Everything You Need to Know About Copyrights and Fair Use of Cartoons
If you are in the content business, it is your business to know how to legally use cartoons that have been created by others. In fact, if you fail to understand this, you run the risk of losing your time, your money, your business, and even your freedom. The key to understanding how cartoons can be used is understanding fair use and copyright laws.
Before you start letting fair use and copyright laws frighten you, you need to remember that these laws were put into place to protect people like you; people in the content business. And if you are a cartoonist, you need to understand fair use and copyright laws so you know how to protect your work.
While some of the below information is only directly applicable to either cartoonists or users of cartoons, everyone can benefit from learning they key points.
Fair Use & Copyright; Aren’t They the Same Thing? Fair use and copyright laws are not exactly the same thing. Actually, fair use is just 11 sections of the entire copyright law. All fair use laws are copyright laws, not all copyright laws are fair use laws.
Copyright laws are codified in Title 17 of the United Stated Code. The authority for these laws comes from the United States Constitution, Article I, Section 8, which says in part:
“The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
That’s right: When you break copyright laws you are violating the U.S. Constitution!
Optional reading material: Title 17 of the U.S. Code has 13 chapters in total. The fair use section of Title 17 is found in sections 107 through 118 in the first chapter, “Subject Matter and Scope of Copyright.”
How Do You Know if You Have Fair-Use Rights to Use Copyrighted Cartoons?
When the use of copyrighted content meets the fair use criteria, you may use it free and clear. At its core, fair use allows others to use “brief excerpts” of copyrighted materials (including cartoons) without permission from or payment to copyright holders (the cartoonists) for the following purposes:
- News reporting
- Criticism and reviews
Again, regardless of the purpose, you must remember that fair use only allows for “brief excerpts” to be used. To ensure that you have fair use to use copyrighted materials ask yourself these four questions:
- Are you only using a small portion of the original work? If not, you may not have fair use.
- Are you copying the copyrighted material, or using it to create something new? If you are only copying, you likely do not have fair use.
- Does your work compete (in a business sense) with the source whose copyrighted work you are using? If yes, you do not have fair use.
- Are you using it for at least one of the six purposes listed above? If no, you do not have fair use.
- How to Get Permission to Use Copyrighted Cartoons (for Non-Fair Use)
Getting permission to use copyrighted cartoons and other material is easy. All you have to do is contact the owner of the copyright—usually the creator of the material—and ask for permission. Doing this will result in one of the following:
- Denial of your request
- Request for payment
- No response
If you end up with either #1 or #4, you have to move on, do not use the copyright material, do not pass GO and do not collect $200. If you receive permission, then you should save the written permission for your own protection, and only use the cartoons as the owner as permitted by the copyright owner.
Do Cartoonists Need to Display a Copyright Notice (©)?
No, they do not.
Cartoons and other creative works do not need a formal copyright notice. This is the way it has been since America adopted the Berne Convention Implementation Act of 1988 in 1989. Many still choose to display a copyright symbol, but it’s not a requirement, and a lack of the symbol does not mean the work is not copyrighted.
Do Creators Need to Register Cartoons with the Copyright Office?
No, they do not.
Cartoonists and other creators do not need to register their cartoons or other creative content to receive copyright protection. However, there are benefits to registering: Owners of unregistered cartoons can only sue for hard-to-prove actual damages and lost profits. Conversely, creators gain some additional advantages if they do register their work:
- Registration is the first step to filing suit for copyright infringement.
- Registering a cartoon within three months of its date of publish, lets creators also sue for statutory damages and attorney’s fees.
How to Register a Copyright for Cartoons
Registering work for a copyright is easy. It’s so simple that you can do it yourself.
At the time of writing, it costs just $35 to register a collection of images (cartoons) electronically and $65 to do a paper registration. An electronic registration takes from three to five months, while a paper registration takes up to nine months.
To register your cartoons, you need to visit the website of the Library of Congress’ United States Copyright Office. Once there, click on “forms” and follow the instructions.
What to Do if Your Cartoons are Used Without Permission
NOTE: I am not a lawyer and you should not take this as legal advice.
It is common for cartoonists and other creators of content to find their work in odd places, being used without their permission. This is unfortunate. If this happens to you, you can register your work with the United States Copyright Office (if it’s not already registered), and then:
- Make sure your cartoons are not being properly used in a fair use situation. If it is not, go on to the next step…
- Contact the user directly and ask them to remove the material, and to stop using any more of your content without explicit permission. This step usually takes care of the problem; if it doesn’t, move on to the next step…
- Have a lawyer send a cease-and-desist letter to the copyright violator. The letter should make clear that you are willing to sue to protect your work. Are they playing hardball? Go on to the next step…
- Have your lawyer send cease-and-desist letters to the violator’s host site and ISP. Oftentimes, they will remove your material from the violator’s site and in some cases shut the site down. Still no luck? Only one thing left to do…
- File suit in federal court and follow through.
What Happens if a User Violates Fair Use and Copyrights?
First of all: Do not violate copyright laws. It may be easy and tempting to do it, and you may think it’s an innocent act, but not only is it wrong, it can be painful for you in the end.
Penalties for violating copyrights can be both civil and criminal. If you are found liable for civil copyright infringement, you could be made to pay:
- Between $750 and $30,000 per work infringed. (Yikes!)
- Up to $150,000 per work infringed for willful infringement. (It’s just not worth it.)
- Attorneys’ fees and court costs. (Just the cherry on top.)
In cases of willful infringement, punishments include:
- Imprisonment for up to five years.
- Fines up to $250,000 per offense.
Bottom line: It’s just not worth it. How bad would it feel to owe thousands of dollars for something that could have cost you the equivalent of a beer or one dinner. Penalties aside, when you illegally use copyrighted cartoons you are are taking away from an artist’s livelihood.
Fair Use and Copyright Myths
Myth 1: You can copy or give away copyrighted material if you licensed it.
With the exception of music, which in most cases you can copy and share for free, you cannot copy and share copyrighted material.
Myth 2: Giving the artist credit gives you permission to use copyrighted material.
Though many believe this to be the case, it is not. If you want to use copyrighted cartoons, you must get permission prior to using it.
Myth 3: Cartoonists (and other creators) will lose their copyrights if they don’t defend them.
Not only do you not have to register your work to have copyright protection, you do not need to defend it to keep it. The only way to lose the copyright is to give it away, in writing.
Myth 4: Without a copyright notice (©), it’s not copyrighted.
This has not been true since 1989. Assume everything you see online, on television, in books, in magazines, and in newspapers is copyrighted.
Myth 5: Violating copyrights is a victim-less crime.
Stealing other people’s sweat and toil is not a victim-less crime. If you want to use someone else’s work, get permission. Many cartoonists make a living (ie, earn money to feed themselves and their families) from their cartoons’ licensing fees. When you use someone’s cartoon without paying the fee, you are cheating the artist of their livelihood.
Myth 6: You must never copy or share anything if you don’t want to get sued.
You can use copyrighted material when doing so meets the fair-use criteria (as listed above). Also, you can use material that does not meet the fair-use material by getting permission from the owner.