I had the pleasure of presenting on Comic Book Creator Rights with the award-winner comic author Mike Baron at Phoenix Comicon last weekend. We talked about how important it is for writers and artists to understand what rights they have in their work and the various ways they can protect it.
Copyright
An artist or writer has copyright rights in their work the moment they put fingers to keyboard or pen to paper. As the owner of their work, they can control where their work is copied, distributed, displayed, performed, and what derivative works can be made.
Unlike books where a complete story is often contained in a single volume, a comic book story may be broken up into several 22-page issues. One thing Mike and I suggested to our audience was registering the copyright in the “story bible” as well as each issue that the artist creates. A story bible is a master document that lays out the setting and norms of that universe and the backstory and characteristics of each major character.
The copyright laws regarding infringement for published and unpublished works are different, and under the current laws (that are in need of overhaul), a work that is released only online is “unpublished.” To maximize your options for recourse (i.e., financial damages), I advise artists to register their work with the U.S. Copyright Office before they release it if it is unpublished. Mike also suggested doing a short run of each issue so the work will qualify as “published” and the rules about when you have to register to be eligible for what’s called statutory damages are more favorable.
Trademark
A comic book artist could have several trademarks related to their series – the name of the series, logos, slogans, and the name and possibly depiction of the characters. Any or all of these could be trademarks used to market the artist’s work.
For each of these potential trademarks, it’s a good idea to run a search on the U.S. Patent and Trademark Office’s (USPTO) trademark database to make sure that another artist doesn’t already have the exclusive right to use that trademark in relation to comic books or similar products. If they do, they can force the other person to rebrand.
If the desired trademarks are available, putting a superscript “TM” next to them will put everyone on notice that the artist is using them as trademarks, not just elements in their series. Registering them with the USPTO will increase their value and give the artist the exclusive right to use those trademarks. No one else in the industry could have the same trademark in the U.S. Registration also increases their value and may make the artist’s work more desirable if their goal is to be acquired.
Identifying and creating a strategy to protect your intellectual property is complicated, so if you want to talk more about this subject, feel free to connect with me on Twitter, Facebook, YouTube, LinkedIn, or you can email me. You can also subscribe to the Carter Law Firm newsletter.
Please visit my homepage for more information about Carter Law Firm.
3 responses to “Intellectual Property in Comic Books”
“…a work that is released only online is ‘unpublished.’”
That position is contrary to my understanding of copyright’s “publication” definition.
If the work is placed on-line without any password-protected
mechanism, i.e., the copyright owner cannot control who views, further
distributes (shares), and/or comments on the work, then the work has very, very likely been “published.”
Here is the U.S. Copyright Office’s definition of “published:” http://www.copyright.gov/help/faq/faq-definitions.html.
The U.S. Copyright Office’s linked definition of “published” further confirms my understanding: When artists showcase their art (only) on-line, their works are very, very likely published and, consequently, should be registered as published to retain maximum remedies. My reasons include the following:
1) By definition, when artists place their works on-line, their intent(!) is to distribute/share their art expressions world-wide; artists hope their works will receive accolades (commentary) and/or licensing sales.
2) The Internet is a unique medium with special characteristics. When posted to publicly accessible, non-password-protected sites where anyone can view the art, artists’ works are automatically distributed & copied. When I visit an artist’s website, the work is sent (distributed) to my computer and reproduced (copied) on to my monitor, allowing me to view the work—that sure sounds like the artist has “published” the work.
3) In addition, Google and other search engines are making copies of the displayed artworks for inclusion in their web and image search engines and then sharing those links with third-parties. Those actions reaffirm to me that web-posted artworks are most likely “published.”
If I’m wrong and a federal court rules that on-line works are, indeed, unpublished, artists can amend their published registration to unpublished by filling out Form CA ($130), and, I believe, the Certificate of Registration’s “effective date of registration” will NOT be changed.
On the other hand, if I’m correct, artists who have registered their posted on-line works as unpublished will lose their effective date of registration, as they now have a defective Certificate of Registration. They are now required to submit a new, corrected registration to retain standing and the other benefits of timely registering their copyrights. From Circular 8, http://www.copyright.gov/circs/circ08.pdf:
In this case, another basic registration should be made with the proper deposit materials for a published work. In the “Limitation of Claim” section of the registration application, give the registration number and year of the previous registration in the spaces provided. In the “Other” box for “New Material Included,” state, “This registration is made to correct a registration that was incorrectly made as unpublished.”
Ultimately, and as we would all very likely agree, the 1976 Copyright Act’s “publication” definition was poorly written and is not current for today’s Internet-era. Other than a court rendering judgment on this topic, no one really knows what “publication” means under 17 USC.
Though I respect Ruth’s position and applaud her wonderful(!) work of supporting artists via her blog, it’s dangerous not to qualify the statement, “…a work that is released only online is ‘unpublished.’” I would have written it as, “…a work that is released only online is VERY LIKELY ‘unpublished.’”
The realm of what constitutes published v. unpublished can be very hazy. The best practice for artists: Register creative media as “unpublished,” BEFORE the work is displayed publicly, distributed, shared, posted, licensed, sold, or created into derivative forms. And along with including a main copyright registration title, use content titles when registering groups of unpublished photographs, videos, songs, paintings, essays, etc.