infringement can understandably leave a creative feeling a bit down and discouraged. After experiencing infringement of her work, a freelancer may even wonder whether she can continue to make a profit when her time and hard work easily become mute at the hands of copyright infringers. After all, a creative can easily put in hours, if not weeks, of thought, work, and editing into a single creative work. That photo, logo, or written content represents the freelancer’s professional image, work ethic, and indeed, livelihood. Nobody knows better than a freelancer that the widespread violation of an artist’s work equates to theft.

Creating the Media File that Could: How to Protect Your Work

Creatives may feel like they are constantly fighting an uphill battle against technology and social media. But all is not lost for freelancers. By taking extra precautions to gain full property rights, owners of creative works can turn a creative work from the media file that couldn’t into the media file that could.

The over-abundance of information surrounding copyright law, the seemingly complicated process of obtaining copyright on a creative work, and endless contradictory anecdotes from other freelancers can lead some creatives to simply try their luck by creating a work, hoping that they can prove ownership if necessary. The “fly by the seat of your pants” method isn’t without precedence. After all, a work is copyrighted the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device. This means that as soon as you snap that picture, design that logo, or write that original paragraph, your work is copyrighted. You need not register your work with the U.S. Copyright office for it to be protected because your work was copyrighted from the minute you created it.

Scenario 1: Creating for Keeps

Let’s see how this scenario would play out in real life. Let’s say I write up an original blog post and publish it. As soon as I finish writing the blog post, the content of the post, that is, the words that make up the blog post, are automatically copyrighted and I have exclusive rights to the blog post as its creator. Anyone who uses, publishes, or copies the content of my blog post without my permission will have violated my copyright laws and only I can legally transfer or sell the work.

My fellow creatives may read this information and sigh with relief, thinking they are off the hook. Not so fast, my creative friends, you may run into many problems by not taking additional steps regarding the ownership of your property. Let’s look at a few different scenarios you might find yourself in if you don’t register your creative work with the Copyright Office.

Remember that blog post I mentioned above? Let’s say I publish the blog post to my own blog. People comment on the blog post, share the blog post and the link properly, and I receive all of the credit for the post. I am happy as a clam because my blog post was automatically copyrighted the minute I finished writing it. I love my blog post so much that I decide to never sell the blog post or transfer it to someone else. In this happy-go-lucky scenario, I don’t need to register my work with the copyright office.

But what if things don’t work out so well? What if someone decides to copy my post and publishes the post as if it was her own work? While I am the owner of the blog post (I received those rights automatically when I completed the work), I cannot prosecute the copyright infringer without first registering the blog post in question with the Copyright Office. I cannot pursue damages and legal fees for copyright infringement until I register the work.

It doesn’t take a lot of imagination to foresee complications in this scenario. For example, it takes an average of 2.5 months for the Copyright Office to process an online application and a lengthy 6.5 months for print applications. Imagine your frustration as you witness someone else making money from your work, claiming it is her own while you wait for your registration to come back so you can begin the process of filing a lawsuit against the infringer. To add to the confusion, the infringer could have attempted to register the contents of my blog post with the Copyright Office in his or her own name.

Did that last scenario sound complicated and time consuming? It should have, especially since had I registered my work, the facts of my copyright would be on the public record, I’d have a certificate of registration and would be eligible for statuary damages and attorneys fees after successful litigation. Further, in the event of a dispute over the ownership of the blog post, my copyright certificate would serve as prima facie evidence of ownership of the blog post so long as I registered within five years of creating the blog post.

Scenario 2: Creating to Sell to Others

Hopefully the benefits of gaining full intellectual property rights to your creative work by registering your work with the Copyright Office are becoming clear. Nonetheless, let’s imagine one final scenario, one in which I write up a blog post so stellar that I decide to sell it. I haven’t registered the blog post with the U.S. Copyright Office yet because I intend to sell it quickly, right after I write it. I decide to do myself a favor sign up for an account with Kunvay so they can handle the transfer of property rights to my buyer. Not only is it free for me to transfer my blog post to my buyer, my buyer can rest assured that he has full property rights to the blog.

What’s more, my buyer won’t have to worry about me claiming ownership and seeking damages when he uses my work. Additionally, if someone decides to steal the contents of the blog post, my buyer will have full rights and ownership of the blog post and will be able to prosecute the theft accordingly, avoiding some of the headaches mentioned above.

Copyright law can be messy and time consuming. Using Kunvay at the beginning of the creative process can save you from a plethora of time consuming difficulties and get you back to what you’re best at – creating.

Because you read this far and want to navigate copyright & IP smartly, follow us on Twitter.

About the Author: Taylor Hoffman is freelance legal writer and military spouse blogger. After graduating from Sandra Day O’Connor College of Law, she founded Hoffman Writing Services and works as a freelance legal writer and blogger. Taylor lives in Hawaii with her husband and their two pet schnauzers.

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  • TheInternetGuy

    Sir, you were not ‘forgotten’ out of $1,000, they never intended to pay you in the first place. Think about it, you never knew who the winner was (or if there was one) but you were offered a measly $1,000 on a take-it-or-leave-it basis (who does that?), giving you no further options. That’s incredibly unusual, especially given a 72-hour period to decide?

    When you decided to hand over the IP they probably collected the large sum from whatever company launched the challenge and their job was finished, leaving no reason to actually pay out the fees since you had signed a contract transferring the IP. The hiring company probably has no clue of what happened and this should not reflect negatively on them.

    Sadly, that’s how some businesses are run.

    • Reggie Solomon

      It’s true. I never did find out who the actual grand prize winner was; I wish there had been more transparency around that. It would definitely have improved my confidence in the process.

      The actual IP however was never formally transferred to them because they never followed through with the actual prize award rendering the transfer incomplete. That’s actually, one of the saving graces of the whole experience reflected in point #2 of lessons learned.

      Thanks for chiming in and sharing your thoughts. Much appreciated.

  • Juan Mario Inca

    Really interesting Kunvay, thanks ​!

    Given your interest, I think you’ll be very much interested in this list of emerging Open Innovation research: http://www.openinnovation.eu/07-05-2013/768/

    And in this new research too:

    - The Contours of Crowd Capability
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324637

    Powerful stuff!

  • Will Tennant

    Registering the copyright is required prior to bringing an infringement lawsuit.

    • airtonix

      um no?

      Perhaps you are thinking of trademark or patent.

      Copyright is given the instant you create the work.

      • Will Tennant

        True, But See Copyright Statute Title 17 Section 411 requiring registration prior to bringing lawsuit.

        • John Feminella

          If you’re the author, you don’t need to register beforehand. Otherwise, registration is required. The law is very clear on this — it’s the very first part of the relevant section. See §411:

          **Except for an action brought for a violation of the rights of the author under section 106A (a)** [...] no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.

          Then §106A says:

          the author of a work of visual art [...] (1) shall have the right [...] (A) to claim authorship of that work, and [...] (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

          So, in this case, since Mark’s client is ripping off the work and presenting it as his own, registration would not be required since the original author is bringing the suit.

          However, even if you don’t need to register, you may want to do so anyway. That’s because the law requires courts to presume that a plaintiff who has a registered copyright is the holder of that copyright. So a defendant would have to prove that the registration certificate is in error, fraudulent, or otherwise not accurate.

          • Will Tennant

            This is true if you’re claiming a 106A right of attribution or integrity. The famous artist Anish Kapoor, for example, would not appreciate someone taking credit for his work, or suggesting he authored the work of another. However, my comment was with respect to copyright infringement. If Mark’s client is ripping him off by copying or reproducing the work, which is Mark’s exclusive right, then 106 applies. Most of my clients are in the former category and whether it’s a picture or web-design, etc., they’re just looking to get paid for the work they do.

          • Richard_M

            Registration within 90 days of first publication grants the copyright holder the right to recover attorney and court costs. This is what puts teeth into copyright laws. It is true that copyright is given the moment a writer expresses their work. It is also true that not registering within 90 of first publication is not a good business practice.

  • Heather Cuthill

    This is a classic example of why artists should always insist upon a written contract from every client: you’ll get paid, you’ll protect your rights in your own work, and you’ll save yourself the hassle and the costs of trying to get paid through the courts – which may end up losing you money even if you’re successful. Here’s a contract template that is comprehensive and easy to customize for each of your graphic design projects: http://www.megadox.com/d/22.

    • Mo Kane

      Having a written contract is meaningless. Have you heard of breach of contract? If the client is not going to pay because they never intended to, having a piece of paper will not obligate them to do so. If the design work was done for a pitch and the client didn’t get the project, the client may not have the money to pay subcontractors like the designer. Not his fault. See my other post as to what to do next (TL:DR:Nothing).

      • Heather Cuthill

        You can always ask for money up front – either a deposit of 50% of the contract price payable at the time the contract is signed, or the full contract price to be placed in escrow or trust until completion. Clients who intend to honor the contract should not have a problem with that.

        • Mo Kane

          A 50% deposit is an excellent idea. But if the client is going to rip you off, all you are going to get is the 50%. Placing the money in trust requires a cooperating attorney that both sides agree upon and adds cost. The trust department of a bank won’t do this; they would need a trust instrument, etc. I am unaware of any commercial escrow services though this is a good idea as well, can you suggest any?

          • Heather Cuthill

            There are a number of online escrow services, such as Escrow.com. Their fees are typically based on the dollar value of the transaction. It’s the most cost-effective way I know of – a lot cheaper than a lawyer.

  • I’ve been a prayin.

    Why on earth would you do $1000 worth of work without a contract? Of course it’s heinous on the part of the contractee to not pay, but you should do what you can to prevent being taken for a ride.

  • Will Tennant

    (a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

  • Mo Kane

    So much for the law, what about the reality of the situation? What happens, say, if there was a contract and the client simply refused to pay? What should the artist/designer do? Assume further that the contract was for $1000. You will not get an attorney to represent you in small claims court for less than $250. And that doesn’t include filing fees and subpoena fees. Figure on at least one continuance. And then your attorney will ask for more money for the second hearing. Assume you win. Now you have a judgment. Do you know where the client’s bank account is? Do you have the client’s bank account number? No? Then you have to pay someone to find it. That is not necessarily cheap, either. Can you garnish your client’s bank account? Sure, if you know where it is. But you have to file a separate proceeding. Your attorney will charge extra for that. At an absolute minimum, you’re at $750 in attorneys fees, not including the costs of filing the new case, the costs of service on the bank, etc. And don’t think that even if you get all the numbers right that the bank is going to simply mail you a check. No, they may very well answer and wait for yet another court hearing. Or your client, who may well be a small business like you are, simply lives paycheck to paycheck and there’s not much money in the bank either. Now what? Seize the client’s car? It’s probably a lease. You mean you didn’t get a full financial statement from the client when you started working on the new project? How much time have you spent on this collection effort? And in the meantime, you have opportunity costs because time spent on the lawsuit(s), just like time spent on the original project, is unrecoverable. You could be working on something else. My advice: if the amount of your bill is less than $5000, chalk it up to experience. In the future, insist on a down payment. That’s one way to cover your loss. Tell the client that you will not hesitate to truthfully inform anyone who asks that he has not paid you. This is a somewhat obscure reference, but when relatively small amounts of money are involved, trying to collect on a debt in the United States is like Captain Kirk’s comment on the Kobayashi Maru: the only way you can win is not to play the game.

  • Mo Kane

    For some reasons everyone’s comments seem to be repeated under separate posts. My comments about whether the law protects those who have been swindled for small amounts obviously does not apply to situations such as Winklevoss v. Zukerberg.

    • http://www.kunvay.com/ Kunvay

      Sorry about that Mo. There seems to be a Disqus bug. We’ll get fixed this week. Thanks for the note.

  • mr.t

    What if you worked for a large company as an artist and began working with one of there biggest clients producing original artwork for them wich was being printed on tshirts. Wich was and still is being produced and making lots of profit. You only worked on the clock hourly and left the company after some time. You never signed anything at all stating anything about royalties or copywrites. You have the proof that these are your works. Are you entitled to any royalties or rights about these works of art in the fact these have generated thousands of dollars and you are left pennyless and kicked to the curb?

  • Oliver Gerasimov

    I think that’s the most freelancer risk because most of them worked in a client without written contract. But thanks for sharing this post at least they will know that they have the right to claim their work.

  • Paul Thomas

    As a photographer, I needed exclusive ownership of my work. After some extensive research I found out about this firm called Levy, Levy & Sosa in Miami. I decided to set up a consultation to meet with their attorney and I’m sure glad I did. They assisted me with applying for copyright registration, the process was so simple and they guided me along the way, explaining in ways that were easy to understand. I encourage you to contact them on 1-800-464-5554 or visit their website http://www.trademarklaw101.com/practice-areas/copyright/ to secure your work!

  • Tony

    Can someone tell me the legality of creating a shirt (not for resale) that says something like “Pepsi is Shit”. Would that be illegal if I am not selling it? Thanks in advance.

    • http://www.kunvay.com/ Kunvay

      Hi Tony – Good question. If you created a t-shirt that said “Pepsi is Shit” that would constitute an expression of opinion and would be protected speech. Pepsi wouldn’t like it, but you could sell a shirt with that message. Just be sure not to use the Pepsi logo; that’s where you could get into murky waters.

  • Gerrie7407

    If I decide to print 20 t-shirts for a concert, am I allowed to print the artist logo on it ?
    Example a Justin Bieber logo with a face ? what the legal implications

    • http://www.kunvay.com/ Kunvay

      Gerrie7407 – If you print someone else’s logo on a t-shirt for sale, you would unfortunately be violating the logo owner’s copyright. The legal implications are if the logo owner saw the shirt and was able to trace it back to you or your company, you could be liable for damages. You could take the risk that the logo owner wouldn’t find out given how large the Bieber brand is and the unlikelihood that they’d find you, but you’d be taking a risk.

      Below is an article with a 4-part test to determine “fair use” vs. “copyright theft. http://blog.kunvay.com/copyright-theft-vs-fair-use-how-to-determine-if-your-work-has-been-stolen-or-adopted-for-fair-use-with-a-4-factor-test/