Legalities 38: Registration Update: How to Successfully Register Your Copyright in Graphic Design Using the Copyright Office’s Online System

Note: although the term “graphic design” can cover a wide range of work (see, e.g., AIGA’s discussion at http://www.aiga.org/what-is-design/), for the purposes of this discussion, I am using the term to refer to designs that incorporate several elements (e.g., images and text), such as posters, books, magazines, advertisements, packaging, websites, etc. This discussion does not apply to singular works such as logos, typefaces, illustrations or animations.

Last year at a national design conference, I heard a young attorney tell attendees that “graphic design is not copyrightable.” Unfortunately, this is a commonly held, but incorrect belief. Indeed, even the Copyright Office can get it wrong. Back in 2006, in Legalities 23, I wrote about this issue in the context of paper applications. Since then, the Copyright Office has fully implemented an online system for registering copyrights, and has also published an extensively updated third edition of its “Compendium of U.S. Copyright Office Practices.” This article will show you how to use these two tools to get your graphic design registered.

First, some background:

Registration is important.  Copyright protection happens as soon as you create your work. However, you need a copyright registration to fully protect your rights, and early registration is particularly important if a dispute is likely. That’s because you can only get an award of statutory damages (an amount of money the court thinks will effectively deter an infringer under the circumstances, regardless of the infringer’s actual profits or the copyright owner’s loss) and your attorneys’ fees if you register your copyright before an infringement happens. If you are assigning your copyright to a trusted client (e.g., for a website design or corporate identity systems), you may not need to register your work. However, if you suspect there may be trouble getting paid, or you are working on spec, you may want a registration so that you can have a strong infringement claim to use as leverage if there is a payment dispute.

Graphic design is compilation authorship.  The Copyright Office still has a misunderstanding of the nature of graphic design. As reported in Legalities 23, it conflates the concept of graphic design with “layout” or “template,” which it considers equivalent to a blank form (blank forms are not copyrightable). The Compendium maintains this misunderstanding. It instructs copyright examiners not to accept applications to register “format” or “layout.” However, the Compendium recognizes the concept of “compilation authorship,” which is eligible for copyright protection and registration.

Compilation authorship is an original selection and arrangement of several elements, such as illustrations, logos and other graphic elements, text, photographs; and, for websites, animations, music, videos or interactive games. The verbatim definition in the Copyright Act is “a work formed by the collection and assembling of preexisting materials or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101. “Original work of authorship” means your design cannot be a simple or standard arrangement, for example, a common grid system, or a page design consisting of one banner over a couple columns of type. Technically, graphic design may also be a “collective work,” if you also created some of the elements included in the design. For example, you may have created an illustration and a brochure or a website that displays that illustration, or you may have created your own portfolio website. A collective work is encompassed in the legal definition of a compilation.

Use the online application system.  When the online registration system was first introduced, it was full of problems. There have been several updates and improvements, but still it is not particularly user-friendly, and it remains much harder to navigate than the paper forms. Nevertheless, the Office now strongly favors online applications. Paper forms cost more to file and are given last priority. Online applications are processed first, and usually registrations issue within 6-8 months. Paper applications can sometimes take 2 years to be processed. So, it is important to use the online system.

How to register copyright in your graphic design

The most efficient and inexpensive way to get your graphic design registered is to use the online application system and to work within the Copyright Office’s own understanding of the law. Unfortunately, the online system does not provide a transparent way to register copyright in compilation authorship. Here’s how to work around that problem:

The online application is called eCO. Don’t try to fill out the form without reviewing the instructions. The site’s PowerPoint tutorial is helpful. You can us the tutorial to navigate through the various screens. However, the tutorial does not cover registering copyright in graphic design, and there are some pitfalls to avoid:

Registering websites

The Copyright Office acknowledges that websites are dynamic works with changing content. Unfortunately, however, there is no accommodation of that fact in the registration process (copyright law requires a work to be “fixed” to be copyrightable, so future content cannot be covered by an existing registration). When you register your copyright in a website, the registration will cover only the content that you claimed as your authorship and that existed at the time you submitted the application (the effective date of the registration is retroactive to the application date). If you are registering your work on a client’s website, the static form of your compilation when you finished it should be sufficient, assuming your client will be responsible for creating and adding new content.

However, if you are registering your own portfolio site, you will be updating your site with new content that you own. In that situation, it is best to adopt a regular timeline for adding new content, and to file new registrations for each update. Your new registrations will be for “derivative works” based on the original site. Use the “Limitation of Claim / Material Excluded” field to indicate that some of your compilation authorship was pre-existing, and the “New Material Included” field to indicate what types of new content you have added. See Copyright Circular 66. Or, as an alternative, you can file for your individual works separately, or as collections of individual visual works, apart from the website compilation authorship. This might be a good strategy if the basic design of your website is not changing. You should take a look at Copyright Circular 40 for additional guidance.

_________

You are invited to submit questions for upcoming Legalities columns.  Please send your questions to Legalities@owe.com.

Legalities™ is a service mark of Linda Joy Kattwinkel. © 2016 Linda Joy Kattwinkel. The information in this column is provided to help you become familiar with legal issues that may affect graphic artists.  Legal advice must be tailored to the specific circumstances of each case, and nothing provided here should be used as a substitute for advice of legal counsel. Linda Joy Kattwinkel is an attorney, painter and former graphic artist/illustrator. She  practices intellectual property law, arts law and mediation for artists in San Francisco. She can be reached at 415-882-3200 or ljk@owe.com.