Copyright for Artists: Protecting Your Art


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Copyright for Artists: Protecting Your Art

  1. 1. Copyrightfor Artists:ProtectingYour ArtPresented by:
  2. 2. Thursday, March 24, 2011 10:00 a.m. – 12:00 p.m. Presented By: Kordenbrock & Associates, P.C.Jean Kordenbrock, Managing Partner Kate Marchyok, Associate Attorney Matt Swartz, Law Clerk Arts Council of Greater Lansing 1208 Turner Street Lansing, MI 48906
  3. 3. Overview of TopicsCovered Copyright  What it is & What it is not  Copyright Rights  Who can claim Copyright  Registration  Notice  Term of Existence  Works for Hire & Joint Works Infringement Limitations to Copyright  Fair Use  Compulsory Licensing
  4. 4. Copyright: What is it? Copyright protection subsists, in (1) original (2) works of authorship (3) fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
  5. 5. Copyright: What is it?Originalmeans: The artist created the work; and The artist did not copy it from someone else.
  6. 6. Copyright: What is it? Works of authorship include the following categories:  (1) literary works;  (2) musical works, including any accompanying words;  (3) dramatic works, including any accompanying music;  (4) pantomimes and choreographic works;  (5) pictorial, graphic, and sculptural works;  (6) motion pictures and other audiovisual works;  (7) sound recordings; and  (8) architectural works. NOTE: These categories are viewed broadly – e.g., computer programs may be “literary works” and maps & architectural plans may be “pictorial, graphic, and sculptural works.”
  7. 7. Copyright: What is it?Fixed means: In a tangible form of expression. Therefore, choreographic work that has not been notated or recorded, or a performance that has not been written or recorded is not fixed in a tangible form
  8. 8. Copyright: What it is not Copyright: No protection for  ideas or procedures for doing, making or building things;  scientific or technical methods or discoveries;  business operations; or  mathematical principles (formulas or algorithms) NOTE: Not always easy to tell the difference, but most of you will not experience any problems.
  9. 9. Copyright: What it is not Copyright: Does not protect  Names  Titles  Slogans  Business Names TrademarkLaw: Turn to state and federal trademark and unfair competition law for these
  10. 10. In English, Please What it is:  Exclusive legal right  Granted by the United States government  Almost all original works may be copyrighted But, certain requirements must be met:  Original  Fixed  Work of authorship Don’t worry though, you’re covered because,  Copyright secured automatically when the work is created.
  11. 11. Copyright Rights Exclusive Rights: Creator (aka Author) gets exclusive rights of  Reproduction  Sale & Distribution  Performance  Display  Derivative Work Rights Transferability  Can be assigned (sold)  Can be licensed
  12. 12. Copyright Rights When might the Author not be entitled to Exclusive Rights?  Works prepared by Employee within scope of employment (Employer becomes the Author);  Works for Hire: Specially ordered or commissioned work if the parties expressly agree in a written instrument signed by them that the work shall be considered Work-for-Hire; or  Authors of Joint Work are co-owners of the copyright, unless they agree otherwise.
  13. 13. Who Can Claim Copyright Independent Creator:  Creator obtains rights as soon as work is “fixed’  No need to register (though registering is beneficial) Employed/Joint Creator:  Copyrighted work may be work made for hire (to be discussed later)  Copyrighted work may be joint work (to be discussed later)
  14. 14. Copyright is a Distinct Right Copyright is Independent of Physical Work  Copyright not in physical artwork itself:  Painting can be sold w/o selling copyright; and  Copyright can be sold w/o selling painting Illustration: Jean is a rock musician, and Jean wants to sell copyrighted recordings of her music. Jean may sell CDs with her copyrighted music, without losing her copyright in the music itself.
  15. 15. Recap and Illustration John is a painter (as a hobbyist) that works for an graphic design company as a janitor. John paints a beautiful masterpiece one day in his basement. Initially, John does not tell anyone about the painting and never shows it to anyone. Also, John never registers the painting with the government. However, one of John’s friends, an art buff, sees the painting and wants it for his own. John sells the painting to his friend.
  16. 16. Copyright Registration Registration: If you don’t need it, then why? Answer: There are many benefits  Public Notice (increased damages);  Necessary if you want to bring suit;  Easier to prove ownership. It is a relatively cheap & easy process.  Fees start at $35  Can register online or by mailing in paper forms.
  17. 17. Notice of Copyright What does it look like?  The symbol © or the word “Copyright” or the abbreviation “Copr.”; and  The year of 1st publication of the work; and  The name of the owner of the copyright. Example: © 2011 Jane Doe NOTE: The © is used only on “visually perceptible copies.” Other types of work may require different forms of notice.
  18. 18. How Long Does CopyrightLast? Works originally created on or after Jan. 1, 1978:  Term endures for Author’s life + 70 years  Joint Work → Term endures for 70 years after last surviving Author’s death  Works for Hire, Anonymous & Pseudonymous Works → Term endures for 95 from publication or 120 years from creation, whichever is shorter Works originally created & published or registered before Jan. 1, 1978:  Copyright may endure for 1st term of 67 years & total term of protection of 95 years, but  Copyright term and renewal of copyright for those works created prior to Jan. 1, 1978 is complex – for detailed information, please see U.S. Copyright Office’s Circular 15A, Duration of Copyright
  19. 19. What happens whenCopyright Term expires? Work goes into the Public Domain, and is Not protected by intellectual property laws (copyright, trademark or patent law); and Its free for you to use without permission. As a general rule, most works enter the public domain because of old age, i.e., their terms expire.
  20. 20. Works for Hire Generally,Creator/Author gets copyright BUT, beware of works made for hire  If work is “work for hire,” then employer is “author”  Employer can be firm, organization or individual Effect: Artists/Author/Choreographer herself does not own copyright, has no rights in work, and cannot sue for infringement.
  21. 21. Is My Work a Work Madefor Hire? TheLaw: A work is a “work made for hire” where it is a “work prepared by an employee within the scope of his or her employment.” Okay, but what does this mean?  Look to the relationship of the parties  Employee vs. independent contractor  Employer control (or lack thereof) over employee  Conduct of employer and employee
  22. 22. Real-life Illustration: Community forCreative Non-Violence v Reid, 490US 730 (1989) Third World America, by James Earl Reid
  23. 23. Joint Works Joint Work: A work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. Effect: May result in Co-Ownership of Work AND Co-Ownership of Copyright
  24. 24. Infringement Simply stated, it’s when someone uses your work w/o your permission. TEST: whether an ordinary observer, looking at the original & alleged copied work, would recognize that copying has taken place.  Ask – is there substantial similarity? Exemptions:  Fair Use  Parody  Compulsory Licensing
  25. 25. Infringement Liability The obvious answer → the Infringer (the person who copies the work) But a Corporation can also be liable And, a corporate officer or employee can be held personally liable when he or she:  Participates in the infringement; or  Uses the corporation to carry out the infringement; or  Uses his or her discretion to carry out the infringement; or  Commits or causes the employer/employee to commit an infringement.
  26. 26. Limitations to Copyright FairUse  Parody/Satire  News Reporting  Educational Use – Teaching & Research Compulsory Licensing
  27. 27. Fair Use 4-Factor Test:  (i) Purpose & character of the use, incl. whether or not it is for profit;  (ii) Character of the copyrighted work;  (iii) How much of the total work is used in the course of the use; and  (iv) What effect the use will have on the market for or value of the copyrighted work. Common types of Fair Use:  Parody – using a work to poke fun at or comment on the work itself  Satire – using a work to poke fun at or comment on something else
  28. 28. Real-life Illustration: Rogers vKoons and Sonnabend Gallery,Inc., 960 F2d 301 (1992)Puppies, by Art Rogers String of Puppies, by Jeff Koons
  29. 29. Compulsory Licensing Copyright law provides for the compulsory licensing of published pictorial, graphic, and sculptural works for transmission by noncommercial educational broadcast stations.  Simply stated, a copyright owner has no right to prevent the use of copyrighted work by PBS. However, a compulsory license does not permit a program to be drawn extensively from compilation of picture, graphic, or sculpture; and It does not permit any use of audiovisual works
  30. 30. Image Licensing Photos,graphic design, & images may be sold by purchasing rights under terms of a license.  Rights are set out in a license agreement between Buyer and Seller.
  31. 31. Image Licensing 3 Types of Licenses: (agreement can be anything you want it to be, but these are common types of agreements)  (i) Traditional Usage License: sold w/ fee based on Buyer’s specified use; fee can be calculated on size, placement, duration of use, geographic distribution, etc.  (ii) Royalty-Free License: Buyer pays once for mage that can be used for multiple purposes by Buyer and for unlimited period of time  ISSUE: Other Buyers may have acquired similar rights so image rights may be sold many times  (iii) Reserved Rights License: similar to Traditional Usage but includes terms that restrict Seller from making sales in specified location(s); gives Buyer exclusive rights to image license
  32. 32. Best Resource – the U.S.Copyright Office
  33. 33. Any Further Questions or for MoreInformation, or if you need LegalAssistance, Please Contact Us! Kordenbrock & Associates, P.C. 215 S. Washington Sq., Suite 210 Lansing, MI 48933 517.977.0587 (office) 517.580.0516 (fax) www.kordenbrocklaw.comJean Kordenbrock – Kate Marchyok – Matt Swartz –