The following are notes taken from a webinar by Robert Pimm through the organization California Lawyers for the Arts.
What is Copyright?
Copyright falls under intellectual property law, along with:
Copyright is really a bundle of rights, including the rights to:
Copyright is divisible by time, location and language.
Rights can be exclusive or non-exclusive, and may be divided in a variety of ways.
Often, someone will try to word a contract to obtain all the rights, but you do not have to give them everything, and it is usually not advantageous to the artist to do so.
What is protected?
Original works of authorship
Works fixed in tangeable form
Published and unpublished works
For example, the following:
Pantomimes and Choreograph
Pictorial, Graphic and Sculptural Works
Motion Picture and Audio Visual Works
Copyright protection attaches from the moment a work is created.
What is not protected?
Ideas, titles, names, short phrases, ornamentation, color, variations in type, procedures, methods, systems, processes, principles, discoveries, devices, works consisting of common info such as calendars, height-weight charts, rulers and tape measures.
Who can claim copyright?
Authors of original work: joint-authors are co-owners of the rights in equal shares, which is frequently a problem when one person is considered the “lead author”
Employers of a “work made for hire”
A work made for hire is:
- a work produced by an employee within the scope of his or her employment
- a work specifically ordered or commissioned for use as:
- contribution to a collective work
- part of a motion picture/audio-visual work
- supplementary work
- an intro text
- answer material for a test
- an atlas
*must be in written agreement form and fit the above criterion. If not within the above criterion, must be an expressly written contract stating that the creator holds no rights.
How long does a copyright last?
Works created on or after Jan 1, 1978: Authors life+70 years
“Works for hire” or “anonymous/psuedonymous works” created on or after Jan 1, 1978: 95 years from publication or 120 years from creation.
upon expiration of copyright, works fall into Public Domain (and can be used by anyone).
What is Public Domain?
Public domain refers to works that were published prior to copyright laws, forfeited claims (a person can opt to gift a work into the public domain), works whose intellectual property rights have been lost, expired or never acquired due to false claims, failing to adhere to the strict guidelines, etc. These works can be used by anyone for any purpose without copyright infringement.
How to Copyright your work:
(You need to register for copyright within 90 days of publishing or presenting (ideally, 90 days from finishing)- this is important in case of a copyright infringement suit)
- check to make sure there is not already a work with the same title under copyright
- you can file by mail or electronically to the Copyright office of the Library of Congress http://www.copyright.gov/
the fee for e-filing is $35, while filing with paper forms is $65
- fill out the appropriate form for your work
- send in a copy of your work (by mail if filing paper forms) or submit a properly formatted file to the electronic copyright office
Why Register for Coypyright/Why is prompt registration important?
This is important as it is required if you need to file a copyright infringement suit. Without it, you can only claim actual damages, not statutory damages (up to $150,000 if proven willful). This means you may win the money that was aquired through the illegal use of your works but not the money to cover your lawyers’ fees.
What can you do if someone infringes on your copyright?
- Send a cease and desist letter- an attorney will generally not feel comfortable using his/her letterhead for this unless you are quite serious about following through with litigation if necessary.
- Negotiate a licensing agreement- do this if you are ok with them using the work, but want recognition of ownership and/or a share of the profits
- Arts Arbitration & Mediation Services- good if you are adverse to traditional methods of dispute. Choose a mediator who specializes in your field- this is important as your claim is context sensitive!
- Litigation- know that the statute of limitations is 3 years. This means you have 3 years to discover and deal with the infringement.
How can you use someone Else’s copyright?
Essentially, this involves running a business-risk analysis to determine whether the benefits of using the copyrighted materials vs. the risk of getting caught. This is a very “it’s easier to ask for forgiveness than ask for permission approach” and some people get away with it due to the 3 year statute of limitations, or wait to negotiate a license agreement if they get caught. As you may suspect, this is ethically questionable territory.
You can search to see if a work falls under copyright on the US Copyright Office website
Fair Use Defense for Copyright Infringement (see below)
Negotiate a License Agreement
What is the Fair Use Defense?
Purpose and Character:
Why are you using this work? Is it for transformative purposes? Educational, scientific, historical or dissemination of knowledge?
Nature of the Copyrighted Work
* Amount and Sustainability: what percentage of the work can be duplicated before a copyright is infringed?
this is a common source of misunderstanding and debate. You may hear a lot of numbers being thrown out. For example, many might say if 30% or more of a work is copied, this is copyright infringement. The truth is, there is no hard and fast amount, and copyright infringement is determined on a case-by-case basis in relation to the work and the situation.