B U S I N E S S B A S I C S Copyright Law for Artists & Entrepreneurs 515-288-3667.

B U S I N E S S B A S I C S

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:

• Literary

• Video

• Music

• Architecture

• 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.

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.

Rights assumed upon creation

Why register or publish? What’s the difference?

•Establishes a public record•Is required prior to initiating an infringement suit•Required before infringement occurs to recover statutory damages or attorney fees

•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.

Registration

Publication

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

• 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• 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 infringementCIVIL REMEDIES

• Preliminary or permanent injunction to prevent or restrain infringement

• 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

• Attorney fees– Frivolousness– Bad faith– Objectively unreasonable claim/defense– Compensation/deterrence– Applied equally to plaintiffs & defendants

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

Fixing infringement

Questions?

Thanks for your Time!