Paintings, murals and sculpture by Paul Herman

Copyright was so important to the founders of this nation that the Constitution contains a provision enabling Congress to enact a copyright law. The First Congress did so, and copyright has been a part of this country’s laws ever since. Most artists believe they have some knowledge of copyright laws as applied to art. However, from time to time, the laws have been revised and updated to reflect new technology, and the information that is passed from person to person is often inaccurate.

The law in effect as of the date of this writing is the Copyright Revision Act of 1976, which became effective on January 1, 1978. Since then, there have been a number of amendments and revisions. The current copyright statute is quite user-friendly, and Congress has relaxed many of the formal requirements that were part of the earlier statutes. Under the current law, all you need for a copyright is an original work, involving some minimal degree of creativity, embodied in some tangible medium of expression. The requirements appear simple, yet they can be misunderstood. Since the law requires the work to be in a tangible form for it to be protected by copyright, you can’t protect mere ideas that have not been implemented. Words, symbols and logos used to identify products or services are protectable under the trademark laws—not under the copyright statute.

Generally speaking, copyright protection extends to creative work such as art, music, literature and computer software. Creative work includes paintings, drawings, sketches, photographs, collages and sculpture. The protected work need not be unique. That is to say, if two artists by coincidence create works that are virtually identical to each other without copying, each will be entitled to copyright protection if the other requirements of the statute are met. This is true even though the works may be substantially similar to one another.

The law doesn’t require you to use a copyright notice, but it’s a good idea to do so, since the statute provides that anyone who copies another’s protected work—believing in good faith that the work is not protected by copyright—is an innocent infringer. Innocent infringers may not be held liable for damages and may even be permitted to continue copying, despite the fact that the work is technically protected by copyright. To defeat the defense of innocent infringement, you should place the appropriate copyright notice on the protected work. The notice is simple; it’s either the word “copyright,” its abbreviation “copyr.,” or the international symbol “©,” plus the copyright owner’s name and the year in which the work was first published or exhibited.

By law, exclusive rights are granted to the copyright owner, which means that nobody else can legally exercise or use those rights without permission, although there are some public policy exceptions to this rule, such as, for example, the spontaneous use of a copyrighted work by a teacher in a nonprofit educational institution. Regrettably, the balancing of rights as between the copyright owner and other individuals generates a great deal of confusion. The copyright statute prevents others from making a substantial copy of a protected work—whether they’re selling their art, entering it in competitions or perfecting their techniques—but there is no precise definition of substantial copy. Cases have held that creating a three-dimensional work from a two-dimensional drawing is an infringement as long as the unauthorized three-dimensional copy is substantially similar to the two-dimensional drawing.

The unauthorized work need not be a substantial copy of the entire original work in order for there to be an infringement. In one case, the court held that an infringement was proved when a portion of a repetitive pattern was copied without permission. Even taking a piece of a protected work and using it as part of a collage has been held to be an infringement.

While the law is clear that no one can make a substantial copy of another’s protected work, the application of this simple rule is difficult. If you wish to use the creative works of others for mere inspiration, you certainly may do so, but the use can go no further than that. There are statements to the effect that changing a work by 10 percent, 20 percent or some other specified percentage will avoid violation of the copyright statute. This is untrue since there are no cases or statutes providing any percentage that can be considered safe; rather, as noted previously, the law uses the substantial similarity test.

As to the meaning of this test, one of the leading copyright jurists in the United States, Judge Learned Hand, stated that, in his opinion, if one compares the protected original work to the allegedly infringing work and the comparison discloses that the works are substantially similar, then there is an infringement. This is a very subjective test, and those artists who copy the works of others run a great risk that a judge could conclude that the line between inspiration and copying has been crossed. Therefore, take great care when using the works of others for ideas. When in doubt, you should consult with an experienced copyright lawyer.

What about public domain? The copyright laws provide that the Congress shall grant a creative person copyright protection for a limited period, and at the end of that time, the work shall become part of the public domain and may be freely copied. So it’s always important when you copy works of others to determine if those works are still protected.

The period of protection for copyrighted works created on or after January 1, 1978, is the life of the creative person plus 70 years if the work was created by an identified human being. Works created anonymously, under a pseudonym or for a business entity, are protected for the shorter of 120 years from creation or 95 years from first publication. Copyrights that predate January 1, 1978, generally have a period of protection of 95 years, though you should see an art attorney if you need to calculate the precise expiration date of such a work. If a work is no longer protected, then it is in the public domain, and there is no prohibition on copying it.

As you can see, U.S. copyright law provides creative people like you with the ability to control the reproduction of their work and reap economic rewards from their creativity, while allowing for punitive measures against individuals who obtain more than inspiration from the works of others. It’s important to note that even subliminal or unintentional copying has been held actionable. It is, therefore, essential for you to understand the copyright laws and avoid violating them. When in doubt, you should consult with an expert who may be able to assist you in avoiding liability.

Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. For further information, visit www.dubofflaw.com.

GENERAL OVERVIEW OF COPYRIGHT

by Eleni Papacharalambous (Papacharalambous & Angelides Law) Their Web-site

Copyright is a statutory right that exists with respect to certain types of broadly creative works. The most relevant Act, concerning copyright is The Copyright, Design and Patents Act (CDPA) 1988. Section.1 (1) & Section. 2(1) of the CDPA 1988 provide that a copyright is a property right that gives the owner exclusive rights to do certain acts with respect to the work.

The main idea is to prevent others from taking advantage of a person’s creative efforts and to protect the product of a person’s skills, labour and artistry. That means that the protection given is on the form in which the person expresses him or herself but not on the idea that lies behind it. The right appears automatically as soon as the work is created and subsists for the prescribed period. There is no need for registration of the work.

The law of copyright is based on a very clear principle that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. Copyright law does not protect a mere idea so the work must be recorded. It is the form in which the idea is expressed which must be original. Originality is the result of the author’s own skill, effort and capital.

There are three types of work that are protected by the CDPA 1988. If a work does not fall into one of these three categories, it will not be protected. Section 3 of the CDPA 1988 sets forth descriptions of work for literary, dramatic and musical works. A literary work includes: (1) a computer program, (2 preparatory design material for a computer programme, (3) a table or compilation other than a database, (4) a database.

The duration of copyright is set in Sections 12,13,14 & 15 CDPA 1988.

The owner of the copyright can part with it. This can happen via assignment or licensing. An assignment is a transfer of ownership and a licence is merely an arrangement between the parties for the use of copyrighted material for a certain period of time. Assignment is a property right and a licence is a contractual right.

The CDPA 1988 sets forth a list of acts that are restricted by copyright. A copyright owner is granted the exclusive right to do the following acts in the UK:

To copy the work;
To issue copies of the work to the public;
To rent or lend the work in public;
To perform,show or play the work in public;
To broadcast the work or include it in cable programme service;
To make an adaptation of the work or do any of the above in relation to an adaptation;

Copyright in a work is infringed by a person who, without the licence of the copyright owner does, or authorises to do, any of the acts restricted by the copyright. In the context of the Internet, a restricted act may include the storing of any work in any electronic medium. The delivery of content over the Internet by definition involves both reproduction of the original content and its distribution to others.

The CDPA 1988 provides for a number of specific situations in which reproduction of a copyrighted work will not be an infringement. If the reproduction falls within one of the permitted acts contained in sections 28-76 CDPA 1988, or the public interest exception provided by s. 171 CDPA 1988, then no infringement has occurred.

In the context of the Internet, the following are potentially copyright infringements:

Web casting;
Downloading a web page or software into a computer’s memory;
Web linking;
Automatic web page caching;
Reproducing material downloaded from a website;
Printing of a web page.

A secondary infringement happens when a person commits a restricted act knowing or having reason to believe that this act is infringing the owner’s copyright. An infringement takes place when a restricted act is done on the whole or a substantial part of the copyright without the consent of the copyright owner. The question if a defendant has copied a substantial part depends much more on the quality than the quantity of what he has taken.

An owner of copyright has the exclusive right in the UK to ‘communicate the work to the public’, under section 20 CDPA 1988. The act of communication to the public becomes one of the acts restricted by copyright in 1) literary, dramatic, musical or artistic work; 2) sound recording or films; or 3) a broadcast (section 20 CDPA 1988). It contains two mutually exclusive types of communication: broadcasting of a work and the making available right to the public on an interactive basis. The difference between broadcast and making available is that making available requires, first, that fixation takes place (initial upload). If transmission is interactive, then it cannot be broadcast. The making available right is in effect the right to place a copyright work on a website or other electronic destination in such a way that members of the public may access the work when

SiteProNews: December 14, 2007 Feature Article

Article printed from SiteProNews: http://www.sitepronews.com
HTML version available at: http://www.sitepronews.com/archives.html

Copyrights, Trademarks and Patents, Oh My! Understanding Intellectual Property

You are a business owner with a web presence. During a routine Google search for your page ranking, you discover something disturbing. There is another company out there with a name very similar to yours and almost identical content on their website. What do you do? Is your company name and website content automatically protected by copyright law? Should you have registered your company name as a trademark? Can you demand that they change their name and dismantle their website immediately?

Intellectual Property can be a confusing topic, and one that all business owners should know about. Sadly however, many entrepreneurs simply don't. Intellectual property is in very simple terms an idea that legally belongs to somebody, be they a company or an individual. Only the owner of that idea, or somebody the owner has a legal agreement with can use the idea. Generally, the owner of the idea is usually its creator unless someone paid them to create the idea, in which case the idea's owner is the person who paid for the idea. There are different kinds of intellectual property, but for the purpose of this article, we will focus on copyright, patent and trademark.

Patent – A patent protects the creators of new inventions. An invention can include anything from a new product or business method to a recipe. If you decide to patent your invention, there a few things you should know. First, you will need to apply for a patent in every country where you would like your invention to be protected.

Secondly, getting a patent is going to cost you a pretty penny. You will have to pay thousands of dollars to patent your idea and it will take a minimum of 2 years (probably more) before you are granted a patent. Also, your precious invention will no longer remain a secret since your patent application will be made public once your application is submitted. If all of this wasn't enough bad news, patent protection generally only lasts for twenty years from the date of your application. Phew! On the up side, once your patent is accepted, you can sue anyone who tries to manufacture or sell your invention.

It's worth mentioning here that another method to keep your invention protected is to keep the method of manufacturing it a `trade secret'. If you choose this process, of course, in order to manufacture your product, you will have to tell somebody. You would have to have anyone who would learn your secret sign a confidentiality agreement. Consult a lawyer if you plan to use this method.

Trademark – Trademarks are the marks used to distinguish one company's products or services from another's. They can include a product name, a slogan, and any other mark that is deemed to be unique to a company such as a logo or unique packaging. As a rule, you can't trademark descriptive words, geographical names or a person's name. You also cannot register a business' name. You can however, register part of a name used to identify a product or service. For example "Kellogg's Company" is the owner of the "Kellogg's" trademark and the "Rice Krispies" trademark. You cannot register a trademark similar to one that is already in use by another company.

Beware; a trademark does not have to be registered in order to prevent others from using it. If a company is using an unregistered trademark in your geographical area, they can still prevent you from using it. You could perform a search in a trademark database and find later that you are using another company's unregistered trademark. If you find another company in a completely different industry using your unregistered trademark, you probably won't be able to do anything about it if they are not your competitors or if they are not in your geographical vicinity. Protection of a registered trademark however, is much stronger than an unregistered one, and once you have a registered trademark, you can prevent competitors from using it, or confusingly
similar ones anywhere in the country in which your trademark is registered.

Copyright – Any written text, artistic work, or computer program is automatically protected by copyright. Anything you or I write, be it published, online text or unpublished, handwritten text, is copyrighted. Also anything we draw, paint, photograph, film, or compose is also protected by copyright. Copyright can be registered, but it doesn't have to be in order for it to be illegal for individuals to copy someone else's work. Copyright also lasts for an extremely long time. Usually it lasts the duration of the author's life plus fifty years at which point it becomes a part of the public domain and can be used by anyone.

Factual information cannot be copyrighted. For example, this article is based on fact. Although you cannot copy my article and claim to have authored it yourself, you can take the facts included in the article and use them in your own written material. If you would like to use a very small portion of someone else's written work, this is usually acceptable as long as you credit the author.

Finally, what do you do if someone uses your work without your permission? Your first step should be to contact the individual. You can usually either go to the contact page on the offender's web site or go to www.whois.com and enter the offender's domain to find contact information. If your initial communication doesn't get results, you should then send a 'cease and desist order'. For sample orders, just perform a search on 'cease and desist orders'. Finally if still no action is taken by the offending party, contact their web host and advise them of the situation and finally, contact search engines and make them aware of the situation. These actions should render the offender's website useless or at the very least give them enough trouble to convince them to remove the copied material.

For more information on intellectual property in Canada, visit the Canadian Intellectual Property Office at www.cipo.ca, for the U.S., visit the United States Patent and Trademark Office at www.uspto.gov and for Europe please visit the European Patent Office at www.european-patent-office.org.
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Kelly Sims is a Virtual Assistant and President of Virtually There VA Services. Please visit her website to sign up for her free monthly newsletter providing useful information that enhances and simplifies the lives of busy
entrepreneurs. http://www.virtuallythereva.com

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