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"The Independent Artist"
Issue VII, Spring 2010

The Independent Artist

Copyright Basics: Pictorial, Graphic, and Sculptural
Works or for Works of the Visual Arts

I. What is Copyright?

A. The fundamental copyright law in the United States is The Copyright Act of 1976, 17 U.S.C. 101 et seq.

1. Copyright protects original works of authorship, which are defined to include pictorial, graphic, and sculptural works. (Although lay people think of an author as a writer, in the language of the Copyright Act, an author is anyone who creates a copyrightable work, and the definition of author includes painter, sculptor, or another creator of a work of visual art.)

2. Examples of pictorial, graphic, and sculptural works protected by copyright include (but are not limited to) the following:

a. Paintings, drawings, and murals.
b. Photographs.
c. Advertisements, commercial prints, labels.
d. Artwork applied to clothing or to other useful articles.
e. Posters.
f. Dolls and toys.
g. Greeting cards, postcards, and stationery.
h. Jewelry designs.
i. Models.
j. Needlework and craft kits.
k. Computer and laser artwork.
l. Cartoons and comic strips.
m. Sculptures, including carvings, ceramics, molds, and maquettes.
n. Tapestries.

3. Copyright protection does not extend to ideas, concepts, or discoveries. (An artist may depict the Verrazano Narrows Bridge in a painting without infringing the work of a different artist who painted the same bride earlier.) a. Copyright also does not protect short phrases, titles, or slogans, familiar
symbols or designs (i.e., a pink triangle is entitled to no copyright protection),
or variations of coloring, lettering, or typographic ornamentation.

4. Under 106 of the Copyright Act, the owner of a copyright has the exclusive right to make copies, prepare derivative works, sell or distribute copies, or to display the
work publicly.

a. If someone wishes to use the work in one of the ways enumerated in 106
for example, to publish a photograph of a painting in an advertisement for an
art fair he or she must first obtain the permission of the copyright owner

5. What is copyright notice?

a. Under 401(b) of the Copyright Act, notice has three elements: i. The symbol , or the word Copyright, or the abbreviation Copr.; and ii. The year of first publication of the work; and iii. The name of the copyright owner.

b. Notice must be placed on the work in such manner and location as to give reasonable notice of the claim of copyright. 401(c)

c. Since March 1, 1989, notice has been optional and not mandatory. Works published on or after that date are not required to have a copyright notice; works published before that date without a copyright notice are, in most cases, no longer covered by copyright.

d. If a work bears a proper copyright notice 1988 Diane French. All rights reserved.the notice defeats a claim of innocent infringement (known among lawyers as the I didnt know I wasnt allowed to copy defense) in a lawsuit. 401(d)

6. How long does a copyright last?

a. For works created on or after January 1, 1978, the copyright term is measured by the life of the author, plus 70 years after her death. For joint works, the copyright term is measured from the death of the last surviving author. The copyright term for a work made for hire is 95 years from first publication or 120 years from creation, whichever is shorter.

b. For works created on or before January 1, 1978, or for works in existence but not published or registered with the Copyright Office before January 1, 1978, there are a variety of terms. Consult a copyright lawyer with specific questions.

c. All copyrights expire on December 31 of the final year of their term.

7. A work of visual art is defined more narrowly than a pictorial, graphic, or
sculptural work. As defined in the Copyright Act, a work of visual art is:

a. A painting, drawing, or print existing in a single copy, or in a limited edition of 200 or fewer copies that are signed and consecutively numbered by the author;
or a sculpture similarly marked and numbered, existing in a single copy or 200
or fewer copies; or

b. A still photographic image produced for exhibition purposes only, similarly
marked and numbered, existing in a single copy or 200 or fewer copies.

c. Posters, maps, globes, charts, technical drawings, diagrams, models, applied
art, motion pictures or other audiovisual works, merchandising or advertising
items, and any works made for hire are not, by definition, works of visual art.

8. What is publication?

a. The concept of publication has special significance when it comes to copyright registration and protection.

b. Publication is defined as distribution of copies by sale or other transfer of ownership, or by rental, lease, or loan. Offering to distribute copies is, for the purposes of copyright law, the same as distributing them it is publication. Public display is not, however, the same as publication.

c. If there is only one copy of a work of art, like a painting or statue, it is not published in a copyright sense when sold or offered for sale through an art dealer, gallery, or auction house. This is an important distinction, because it permits an artist to submit identifying material to the Copyright Office, rather than a complete copy, when filing for registration.

d. If there are multiple copies of a work, it is published when the reproductions are publicly distributed or offered to the public or a private group for further distribution.

When a statue has been erected in a public place, it is not automatically published if it is the only copy.

9. Four other concepts you need to understand about your rights as a copyright owner:

a. Owning the material object is not the same as owning the copyright. Under 202 of the Copyright Act, transferring ownership of any material objectsuch as selling a paintingdoes not automatically transfer any rights to the copyright in that material object. The converse is also true: selling the copyright in a painting is not the same as selling the actual painting.

b. The first sale doctrine. Under 109 of the Copyright Act, after the artist has sold the material objectthe paintingshe has no automatic right to prohibit, limit, or control subsequent sales of that painting. She retains the right, however, to control whether the painting is copied or publicly displayed.

c. Works made for hire. Even though a work has been commissioned, the customer does not automatically acquire the copyright to the work. The author retains the copyright unless she is an employee of the customer and creating artworks is within the scope of her employment; or unless she has executed an assignment of rights to the customer.

i. A word of caution: Simply describing a work as a work made for hire may be legally insufficient to transfer ownership of the copyright in that work. To be certain that rights are transferred correctly, the copyright owner should sign an Assignment of Copyright Rights.

d. Fair use. Under 107, copying may be permitted for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.

i. Fair use is always determined on a case-by-case basis, depending on a variety of factors. Four of those factors are set out in the statute, but the courts have infinite leeway in determining other factors to apply.

ii. Artists rely on the fair use defense when they borrow from other artists and incorporate familiar elements from older works into their own works, as homage, satire, or for any other reason.

B. How do you obtain a copyright?

1. You dont have to apply to obtain a copyrightyou have a copyright
automatically as soon as the work is fixed in a tangible medium, i.e., assoon as it is physically created. Neither registration with the Copyright Office nor publication is required for copyright protection to exist under current law.

2. Exceptions:

a. Works created before January 1, 1978 (the effective date of the Copyright Act) may not be protected by copyright if before that date they were published without registration.

b. In general (there are some exceptions only a copyright attorney can explain), if a work was published before March 1, 1989, that did not contain a copyright notice have been committed to the public domain and no longer are protected by copyright.

Artist and NAIA member Diane French presented a session on Copyright Infringement: Protecting Yourself Before an Issue Arises during the 2009 NAIA Artist and Director Conference. During her presentation, Diane shared some of her personal experiences with copyright infringement and discussed how artists can prevent easily avoidable problems with a little foresight. She also offered up the following document as prepared by copyright specialist Bruce H. Little, who has graciously agreed to let NAIA reproduce it here.

II. Copyright Registration

A. Although registration is not required to obtain a copyright, there are many advantages to registration.

1. Establishes a public record of the copyright claim.

2. Registration is in most case a prerequisite for brining an infringement lawsuit.

3. Timely registrationbefore there is an infringementprovides the copyright owner with a broader range of remedies, i.e, statutory damages of up to $150,000 per infringement ( 504) and the ability to recover attorney fees from the infringer ( 505).

B. How to register your copyright.

1. You have to apply to the Copyright Office at the Library of Congress in Washington D.C. to register your copyright in the United States. There are three essential elements to the registration process: completion of the application form, payment of a non-refundable filing fee, and submission of a copy or copies of the work being registered (or identifying material) which will remain permanently on deposit with the Copyright Office.

2. The application form.

a. Online registration in the electronic Copyright Office (eCO) is available at www.copyright.gov. Click on electronic Copyright Office and follow the instructions.

i. Advantages of online registration include a lower filing fee; online status checking, payment by credit or debit card or electronic check, and the ability to upload certain categories of deposits directly into the eCO as electronic files.

b. Fill in Form CO at www.copyright.gov (go to Forms) using 2-D barcode scanning technology; print out the completed form, and mail it to the Copyright Office.

c. Obtain paper forms from the Copyright Office (not available on the website) and mail them in

3. Filing fees.

a. Filing fee for online deposits are $35 per submission; for Form CO they are $50 per submission; for paper submissions the fee is $65.

b. For group registrations (up to 750 published photographs can be registered in one submission using Form GR/PPh/CON), the fee is $65.

c. A schedule of fees, for recording transfers, expedited registration, searches of
records, obtaining copies, and other services, is available at www.copyright.gov.

4. Deposit requirements: To register a copyright, the author must deposit complete copies of the best edition or, in some cases, identifying material.

a. For a published work, a complete copy is a copy of the work as it was published, i.e., offered to the public for sale. If the work is unpublished, a complete copy is one that represents the complete content of the work being registered.

b. For published works, the best edition must be the edition published in the United States before the date of deposit that most closely captures the work in which copyright is claimed. Copies deposited for registration must be undamaged.

c. Identifying material consists of a two-dimensional reproduction or rendering of a work. Photographs, transparencies, photocopies, or drawings that show the complete copyrightable content of the work qualify as identifying material.

d. For an unpublished two-dimensional work i.e., a unique painting offered for sale only through a gallery you can register the copyright by depositing either one complete copy of the work or identifying material, i.e., a photograph of the work.

e. For most published two-dimensional works, two complete copies of the work must be submitted.

f. For three-dimensional works (sculptures) or two-dimensional works applied to three-dimensional objects, the Copyright Office will accept only identifying materials, i.e., photographs. The Copyright Office will not accept sculptures.

5. Registration of more than one work with a single application and fee

a. An author may choose to register several works of art in a single registration, for administrative ease, and to save money.

b. If a group of works are unpublished, they can be registered as a collection if all of the following conditions have been met:

i. The elements of the collection are assembled in an orderly form (For example, an album of photographs of paintings by a single artist.)

ii. The combined elements bear a single title identifying the collection as a whole. (For example, 2008 Paintings by Diane French).

iii. The copyright claimant or claimants for each element of the collection are the same.

iv. All of the elements are by the same author, or the same author has contributed to each work in the group.

c. Published works are subject to stricter rules.

i. All copyrightable elements that are included in a single unit of publication in which the copyright claimant is the same may be considered a single work for registration purposes.

ii. A single registration may be made for a group of published photographs is all of the photos were taken by the same photographer (whether an individual or an employer for hire), all of them were published in the same calendar year, and all have the same copyright claimants.

III. Moral Rights for Visual Atists

A. Under 106A, authors of works of visual art (as defined in Section I (A) (6) on page 4 above), are accorded special rights of attribution and integrity.

1. Attribution ensures that artists are correctly identified with the works they create
and are not identified with works created by others.

2. The right of integrity allows artists to protect their works against modification and destruction that are prejudicial to their honor or reputation.

A. B. Rights of attribution and integrity may not be transferred by the author. The rights expire upon the death of the author.

1. These rights may be waived by a written instrument.

2. Transfer of either the physical copy of a work of visual art or of the copyright in the work does not affect the moral rights accorded to the author.

A. C. If a work of visual art is incorporated into a building, and the owner of the building wishes to remove the work and can do so without destroying the work, the owner of the building must give the author the right to remove the work herself.

1. A registry maintained in the Copyright Office is the official record of the buildings and works of art that are covered by this provision. See www.copyright.gov/title37/ 201/37cfr201-25.html.
IV. Transfer of Copyright Ownership

A. Copyright ownership can be transferred independently of transfer of ownership of the physical embodiment. For example, a painter can license a copy of one of her paintings to a greeting card company even though she has sold the actual painting to a collector.

B. Copyright rights can be sold independently of one another, i.e., the right to make copies can be transferred to one purchaser, and the right to publicly display the work can be transferred to another.

C. Copyright rights can be licensed, exclusively or non-exclusively, temporarily or for the duration of the copyright.

D. Transfers of copyright ownership must be in writing, 204; and they can be recorded with the Copyright Office in Washington, 205, the same way a deed to land is recorded at the county courthouse.

E. Transfers of copyright can be revoked by a copyright owner or her heirs during a five-year period beginning 35 years after execution of the copyright assignment, 203(a)(3), following service on the transferee of statutory notice. 203(a)(4)

V. Recommendations

A. When possible, place a copyright notice on each work.

B. Register copyrights in as many of your works as you have the time and money to protect. Making an annual, or semi- annual, or quarterly submission to the Copyright Office of collections of photographs of unpublished works allows for registration of each work for a single filing fee.

C. When you sell the physical embodiment of a work, i.e., a painting or a sculpture, be sure that you do not sign any documents that unintentionally transfer copyright ownership
to the purchaser. It may even be helpful to present the purchaser with a bill of sale that states: This is not a transfer of copyright. (Artist) retains all rights not specifically transferred or conveyed by this instrument.

D. Consult with experienced copyright counsel before selling, licensing, transferring, or otherwise disposing of your copyright rightsor entering into a transaction where you might be doing so unwittingly.

Bruce H. Little is an intellectual property attorney and a partner at the law firm of Lindquist & Vennum P.L.L.P in Minneapolis, Minnesota. A trial lawyer with a concentration in intellectual property litigation, Bruce also focuses his practice on the acquisition, protection, and commercial exploitation of United States and foreign patents, trademarks, copyrights, and trade secrets. He has served as lead counsel in trial court and on appeal in cases involving copyright infringement, trademark infringement, patent infringement, false advertising, unfair competition, misappropriation of trade secrets, and enforcement and interpretation of related license agreements. He has also represented individuals and companies in disputes relating to covenants not to compete, nondisclosure agreements, and inventor agreements pertaining to the acquisition, ownership, and use of intellectual property. He has prepared and prosecuted hundreds of trademark and copyright applications, and has served as lead counsel in opposition and cancellation proceedings before the Trademark Trial and Appeals Board of the United States Patent and Trademark Office. He can be contacted at 612-371-2437 or [email protected] com. Visit lindquist.com for more information.


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