What Every Artist Should Know About Copyright

Q. How can I get copyright protection for my artwork?

A. Copyright was so important to the founders of this nation that the Constitution contains a provision enabling Congress to enact a copyright law. The First Congress did so, and copyright has been a part of this country’s laws ever since. Most artists believe they have some knowledge of copyright laws as applied to art. However, from time to time, the laws have been revised and updated to reflect new technology, and the information that is passed from person to person is often inaccurate.

The law in effect as of the date of this writing is the Copyright Revision Act of 1976, which became effective on January 1, 1978. Since then, there have been a number of amendments and revisions. The current copyright statute is quite user-friendly, and Congress has relaxed many of the formal requirements that were part of the earlier statutes. Under the current law, all you need for a copyright is an original work, involving some minimal degree of creativity, embodied in some tangible medium of expression. The requirements appear simple, yet they can be misunderstood. Since the law requires the work to be in a tangible form for it to be protected by copyright, you can’t protect mere ideas that have not been implemented. Words, symbols and logos used to identify products or services are protectable under the trademark laws—not under the copyright statute.

Generally speaking, copyright protection extends to creative work such as art, music, literature and computer software. Creative work includes paintings, drawings, sketches, photographs, collages and sculpture. The protected work need not be unique. That is to say, if two artists by coincidence create works that are virtually identical to each other without copying, each will be entitled to copyright protection if the other requirements of the statute are met. This is true even though the works may be substantially similar to one another.

The law doesn’t require you to use a copyright notice, but it’s a good idea to do so, since the statute provides that anyone who copies another’s protected work—believing in good faith that the work is not protected by copyright—is an innocent infringer. Innocent infringers may not be held liable for damages and may even be permitted to continue copying, despite the fact that the work is technically protected by copyright. To defeat the defense of innocent infringement, you should place the appropriate copyright notice on the protected work. The notice is simple; it’s either the word “copyright,” its abbreviation “copyr.,” or the international symbol “©,” plus the copyright owner’s name and the year in which the work was first published or exhibited.

By law, exclusive rights are granted to the copyright owner, which means that nobody else can legally exercise or use those rights without permission, although there are some public policy exceptions to this rule, such as, for example, the spontaneous use of a copyrighted work by a teacher in a nonprofit educational institution. Regrettably, the balancing of rights as between the copyright owner and other individuals generates a great deal of confusion. The copyright statute prevents others from making a substantial copy of a protected work—whether they’re selling their art, entering it in competitions or perfecting their techniques—but there is no precise definition of substantial copy. Cases have held that creating a three-dimensional work from a two-dimensional drawing is an infringement as long as the unauthorized three-dimensional copy is substantially similar to the two-dimensional drawing.

The unauthorized work need not be a substantial copy of the entire original work in order for there to be an infringement. In one case, the court held that an infringement was proved when a portion of a repetitive pattern was copied without permission. Even taking a piece of a protected work and using it as part of a collage has been held to be an infringement.

While the law is clear that no one can make a substantial copy of another’s protected work, the application of this simple rule is difficult. If you wish to use the creative works of others for mere inspiration, you certainly may do so, but the use can go no further than that. There are statements to the effect that changing a work by 10 percent, 20 percent or some other specified percentage will avoid violation of the copyright statute. This is untrue since there are no cases or statutes providing any percentage that can be considered safe; rather, as noted previously, the law uses the substantial similarity test.

As to the meaning of this test, one of the leading copyright jurists in the United States, Judge Learned Hand, stated that, in his opinion, if one compares the protected original work to the allegedly infringing work and the comparison discloses that the works are substantially similar, then there is an infringement. This is a very subjective test, and those artists who copy the works of others run a great risk that a judge could conclude that the line between inspiration and copying has been crossed. Therefore, take great care when using the works of others for ideas. When in doubt, you should consult with an experienced copyright lawyer.

What about public domain? The copyright laws provide that the Congress shall grant a creative person copyright protection for a limited period, and at the end of that time, the work shall become part of the public domain and may be freely copied. So it’s always important when you copy works of others to determine if those works are still protected.

The period of protection for copyrighted works created on or after January 1, 1978, is the life of the creative person plus 70 years if the work was created by an identified human being. Works created anonymously, under a pseudonym or for a business entity, are protected for the shorter of 120 years from creation or 95 years from first publication. Copyrights that predate January 1, 1978, generally have a period of protection of 95 years, though you should see an art attorney if you need to calculate the precise expiration date of such a work. If a work is no longer protected, then it is in the public domain, and there is no prohibition on copying it.

As you can see, U.S. copyright law provides creative people like you with the ability to control the reproduction of their work and reap economic rewards from their creativity, while allowing for punitive measures against individuals who obtain more than inspiration from the works of others. It’s important to note that even subliminal or unintentional copying has been held actionable. It is, therefore, essential for you to understand the copyright laws and avoid violating them. When in doubt, you should consult with an expert who may be able to assist you in avoiding liability.

Note: Copyright laws are subject to change. This article was originally published in the March 2007 issue of  The Artist’s Magazine and reflects the laws in effect at the time the article was written.

 

Leonard DuBoff was a law professor for more than 24 years and has testified in Congress in support of laws for creative people, including the Visual Artists Rights Act of 1990. A practicing attorney and pioneer in the field of art law, he has also assisted in drafting numerous states’ art laws and has authored more than 20 books. In addition, he writes regular columns for such magazines as Communication Arts, Interface and Glass Craftsman. For further information, visit www.dubofflaw.com.


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