The below information is excerpts from the published book, 'The Artists' Friendly Legal Guide', published by North Light Books in Cincinnatti, Ohio. Written by Floyd Conner, Roger Gilcrest, Peter Karlen, Jean Perwin and David Spatt. Although currently not being published, a search of the web now and again to try and get a copy of this Artists' guide is truly essential; contains everything from contracts for Artists to information on how an Artist would file his taxes. A must for any serious Artist.
The purpose of copyrighting gives the Artist a monopoly on his own Works. If just anyone could copy your Work and use it for any purpose without any payment to you, you'd never be inspired to create fresh, new original ArtWorks. With the copyright, you have exclusive right to commercially exploit your own Work.
The main purpose for the copyright laws, is not to protect Artists, Writers and other creative persons, or even to protect their publishers, but rather to promote the Arts and other creative activities. The United States constitution gives Congress the right to enact patent and copyright laws in order to:A copyright gives the owner five exclusive rights. These are the exclusive rights to reproduce, adapt, publically distribute copies of, publically display and publically perform copyrighted Works.
If anyone else exercises one of these exclusive rigths without authorization, that person is considered an "infringer" and is liable to the Owner.
The Copyright Act defines material that can be copyrighted as 'original' Works of authorship 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..." The key words here are "original, work of authorship" and 'fixed'.
Only Original Works are protected. This doesn't mean that the Work has to be novel-that it never exisisted in the past in any form. All that's necessary is that you created something original, without copying or plagerizing. Thus, the Work must spring from your own creative efforts. If someone else independently created the very same Work, that is of little consequence, and you still have a copyright.
This doesn't mean the Work must be totally original. An Artist can take an older Work and embellish it. His new Work will
be considered a "deritive" Work, and his protection will extend only to the part of the
Work that is 'original' with him and not the pre-exisiting part of the Work. Naturally,
if another person owned a copyright in the pre-exisiting Work and the Artist prepared
a derivitive Work without permission, he would be a copyright infringer, but this wouldn't affect
his copyright in the portion of the Origianl Work he created. On the other hand, if no-one holds
a copyright in the pre-exisiting Work, it would fall into what is known as 'Public Domain'.
The Artist then would not be a copyright infringer and would own an outright copyright on his
portion of the Work without having any claim to the pre-exisiting Work.
Authorship
To gain protection, you must create a 'Work of Authorship'. For purposes of illustration,
Works of Authorship are classified as follows:
Literary Works, Musical Works, including any accompanying words, Dramatic Works, including any
accompanying music, Pantomimes and Choreographic Works, Pictorial, Graphic, and Sculptural Works,
Motion pictures and other audiovisual Works and lastly, Sound recordings.
To be considered a Work of Authorship, your ArtWork must show at least some minimal creativity. Thus, a drawing of a circle or square usually will not be protected; minimal Art will have some problems as well. A Writer who submits a word or title won't be able to claim protection for a literary Work. In the Graphic Arts Field, other creative output usually not protected includes layout, calligraphy, typeface design, and blank forms. Arrangements of color, if sufficently original, are protectable, so are maps, technical drawings, such as architectural drawings, diagrams, photographs, prints, Art reproductions, globes, charts, models, and even labels affixed to merchandise if they have sufficent Artistic content.
The Copyright office does not examine how the Artist actually arrived at their results, only the results count. For example, the Artist who creates a drawing using a computer can claim protection if the result has a certain amount of complexity and Artistic content. The same is true even of teh Artist who dips worms in paint or ink and lets them crawl all over a canvas. A poet who takes words out of a hat and randomly creates poetry may also claim protection.
To have protection there must be 'fixation', in other words, your Work must be 'put on paper'. Copyright law does not protect Works that exsist merely in the imagination. For example, if you develop in your mind the ArtWork for an advertisement and disclose the concept to an advertising agency, you can't properly sue the agency for copyright infringement if it steals your Work. When the Work is put onto paper, recorded on a phonorecord, c.d., d.v.d., a computer's memory, or otherwise can be perceived, reproduced or communicated on or from a tnagible medium, then copyright protection applies.
Protection is limited if the Work is utilitarian. (meaning 'useable', like an artistic piece of furniture, as
Works of artistic craftsmanship.) These items are not protected insofar as their form but not
their mechanical or utilitarian aspects are concerned. For instance, if you design a
lamp base in the form a figuratve sculpture, you can get a copyright on the sculpt,
but you can't use the copyright law to keep other people from making lamps. The copyright
law also says:
(T)he design of a useful article....shall be considered a pictorial, graphic,
or sculptural work only if, and only to the extent that, such design incorporates pictorial,
graphic or sculptural features that can be identified seperately from, and are capable
of exisisting independtly of, the utilitarian aspects of the article.
There used to be controversies about whether obsene, libelous, fraudulent and seditious Works could be copyrighted. Even though a few old court decisions say that obsene works are not copyrightable, as a pratical matter, sexually explicit, decietful, revolutionary and defamatory works are in fact; copyrightable. The copyright office is not about to embroil itself in First Amendment controversies.
The copyright laws allow anyone to own copyrights in unpublished works, but there are restrictions on published Works. For example, U.S. citizens and persons living in the United States can own copyrights under U.S. law in published Works. Foreign nationals can own U.S. copyrights in Works first published in the United States. In addition, residents of countries that have copyright treaties with the United States , "stateless" persons, and persons given protection by presidential decree are eligible for protection. All other persons, including foreign nationals, are not given U.S. protection for published Works. However, foreigners can secure U.S. copyright protection by publishing their Works with a proper 3-element copyright notice according to the terms of the Universal Copyright Convention, a treaty to which the United States is a party. Also, all published Works which are Berne Convention Works will be coverred regardless of nationality. Generally, a Berne Convention Work is one that is first published in a Berne Convention country or simultaneously in a Berne Convention country and a non-Beren country, or a Work one of whose Authors was a national of a Berne Convention country. AWork may qualify in other ways as well; if protection may depend on whether the Work is a Berne Convention Work, seek advice of counsel.
One category of ArtWork that can't be copyrighted by the Artist, even though it meets the criteria of being an "original Work of Authorship fixed in any tangible medium", is Work that has been made for hire. When a Work is considered a 'Work made for hire', then the employer who commissioned it is ont only the Owner but also the 'Author'. Its almost as if the creative person, the independent contractor or employee; didn't exsist. As far as copyright law is concerned, you have no say in how the Work is reproduced, altered or displayed and no right to any profits made.
Since creating a Work made for hire means you lose virtually all of your rights in the Work, if you want to reserve any rights, then do so in writing. For instance, you may want to reserve the right to publically display the Work or reproduce it for your portfolio or other self-promotional activities.
A Work made for hire may be created in two ways. First, every Work of Authorship created by an 'employee', 'within the scope of employment', is considered a Work for Hire, unless you have a written agreement saying that its not. Second, independent contractors may also create Works for Hire if the following three conditions exsist:
1. The Work is specially ordered or commissioned.
2. There is a written
"Work for Hire" agreement, and;
3. The Work is for use as a contribution to
a collective Work, a part of a motion picture or other audiovisual Work, a compilation,
an instructional text, a test, answer material for a test, or an Atlas.
Works created by Employees
To claim that an Employee's Work was made for hire, the employer must prove not only that the Artist was a true employee, but also that the Work was created within the scope of employment. The employer need not show that the employee had a full time job or that the employee was paid a regular salary. However, the employer usually must establish that he had some right to control or supervise the Work of the employee. The Supreme Court has laid out 13 factors to determine whether the Artist is an "employee" so that the Work may be considered a Work for hire:
1. The hiring party's right to control the manner and means by which the product
is accomplished.
2. The skill required.
3. The source of the instrumentalities
and tools.
4. The location of the Work.
5. The duration of the relationship between
the parties.
6. Whether the hiring party has the right to assign additional tasks to the
hired parties.
7.The extent of the hired party's discretion over when and how long to work.
8. The method of payment.
9. The hired party's role in hiring and paying assistants.
10. Whether the hiring party is in business.
11. The provision of employee's benefits.
12. The tax treatment of the hired party.
Once you've determined that a Work can be copyrighted, you may be wondering how you go about getting the copyright. Technically, a copyright exsists from the moment the Work is 'fixed' in a tangible medium of expression. (See 'Fixed' above) However, you must do certain things to preserve a copyright. First, when a Work is 'published' you should use an appropriate copyright notice with it. Second, you should register the copyright notice with The Library of Congress. Under some circumstances, if you don't follow these procedures, your Work could fall into the public domain or you could lose certain remedies.
Copyright Notices
The first step in protecting your copyright is to use notices on all copies of the Work upon publication. Please note, however, that when the United States became a party to the Berne Convention, the 1989 copyright law amendments eliminated the requirement for copyright notices for copies of Works distributed on or after March 1, 1989, the effective date of the Berne Convention amendments.
Because the term 'copies' also refers to the original copy of ArtWork, any time you lend, lease, give posession, or transfer the original copy or a reproduction, you may have published the Work even if only a single copy is distributed. Thus, any time you do any of these things, you should put a notice on all publically distributed copies.
The Copyright Act spells out exceptions to the rule. A mere public display does not constitute a publication, thus, merely hanging your Work on a Wall-even on a wall where a substantial number of people outside of your family and friends might see the Work, doesn't amount to a publication. Also, under the doctrine of 'limited publication', if you merely give out a few copies of your Work for purposes of criticism, comment or review, with the understanding that these copies will be returned after being reviewed, then this is not a true publication triggering the use of the copyright notice. Of course, my recommendation is to use the notice anyway, even when you think yours is only a limited publication.
What's included in a Copyright Notice
The copyright notice does many things. For instance, it tells the public that someone is claiming a copyright to the Work. It shows when the Work was first published and thus gives information about how long the copyright will last. It also shows who the Owner is, so people who want licenses will have someone to contact and so anyone wanting to check Copyright Office records for a registration can identify the registration Owner.
To show copyright notice, it should include the followuing three elements:
1. The copyright symbol © or alternatively the word Copyright
or the abbreviation "Copr.;
2. The year date of first publication (not the exact month-day-year date) and,
3. The name of the copyright Owner or alternative designation under which the
Owner is known.
Procedure for Submission
Copyright registration can be had by filling out the Copyright Registration form,
available by calling
Copyright Office Washington D.C. 202 707 9100 Information: 202 707 3000.
There you can ask for a VA form, for 'Works of Visual Arts', fill out the form, the fee is
approximately 20.00 U.S. dollars, and you will need to attach a copy of the Work
you are submitting for Copyright. If your Work is 3-D, as in sculpture, several pictures
of the Work should be submitted with the form. The information number given above
can answer many more of your questions. I hope this has helped you, my husband
was insistant that I type this up for his fellow Artist friends in cyberspace.
Good luck!
COPYRIGHT OFFICE WASHINGTON D.C. 202 707 9100 INFO 202 707 3000