BUSINESS BASICS
Copyright Law for Artists
& Entrepreneurs
515-288-3667
What is Copyright?
Copyright is a form of protection provided by
the laws of the United States to the authors
of "original works of authorship," including:
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Literary
Video
Music
Architecture
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Drama
Software
Art
Other
What is unprotectable?
Unoriginal work
An element within a work may be unprotectable even if
other elements, or the work as a whole, can be protected
(i.e. the Mark Twain quote is not protectable even though
the essay is).
Material in the public domain is unprotectable because it "is
free for the taking and cannot be appropriated by a
single author even though it is included in a copyrighted
work."
What is unprotectable?
Works involving no creativity
While only a “modicum” of creativity is required, there must
be some creative aspect in order to be protected
Examples of things not protected:
• Facts
• Ideas
• Blank forms
• Titles
• Lists of ingredients
• Pseudonyms
Copyright provides the rights to:
•Reproduce
•Prepare derivative works
•Sell or distribute copies
•Perform publicly
•Display publicly
•Perform publicly by a
digital audio transmission.
Rights assumed upon creation
Under the present copyright law, a
work is automatically protected when it
is created.
Registration in the Copyright Office nor
publication is required to secure
copyright under the present law.
BUT…
there are advantages to registration
and/or publication.
Why register or publish?
What’s the difference?
Registration
•Establishes a public record
•Is required prior to initiating an infringement suit
•Required before infringement occurs to recover statutory damages or
attorney fees
Publication
•Is considered public distribution of copies of a work
•When reproductions are publicly distributed or offered to a group for
further distribution or public display.
•A public display does not constitute publication.
•A work of art that exists in only one copy is not regarded as published
when the single existing copy is sold or offered for sale in the traditional
way
•Whether a work is published or not may affect the number of copies and
the type of material that must be deposited when registering for copyright.
Length of Protection
Individual
Life of Author/Creator +
70 years
Works For Hire
95 years from publication or 120 years
from creation, whichever expires first.
*The Sonny Bono Copyright Extension Act of 1998
extended these rights by 20 years
Other rights for visual artists
• Applies only to photographs, paintings, drawings, prints, or sculpture
Must either be
– Original
– Limited edition of 200 or fewer, signed and consecutively numbered
• Right of attribution grants the right to:
– Claim or disclaim authorship
– Prevent the use of the author’s name with works he or she did not
create or with works that have been modified in such a way that it would
harm the author’s “honor or reputation”
• Right of integrity grants the right to:
– Prevent intentional distortion, mutilation, or other modification that would
harm the author’s “honor or reputation”
– Prevent intentional or grossly negligent destruction of a work of
recognized stature
What is a Work for Hire?
• Work created by one person for another
• If it is a work for hire, the copyright is
owned by the person who commissioned
the work
• If not, the creator holds the copyright, and
the person who commissioned the work
get only a nonexclusive license
Why does it matter?
• Affects duration of copyright
• The employer/commissioning party is
considered the “author”
• Creator cannot terminate the
employer/commissioning party’s rights
– Applies to works created 1978 or after
– Authors can terminate a transfer of rights
between 35 and 40 years after the transfer
Did I Make a Work for Hire?
• Created by an employee in the scope of his or
her employment
– Are you are an “employee”?
• Employer has the right to control the method or result of the
work
• Employer provides the tools or materials
• Employer pays by time rather than by job
• Tax status
• Can be fired
– Work is “in the scope of employment” if:
• Kind of work employed to perform
• Work done substantially within work hours and employer’s
space
• Purpose is, at least partly, to serve the employer
Did I Make a Work for Hire?
• Independent contractor making a specially
commissioned work
– Only certain types of commissioned works can be a work for hire
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Contribution to a collective work
Part of a motion picture or other audiovisual work
Translation
Supplementary work (forewords, illustrations, tables, maps, charts,
bibliographies, appendices, indices)
Compilation
Instructional text (purpose of use in systematic instructional
activities)
Test
Answer materials for a test
Atlas
Did I Make a Work for Hire?
• Independent contractor making a specially
commissioned work
– Must be a written agreement
– Must be signed before work has begun (probably)
– Must specifically state that the agreement is for a
work made for hire
• Courts often favor authors if the language is not
precise
– Agreements often have “backup assignments”
What is Fair Use?
A privilege for others is the ability to use the
copyrighted material in a reasonable manner
without consent.
Purposes:
Criticism
Comment
News reporting
Teaching
Scholarship or research
Rules of Fair Use
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Quantity of copied material
Proportion of work copied
Proportion of new work comprised of copied
material
Nature of work in which copied material
appears
Copied work published or unpublished
Effect of market for copied work
Has your copyright been infringed?
•Copyright infringement can be found with or
without intent
•The making of even a single unauthorized
copy may constitute an infringement
•The owner must prove ownership of the work
and that the defendant "copied" the work
•Copying must be of protected expression,
not just ideas
Copyrights came in handy for…
•George Rodrigue, creator of Blue Dog
•Jim Davis, creator of Garfield
•Brian Andreas, author and creator of “Story
People”
•Susan Kelk Cervantes and Juana Alicia, et al.
– muralists who sued Corbis Corp. owned by
Bill Gates
Fixing infringement
CIVIL REMEDIES
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Preliminary or permanent injunction to prevent or
restrain infringement
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Before final judgment is rendered, copyright
owner may elect to recover actual damages and
profits of the infringer or be awarded statutory
damages
- Innocent infringement vs. willful
infringement
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Attorney fees
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Frivolousness
Bad faith
Objectively unreasonable claim/defense
Compensation/deterrence
Applied equally to plaintiffs & defendants
Fixing infringement
CRIMINAL OFFENSES
• Must be proven that infringement was willful and for
purposes of commercial advantage or financial gain
• Criminal proceedings must begin within 3 years after the criminal
action arose
• Other criminal copyright offenses:
- placement, with fraudulent intent, of a copyright notice
- the public distribution or importation for public distribution,
with fraudulent intent, of any article containing a copyright notice the
distributor or importer knows to be false
- the removal or alteration, with fraudulent intent, of any
notice of copyright on a copy of a copyrighted work
- false representation, with knowledge, of a material fact in
an application for copyright registration
Questions?
Thanks for your Time!
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