Even When You Sell Your Work, You Still Own Your Work

My cousin Danny and his wife Lira are talented fine artists and painters. Every so often, they'll hold open studios at their home and I like to attend so I can see what they've been working on recently. During the last open studio, one of Danny's neighbors decided to buy a painting. After a very brief discussion over price, the neighbor went away and reappeared five minutes later with cash. He gave Danny the cash, they shook hands, and the neighbor walked away with the painting. The entire transaction took three seconds. There was no discussion regarding return policy, dissatisfaction with the art, or ownership over the art's copyright upon conveyance. Honestly, Danny didn't seem all that concerned about losing his rights to the work once it left his studio, and thus he felt no compulsion to memorialize the sale in writing with a discussion over terms of the sale.

And you know what? He was right not to be worried, because under U.S. Copyright Law, he still owns that work! You see, according to this circular put out by the U.S. Copyright Office:

Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent... Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the owner­ ship, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.

In plain English, this means that when an artist sells his artwork to a buyer, he is only selling the physical object - the wood, canvas, and paint - not the artistic expression that created the painting. In order for the copyright to be conveyed along with the artwork, it must be done explicitly in writing. Therefore, even though Danny's neighbor is now the owner of the physical painting, Danny still owns the artistic expression of that painting, and retains full control over how to use, display, and promote that image.

[Author's note: This does not apply to artists who are hired to create a custom work of art. That's a work-for-hire scenario and the copyright belongs to the person who commissioned the work, not the artist who creates it.]

Here's another recent example: the wedding photographer I hired to make me look good on my wedding day retains the copyright to my wedding photos. If he decides to promote his business using images he took of me and my wife, I have no say about it, even though I own the physical prints and JPEG files of those photos (as long as I'm not defamed, but that's a blog post for a different time). So this awesome pic of me?

Even though it's my face and my killer smile, I can't make any money off of it. I should add that buyers DO retain the right to display the physical work for non-commercial purposes, but will of course open themselves to a lawsuit if they attempt to make money off a copyright they don't own.

So if you're a fine artist and you're concerned that by selling your work you lose all rights to it, don't worry. You will control that work for as long as you live (and for 70 years after you die), even if you've long since sold the piece of canvas it was painted on.

[Author's Update, Feb, 18th, 2013 1:17pm: Danny told me today that following a sale, he will provide buyers with a Bill of Sale informing them that the copyright remains with him. This is a good practice and I highly recommend that everyone out there adopt this or a similar practice. Too many artists think that once they sell the work they have to give up the copyright, and that's just not the case.]

"Caveat Emptor" or Why It's [Kind of] Okay For Facebook and Instagram To Steal From You

"If you are not paying for it, you're not the customer; you're the product being sold."

- Meta-Filter user blue_beetle

I had planned on writing about Instagram's massive PR shit-storm this week so I could address the ramifications of its new terms of service; you know, where they basically said to their users "you still own your copyrighted work, but we're going to strip away all the rights surrounding that so we can make money off your work and you can't do anything to stop us." [If you don't know, Instagram proposed that they could sub-license photos you posted in the app to other entities such as advertisers without paying you, the copyright owner]. I ended up not writing about it because the backlash was so big and swift against the social network that they backpedaled, reverting to their old terms of service.  Thus ended the issue in my mind.

Then I had a change of heart because I realized that this was a good time to discuss a topic that I think everyone should be well versed on: caveat emptor, a.k.a. let the buyer beware.  Caveat Emptor has its roots in property law and the idea is pretty simple: you should do the research when you buy something.  If you fail to cross all the "t"s, dot all the "i"s, you don't have any legal recourses when you buy something that turns out to be defective. When you sign a contract, courts presume that both sides know what they're getting themselves into.  That's why you generally can't plead ignorance when a contract screws you over.

So when blue_beetle says "if you are not paying for it, you're not the customer; you're the product being sold" he means that when you sign up for a Facebook or Instagram account, you have to assume that these services want something from you, and you should read their terms of service and find out what you're getting into.  And truth be told, I [mostly] agree with blue_beetle.  Now I certainly don't condone someone profiting off your copyright without giving you a cut.  And I really get up in arms when large corporate copyright holders try to stick it to individual artists who don't have the power or wherewithal to fight back.  That violates everything I stand for.  But people do need to have  certain expectations when they sign a contract with these services - and make no mistake, a Facebook or Instagram account is a legally binding contract.  These services are not charity organizations; they are corporations (or rather, a single large corporation due to Facebook's acquisition of Instagram earlier this year) and the paramount driving force of a corporation is to make lots and lots of $$$.  If that means exploitation of its user base, then so be it.

When Facebook shares your personal information with advertisers, you don't have an expectation of privacy to that information.  After all, you shared it freely and willingly.  And even if you limit which users can see that information with Facebook's privacy settings, your information is never private to Facebook - your contract is with them, not with other Facebook users.  Meanwhile, if Instagram decides they want to license photos you share to advertisers, then can do it simply because you agreed to their terms of service.  Is it ethical?  Not really.  But is it legal?  Unfortunately it is.

I believe that the first step to controlling your artistic destiny is becoming vigilant to the situations you get yourself into. When you post a picture to Facebook or Instagram, you should understand that they will take some level of ownership over that picture.  Despite my many gripes, I will be sticking with Facebook and Instagram for the time being.  I understand that they want something from me and I'm willing to accept that in return for the personal and commercial benefits I derive from using those social networks.

But just because something is legal doesn't mean we have to let them get away with it.  There are other ways to measure success beyond a lawsuit.  For example, exploiting users' copyrighted work as Instagram tried to do this week is pretty bad policy.  We know that because the level of apoplexy that erupted forced Instagram to scurry back into the warm (if financially shallow) embraces of its old policies.   Instagram knows isn't the only photo sharing app out there with neat filters and it learned that if it can't work WITH users instead of against them, well there's always Flickr and Hipstamatic waiting to take your business.  And they'll be much more agreeable to having terms that benefit the user.

Happy Holidays everyone!

[Author's correction: in my post a few weeks ago about the Facebook copyright policy issue, I stated that Facebook can't arbitrarily change its terms of service once you sign them.  While that is generally correct in normal contract situations, that is not how it works with services like these.  Both Facebook and Instagram state in their terms of service that they may materially change their terms at will, and by continuing to have an account with them, you agree to those  new terms.  I think that such terms are probably bad policy as well, but I see nothing legally wrong with them.  If there are any contracts attorneys out there who are willing to educate me otherwise, I'm all ears.  I'd love to hear that such terms violate some law or another.]

Filmmaker-2-Filmmaker: Tip 4 - You Need To Insure Your Gear

A few weeks ago, I was on the phone with my cousin, a freelance photographer living in Los Angeles.  He had been shooting some fashion shots at a client's warehouse and paused to look over some of the slides with the client.  He set his camera on the ground and one of the client's employees accidentally kicked it while walking by.  Luckily, the camera body (worth about $5K retail) remained intact, but the lens was shot to hell. It would cost him $600 to replace and he wasn't sure if he should ask the client to cover that cost.  On the one hand, the client was responsible and my cousin didn't have 600 spare dollars lying around.  On the other hand, my cousin is a freelancer and didn't want to risk losing the client by asking him to pay for the lens.  To add another wrinkle, he needed to get the lens replaced ASAP because he only had the one camera and couldn't book more jobs without it.

We discussed the pros and cons of approaching the client, but in my mind, time and ability to book more jobs was more important, so I told my cuz "file a claim with your insurance company right away."  His response: "I don't have insurance."  D'oh!

With the exception of acting or interpretive dance, every artist needs some form of equipment to do the job.   All art is reliant on it, especially film and photography.  Which is why you absolutely, positively, unequivocally without hesitation need to insure your gear.

Because here's the thing: your gear is the single biggest investment you will ever make in your work.  And if it gets damaged, your ability to do your job decreases exponentially.  You do have some legal options, but the law is not particularly user friendly, what with all the time and money involved in suing someone... money that you probably don't have lying around waiting to be burned.  And anyway, why sue when insurance is so much cheaper and easier?   Besides, it's not like you have an unassailable right to have the client pay for your damaged gear (unless the client agrees to it in writing which I've never seen in my seven years of producing television). In my experience, insuring your gear is the best way to cover your ass... especially in those early lean years when you really can't afford to piss off a client by demanding he pay for gear he broke.

Truth: early in my freelance career, I had upwards of $15K worth of camera and editing gear insured through a "personal articles policy" with State Farm.  Do you know how much I paid on a monthly basis to have that peace of mind? $10 a month.  And the policy covered theft, loss, and damage (even if I was the responsible party).  Having that coverage was a no-brainer.  And because of it, I never had to jeopardize a relationship with a client over equipment that was damaged, and I never had to cancel a gig because I couldn't afford to replace broken gear.

But let's say you have no insurance and your client smashes your camera to bits.  Let's also assume that your relationship with the client is beyond saving and you're willing to litigate.  From my seat, there are two legal options.  If you can't prove that your client maliciously destroyed your property but he/she is clearly to blame for its demise, you could sue for damages under a simple run-of-the-mill negligence claim.  Even if the damage was done by the client's employee as opposed to the client him/herself, the client will still be liable for it (in tort law, respondeat superior makes the actions of an employee attributable to the employer).

On the other hand, if you have some proof that the client (or the client's employee) willfully and maliciously destroyed your equipment?  You could sue under the intentional tort of trespass to chattels, otherwise known as vandalism.

The problem with litigation, of course, is the cost.  Not just in litigation fees, but in time.  An average lawsuit can take years to litigate and cost tens of thousands of dollars.  It's a serious investment that can get even more serious if you lose.  That's not even mentioning the emotional and creative suckage it causes.  And if you're a small-business owner or struggling artist, do you really want a lawsuit taking up space in your brain when it could be filled with creative stuff instead?  I spoke before about sweating the business stuff, and I think insurance is no.1 or no.2 on the list of smart, cheap things that will help your business in the short and long run.

Your Copyrights Are Already Protected on Facebook

I was going to let this story slide, but it seems to be driving everyone into a frenzy - including some very intelligent people whom I respect greatly - so I thought I would take a moment to address it here. If you've been on Facebook anytime in the last week, then you've probably seen your friends posting this notice on their timelines:

In response to the new Facebook guidelines I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention).

For commercial use of the above my written consent is needed at all times!

Anyone reading this can copy this text and paste it on their Facebook Wall. This will place them under protection of copyright laws. By the present communiqué, I notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents and/or any staff under Facebook's direction or control. The content of this profile is private and confidential information. The violation of my privacy is punished by law (UCC 1 1-308-308 1-103 and the Rome Statute).

Facebook is now an open capital entity. All members are recommended to publish a notice like this, or if you prefer, you may copy and paste this version. If you do not publish a statement at least once, you will be tacitly allowing the use of elements such as your photos as well as the information contained in your profile status updates...

Short version: Facebook is not seeking ownership of your copyrighted works, nor is it doing anything with your copyrighted works that you don't already know about. Posting a notice about it doesn't give you any copyright protections than you didn't already have.

Long version: I understand the talismanic purpose of posting something like that. If enough people do it, it functions like a protest against some of Facebook's more heinous sharing strategies; a preemptive strike against a company that seems to change its terms of service on a whim. But posting that notice is not legally binding. Let me state that again so that it is clear and definitive: posting that notice is completely, totally, and unequivocally useless from a legal standpoint. Here's why:

(1) As I've mentioned before, the moment you create a work of artistic expression, it belongs to you. You are the copyright holder and you are never required to declare to anyone that your copyright has attached to those works. By law, it attaches from the moment it is created.  If, however, you have reason to believe that your copyright has been outright stolen by Facebook or as a result of their practices, that's another matter for which you should seek legal representation.

That copyright covers photos, videos, drawings, writings... anything creative that you make. But copyright does not cover facts or ideas. So while your status update may be copyrightable, your relationship status, name, and other biographical information are not. That means Facebook can share that info without your consent. Furthermore, not all the content on your timeline is your copyright. For example, if your friend posts a photo on your timeline, then you are NOT the copyright holder unless you took the photo.

(2) The Facebook terms of service do not claim ownership over your copyrights, and they have not been changed to claim ownership over your copyrights. The Facebook legal terms page clearly states that:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings.

Instead, Facebook has a license to use your copyrighted works for as long as you possess a Facebook account, but you can limit how much of your information Facebook shares with advertisers and other users through your use of the privacy settings.  And for the record, that's always been the case.

(3) By creating a Facebook account, you have entered a valid, legally binding contract with Facebook.  As a result, there are two effects. First, you cannot retroactively change the terms of a contract just because you don't like the terms.  In other words, you've agreed to let Facebook license your copyrighted works simply by signing up for an account and you can't rescind that term.  You can't plead ignorance to the terms either because in contract law, it is presumed that both sides know what they're getting into before they sign on the dotted line.

Second, Facebook owes you a duty to live up to their side of the bargain as well.  You've already agreed to let Facebook license your copyrighted materials, so it can't just change its terms of service to say "we now own all the material you previously licensed to us."  To do so would be a breach of contract.

But looking beyond the law for a moment, there seems to be a fear that Facebook can arbitrarily change its terms of service to dupe you into relinquishing your copyrights. Certainly Facebook can change its policy to make users sign away their copyrights but why would it? It would be a massive PR migraine, and considering the IPO debacle, Facebook isn't going to engage in an activity that puts its reputation in further jeopardy. If Facebook were to make a massive change like that to its user agreement, it would only apply to new users who sign up after the change is made, not to any of the one billion existing Facebook users.

(4) The fact that Facebook is publicly traded means nothing and has no bearing on the copyright ownership situation. As far as I can tell, "open capacity entity" isn't an actual thing and therefore doesn't mean anything.  Also, it's the "Berne Convention," not the "Berner Convention."

(5) Your copyrights are already protected, regardless of what Facebook does, but what about your privacy? I've seen a lot of people confusing the copyright issue with the privacy issue, but they're not the same. The copyright issue deals with things that you've already posted to Facebook and whether Facebook's use of your copyrighted works constitutes copyright infringement (it doesn't). Privacy deals with who Facebook can share that information with. I won't get into the privacy issue here except to say that you can't claim a right to privacy when you voluntarily place your copyrighted works  in a public or semi-public place, such as your Facebook profile. [Obviously this is a bigger issue, but since it's not at stake here, I'll save it for another time.]

So once again, don't bother posting a copyright notice on your Facebook timeline. All you're doing is wasting valuable space that could be better filled with kitten videos.