This information is located in our software for artists. Some references within the text will be software related.

Other Rights

    Resale Right / Droit de suite
    Rights of Publicity & Personality
    Moral Rights
    Restoration of Foreign Copyrights in the U.S.
    Digital Millennium Copyright Act (DMCA)

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 European Union. In the United States, 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 (also 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 (for example 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 his/her work and to receive full and proper attribution for his/her 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 United States was initially reluctant to adopt moral rights laws, but after its adherence to the Berne Convention, the United States was obliged to enact the Visual Artists Rights Act (“VARA”) in 1991, 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 United States 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.
“(a) AUTOMATIC PROTECTION AND TERM.-
“(1) TERM.-
“(A) Copyright subsists in accordance with this section in restored works,
and vests automatically on the date of restoration.
“(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 United States if the work never entered the public domain in the United States.
“(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:

“(5) The term ‘restored copyright’ means copyright in a restored work under this section.
“(6) The term ‘restored work’ means an original work of authorship that -
“(A) is protected under subsection (a);
“(B) is not in the public domain in its source country through expiration of the term of protection.
“(C) is in the public domain in the United States due to -
“(i) noncompliance with formalities imposed at any time by United States 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, on 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 his agent may file a Notice of Intent to Enforce a Restored Copyright against a Reliance Party (referred to in the Act as an “NIE”) 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 will not be necessary to file an NIE with the U.S. Copyright Office to claim a restored copyright against a specific reliance party. Thus, 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 expire 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) of 1998 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. ISP’s, however, are expected to remove material from Web sites 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 Web page:

http://www.copyright.gov/onlinesp