legal issues for artists

Legal Issues

Copyright Information

Disclaimer: Copyright law is constantly changing as new legal rulings and legislation alter definitions of artistic ownership and copyrightable material. For detailed information and the specific language of the copyright law, go to the official website of the U.S. Copyright Office.

 http://www.copyright.gov 


Definition of Copyright

Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to the creators of “original” works of authorship, including literary, artistic, dramatic, musical, and certain other intellectual works. This protection is available for both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

To reproduce the work in copies or phono records

To prepare derivative works based upon the work

To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending

To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works

To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

As you can see, the definition of art is fairly antiquated in this law. But it is used to defend all artwork.

In addition to copyright, certain authors of works of visual art also have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act.

It is illegal for anyone to violate any of the rights provided by the copyright law to the copyright holder.


Who Owns a Copyright?

Copyright protection begins from the time the work is created in fixed, tangible form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. If you sell a work, you still own the copyright to the work unless you also sell or transfer that copyright.


Works Made for Hire

In the case of works “made for hire,” where an artist has created the work while in her/his capacity of employee, the employer and not the employee is considered to be the author and copyright holder. For example, if you worked for an animation studio, you can not claim the work as your own. The company you work for owns the rights to the images you create. Unless it is specified in a contract. This is particularly important if you are freelancing OR an employee.


Collaborations

Where a work was created jointly by more than one artist, the authors of a joint work are all co-owners of the copyright in the work, unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of each contribution. If you create a work with one or more collaborators, you each own the copyright of the work. Both or all of you will need to sign off on any agreements related to this work.


Ownership

The mere ownership of a book, manuscript, painting, or any other work does not give the possessor of that work its copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey the copyright or any interest in the copyright. This remains in the possession of the creator and is often referred to as the underlying artist’s copyright, distinct from the physical object that embodies it. Just because you own something does not mean you can change it. If you sell a  painting and someone thinks it needs more blue to match her/his couch, she/he can not add more blue to the painting.


Transferring a Copyright

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred to another party, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the copyright conveyed or such owner’s duly authorized agent. This practice is comparatively rare in the U.S. and is almost never knowingly engaged in by European artists.


State Laws

Copyright is a personal property right, and it is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.

How Long Is a Work Copyright-Protected in the United States?

A work’s copyright status depends on when it was first created, as stated in the Copyright Law. See below:

Work Created on or After January 1, 1978

A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is given a term of copyright protection enduring for the lifetime of the author plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from first publication or 120 years from creation, whichever is shorter.

Work Created Before January 1, 1978

Works originally created before January 1, 1978, but not published or registered by that date: These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978, namely, the life-plus-70 or 95/120-year terms will apply to them as well. The law provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.

Works originally created and published or registered before January 1, 1978: Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years.


The Sonny Bono Copyright Extension Act

The Sonny Bono Copyright Extension Act, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a total term of protection of 95 years from the date of first U.S. publication if the work was published before January 1, 1978. For all works created or first published after January 1, 1978, the term of protection was extended by 20 years from the previous term of protection of the lifetime of the artist plus 50 years, to the lifetime of the artist plus 70 years.


Unpublished Works

All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the U.S. or in a country with which the U.S. has a copyright treaty or that are created by a citizen or domiciliary of a country with which the U.S. has a copyright treaty are also protected.


How Long Is a Work Copyright-Protected Worldwide?

The term of copyright protection varies from country to country around the world, as determined by national legislation. The countries of the European Union, however, harmonized their respective terms in 1994. In the E.U. countries, the term of protection is the lifetime of the artist plus 70 years, except in Spain where the term is life of the artist plus 80 years, and in France where the two world wars have served to give artists whose careers were affected by the wars, a cumulative term of life of the artist plus 84 years and 203 days. 


Public Domain/Creative Commons

A work that is no longer copyright protected is considered to be “in the public domain.” It should be noted, however, that photographs of works of art in the public domain may themselves be copyrighted and will likely require a license for publication, even though the public domain works which are the subject of the photos are no longer protected.

Creative Commons is a way to make your work “in the public domain” and not subject to copyright laws. If you mark your work with the copyright symbol they provide, you can choose which options you want to give to others for the use of your images. Creative Commons was started as a movement to make images available and to share information. On the organization’s  website it states:

“Creative Commons develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.”  http://creativecommons.org/

You can register for a Creative Commons license and get more information from its website.


The Berne Convention &  International Laws

There is no such thing as an “international copyright” that will automatically protect an author’s works throughout the entire world. Generally speaking, protection against unauthorized use in a particular country depends on the national laws of that country.

However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.


Berne Convention for the Protection of Literary and Artistic Works

The most significant international copyright instrument is the Berne Convention for the Protection of Literary and Artistic Works of September 9, 1886. The Berne Convention has approximately 170 members, including the U.S., which joined in 1989. The Berne Convention is based on national treatment, meaning that a Berne member country must extend the same treatment to the works of nationals of other Berne member countries as are enjoyed by its own nationals. Furthermore, the Convention obligates member countries to adopt minimum standards for copyright protection.


The Universal Copyright Convention (UCC Agreement) of September 1952

The UCC Agreement was created to provide an alternative to the Berne Convention. The U.S. ratified the UCC in 1955. The UCC imposes fewer substantive requirements than the Berne Convention. For countries that are members of both the Berne Convention and the UCC, in cases of conflict between the two conventions, the Berne Convention prevails.

The Agreement on Trade-Related Aspects of Intellectual Property Rights of April 15, 1994 (“TRIPS Agreement”)

The TRIPS Agreement became an annex to the agreement establishing the World Trade Organization (WTO). In addition to providing for international minimum standards of protection in the area of intellectual property, TRIPS also establishes standards for the enforcement of such rights. It also restores U.S. copyright to foreign works, which were deemed to have fallen into the public domain by virtue of their failure to fulfill the formalities previously required by U.S. Copyright Law.


The World Intellectual Property Organization
Copyright Treaty of December 23, 1996 (WIPO Copyright Treaty)

The WIPO Copyright Treaty also supplements the provisions of the Berne Convention to provide stronger international protection to copyrighted material in the digital environment. See also Visual Arts Rights Act, and check out your state laws.

Copyright Links:

US Government webpage on Copyright: http://www.copyright.gov/ 


Visual Artists Rights Act

All artists, collectors and art dealers should be aware of the laws protecting certain rights of the artist and their artworks. These rights extend beyond copyright laws, and apply to the artist even if the artist is not the copyright holder.

On October 27, 1990, Congress passed the Visual Artists Rights Act (VARA) and included it in the Copyright Act of 1776 as Section 106A. VARA generally provides for the rights of attribution and for protection of the physical integrity of certain works of art. This means that the artist has the right to be recognized and listed as the author of her/his work, and that her/his name cannot be used or listed as the author of any work she/he did not create. VARA also allows the artist to have her/his name removed from a work she/he created in the event that the work is distorted or otherwise changed as indicated when the process of doing so would be harmful to the artist’s honor and reputation.

There are some limitations to VARA in the definitions set forth in the copyright law. The impact of the exclusions stated below are significant since VARA provides that the inclusion of a work of visual art in any of the kinds of uses set forth in Subsection (A) is not deemed a “destruction, distortion, mutilation, or other modification” of that work of visual art and thus an artist cannot use VARA to prevent such use. Further, any work that is done by the artist as a work made for hire is also not covered by VARA.

Specifically, the Act specified a definition of a “work of visual art” which states that these moral rights apply only to:

1) a painting, drawing, print, or sculpture, existing in a singly copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple casts, carved, or fabricated, sculptures of  200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author, or

2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

In addition, it is important to  understand what is not covered in this act:

A) (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture, or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii)  any portion or part of any item described in clause (i) or (ii);

(B)  any work made for hire; or

(C)  any work not subject to copyright protection under this title.

Moreover, section 106A is titled “Rights of certain authors to attribution and integrity” and specifically recognizes that authors of a work of visual art:

(1) shall have the right-

(A) to claim authorship of that work, and

(B) to prevent the use of her/his name as the author of any work of visual art which she/he did not create;

(2) shall have the right to prevent the use of her/his name as the author of the visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to her/his honor or reputation;

This allows the artist to have her/his name removed from a work she/he created in the event that the work is distorted or otherwise changed as indicated when the process of doing so would be harmful to the artist’s honor and reputation.

(3) subject to the limitations set forth in section 113(d), the artist shall have the right –

A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to her/his honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

The above sections allow an artist to prevent the indicated acts provided that those acts harm the artist’s honor or reputation. Subsection (B) above however, is limited to works of “recognized stature.” However, the statute later says that modification of a work of visual art that results from the mere passage of time or the “inherent nature of the materials” is not subject to the above provisions, nor is any modification that results from the conservation of the work nor which arises as a result of the public presentation of the work unless such acts are the result of “gross negligence.”

The rights of the artist as to works created on or after the effective date of VARA exist until the end of the calendar year in which the artist dies. However, as to those works created prior to the said effective date but as to which the title has not passed from the artist prior to that date, the rights last for the duration of the rights of copyright. As to works created by joint authors, the rights expire at the end of the calendar year of the death of the last surviving artist.

Further, the rights granted to artists cannot be transferred to another party since they are granted only to the artist and the transfer of title to the actual work of visual art does not operate as a transfer or waiver of any of these rights unless there is an express, written waiver by the artist. Conversely, the waiver of any of these rights does not operate as a transfer of title to the underlying work nor to any rights of copyright in the underlying work unless the artist expressly agrees in writing.

In summary, when rights are granted to one segment of society, in this case artists, it means that restrictions are placed on another segment such as the owners of works of art. This is true under the laws of copyright, trademark, and other rights, such as laws that do not deal with intellectual property issues.

The rights embodied in VARA (and indeed broader rights than those) have been recognized within the European Union for many years. The motivation for passage of VARA may have been to bring the U.S. more in line with the E.U. in that regard, but even on a more commercial level, protecting the creative process and creators. Today, intellectual property is our means of production, and drives our economics. 

Information for this chapter has been taken from various websites and publications and includes the U.S. copyright websites, the Visual Artist Rights Act text, and the National Endowment for the Arts.


Other ArtistsRights

Resale Right / Droit de Suite

A number of foreign countries recognize a resale right or droit de suite, as it is often called. This right stipulates that artists may financially participate in the commercial resale of their original works of art. Recognizing that reputation—and hence the value of creative works—is often slow to build in an artist’s career, the resale right is a measure designed to allow artists to participate in the appreciation in value of their works when they are resold after the initial sale. The resale right has existed and been administered successfully in numerous foreign countries for years, most notably in France. Laws providing for the resale right were recently harmonized in the E.U. In the U.S., however, federal law and almost all state laws fail to provide this right to artists. California is the only state to enact a resale royalty law. As with copyright, the duration of the resale right is usually the lifetime of the artist plus 70 years.

Rights of Publicity & Personality

Rights of publicity (sometimes referred to as rights of personality) refers to an individual’s (or an individual estate’s) exclusive right to authorize how the name, voice, signature, image, or likeness of the individual may be used. Many copyrighted works incorporate photographs or other images which depict individuals (e.g., Andy Warhol’s “Marilyn Monroe”) and publicity rights may be an issue in the reproduction of these works for certain purposes. Similarly, in order to use an artist’s name, signature, or likeness in an advertisement, the advertising agency must clear the artist’s rights of publicity with the artist or estate.

Moral Rights

Moral rights are the rights of an artist to maintain the integrity of her/his work and to receive full and proper attribution for her/his work. Moral rights reflect a personal interest in the work and usually are attributable only to the author (that is, unlike copyright, such rights cannot be transferred to another party). The U.S. was initially reluctant to adopt moral rights laws, but after its adherence to the Berne Convention, the U.S. was obliged to enact the Visual Artists Rights Act (VARA) in 1990, recognizing an artist’s limited right of attribution, right of integrity, and right to prevent the derogation or destruction of certain works of art.

Restoration of Foreign Copyrights in the U.S.

On December 8,1994, the President of the United States signed into law the Uruguay Round Agreements Act (URAA). The Act contains specific provisions which require the U.S. to restore full recognition to all foreign works which fell into the public domain in the U.S. due to noncompliance with formalities imposed by United States Copyright law, provided the source country is a member of the Berne Convention or the World Trade Organization. The bill to restore copyrights brought the U.S. at long last into virtual compliance with Articles I - XXI of Berne and especially with Article XVIII s.1, which obliged newly adhering states to honor the copyrights of existing member nations.

As a result, all foreign works which had been exploited in the U.S. without authorization in the past because of failure to comply with U.S. formalities were restored to full copyright protection, effective January 1, 1996. The Act supplanted that portion of the North American Free Trade Agreement (NAFTA) which provided U.S. copyright restoration for certain Mexican and Canadian motion pictures which had fallen into the U.S. public domain because of failure to comply with U.S. copyright formalities.

Section 514 of the Act is titled “Restored Works.” It amends Section 104A of the U.S. Copyright Code (Title 17) and reads as follows:

104A. Copyright in restored works.

ì(a) AUTOMATIC PROTECTION AND TERM.-

ì(1) TERM.-

ì(A) Copyright subsists in accordance with this section in restored works, and vests automatically on the date of restoration

ì(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the U.S. if the work never entered the public domain in the U.S. 

ì(b) OWNERSHIP OF RESTORED COPYRIGHT.- A restored work vests initially in the author or initial rights holder of the work as determined by the law of the source country of the work. 

In the definitions section of the Act, the terms restored copyright and restored work are defined in the following fashion:

ì(5) The term ‘restored copyright’ means copyright in a restored work under this section.

ì(6) The term ‘restored work’ means an original work of authorship that -

ì(A) is protected under subsection (a);

ì(B) is not in the public domain in its source country through expiration of the term of protection.

ì(C) is in the public domain in the U.S. due to -

ì(i) noncompliance with formalities imposed at any time by U.S. copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; 

All those who reproduced foreign works without artist authorization prior to the date the President signed the URAA, December 8, 1994, are deemed to have relied on the understanding that the works were in the public domain. Such parties are therefore called Reliance Parties in the Act. Under the copyright restoration provisions of the Act, the restored copyright holder may make a claim against a reliance party in one of two ways:

First, a copyright holder or her/his agent may file a Notice of Intent to Enforce a Restored Copyright against a Reliance Party (referred to in the Act as an ìNIEî) with the U.S. Copyright Office. This must be done within 24 months after the date the copyrights were restored. For all European countries, this meant no later than 24 months after January 1, 1996 (the date on which Berne works become eligible for restoration). Such a filing, when published in the Federal Register, was effective against all reliance parties. This initial period has of course passed.

However, it is no longer necessary to file an NIE with the U.S. Copyright Office to claim a restored copyright against a specific reliance party. The second way to claim a restored copyright is to serve a notice directly on a particular reliance party. Most importantly, such direct service may be made at any time and is not limited to the 24-month period mandated for formal filing with the Copyright Office.

Reliance Parties have 12 months from the date they were served with an NIE or from the date of publication in the Federal Register (whichever is earlier) to sell the stock of copies they made prior thereto. Upon the expiration of the 12-month grace period, the reliance party may continue to exploit the work only if it comes to a satisfactory agreement with the copyright holder and pays agreed compensation to the owner of the restored work.

It is also important to emphasize that only those reproducing works prior to December 8, 1994 qualify as reliance parties. All other uses of a restored public domain work commenced after that date are actionable infringements of the restored copyright. A party that has made a new use after December 8, 1994, without authorization of the copyright holder, does not qualify as a reliance party since it should have known of the new legislation, and is thus to be treated as a copyright infringer, subject to the penalties of law, with no grace period to sell out the infringing goods.

Digital Millennium Copyright Act (DMCA)

On October 28, 1998, the Digital Millennium Copyright Act (DMCA) was signed into law, implementing World Intellectual Property Organization (WIPO) copyright treaties of 1996 and updating U.S. copyright law for the information age. It is “designed to facilitate the robust development and worldwide expansion of electronic commerce, communication, research, development, and education in the digital age” (Senate Rpt. 105-190), while providing for enhanced protection of copyrights in the digital environment.

Key among the topics included in the DMCA are provisions concerning the circumvention of copyright protection systems, fair use in a digital environment, and Internet service provider (ISP) liability, including details on safe harbors, damages, and “notice and takedown” practices. In general, the DMCA limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet. ISPs, however, are expected to remove material from websites that they host which appear to constitute copyright infringement.

A summary of the DMCA can be found at the U.S. Copyright Office at the following URL:

http://www.loc.gov/copyright/legislation/dmca.pdf.

 

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