A work of art, be it a painting, a sculpture, a photograph, a piece of jewelry, a ceramic vessel, a wooden carving, a poem or a work of fiction is considered to be Intellectual Property (IP). Shy Rabbit, an artist-run art center in Pagosa Springs, hosted Colorado Lawyers for the Arts board member Christopher Beall from Faegre & Benson in Denver. Beall, an IP litigator, discussed the finer points of IP: patents; copyright; trademark and trade Secrets. These are issues critically important for artists, writers, musicians and performers to understand, but frequently overlooked until it is too late.
“The thing all artists need to get in the habit of thinking about,” Beall said, “is if you want to engage in the arts you should think about it as a business and do what businesses do- have a lawyer. Approach your business as a business and not as a free spirit. Yes, it’s an art business, but it’s still a business.”
Beall was invited to Shy Rabbit to assist artists in beginning to approach their arts business in a businesslike manner. More than a dozen artists attended two half-day workshops.
A copyright involves the expression of an idea. According to the Copyright Act of 1976, “copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived, reproduced or otherwise communicated . . .” In other words, a copyright exists from the moment the work is fixed in a tangible medium of expression, either on paper or digitally recorded in a computer. The moment the writer fixes the words to the document or the artist fixes the sketch to paper, it is copyrighted. Copyrightable works of authorship include literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audio-visual works; sound recordings and architectural works.
Copyright and patent law are part of constitutional law and drafted by the founding fathers. The copyright code of 1789 stated that Congress shall have the 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.”
Copyright law originally protected the nonfiction writing of scientists and the useful discoveries of inventors for 15 years. It was designed to encourage thinkers to convey their knowledge to the world.
Today, copyright protection is guaranteed for the lifetime of the creator, plus 70 years (for corporations, for the lifetime of the creator, plus 50 years). The owner of a copyright has the exclusive rights to do and authorize the reproduction of copyrighted work; to prepare derivatives and deviations of the work; to distribute copies; to perform copyrighted works publicly; to display copyrighted works publicly; to perform a sound recording by digital audio transmission.
Copyright cannot and does not protect concepts, ideas, procedures, systems, methods or operations, moods, or thematic structure.
Some common copyright myths:
1. Work must be registered with the copyright office in order for the creator to have a copyright.
Not true; a work is copyrighted the moment it is fixed in a tangible medium. However, if your work is not registered with the copyright office-www.copyright.gov-it will make it more difficult to sue if someone wrongfully copies your work. Without registering, you cannot obtain statutory damages and attorney’s fees. An artist or writer can register a body of work for $35. Burn all images or documents on a disk and send them in with the proper paperwork. Website files can be burned every 90 days and submitted for copyright protection.
2. If there is no copyright (notice the letter c’ inside the circle) the work is not protected by copyright law.
Wrong. All work is protected the moment it is fixed in a tangible medium and the presence or lack of presence of the copyright symbol means nothing. Under the Berne Convention Implementation Act of 1988, no formalities are required for the creation of copyright rights. But it doesn’t hurt to remind people that the work is copyrighted. In Word the hot keys are option + G.
3. Mailing a letter to myself with my work inside and keeping the envelope sealed, is just as good as submitting the work for copyright registration.
Wrong. See the answer to number one above. Courts do not recognize this “poor woman’s copyright.” It’s only $35 to protect your work. Cough it up. It will save money in the long run.
4. I can copyright the title to my great American novel, my sculpture, my whatever.
Nope. Sorry. No matter how brilliant it is you cannot copyright the title. Phrases, slogans and titles are not eligible for copyright protection. However, the title of a series of books, can, in certain circumstances, be registered as a trademark under the Lanham Act.
5. If an apprentice makes the work and I call it a work for hire, then I own the copyright.
“Work made for hire” applies only to the following: A work prepared by an employee within the scope of her employment; or a specially commissioned work that is a contribution to a collective work, a part of a motion picture, a sound recording, an instructional text, a test or answers to a test, an atlas. Notice that sculpture, choreography, ballet and screenplay are not included in this list. And remember, an independent contractor needs to have a written and signed contract so that the employer and not the person doing the work owns the copyright.
6. If I own the copyright in a photograph of a celebrity, I can use the photograph however I want.
Well, not exactly. Every person, not just celebrities, controls the right to the exploitation of their likeness. Is it mere replication or is it a transformative and artistic creation? It is best to get permission in writing in the form of a legal agreement, but that still might not be enough. This is an area that requires legal expertise.
7. If I own the negative of a photograph that someone else took, I can make as many copies as I want or, if I own a piece of sculpture, I can sell as many copies of the sculpture as I want.
Simple answer. No. The artist may continue to exploit the value of the work after it is sold. If you sell the original, license the prints, or make T-shirts, the artist owns the copyright.
8. If our town owns a commissioned mural or sculpture, they can take the piece down whenever they want.
Sorry, not without permission. The Visual Artists Rights Act provides the artist with the right of attribution; the right to control attribution to a distorted or mutilated version of the work; the right to prevent intentional distortion, mutilation or other modification of the work if such alterations would be prejudicial to the author’s honor or reputation; the right to prevent destruction of a work of recognized stature.
9. If I use less than 10 percent, 10 seconds or 10 words of someone else’s work, I cannot be held liable for copyright infringement.
There are no magic numbers. If you take the heart of the work, even if it is one line of a poem or 500 words of a 20,000-word book, it is copyright infringement. However, there is such a thing as “Fair Use.” The fair use of a copyrighted work includes criticism, comment, news reporting, teaching, scholarship or research. Factors in determining fair use include the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use on the potential market for or value of the copyrighted work. In other words, it’s not fair if your use of the copyrighted work is taking away sales from the author.
10. If my work is a parody of someone else’s work, then it will always be protected by the “fair use” defense.
A parody is commentary on the original work and may constitute “fair use” of the underlying copyrighted material only if it uses only so much of the original work as is necessary to suggest, rather than copy, the original work. And a work of parody is protected only if it is “transformative” (a dramatic change in appearance or meaning!).
11. If a song is in the public domain I can use it however I want.
Yes, the 1812 Overture is in the public domain and may be used. However, Jon William’s arrangement of the 1812 Overture is protected by copyright. So be aware.
12. If I copy something from the Internet, I don’t have to worry about copyright infringement.
No. Copyright law applies to the Internet.