Whether you’re new to the world of freelance animation, or you’re a seasoned industry veteran, it is absolutely important to know your rights regarding the copyright of the animations that you, or your team of animators, create.
As a freelance animator-turned-animation studio owner, you will spend the bulk of your time working with different clients on a contract basis, creating projects that ultimately reflect their desired visions and end goals.
On the other side of the coin, you might be looking to build up your portfolio – thereby demonstrating your strengths and best work to prospective clients – or boost brand awareness for your animation services.
As such, animation copyright can be a notoriously tricky area to navigate, especially if you’re overseeing a team or you’re working solely as an independent contractor.
In this blog post, we’ll unpack animation copyright in its entirety, as well as how it impacts your freelance animation business, and what steps you should take to avoid falling on the wrong side of the law:
Breaking Down Animation Copyright for Animators
Copyright, according to Merriam-Webster, is defined as “the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (such as a literary, musical, or artistic work).”
Under the United States Copyright Act of 1976, your animation projects – from inception to completion – are protected by default, albeit to a certain extent.
Indeed, by formally registering your animations at the U.S. Copyright Office, you gain access to a set of exclusive economic rights, including licensing out your projects to agencies and big-brand businesses for a fee and prohibiting others from distributing or exploiting your projects for their own gains.
Internationally, more than 170 countries abide by the Berne Convention, which stipulates that creations made in one contracting country must be given the same protection in the others. Still, copyright law varies from country to country, as do the costs of registration.
In the U.S., it costs between $45 and $125 to register original works, i.e. animations created in a personal capacity.
Of course, it’s not a requirement to copyright every single piece of animation that you produce, unless there are certain works that you feel are in danger of being infringed upon (which means fighting it out in a federal court).
Copyright protection generally lasts for the life of the creator, plus an additional 70 years; however, when it comes to “work for hire”, copyright protection lasts for 95 years from the date of publication, or 120 years from the date of creation.
When the copyright protection on your animations expires, then they enter the public domain, whereby they can be posted, duplicated, altered, or sampled by anyone for their own use.
In other words, your private property becomes public property, which in turn drives public creative expression – think Disney adapting the works of Hans Christian Andersen and the Brothers Grimm, albeit with family-friendly changes in place.
Work for Hire Doctrine in Animation Copyright
With the basics of copyright law and animation copyright in mind, you might be asking yourself: “Does this mean that I own the animation projects my clients commissioned me to make?”
That depends on the terms and conditions set out in the freelance animation contract that you (or your client) provide. Both parties should know who is entitled to the ownership of the originals, so you’d do well to sit down with your client and negotiate the terms; once you both come to an agreement, make sure you get your client to sign the contract.
With that being said, you and your client should have a “work for hire” (WFH) agreement in place.
According to Rubber Onion, the agreement must meet certain terms and conditions in order for your projects to be classified as WFH:
- The agreement should be stipulated in your contract, and it should include the phrase “work for hire” or “work made for hire”.
- The project was specially commissioned by an animation client.
- It contributes to a collective work, a part of a motion picture, or to other audiovisual work.
If such an agreement is in place, explains Animated Jobs, then the animation copyright of your projects belongs to your client, meaning you can't resell it to other clients or reuse it in other projects.
However, if these terms and conditions are not met, then you as the creator own the animation copyright.
Plus, you have the right to showcase them online as a means to promote your animation business, or you can include the animations in your portfolio, as they count as a form of “intellectual property” – in other words, innovations and creative ideas borne of your mind.
Be aware that if you’re working “on-staff” at an animation studio that enforces a similar WFH policy, then the studio owns the animation copyright to your creations.
By the same token, as a freelance animator-turned-animation studio owner with a team of animators in your employ, you own the animation copyright to their projects (provided you have a WFH policy enforced, too!).
Of course, you can always negotiate with your clients regarding the animation copyright, typically in the form of itemizing (or splitting up) the project’s copyright by media, time, market, and region.
For example, you could grant your clients the rights to the animation’s source files, albeit only for a time period of two years, and they’re only allowed to use it for advertising purposes in North America.
Should they wish to expand their rights further, e.g. using the animation in other regions, then they can renegotiate with you.
Claiming Fair Use in Animation Copyright
While brainstorming your animations, it may seem like a good idea to lift an idea, concept, soundtrack, or character directly from one project and reuse them in another, although your clients will likely see it as a deliberate flouting of fair use.
Fair use in U.S. doctrine, as explained by Stanford Libraries, allows individuals to use copyrighted material for a limited time period without initially seeking permission from the owner.
As such, the purpose of fair use is for these individuals to comment upon, criticize, or parody a copyrighted work, usually for the purposes of entertainment, news reporting, satire, or education.
If you’re commissioned to create an animation for a client who either owns the entire animation copyright, or owns specific assets that the animation incorporates (e.g. fictional characters that serve as brand mascots), then you’d be infringing on their rights if you completely copy, or borrow aspects of, the original material without permission.
Resultantly, you are liable to be hit with a cease and desist letter by your client, in which they will order you to stop using their material for your other animations.
However, if you continue to use one or more copyrighted elements for your other animations without requesting authorization, then your client is well within their rights to file a lawsuit against you, and the matter will go straight to federal court.
In court, fair use can be utilized as your defense against a client’s claim of animation copyright infringement, although it’s up to the discretion of the presiding judge to determine if the defense is valid.
When deciding if your animation projects fall under fair use, the judge will consider the following factors:
- Innovation vs copying – Does the project merely build upon the foundation of the original animation until it can be considered a new, stand-alone piece, or does it completely duplicate the original in its entirety?
- Quantity – The more you sample from the original animation, the more likely that you’re committing animation copyright infringement. For example, if your client asked you to make an animation about a pink, singing mouse, then you could land in trouble for using the same character in another commissioned project.
- Competition with the original – Essentially, if you duplicate one or all elements of the original animation for another project, then you are depriving the client of their right to financially benefit from the original.
- Classification – Does your project satirize, criticize, or parody the original animation? Under copyright law, using the original animation to comment on social issues, to make a review, or simply poke fun at it is – to an extent – constituted as fair use.
As a freelance animator who owns a business, unsuccessfully claiming fair use can be detrimental, in that your business’s reputation could suffer irreparable damage, plus you risk losing the trust of your repeat clients.
The personal repercussions are just as severe, as explained by Purdue University: paying the actual dollar amount of damages and profits; paying up to $150 000 for each work you infringe; covering attorney fees and court costs; or worse, receiving a jail sentence.
With that being said, if you’re planning on using copyrighted material in your animation project, then you would do well to ask the owner for permission first and foremost.
How Creative Commons Benefits Freelance Animators
Whether you’re looking for free, non-copyrighted animated sequences to use in your own projects, or perhaps you want to share or license out your business’s projects with other animators, look no further than Creative Commons (CC).
A non-profit company based in America, CC has been issuing free copyright licenses to the public since 2002 – licenses that allow creators worldwide to let their works enter the online public domain.
Also, these licenses allow others to copy, distribute, and remix those works, provided they give credit to the original creators.
You can choose from six CC licenses to apply to your freelance animation projects (so long as you’re ready and willing to waive most animation copyrights to them):
- Attribution (CC BY) – permits others to adapt, distribute, and remix your projects, even for commercial purposes.
- Attribution-ShareAlike (CC BY-SA) – identical to CC BY, but users must also license their altered projects under the same terms as the original project.
- Attribution-NoDerivs (CC BY-ND) – permits others to reuse and distribute your projects in their unchanged forms for any purpose, including commercially.
- Attribution-NonCommercial (CC BY-NC) – permits others to adapt, distribute, and remix your projects for non-commercial purposes, i.e. you can’t gain monetary compensation.
- Attribution-NonCommercial-ShareAlike (CC BY-NC-SA) – a combination of CC BY-SA and CC BY-NC.
- Attribution-NonCommercial-NoDerivs (CC BY-NC-ND) – more restrictive than the other licenses, this permits users to download and distribute your projects, but they can’t alter them in any way, nor can they use them for commercial purposes.
All of these CC licenses stipulate that you, as the creator/owner of the original animation projects, must be credited at all times.
The benefits of attaining CC licenses are massive, including reducing animation production and marketing costs; enabling rapid distribution and sustainability; encouraging mass participation among fellow animators and clients, and promoting your animation business.
Why Understanding Animation Copyright is Vital for Animators
As a freelance animator who owns an animation studio, you should know to what extent you own the copyrights of your animation projects.
The legalities are admittedly complex, but grasping the rudimentary basics of animation copyright is essential, especially when it comes to protecting your projects or licensing them out online.
Also, as the “face” of your animation business, you’ve got to make sure that you and your team of animators correctly follow the legal protocols; otherwise, you’ll end up in court for infringing your clients’ copyrights, which can simultaneously damage your business’s reputation.
By the same token, if you own the animation copyright, then you are well within your rights to control how your projects are distributed and (re)used, be it for commercial or non-commercial purposes.
Animation is a medium through which you can communicate your vision, or that of a client – with a sound knowledge of animation copyright law, you can develop your creative expression in a way that not only benefits your business but also benefits you in a personal capacity!
For more info on animation copyright and how it affects your animation business, we recommend that you watch our free masterclass, download a copy of our free marketing handbook, and check out our blog on “How to Start an Animation Studio”!