Do you understand the difference in trademarks and copyrights and know how to use each of them properly?  Although both protect ownership of intellectual property, they are not interchangeable.  If you are a designer, artisan, or seller, it is important for you to learn the differences between trademarks and copyrights, how to protect your own intellectual property, and how to avoid infringing upon the rights of others, which is a violation of federal law.

This article is devoted to copyrights; be sure to see my guide on trademarks as well (Trademark FAQS for Designers, Artisans, and Sellers).

The purpose of this guide is to answer the most common questions about copyright in simple, straightforward language.  This information was derived from the official website of the U.S. Copyright Office, which can be found at copyright.gov.

What is intellectual property?

Intellectual property means that the object is the product of the mind or intellect, as born out in Wikipedia’s definition of the term: “In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that IP rights may be protected at law in the same way as any other form of property.”

Why do sellers, artisans, and designers need to know about copyright protection?

If, as a seller, you take your own photos and/or write your own auction copy, you are the owner of intellectual property, which copyright protects.  If you’re using someone else’s photos or text in your auctions without their express permission, then you’re infringing on their copyright.  Either way, knowing about and understanding copyright law is in your best interest as a seller.

If you’re a designer or an artisan, you need to know how copyright law affects your original designs and creations.  You also need to know and understand what copyright does not protect.

What is copyright?

The U.S. Copyright Office defines copyright as “a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.”

What are some examples of works of the visual arts?

For the visual artist, original works of authorship include “pictorial, graphic, and sculptural works,” also referred to as “works of the visual arts.”  For the purposes of copyright, the creator is the author.

Pictorial, graphic, and sculptural works may be “two- or three-dimensional works of fine, graphic, and applied art.”  Examples of such works include but are certainly not limited to the following:

• Artwork applied to clothing or to other useful articles
• Auction templates
• Cross-stitch and embroidery patterns and designs
• Dolls and toys
• Fabric, floor, and wall covering designs
• Jewelry designs
• Mosaics
• Needlework and craft kits
• Patterns for sewing, knitting, crochet, needlework
• Photographs
• Weaving designs, lace designs, tapestries

What does copyright for an original work of authorship not include?

There seems to be a great deal of confusion on eBay about what is and is not protected by copyright.  Copyright protection DOES NOT extend to

• Ideas, concepts, discoveries, and principles
• Formulas, processes, systems, methods, and procedures
• Words and short phrases, such as names, titles, and slogans (These may be protected under trademark.)
• Familiar symbols or designs
• The mechanical or utilitarian aspects of useful articles

If you create clothing, hats, handbags, belts, dinnerware, furniture, light fixtures, or other “useful articles,” the Copyright Office says that “copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship.”  A “useful article” is defined as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”  Therefore, an original painting of a woman’s purse, which portrays a useful article, would be protected under copyright law while an actual handbag made like the one in the painting would not be protected because it is a useful article.  Some designs qualify for protection under the U.S. patent law, but not under copyright law, according to the information available on the U.S. Copyright Office site.

It is possible for a portion of a useful article to be protected under copyright.  For example, an original handpainted design on a chair would be protected while the design of the chair would not.  An original applique would be protected but the design of the garment or accessory to which it is applied would not.

Additionally, a drawing or photograph of a dress or hat may be protected but that does not give the owner of the copyright the exclusive right to make dresses or hats of the same design.  So if you’re one of those designers who goes ape when someone “copies” your useful article, you may certainly be righteously indignant but you have no legal leg to stand on.  Indeed, someone else had probably already created an item virtually identical to yours before you did.  You just weren’t aware of it.  And it’s entirely possible that the copycat never saw yours, either.

How do I obtain copyright protection?

When a work is created, it is automatically protected under the current copyright law, which has been in effect since January 1, 1978.  A work is considered to be created when it is “fixed” in a copy for the first time.  This means that an idea is not and never will be copyrightable because it cannot be fixed in a copy.  Similarly, the actual method you use to create a work of visual art cannot be fixed in a copy.

I remember seeing a notice on a seller’s auction page that claimed copyright protection for all his/her ideas and dreams, past, present, and future. This is not what copyright protection is about.  However, this seller had the right idea about notice.

Is notice necessary?

Although notice isn’t required by law, it is often a good idea because it informs or reminds the public that the work is protected by copyright.  Notice also identifies the copyright owner and shows the year of first publication or creation.  Furthermore, should the work be infringed, copyright notice may eliminate the defendant’s ability to claim innocent infringement in a suit.  “Innocent infringement occurs when the infringer did not realize that the work was protected.”

How do I serve copyright notice to the public? 

First, with the copyright symbol ©, the word “Copyright,” or the abbreviation “Copr.”  Please note that only one of these is required.

This is followed by the year of first publication of the work.

Finally, the name of the copyright owner, an abbreviation of the owner’s name, or a generally known alternative designation of the owner.  For example, your eBay ID is a generally known alternative designation of yourself.

Thus, notice looks like this:

© 2006 Elizabeth Leigh

To secure the copyright symbol (a C in a circle), press 0169 on your keypad (Num Lock engaged) while depressing the ALT key.

Where should my notice be placed?

Because I’ve had my photos lifted off my auction pages and pasted onto another website (and many other eBay sellers have had this happen to them, too, I’m sure), I suggest that you place a copyright notice as unobtrusively as possible on each of your photos.  Once this information is embedded, it cannot be removed (well, perhaps someone far smarter than most of us knows a way).  Alternatively, you may want to use a watermark.

Most sellers who insert general copyright notices on their auction pages put these at the end of their description.  The important thing is that it be placed in such a way as to give reasonable notice, that it be legible, and that it not be concealed.  In such a notice, you may include specific language concerning those items on your page that belong to you.  You cannot, of course, claim ownership to graphic art, including clipart and auction templates, that you did not create.

When should I note someone else's copyright?

First, you should never use someone else's copyrighted material without the owner's permission.  To be safe, you should get such permission in writing.  Don't be surprised if this permission comes with stipulations, and if it does, be sure to follow them.  Otherwise, you may be guilty of infringement.

Second, if you have permission and use someone else's text, photograph, sketch, painting, etc., be sure to include publication information (title, publisher, or URL), a copyright notice, and the words "Used by permission."  Thus, such notice would look like this:

excerpt from Mountain Moonlight, published by Kensington Publishing Corp., © 1997 Elizabeth Leigh.  Used by permission of the author.

Be careful to file the written permission you received, just in case.

Finally, it is inappropriate to include the copyright symbol in conjunction with the owner's name in a way that makes it appear the name is copyrighted.  For example, Rachel Ashwell ©.  I often see this done in reference to fabric.  The copyright notice that appears on the fabric selvage is there to inform the public that the design is the property of the creator and thus protected from unlawful duplication.  This means that, unless you're the copyright owner, you have no right to scan the fabric and use it as a background or other graphic in an auction template.  If you do so without permission, you are guilty of copyright infringement.  You may, however, take pictures of the fabric in order to sell the fabric itself.  This principle holds true for paintings, drawings, sketches, graphic art, photographs, etc., created by others.

What are the advantages of copyright registration?

Although registration is not required for copyright protection, generally copyright registration must be made before an infringement suit can be brought.  For more information on registration, see the Copyright Office website.

Although I am the owner or co-owner of ten registered copyrights, I learned a great deal about copyright while researching and writing this guide.  If you found it helpful, please take a second to click the YES button below.  Thanks for taking the time to read my guide.  You might also find my guide on trademarks helpful (Trademark FAQS for Designers, Artisans, and Sellers).