© 1996,2000,2004 John Moetteli
First published June 16, 1996
New Article: Why is Bill Gates so Rich? Two Words: Copyright Law
SECTIONS
APPENDICES
I. INTRODUCTION
Since January 1, 1978, copyrighted works have been protected under a uniform set of federal laws. These sometimes complex federal laws have been created to achieve a rather simple result: to provide the visual artist with a tool with which to protect his expressions against infringement or unauthorized use by others. The purpose of this article is to give the visual artist a working knowledge of the copyright laws such that he can identify unauthorized use, and once having done so, take action to enforce his copyright.
II. THE SUBJECT MATTER AND SCOPE OF COPYRIGHT
Congress, recognizing the impact that future technological advances will have on the law is impossible to predict, passed the Copyright Act of 1976 which is broadly based and open-ended. With technological advances come new means of expressing, recording and disseminating ideas. The VCR is an example of such a technological advance. In addition, Congress has identified a new category of artistic work as protectable under the copyright laws: architectural works. At the same time, the traditional categories have been preserved. These traditional categories include the following:
The Copyright Act clearly states that the above list is not exhaustive; rather, it is illustrative only. This indicates Congress' recognition of the artist's and the inventor's ability to create new means of expression. In addition, there are only two basic requirements that must be met for an expression to be entitled to protection against unauthorized reproduction. These two requirements are:
The requirement of originality means simply that the work may not have been copied from someone else. The courts have held that to be original, a work must possess originality of expression. Slogans, names, titles and simple phrases, symbols utilizing common geometric shapes, and certain designs do not possess originality of expression and therefore are not entitled to copyright protection.
Judges, in deference to the age-old adage "beauty is in the eye of the beholder", have refused to require additional elements such as ingenuity, novelty or artistic merit before upholding copyright protection. Therefore, mechanical drawings and simple freehand sketches, for example, are protectable under copyright.
The requirement that the work be fixed in tangible form means that it is embodied in a copy or phonorecord by or under the authority of the author, and is sufficiently permanent and stable to permit it to be perceived, reproduced, or otherwise communicated for more than a merely transitory period of time.
Ideas Cannot Be Protected by Copyright:
Because the free exchange of ideas is an essential element of a democratic society, ideas themselves cannot be monopolized via the copyright laws. It is only the artist's particular expression of his or her ideas which may be protected. Therefore, it is permissible under the copyright laws for someone to express the same ideas to others, even when the ideas used represent a new concept, developed by another author.
For example, if one artist is known for his original works of art depicting, for example, penguins in tuxedos, it is probably not an infringement of copyright for someone else to copy the theme of penguins in tuxedos. The U.S. Supreme Court has upheld this interpretation in a case in which it stated that a painting based on the same theme as a copyrighted work, does not infringe the copyright if it's only similarity is the use of a common thematic concept. However, the more bizarre and original the theme (bowling balls in tuxedos on the French Riviera?), the more likely it is that a court will carve out an exception, or find a rule of law or statute with which to protect the artist's original creation. Trademark law ,the common law of unfair competition or misappropriation law are other fields of law which might come into play in certain instances.
III. THE RIGHTS OF THE COPYRIGHT HOLDER
The visual artist must know his rights. Only when he does, will he be able to protect his rights. Under the copyright laws, the exclusive rights conveyed are specific, and embrace more than merely the right to prevent someone's unauthorized copying. In fact, there are at least five exclusive rights granted under the copyright laws, including:
There are several important exceptions to these exclusive rights. For example, the owner of a lawfully made copy of the copyrighted work is entitled to "sell or otherwise dispose of" that copy (e.g. rent or lease the copy), without the authority of the copyright owner. Similarly, the owner of a lawfully made copy of a work subject to the exclusive right of public display, may show his copy to those persons present where the copy is located. He may not, however, broadcast an image of the copy to be viewed at other locations other than the location of the copy.
One of the most important exceptions to the exclusive rights of the copyright owner is the "fair use" exception. Use is considered "fair" and permissible, if the reproduction of the work is for the purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research." In general, use is fair when the use is for non-commercial purposes. However, there are so many exceptions to this general rule that it is almost swallowed up by them. For example, educational use, while clearly a non- commercial use, is not "fair" when such use materially takes away from the profits which the copyright holder has a reasonable expectation of receiving. For instance, if the work is a teaching aid, then the intended consumer is likely the student or the educator. In such cases, if there was no right to exclude use for educational purposes, there would be no profit incentive to write treatises and textbooks. Therefore, the copyright laws protect the author of educational texts against those who might otherwise take advantage of a fair use exception.
There is yet another exception to the exclusive rights of the copyright owner which is worthy of mention. Creative persons have the right to independently create any work. This means that if an author who, not having any exposure at all to, say, the DisneyTM version of Pocahontas, independently creates a script which, by mere chance, happens to read identically to that of the Disney production, Disney may have no recourse. However, due to the striking similarity, Disney would be entitled to an inference that their work was copied. Under these facts, the inference would be almost impossible to rebut. However, if the judge or jury is convinced that the work was not copied, the owner of the independently created work will not be liable for distributing the work without Disney's permission.
Finally, the exclusive rights of the copyright owner are limited in duration. Generally, the term of a copyrighted work is the life of the author plus seventy years. However, determining the term of a copyrighted work is often complex and involved (primarily due to the changes in the copyright laws over the past years), and, therefore, will not be discussed in depth here. For a more thorough discussion of the term of copyright, see Appendix B.
IV. OBTAINING COPYRIGHT PROTECTION:
THE BENEFITS OF PROVIDING NOTICE OF COPYRIGHT
Copyright protection is automatic once an original expression is fixed in tangible form. Therefore, protection is simultaneous with the recording of the work. In the case of a book, copyright attaches as each sentence is typed on the wordprocessor. In the case of a performance, copyright attaches when the performance is recorded on paper, on videotape or on some other medium.
Since legislative implementation of the Berne Convention in 1989, it is no longer a requirement of protection in the U.S. that a copyright notice be affixed to a publication of the work. However, providing notice prevents an infringer from being able to use a defense of innocent infringement. Further, under the Universal Copyright Convention ("UCC"), providing such notice is required. There are some countries which are not members of the Berne Union, yet are members of the UCC. Therefore, if one is concerned about international proteciton, providing notice is strongly recommended.
Copyright notice consists of any one, or all of the following:
Therefore, an appropriate mark for Arty Author who published his work in 1996 would be:
(c) 1996 Arty Author
Alternatively, Arty could also use the date he created the work, say 1993, because this date is earlier than the publication date. A later date than the date of publication would be improper because it deceives the reader into believing that the copyright term is longer than it really is. Copyright notice is most often placed on the work immediately after its creation. However, because it is sometimes difficult to determine when the work was first published, it is not uncommon to indicate a year earlier than first publication in the copyright notice.
Where should notice be placed? Under the copyright law, there is no specific requirement. The law simply recommends that the notice be placed "in such manner and location as to give reasonable notice of the claim of copyright." Nevertheless the Register of Copyrights does provide suggestions as to where to locate notice for the various types of works protected under the copyright laws. For example, for copyrighted works published in book form the copyright office recommends that notice be located on the title page, the page following the title page, the front or back cover or first page of the main body of the work. For two dimensional pictorial or graphic works, notice should be durably affixed to either the front or the back of the work. For three dimensional sculptural works, notice should be durably attached to an exterior portion of the work or to a frame or pedestal. For items which are permanently stored in a container, notice on the container is sufficient.
Whenever possible, the guidelines provided by the Register of Copyrights should be followed, because these locations have been deemed sufficient to give effective notice. Locating notice in a manner departing from the guidelines risks a finding by a court that notice was insufficient, thus, giving the infringer an opportunity to defend on the basis of innocent infringement.
V. THE COPYRIGHT REGISTRATION PROCESS
As discussed above, copyright protection is automatic. Nothing need be filed with the Copyright Office in order for the copyright owner to benefit from the minimum protections provided by the copyright laws. However, in order to fully benefit, the copyrighted work should be registered.
Copyright registration is a legal formality whose purpose is to provide a means by which the public can inspect the work in order to determine the scope of the author's copyright claim. Registration is not a prerequisite to copyright protection, with one exception. In most cases, a copyright must be registered before the author may bring suit to enforce his copyright. The author may register his work anytime prior to filing suit. There are specific advantages, however, of prompt registration:
If the work is not registered within three months from first publication, the only remedies available are (1) an injunction against further infringement; (2) the recovery of profits from the infringer; and (3) other provable damages. However, if registration is made before the infringement, then statutory damages are available.
One registration of the copyright is sufficient. It is permissible (although not necessary) to register again after publication.
VI. COPYRIGHT OWNERSHIP AND TRANSFER
Copyright Ownership:
Initial ownership of a copyrightable work vests automatically with the "author" of the work. Where several authors intend a collaborative effort when creating a joint work, the work belongs to each co-author in equal percentages. Each co-author/co-owner of the copyright has an equal right to exploit the work, with or without the consent of the other co-owners, subject to sharing the profits with other co-owners according to his or her ownership interest. Here is an example:Dale and Joanne agree to collaborate on a compilation. Dale and Joanne have not entered into an agreement which would vary their rights provided under the copyright laws (which rights are provided in default of a contrary agreement). Joanne meets David, who convinces her to license her rights to him in exchange for his '68 Cutlass Supreme show car. What does Dale get? He has a right to a one-half interest in the show car.
There are two exceptions to the general rule that the author is the owner of the copyrighted work. The first is where the author is an employee, hired to author such works. In this situation, the work is called a "work made for hire" and the initial ownership vests in the employer. The second exception is analogous to the first. Here, certain kinds of specially commissioned works, such as contributions made to a book, anthologies, encyclopedias, periodicals or other collective works, may be treated as "works made for hire" provided that the parties agree to this in writing.
Whether a court would find that a work is one made for hire, made by special commission, or that ownership is in the creator is sometimes difficult to predict. This is in part because the distinctions between works which are considered those made for hire and those made by special commission are becoming blurred. For example, a work made by an independent contractor may be considered a work made for hire, despite the nonexistence of a written agreement. The courts, in cases like this, have sometimes reverted to using a test very similar to the one used by the IRS in determining whether an independent contractor should be treated as an employee and thus require the employer to withhold and contribute certain taxes. The test most often employed to determine copyright ownership is whether of not the hiring party supervised and controlled the creation of the work. If so, the work is one made for hire and ownership vests in the employer on creation-- the employer is considered the "author" of the work.
Other courts have held that the statute means what it says-- there must be a written agreement in order for a work made by an independent contractor to be considered a work made for hire. What's the point? The commissioning party should always put in writing his desire to retain ownership of the copyright in a work.
Examples:
Tim works as a professional photographer for a skydiving company which specializes in recording the experiences of their clients as they attempt to wingwalk the company's specially designed gliders. Tim's specific task is to photograph the facial expressions of the company's clients as they attempt this daring feat for the first time. Taking such pictures is therefore within the scope of Tim's employment. They are therefore "works made for hire" and belong to the company upon their creation. Michelle, on the other hand, is a professional photographer who fills in in Tim's absence. She is an independent contractor, being paid a flat fee for each photograph she takes. Although it would seem from the express words of the copyright statute that Michelle owns the copyrights in these photos, as the courts which apply the literal language would hold, other courts would apply the supervision test. If her photographs are supervised or under the control of the commissioning party, in this case the skydiving company, the copyright in the photographs belongs to the company as a "work made for hire."
The Transfer of Copyright Ownership:
Ownership and all the exclusive rights associated with ownership vest in the author of a work immediately upon creation of the work. The author may then freely transfer ownership of all the exclusive rights in the work to another party, or, alternatively, he may elect to hold back some of these rights. The author or any owner may transfer any of the exclusive rights by contract, assignment or by will. Any method of conveyance is permitted, provided it is (1) in writing and (2) signed by the owner of the exclusive right conveyed, or the owner's authorized agent. In the case of a transfer of an exclusive right, all the remedies provided by the copyright law for the protection of that right are available to the transferee.The ownership of a copyright is intellectual property-- it is not tangible. Therefore, copyright ownership is altogether different and separate from ownership of the tangible object even though the tangible object is the direct result of the intellectual efforts of the author. Therefore, absent an agreement to the contrary, the transfer of the material object, i.e., the tangible work of art, does not convey any rights in the copyright. For example, Randy makes a sculpture by hot-gluing fine cigar butts onto the exterior of a port wine bottle. He sells postcards of this sculpture at tobacco shops. Jeff buys a postcard. Jeff is now owner of the postcard itself, and may display it as he desires (provided he does not broadcast images of it). However, without a written agreement transferring the copyright, Jeff has no right to reproduce the photograph on the postcard. Doing so would be a violation of Randy's copyright. This is true even if Randy had personally sold Jeff the postcard together with the negative of the original photograph from which the postcard was made.
It is no longer a prerequisite to filing an infringement suit that the assignee wishing to bring suit record his assignment document in the Copyright Office. However, it is recommended so as to provide constructive notice of the facts set forth in the assignment (provided the work is registered). This is done by filing the original assignment document or a copy accompanied by a sworn affidavit that the document submitted is a true copy of the original.
Sample forms for the sale of a work of art are provided in Appendix D. Although it is not necessary for the copyright owner to reserve the copyright when he sells a work of art, it is wise to do so because then the purchaser is put on notice that the author or owner of the intellectual property (the copyright owner) reserves the copyright in the work. This may avoid problems which might otherwise arise in the future by preventing potential misunderstandings.
VII. RIGHTS AND REMEDIES PROVIDED UNDER THE BERNE CONVENTION
IMPLEMENTATION ACT AND THE VISUAL ARTISTS RIGHTS ACT
Under the Berne Convention Implementation Act of 1988, the United States fulfilled its obligation as a recent signatory to the Berne Convention for the Protection of Literary and Artistic Works, first signed in Switzerland in 1886. Under this Convention, new "moral" rights are provided to the author of the work of art. These "moral" rights (or "rights of attribution and integrity") were further implemented through the Visual Artists Rights Act of 1990. In the words of the Berne Convention, these new "moral" rights protect against "mutilation or other derogatory action in relation to the work that would prejudice the author's honor or reputation" during his or her lifetime.
Rights of Attribution and Integrity:
As a result of the Visual Artists Rights Act, 106A has recently been added to the Copyright Act, and includes valuable new rights for the author of a work of visual art. Under this section, the author, and no one else, has the right:
A significant exception to the right in "(3)" above applies to a work which is permanently fixed to a building. This exception permits the owner of the building to destroy the building and any permanently attached works of art which are part of the building, without having to risk liability to the authors of the attached works.
These rights may be waived, but only by written instrument which specifically identifies the work for which the right of attribution and integrity is being waived. In the case of a joint work, a waiver by one author waives the right of attribution and integrity for all authors.
VIII. NAFTA AND ITS AFFECT ON COPYRIGHT PROTECTION
The North American Free Trade Agreement Implementation Act revived copyright protection in certain motion pictures whose country of origin is a NAFTA signatory. In order for the copyright to be revived, the copyright to the motion picture must have entered the public domain in the United States because it was published on or after January 1, 1978, and before March 1, 1989, without the notice required under the Copyright Act of 1976 as originally enacted. The revived copyright has the term that it would have had, were it not to have lapsed in the first place.
Therefore, one should pay particular attention to the copyright date of foreign films which had fallen into the public domain due to failure to provide notice. The copyright in such works is now enforceable, meaning that copying, including the production of a derivative work based on the motion picture, is a violation of one of the exclusive rights of copyright of the original owner.
IX. RECENT DEVELOPMENTS IN COPYRIGHT LAW
The Computer Software Copyright Amendments of 1980, now codified as Section 117 of the Copyright Act, permits the owner of a copy of a computer program to make an additional copy of the program for purely archival purposes if all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful, or where the making of such a copy is an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner.
In 1998, Congress passed the Digital Millennium Copyright Act (the "DMCA") and the Sonny Bono Copyright Term Extension Act. The DCMA's intent was to update copyright law for the digital age in certain arenas, while the Extension Act provides copyright owners with another 20 years of copyright protection for their works. A third bill regarding database protection has not yet passed (but may pass soon). These changes to copyright law have significant implications for libraries, archives, and institutions of higher education.
The DMCA contains detailed regulations for online service providers that must be followed to obtain protection from liability for infringement, makes it a crime to circumvent anti-piracy measures built into most commercial software, outlaws the manufacture, sale, or distribution of code-cracking devices used to illegally copy software, limits liability of nonprofit institutions of higher education (under certain circumstances) for copyright infringement by faculty members or graduate students, and provides for the promotion of distance education.
X. CONCLUSION AND SUMMARY
The copyright law provides a relatively straight forward and inexpensive means of deterring others from profiting from the author's work without first obtaining the author or his assignee's permission. In sum, four basic points can be made about copyright protection. First, most original works of art qualify for copyright protection. Second, copyright protection is automatic from the moment the work is fixed in a tangible form. Third, providing copyright notice on the work eliminates any defense of innocent infringement which an infringer might otherwise have had, thus increasing the amount of monetary compensation the owner may obtain from the infringer, either in settlement or by court action. Lastly, registration of the copyrighted work is not necessary, but it is advantageous. In most cases, registration is a prerequisite to filing suit for copyright infringement.
An appendix is provided immediately following this text. Appendix A asks and answers some of the most commonly asked question about copyright law. Probably the most important point to remember is that although copyright protection is automatic, full benefit of the rights and remedies provided under the copyright laws are available only to those who place the proper notice of copyright on their work and to those who register their copyright within three months after first publication.
APPENDIX A
COMMONLY ASKED QUESTIONS ABOUT COPYRIGHTS:
Can a cartoon character be protected by copyright?
Yes, an original cartoon character is protected from the moment it is first fixed in tangible form. For example, a two dimensional image of the copyrighted cartoon character is protected from copying into any other medium, whether it be by photograph, photocopy, sculpture, or scanning onto a computer screen. In other words, a three dimensional sculpture based on the two dimensional rendering of the cartoon character is a derivative work which infringes the original two dimensional version. The fact that the infringer transformed the two dimensional image into three dimensions does not allow him to escape the original artist's copyright. Doing so constitutes the creation of an unauthorized derivative work.
Who owns the copyright when a free-lance artist is commissioned to create the work?
This turns on whether the free-lance artist has entered into a written agreement assigning his copyright to the commissioning party. If the free-lancer has assigned his copyright to the commissioning party, then the commissioning party owns it. However, if the free-lancer has not assigned his copyright to the commissioning party in writing, then the free-lancer owns the copyright.
Are engineering drawings protected by copyright?
Yes, technical drawings are protected by copyright as a "pictorial, graphic, and sculpural work." It is not necessary that the subject matter protected by copyright constitute what is normally thought of as "art." Nevertheless, making the object described in the engineering drawing is not a violation of the copyright in the technical drawing. However, doing so may violate the copyright in the object described by the technical drawing.
May a publisher buy a painting from an artist and publish an altered version of it
without the artist's permission?
No, provided that the copyright in the painting is owned by the artist and the copyright has not expired, or provided that the alteration constitutes a violation of the artist's right of attribution and integrity. The unauthorized alteration of a work infringes the exclusive copyright to prepare derivative works based on the copyrighted work and the publication of the altered work infringes the exclusive right of public distribution. However, if the painting is a work made for hire, the copyright in the work is owned by the employer. In this case the employer may be free to make changes without the artist's permission. If the change prejudicially affects the honor or reputation of the author, then it constitutes a violation of the artist's right of attribution and integrity. In this case, despite having sold the copyright, the artist may prevent the owner from making these changes.
Is it necessary to get permission from the persons depicted in, say, a photograph or
from the copyright owner prior to publishing and distributing the work?
Good practice dictates an affirmative answer to this question. Permission should be obtained from both the subject and the copyright owner prior to publication and distribution, especially for mass-marketed works like publicity posters or billboards. The subject of the work, particularly celebrities may have a legally protected right of publicity preventing another's unauthorized use of their image for commercial purposes. Non-celebrities also have a right of privacy which may allow them to take action against unauthorized users of their image. These rights are not protected under the copyright laws; rather, they are protected under state common law and state statutes. However, this introduces a completely separate field of law which is beyond the scope of this booklet. As might be expected, of course, the copyright owner's permission is necessary prior to publishing and distributing the work.
How about collages of portions of copyrighted publications or other works--is
permission from the copyright owner of each work used necessary?
It depends on whether there is a copying and, if so, whether the copying is a fair use. Directly attaching clipped out portions of the copyrighted work is not copying, thus doing so is generally not considered a copyright violation. However, if a photograph or some other copy is made of the collage, then the question is whether this photograph is a fair use of the original works. If the collage is put on public display, it may constitute a violation of the exclusive right of the copyright owners in the individual collage works to publicly display their works. True, we have discussed an exception which states that the owner of a copy may publicly display that copy without the permission of the copyright owner. However, this exception only applies to authorized copies. Taking a photograph of a copyrighted work without the copyright owner's permission constitutes unauthorized copying.
How about old movie stills--is permission required from the copyright owner before
copying stills and distributing these stills to the public?
This depends on whether the copyright in the old movie is still in force. If it is, permission is required. If not, then anyone is free to copy and distribute the stills, as they have entered the public domain. It is irrelevant that the work is being copied from one medium to another, or that only one frame is being copied. If the copy is recognizable as such and the copyright is still in force, doing so is an infringement.
How do you determine if a work is protected by copyright?
A proper copyright notice indicates that the work is protected by copyright. However, the term of copyright protection may have expired, or it may be invalid for some other reason. Therefore, a basic discussion of how the term of copyright is determined is provided in Appendix C. Nevertheless, even when a work does not contain a copyright notice, it may still be protected. This is particularly true if the work was created after the Berne Convention was implemented, in 1989. In this case, no copyright notice is required. However, if the work was created prior to the Berne Convention's implementation, it is more difficult to determine if copyright protection exists. This is because having no copyright notice usually, but not necessarily, means that the work is not protected. Under the old law, limited distribution of a work without notice did not extinguish copyright protection if sufficient efforts were made to correct the error on later copies.
If the copyright is registered, information about the work can be obtained for a fee from the U.S. Copyright Office. See Appendix B. One may even chose to have a search performed in the Copyright Office. However, the results will be inconclusive due to the fact that registration is not required for copyright protection to exist. In sum, it is usually difficult to determine with a high degree of certainty that a work is copyright protected without contacting the author or the copyright owner.
If a work is copied in reliance on the fact that an authorized copy does not have a copyright notice on it, then as an innocent infringer, the copier will not be liable for statutory or actual damages for the period of time before he received notice from the copyright owner that the work is protected by copyright. However, the innocent infringer must show that he was misled by the missing copyright notice. A court may, if it chooses, award the copyright owner the profits which the copier realized during the period of innocent infringement. Alternatively, the court may forbid further unauthorized copying, or may require the payment of a reasonable license fee.
APPENDIX B
COPYRIGHT REGISTRATION
Three items must be sent into the copyright office in order to register a copyright: (1) an application form, (2) the registration fee (currently $30); and (3) two complete copies of the work (one copy in the case of an unpublished work or in the case of a published pictorial or graphic work in which an individual owns the copyright).
The Application Forms:
There are five types of application forms; four for the various categories of works and one for renewals. They are identified as follows:
Application forms and general information about registration can be obtained by writing the Copyright Office at the below address:
Information Section, LM-401 Copyright Office Library of Congress Washington, D.C. 20559
The Copyright Office's Public Information number is (202) 707-3000, which is answered via an interactive voice mail system. The Copyright Office's 24 hour hotline for requesting registration forms is (202) 707-9100.
The Deposit Requirement:
Providing a specimen of the work for deposit with the Copyright Office is no longer a prerequisite to filing a suit for copyright infringement for foreign Berne Convention works. However, fines may be imposed on domestic registrants for failing to deposit a copy of the work.
Special deposit requirements have been prescribed for three dimensional materials, which must also be followed in cases where any dimension of the work exceeds 96 inches. These special requirements may be utilized in lieu of the usual requirement of an actual copy in the case of (1) an unpublished pictorial work; (2) a graphic work; or, (3) where an individual author is the copyright owner as opposed to an institutional owner, a published pictorial or graphic work; provided that the work has either been published and sold, offered for sale in a limited edition of no more than 300 numbered copies, or fewer than five copies have been published.
The special deposit requirements are as follows: one complete set of identifying materials consisting of photographs, transparencies, photostats, drawings or similar two-dimensional reproductions or renderings of the work, in a form which is capable of being visually perceived without the aid of a machine or device. When copyright registration is applied for for pictorial or graphic works, the material submitted must be at least 35 millimeters in size and if 3" x 3" or less, must be affixed to cardboard, plastic or similar mounts. All other types of identifying material must not be any larger than 9" x 12" (preferably 8" X 10") in size or less than 3" x 3". With an exception for transparencies, the image of the work must be at least life size, and, in any event, clear enough to show the entire copyrightable content of the work. Identifying material must indicate, either on the front, the back or on the mount, the title of the work and an exact measurement of one or more dimensions of the work. For published works, the copyright notice and its placement on the work must be shown clearly on at least one piece of identifying material.
If for whatever reason, the deposit requirement of the copyright law is burdensome, contact the Copyright Office or a copyright attorney for further information.
APPENDIX C
THE DURATION OF COPYRIGHT
Works created under the present system generally are protected for the life of the author plus seventy years. However, if the work is a "work for hire", an anonymous work, or a work published under a pseudonym, the copyright term is seventy-five years from first publication or 100 years from creation, whichever expires first. Because the laws have changed over the years, works created under different law may have different copyright terms.
Works created on or after January 1, 1978:
The term of a copyright created after January 1, 1978 is the life of the author plus seventy years. When a work is created by joint authors, the term is determined by adding seventy years to the date of death of the last surviving author. For example, if the artist creates a work in August of 1996, and then dies in August of the year 2000, the copyright expires on December 31, 2050. Why December 31? This is the law. The copyright always expires on the last day of the fiftieth calendar year after the author's death.
If the artist creates a pseudonymous work, an anonymous work, or a work for hire in April of 1996, and then dies in 1998 without ever publishing the work, the copyright in the work expires in 2096, one hundred years from creation. The author's death is irrelevant in these cases. It is publication that affects the term. For instance, had he published in 1997, the copyright would expire on December 31, seventy five years after publication, in 2072.
When one or more of the authors of an anonymous or pseudonymous work identifies himself before the end of the copyright term, then the copyright in the work endures for his life of the surviving author whose identify has been disclosed plus seventy years. The author wishing to identify himself must contact the Copyright Office and register the work, or file any other appropriate document providing a public record of his identity.
When the term of copyright expires, the work enters the public domain and the prior owner no longer has any exclusive rights in the work.
Works created but not published before January 1, 1978:
Prior to January 1, 1978, only published works were protected by the copyright law. During this period, copyright protection was gained by placing the proper copyright notice on the work. The term of protection was 28 years from the date of first publication. The law at the time provided a right to renew for an additional 28 years. However, an unpublished work could claim no federal copyright protection. Nevertheless, it was protected, if at all, under state law provided it remained unpublished. On January 1, 1978, all copyright laws were consolidated under federal law, and the term of the work is determined based on its status as of that date.
The term of a work which was created but not published before January 1, 1978 is treated as if it was created on or after January 1, 1978. However, a minimum period of protection is provided: the copyright term will not expire prior to December 31, 2002, regardless of the year in which the author dies or the year in which the work was created. The copyright law at that time provided for an incentive to publish the work before the term of copyright expires. If this is done, the term of protection is extended to December 31, 2027.
Works created and published prior to January 1, 1978:
When a work was created and published with the proper copyright notice prior to January 1, 1978, the work may receive 75 years of protection from the date of first publication. However, affirmative action of the part of the copyright owner may be required to obtain the full term, depending on whether the work was in its first or its renewal term on January 1, 1978.
If the work was in its first term on January 1, 1978, then the term continues for the remainder of the first term. If a timely request to extend the term is made prior to the time that the first term expires, an additional 47 years of protection may be obtained (28 years plus 47 years equals seventy-five years total protection).
For example, in 1968, Warren sold a painting with the proper copyright notice to Jack, thus fulfilling the requirements of obtaining federal copyright protection for the work. The work then had copyright protection for a 28 year term, due to expire in 1996. In 1978, the new copyright law went into force, maintaining the original 28 year copyright term. In 1996, Warren had the option of renewing the copyright for an additional 47 years, until 2043, provided he filed an application for renewal in the Copyright Office on any date in the year the original term was set to expire.
If the copyrighted work was already in its renewal term as of January 1, 1978, then the term would have automatically been extended to 47 years (rather than just 28 additional years), resulting in a total term of seventy-five years from the date of first publication.
For example, if Warren had published his work of art by selling a new painting to Jack in 1935, the original copyright term was to expire in 1963. Provided that Warren filed an application for renewal in 1963, the work would be in its renewal term in 1978, thus automatically receiving an extended renewal term of 47 years of protection. Warren's copyright in the work would expire on December 31, 2010, 75 years from the first date of publication.
The changes in the copyright law in 1978 did not provide for the renewal of copyrights which had expired prior to January 1, 1978. If the work had entered the public domain prior to January 1, 1978, it stayed there and was not revived. Everyone is free to copy such works.
Duration of Moral Rights under the Visual Artists Rights Act
The rights of attribution and integrity are enforceable during the lifetime of the author.
APPENDIX D
TRANSFER OF COPYRIGHT
Contract for an Exhibition Loan
Permission Form for Use of Copyright material in a Book
Permission Form for Use of Copyright Material in Photographer's Book, Product, or Other
Property Release Form (for use when loaning works of art for display)
