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Authors Who Contribute to Collective Works Beware! Your Works May be Unregistered and Orphaned
© Cheryl Hodgson 2008 | Posted on October 19, 2008
Are individual contributions of visual artists, including illustrators and photographers, as well as free lance writers, published in collective works such as newspapers, magazines, books, and on line data bases protected by copyright registrations for the collective works? If the author is the owner of the rights in his or her contribution at the time of registration, the answer is no!
Visual artists increasingly retain rights in their individual works, since payments for first time use may be limited. The best opportunities for compensation may come from subsequent license of the works which are lost if ownership of the copyright is transferred.
While maintaining the copyright in one’s illustrations or photographs may be important, it means little if the visual artist fails to secure registration in his or her name. The copyright may be valid, but without registration prior to infringement, there is no right to recovery of statutory damages and attorneys fees, thus rendering copyright protection all but ineffective. It is a mistake for a visual artist to rely upon the copyright notice or registration of the periodical or collective work in which the visual work appears. It is easy to confuse ownership of the copyright with registration of the work in order the preserve remedies. The two are not the same.
Let’s take a common example. A literary work is created combining text with a collection of drawings or photographs. What if the drawings or photographs, but not the text, are uploaded to a website and infringed? If the illustrator is free lance, and has made no transfer of ownership, the publisher of the collective work has no right to maintain an infringement action, since the visual artist owns the copyright. However, if the illustrator has not registered the work separately, he or she has no registration covering the illustrations even if the publisher has registered the collective work. Both parties lose. The publisher can not protect its investment in the collective work, and the visual artist has no registration to enforce his or her own rights.
While the creator of the collective work such as the magazine often secures registration for its rights in publication as a whole, the copyright in the collective work is separate and distinct from the copyright in the underlying work [statute]. Registration of the copyright in the collective work does not cover the underlying copyrighted contributions such as illustrations or photographs, unless the owner of the collective work is also the owner of the individual contributions at the time of registration. Even if the rights are owned by the publisher at the time of registration, the individual author’s name will not be listed in the registration for indexing purposes at the Copyright Office.
With imminent threat of Orphan Works legislation, works such as illustrations and photographs will be left out in the cold as the first orphans if left unregistered. If you are an illustrator or photographer, or free lance write, it is more important than ever to register claims to copyright in illustrations, photographs, works of fine art and articles in order to protect rights to statutory damages and attorney’s fees.
Next: Part Two: Changes in Registration Forms Impact Remedies for Photographers, Illustrators and Free Lance Writers.
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1 Comment »
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