COLORADO LAWYERS FOR THE ARTS

and VSA ARTS OF COLORADO

PRESENT THE

BUSINESS OF ART CONFERENCE

February 19, 2005

SPONSORED WITH FUNDING

from the

SCIENTIFIC & CULTURAL FACILITIES DISTRICT

 Copyright Basics
and
Debunking Copyright Myths
 Sources of Copyright Protection

United States Constitution

The Congress shall have Power…

To promote the Progress of Science and useful Arts, by

securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries….”

Art. I, § 8, cl. 8.
Copyright Act of 1976:
“Copyright protection subsists . . . in original works of authorship
fixed in any tangible medium of expression . . . from which they can
be perceived, reproduced, or otherwise communicated. . . .”

17 U.S.C. § 102(a)
“Works of authorship include the following categories:
(1) literary works;
(2) musical works;
(3) dramatic works;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.”

17 U.S.C. § 102(a)
Certain material is not copyrightable:

“In no case does copyright protection for an original work of

authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which is it described, explained, illustrated, or embodied in such
work.”

17 U.S.C. § 102
 Rights Provided by Copyright Act

“The owner of copyright . . . has the exclusive rights to do and to authorize any
of the following:
(1) to reproduce the copyrighted work;
(2) to prepare derivative works;
(3) to distribute copies;
(4) to perform the copyrighted work publicly;
(5) to display the copyrighted work publicly;
(6) to perform a sound recording by digital audio transmission.”

17 U.S.C. § 106
 Myth No. 1:

I must register my work with the Copyright Office to

have “a copyright” in the work.
 Debunking Myth No. 1

• Copyright rights “subsist” upon fixation.

• Copyright registration provides a presumption of ownership of copyright

rights.

• Copyright registration is required only for the following:

– To bring a copyright infringement suit;
– To obtain statutory damages;
– To recover attorney’s fees.
 Myth No. 2:

If there is no copyright notice on a work, I can’t be

sued for copyright infringement because the work is
not protected by copyright law.
 Debunking Myth No. 2:

• Under the Berne Convention Implementation Act of 1988, no

formalities are required for the creation of copyright rights.

• Placement of a copyright notice on a work denies an infringer

the right to raise an “innocent infringement” defense.

• A copyright notice should be in the following form:

“© Faegre & Benson LLP, 2004”
 Myth No. 3:

Mailing a letter to myself with my work inside, and

keeping the envelope sealed, is just as good as
submitting the work for copyright registration.
 Debunking Myth No. 3:

• Courts do not recognize the “poor man’s copyright.”

• The technique is easy to manipulate, and easy to rebut.

• Copyright registration costs only $35, and the forms are available on the Web at www.copyright.gov
 Myth No. 4

I can “copyright” the title to my work.

Debunking Myth No. 4:
 Debunking Myth No. 4:

• Phrases, slogans, and titles -- no matter how novel or creative -- are

not registrable under the Copyright Act.

• The title of a single book or other work may not be registered as a

trademark.

• The title of a series of books or other works can, however, in certain

circumstances, be registered as a trademark under the Lanham Act.
Debunking Myth No. 4:
 Myth No. 5:

If I call a piece that has been created by someone else “a work

made for hire,” then I own the copyright
 Debunking Myth No. 5:

The “work made for hire” doctrine applies only to the following:
• A work prepared by an employee within the scope of his/her
employment; or
• A specially commissioned work that is:
» a contribution to a collective work,
» a part of a motion picture,
» a sound recording,
» an instructional text,
» a test or answers to a test,
» an atlas
 Debunking Myth No. 5:

• The definition of a “work made for hire” is exclusive.

• If a work does not fit within the specific categories of the

definition of a “work made for hire,” the author -- and not the
commissioner of the work -- owns all copyright rights.

• If a work does not qualify as a “work made for hire,” the

copyright rights in the work may be transferred only by a signed,
written agreement.
 Myth No. 6:

If I own the copyright for a photograph of a

celebrity, I can use the photograph however
I want.
 Debunking Myth No. 6:

Three Stooges,

by Gary Saderup
 Debunking Myth No. 6:

The Masters of Augusta,

by Rick Rush
 Debunking Myth No. 6:

• Copyright rights are separate from the right of publicity.

• Every person, not just celebrities, controls the right to the

exploitation of his/her likeness.

• A copyright permission that does not explicitly also release

the subject’s publicity rights may not be effective if the
copyright owner wishes to exploit the commercial value of
the work.
 Myth No. 7:

If I own the negative of a photograph that someone

else took, I can make as many copies as I want.

Or, if I own a piece of sculpture, I can sell as many

copies of the sculpture as I want.
 Debunking Myth No. 7:

Copyright Act of 1976:

“Ownership of a copyright . . . is distinct from ownership of any

material object in which the work is embodied .

“Transfer of ownership of any material object . . . does not of itself

convey any rights in the copyrighted work embodied in the object.”

17 U.S.C. § 202
 Myth No. 8:

If I have commissioned a sculpture or a

mural, I can take the piece down whenever I
want.
 Debunking Myth No. 8:
The Visual Artists Rights Act provides that the authors of
works of visual arts have the following additional rights:
• The right of attribution,
• The right to control attribution to a distorted or
mutilated version of the work,
• The right to prevent intentional distortion, mutilation,
or other modification of the work if such alterations
would be prejudicial to the author’s honor or
reputation.
• The right to prevent destruction of a work of
recognized stature.
17 U.S.C. § 106A(a)
 Myth No. 9:

If I use less than ___ (30%, 30 seconds, 30 words,

etc.) of someone else’s work, I can’t be liable for
copyright infringement.
 Debunking Myth No. 9:

The “Fair Use” Defense:

“The fair use of a copyrighted work . . . for purposes such

as criticism, comment, news reporting, teaching,
scholarship, or research, is not an infringement of
copyright.”

17 U.S.C. § 107
Debunking Myth No. 9:

Hart v. Warner Bros.:

 Debunking Myth No. 9:
Fair Use factors:
• The purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes;

• The nature of the copyrighted work;

• The amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and

• The effect of the use on the potential market for or

value of the copyrighted work.
 Myth No. 10:

If my work is a “parody” of someone else’s

work, then it will always be protected by
the “fair use” defense.
Debunking Myth No. 10:

Dr. Seuss Enterprises v. Penguin Books:

Debunking Myth No. 10:
Liebowitz v. Paramount
Pictures:
 Debunking Myth No. 10:

Mattel Corp. v. Forsythe:

Malted Barbie

Blender Buddies
 Debunking Myth No. 10:

• A work of parody may constitute a “fair use” of

the underlying copyrighted material only if it uses
only so much of the original work as is necessary
to suggest, rather than copy, the original work.

• A work of parody is protected only if it is

“transformative.”
 Myth No. 11:

If a song is in the public domain, I can use

it however I want.
 Debunking Myth No. 11:

• Copyright law permits the protection of multiple layers of

creativity over a work whose underlying text is in the
public domain:

• Kenneth Brannaugh’s staging of “Hamlet”

• Jon William’s arrangement of “The 1812 Overture”

 Myth No. 12:

If I copy something from the Internet, I

don’t have to worry about copyright
infringement.
 Debunking Myth No. 12:

• Copyright law applies to the Internet.

• The Internet is nothing more than “a old wine in a new

bottle.”

• A copyright owner need not sue every infringer.

• The fact that others infringe on the Internet is no defense if

you have infringed.