What Every Artist Should Know About Copyright
by Leonard DuBoff
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:
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
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Copyrights, Trademarks and Patents, Oh My! Understanding Intellectual Property
By Kelly Sims (c) 2007
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.
For more licensing & assigning rights try nolopress.com, or for Negotiating and Monitoring Royalty Payments both & more by Attorney Richard Stim
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