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I wanted to start by saying thank you for all your responses to
my post. I handed in my research paper, and thought you might
like to have a copy of it for your own records. Most of the
information was from the US Office of Copyright web site, so I
trust it. I think this will most likely end this thread, but I
would still be curious to hear about any situation where someone
tried to take a case to court, and your results. Otherwise,
here's my paper, it's long, so if you don't feel like reading
this, that's fine :)
Kim Zercher
BFA Candidate
Tyler School of Art
Webster Dictionary defines copyright as the exclusive legal
right to reproduce, publish, and sell the matter and form (as of a
literary, musical, or artistic work).
Although this is correct, the word copyright itself has many
facets. In its simplest form, it is merely the right to not be
copied, however it can be much more than that. Copyright can be a
form of protection provided by the laws of the United States. The
primary purpose of copyright is to stimulate the creation and
dissemination of intellectual works, thus advancing the progress
of literature, science and art. It is important to recognize that
an artist has the right to not be copied immediately following the
creation of an original, individual expression; however
protecting this right can be more difficult if the copyright is
not registered with the U.S. Copyright Office. It is first
necessary to understand what copyright is, before trying to
understand its benefits. Copyright is a form of protection
provided by the laws of the United States to the authors of
original works of authorship, including literary, dramatic,
musical, artistic, and certain other intellectual works. This
protection is available to both published and unpublished works.
(Publication will be discussed in further detail later) The
owner of a copyright has exclusive rights to do and to authorize
others to reproduce the work in copies, prepare derivative works
based upon the original work, and distribute copies of the work
to the public by sale or other transfer of ownership. These rights
are upheld in a court of law, as it is illegal for anyone to
violate of any of the rights provided by the copyright law to the
owner of the copyright. The author, or artist, is protected by
copyright from the instance the work is created in a fixed form.
The copyright immediately becomes the property of the author who
created the work. Only the author, or those deriving their
rights through the author, can rightfully claim copyright. The
copyright remains the property of the author unless specified in
a written transfer of ownership. The copyright is not sold to a
consumer when the products is sold. Just because the ownership
of the piece of art is transferred, this does not mean that
ownership of the copyright also transferred. As an example,
ownership of a book does not give that individual the copyright.
The law states that a transfer of ownership of any object that is
considered a protected work does not in itself qualify as a
transfer of the copyright. The other stipulation in copyright
ownership is when creation of the work of art is done by an
employee. In the case of works made for hire, the employer, and
not the employee, is considered to be the author.
Work made for hire is defined as a work made by an employee
within the description of his/her employment, or a work
specifically ordered or commissioned for use as a contribution to
a collective work. A commission is only considered a work for
hire (where the author is the customer and not the artist) if
ownership of the copyright is clearly stated in a written
contract. The way in which copyright protection is secured is
frequently misunderstood. The copyright is secured immediately
after the work is created in a fixed form.
No publication or registration or other action in the Copyright
Office is required to secure copyright. The right is secured
automatically when the work is created as a material object from
which a work can be read or visually perceived either directly
or with the aid of a machine or device. It is important to
remember that a copyright is secured automatically upon creation.
The publication of the creation is considered to be the the
distribution of copies of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. The
offering to distribute copies to a group of persons for purposes
of further distribution, public performance, or public display
constitutes publication. A public performance or display of a
work does not of itself constitute publication. As stated
earlier, a work is protected by copyright even if it is
unpublished. However, as a basic rule, do not exhibit, display or
sell work without properly attaching a notification of copyright
to the object or image. The date of publication is important
because, publication of a work can affect the limitations on the
exclusive rights of the copyright owner that are set forth in the
copyright law, and the year of publication may determine the
duration of copyright protection for anonymous, pseudonymous
works and for works made for hire. Due to the numerous conditions
to date of publication, it is best to err on the side of caution
and apply the proper copyright information with the individual
creation from the date it was created. This way, later confusion
can be avoided. The notice of copyright is pertinent information
which accompanies an original creation. The use of a copyright
notice is no longer required under U. S. law, although it is
often beneficial. Use of the notice may be important because it
informs the public that the work is protected by copyright,
identifies the copyright owner, and shows the year of first
publication. The use of the copyright notice is the
responsibility of the copyright owner and does not require
advance permission from, or registration with, the Copyright
Office. The copyright notice should include three elements. 1.
The symbol ) (the letter C in a circle), or the word Copyright,
or the abbreviation Copr.; and 2. The year of first publication
of the work. The year date may be omitted where a pictorial,
graphic, or sculptural work, with accompanying textual matter is
reproduced in or on greeting cards, postcards, stationary,
jewelry, dolls, toys, or any useful articles; and 3. The name
of the owner of copyright in the work, or an abbreviation by
which the name can be recognized, or a generally know
alternative designation of the owner.
For jewelry and other works too small to house the information
required by the copyright notice, a tag can be firmly attached
to the piece with the required information. Notice of copyright
is also beneficial in cases where a copyright is infringed, and a
legal suit is filed. If the notice of copyright is visible, then
there is no way for the defendant to claim an innocent
infringement whereas, he had no knowledge of an infringement.
This is just one of the many ways copyright protection is
acquired. A copyright will protect the owner of the copyright for
a very specific amount of time. After this time expires, the
work is considered public, and the rights no longer apply. A work
that is created (fixed in tangible form for the first time) on
or after January 1, 1978, is automatically protected from the
moment of its creation and is ordinarily given a term enduring
for the author's life plus an additional 70 years after the
author's death. In the case of a joint work prepared by two or
more authors who did not work for hire, the term lasts for 70
years after the last surviving author's death. For works made for
hire, and for anonymous and pseudonymous works (unless the
author's identity is revealed in Copyright Office records), the
duration of copyright will be 95 years from publication or 120
years from creation, whichever is shorter.
Ownership of copyrights can be transferred from the author to
another individual, but not as a result of the transfer of the
ownership of the original creation. The transfer of exclusive
rights is not valid unless that transfer is in writing and signed
by the owner of the rights conveyed or such owner's duly
authorized agent. A copyright may also be conveyed by operation
of law and may be bequeathed by will or pass as personal property
by the applicable laws of intestate succession. Copyright is a
personal property right, and it is subject to the various state
laws and regulations that govern the ownership, inheritance, or
transfer of personal property as well as terms of contracts or
conduct of business. It is possible for the transfer of a
copyright to accompany the sale of an object if it is part of the
written agreement. As a result, when selling a work, it is
important to read all the contracts carefully to ensure that
transfer of the copyright is only part of the transaction if that
is what the parties intended. Copyright registration is a legal
formality intended to make a public record of the basic facts of a
particular copyright. It is important to make the distinction
that registration is not a condition of copyright protection. A
copyright can still be protected even if it is unregistered.
However, even though registration is not a requirement for
protection, the copyright law provides several incentives to
encourage copyright owners to register their copyrights. Among
these incentives are the following reasons to register a
copyright:
1. Registration establishes a public record of the copyright
claim.
2. Before an infringement suit may be filed in court,
registration is necessary for works of U. S. origin.
3. If made before or within 5 years of publication,
registration will establish prima facie evidence in court of the
validity of the copyright and of the facts stated in the
certificate.
4. If registration is made within 3 months after publication of
the work or prior to an infringement of the work, statutory
damages and attorney's fees will be available to the copyright
owner in court actions. Otherwise, only an award of actual
damages and profits is available to the copyright owner.
5. Registration allows the owner of the copyright to record the
registration with the U. S. Customs Service for protection against
the importation of infringing copies. For additional information,
request Publication No. 563 from: Commissioner of Customs, ATTN:
IPR Branch, U. S. Customs Service, 1300 Pennsylvania Avenue, N.
W., Washington, DC 20229. The significance of these incentives
are especially important if protection of the copyright is
attempted. Protecting a copyright is much easier if it has been
registered. The first reason it is easier if that if the
copyright is not registered, the author (or owner of the
copyright) can not take the violator to court to settle the
matter of copyright infringement. The earlier the copyright is
registered, the more beneficial it can be to the owner of the
copyright in case of a violation of this right. Registration
may be made at any time within the life of the copyright. A
copyright may be registered of an unpublished work, and it is not
necessary make a another registration of the same work after it
has been published. It is possible, if the author would choose,
to make another registration of the copyright of the published
edition of the work.
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