Hot News Archive‎ > ‎

Copyright Law & Art presentation notes

posted Jan 25, 2015, 11:03 AM by Dave Beebe   [ updated Mar 19, 2015, 8:11 AM ]
A few NTAL members were able to attend this presentation by Melissa Rizzo, an intellectual property attorney at Adams and Reese LLP. The presentation was hosted by the Arts Council of Hillsborough County on 1/21/15 at the new Entrepreneur Collaborative Center in Ybor City. We have asked Missy if she would be willing to present this material at one of our general meetings. Until then, you can review  my notes from that discussion. Please note, 
I am not a lawyer and I don’t even play one on TV, its just what I got out of attending: 
 

For 3D artists, a design patent may be appropriate as one cannot copyright a chair for example but can patent a unique way that chair was assembled. Design patents are good for 14 years compared to a utility patent which is issued for 20 years. 

Trademarks are for words, phrases, logos, graphic symbols, etc. There are separate state and federal registrations for trademarks based upon intent. Once issued, a trademark must be continuously used. It is also considered abandoned if maintenance fees are not paid. Trademarked symbols that appear in art are not likely a trademark infringement but could be considered a copyright infringement.  Check out http://www.uspto.gov for more information. 

Copyrights offer some legal protection to original, creative works in tangible form. The copyright owner has the exclusive right to reproduce, prepare derivative works, distribute, perform and display the work. Protection begins from the time the work is created in fixed form. No need to file to get protection but there are advantages in doing so. For example, overseas copyright infringement can be enforced against imports by US Customs if the copyright has been registered. All original pictorial, graphic and sculptural work are protected by copyright. Copyright registration of compilations can be done before publishing.  

A single original work is not considered published. Selling printwould make the work published. Once published, a work may bear a notice of copyright to show year of publication and the owner’s name: "NAME © YEAR" or "© YEAR NAME". 

Copyright provides derivative works protection. As artists, care needs to be taken when using another’s art for inspiration. A sculpture based on a drawing, a drawing based on a photo or a lithograph based on a painting are all examples of derivative works. 

As of 1978, a copyright is retained for the life of the artist plus 70 years. Copyright can be bequeathed for its duration and can be transferred. An exclusive right transfer must be done in writing and signed by the owner. Non-exclusive rights can also be verbal. Notice of copyright is assumed and no longer required. Publication is not required and registration can be filed for unpublished works. Reversion clauses in publishing contracts may prevent digital media from ever being considered out-of-print. 

© registration advantages: 
  • Public record of claim. 
  • Registration is necessary before an infringement suit can be made. 
  • Registration must be made within 5 years of first publication. Registration is evidence in court that the © is valid. 
  • If registered within 3 months of publication or prior to infringement, additional fines can be made if willful violation is proven. 
  • 1 artist can e-file a registration application for 1 not-for-hire work for a $35 non-refundable fee. 
While public domain images may not be protected, collections of public domain images compiled in a book or website may be protected. Curated collections are protected if the person who created it used creativity in the choices and organization of the public domain materials. 

When looking for images to use in art, take care. Just because an image pops up in a online search, doesn’t mean you can use it. You should look to the creative commons library where artists have agreed to share their works. Creative commons allows an artist to search for these images. For example, Wikipedia Commons maintains a library of unrestricted use images and publishes a non-lawyer review of commons licensing and copyright lawGoogle Images now allows an image search to be filtered for creative commons licensing. 

The rules for copyright expiration have changed over the years, Anything published before 1923 is considered in the public domain. Works between 1923-1977 expire 95 years after first date (2019 is earliest possible). After 1978, it is 70 years after author’s death (2049 is earliest). 

Work-For-Hire:

Employers hold the copyright for employees work unless outside scope of employment. Free-lance creators are the presumed owner of the copyright but anyone commissioning the work may insist on the copyright transfer. 

Fair Use Doctrine: 

Partial or limited reproduction of another’s work may be allowed if the use advances the public interest such as education. The work cannot be sold or otherwise used for commercial purposes and not used out of context. A case study from NY was discussed. Patrick Cariow published a book of photos in 2000. Richard Prince created paintings from these images in 2007-2008. It was considered not fair use and Prince was ordered to destroy unsold paintings and inventory of published catalogs. On appeal, the court determined the paintings were not a comment on the photo or photographer or on aspects of popular culture closely associated with the photographer or photos. 25 of the 30 paintings were deemed not in violation as there were transformative of the aesthetic. Raising the question “who is a reasonable observer” to determine fair use. The court battle was long and costly. 

For more info check out copyright.gov which has many circulars and tutorials available for free. 

Suggestions: 

The best way to avoid infringement is to not publish high resolution digital images of your work. Turn off "pinning" (code is available at pintrest.com) of your images on your website. You can also disable right clicking (save as) of images with some browsers but you cannot prevent screen capture. If infringement has occurred, contact the infringer first to see if it can be resolved before hiring an attorney. Make use of Digital Millennium Copyright Act provisions. ISPs must comply with take-down orders. You can track down the ISP with a domain name service lookup (such as domaintools.com). 


Comments