by Yasmin Cunningham, Esq.

Each month in 2022, PeachtreeESQ.com (with the help of The Law Office of Trey Ross, PC) will collaborate with a business, influencer, or citizen in Georgia and publish an article involving a legal question which the person’s followers may find interesting.

This month, our spotlight is on professional artist and illustrator, Marcus Williams. Marcus is the Co-Creator of Tuskegee Heirs and he’s a true innovator in the art community. In addition, Marcus has received international attention for his parodic works involving various comic book characters.

Learn more about Marcus and his amazing work by visiting his website: https://marcusthevisual.tumblr.com/. You can also follow Marcus on Facebook at https://www.facebook.com/marcus.williams.5439 or on Instagram at https://www.instagram.com/marcusthevisual/?hl=en

I.  What is the difference between copyright and trademark?

 Brief Answer:

“Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.”[1] Copyright includes paintings, drawings or illustrations, books, programs, movies, and many other types of works.

Under copyright law, “the creator of the original expression in a work is its author. The author is also the owner of the copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher.”[2] Id.

“A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.”[3] Having a trademark does not mean you legally own a particular word or phrase. Id. It only allows rights to how the words or phrase can be used specifically to your goods or services. Id.

II. What should you do as an artist to protect your characters from copyright infringement?

Brief Answer:

     To protect your intellectual property, you should consider registering your illustration through the U.S. Copyright Office. It’s sometimes hard to provide who owns unregistered work. Other methods include signing your name on all your work, keeping copies of your work, and using watermarks. However, by far, the most efficient method to legally protect your work is through registering it with the U.S. Copyright Office.

a. Protecting your work through Copyright Registration

      Registering your work with the Copyright Office of the U.S. Library of Congress is generally a great idea and triggers some powerful enforcement rights. Although the work (e.g., your illustration) is automatically “copyrighted” and yours the moment you created it,[4] registration provides an extra layer of protection from copyright infringement and proof that you own the rights to your work. Also, registering your work protects it and gives you a right to be awarded damages when someone unlawfully copies it or uses it without your permission.

Still, to register the work, you must be the author and the work must be tangible (i.e., written, physical, document, graphic form, etc.).

Also, to be clear, your work is protected under copyright laws the moment you create it. However, registering your work affords you the ability to bring a lawsuit against the infringer.

How long will your copyright last? A copyright created after January 1, 1978, lasts the life of the author “plus seventy years after the author’s death.” Id. If the copyright is owned by you and someone else or with you and multiple authors, “the term lasts for seventy years after the last surviving author’s death.”[6] Id.

b. Protecting your work in other countries

      “There is no such thing as an “international copyright” that automatically protects an author’s works throughout the entire world.” Id. To protect your work in a particular country will depend on the laws of that location. Identify any international agreements between the particular country and the U.S. to see if there are any conditions that provide protection to an artist whose work is infringed upon by someone in that country.[7] Id.

c. Summary

Although registering your copyright isn’t mandatory, it helps deter others from infringing on your work and gives you some additional enforcement rights. As an artist, having a public record of your work defines the authorship and ownership and makes you eligible for statutory damages and attorney’s fees in the event of litigation. Registration notifies the public of the author of the copyright and authorizes the public to request permission from you before using your work in any way.

Lastly, if you’d like to know of some legal ways to use copyrighted works which are not yours, check our recent article entitled “How can I draw and sell comic book characters which were created by others?”

NOTE: If you need assistance drafting a legal document such as a will, contract, or prenuptial agreement, consider using PeachtreeESQ.com; it’s a Georgia-focused legal technology company powered by real lawyers licensed in our state.

Also, if your legal needs are complicated, feel free to contact an attorney at The Law Office of Trey Ross, PC. The firm’s web address is www.treyrosslaw.com and they are based in the Atlanta metropolitan area.

[1] 17 U.S. Code § 101, et. seq.; U.S. Copyright Office, (https://www.copyright.gov/help/faq/faq-general.html#:~:text=Copyright%20is%20a%20form%20of,both%20published%20and%20unpublished%20works).

[2] 17 U.S. Code § 102(b).

[3] United States Patent and Trademark Office.

[4] “Your work is under copyright protection 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.” U.S. Copyright Office.

[5] https://www.copyright.gov/circs/circ01.pdf.

[6] “For works created before January 1, 1978, that were not published or registered as of that date, the term of copyright is generally the same as for works created on or after January 1, 1978.”

[7] See https://www.copyright.gov/circs/circ38a.pdf