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Copyrights in the Arts

What Is Copyright?

Definition:  Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) 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 This protection is available to both published and unpublished works.

The Constitution:  Article 1, Section 8, Clause 8 gives Congress the power “To Promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

What Is Copyrightable?

  • Literary works (including computer software)
  • Musical works and any accompanying words
  • Dramatic works and any accompanying music
  • Pantomimes and choreographic works
  • Pictorial, graphic and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings
  • Architectural works
  • List is open to new media

What Is Not Copyrightable?

Ideas

  • Only the expression of the idea is protected, not the idea itself
  • Processes and discoveries are not afforded copyright protection, but may be eligible for patent protection

Facts and Laws of Nature

  • The selection, coordination and organization of facts may be protected as a whole, however (e.g. history or textbook)

Scenes a Faire

  • Stock characters or storylines; something indispensable to a setting or situation (e.g., star-crossed lovers)

The Bundle of Rights

As the owner of a copyright you have the rights to do any of the following or let others do any of the following:

  • Make copies of your work
  • Distribute copies of your work
  • Perform your work (for symphonies, shows, film etc.)
  • Perform digital audio broadcasting
  • Display your work publicly (visual)
  • Make derivative works

Derivative Works

Definition:  a work that recasts, transforms or adapts one or more preexisting works.  Copyright covers only the new elements added by the author of the derivative works.  

Duration of Copyright Term

Copyright protection comes into being from the moment a work is fixed in a tangible form of expression.  It lasts:

  • Lifetime of the author plus 70 years
  • For a joint work: 70 years after the last surviving author’s death
  • For works created anonymously or with a pseudonym: 95 years from creation or 75 years from publication, whichever comes sooner
  • For works made for hire: 95 years from publication or 120 years from the date of creation, whichever expires first
  • After the term is up, the work passes into the public domain

Who Owns the Copyright?

  • The author of the work
  • Work for hire –  The employer, not the employee, is considered the author
  • Joint work - Authors are co-owners of the copyright of the work, unless there is an agreement to the contrary
  • Copyrights can be transferred to another person or entity, but there must be a written agreement- called an assignment

Joint Works

Joint Works are created by multiple authors, each with an equal share of ownership

A. Intent to create a joint work, a unified whole

  • Intent at time of creation
  • Intent to merge contributions into inseparable whole, of which they’d be considered joint authors

B. Independently copyrightable contributions (e.g. song & lyrics)

Effects of a joint work:

  • Each author is considered to have 100% ownership interest (unless otherwise contracted)
  • Each author can exploit separately (but must account to others) 
  • Joint Author cannot exclusively license or assign the copyright without other authors’ permission

When Do I Have Copyright Protection?

  • As soon as the work is in a fixed form, it is copyrighted whether or not it is registered or published
  • Neither registration nor publication is required
  • However, there are Benefits of Registration:
    • Allows copyright holder to sue infringers
    • In court, registration is prima facie evidence of authorship
    • Allows recovery of attorney’s fees and statutory damages

License Vs. Assignment

  • License: An express, limited permission given by a copyright holder allowing another to use one or more of the bundle of rights
  • Assignment:  A permanent transfer of copyrights to another person or entity.  An assignment must be made in a written document that is signed

How to Register a Copyright

  • Fill out the form PA (performing arts) for works of performing art (music, drama, choreography) http://www.copyright.gov
  • Can be completed online for $35 or you can send the form, two non-returnable copies of the work, and $45 to the US Copyright Office
  • Postmark date is official date of registration (must be registered before infringement occurs to get statutory protection)

What Do TM, ® and © Mean?

  • Use ® with trademarks for which a registration has been issued
  • Use ™ or SM with trademarks/service marks that are not yet registered
  • Use © to give notice of date of publication of copyrighted work - can help get damages in copyright infringement action

Infringement

The unauthorized use of copyrighted materials

  • To prove a violation:
    • Must have ownership of copyright
    • Must prove copying of original work
  • Access
  • Substantial similarity

Protecting Choreography

A live performance in itself is not copyrightable.

The work must be “fixed in a tangible medium of expression.” For dance, this means:

  • Film or video recordings
  • Notation

What works are not protected by copyright?

  • Ideas
  • Short dance “phrases”
  • Dance steps
  • Typically, a set or costume design is not copyrightable, unless it constitutes a pictorial, graphic or sculptural work

Works for Hire

Definition under Copyright Act 

Two Categories:

  • A work prepared by an employee within the scope of his or her employment
  • A work specially ordered or commissioned. If the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire

Who is the author of a Work for Hire? The employer or person who commissioned the work.

Who owns the copyright of a Work for Hire? The employer or person who commissioned the work.

Factors that characterize an “employer-employee” relationship:

  • Control by the employer over the work: the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work
  • Control by employer over the employee: the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/ or has the right to hire the employee’s assistants
  • Status and conduct of employer: the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment

Defenses to Infringement

First Sale Doctrine:

  • Once the copyright owner sells a copy of a work, the owner of that copy does not have to seek permission of the copyright owner to sell or otherwise dispose of that copy
  • Ownership of the material object is distinct from ownership of the copyright in the material 
  • The copyright owner still retains ownership of the copyright and can prevent buyers from making an unauthorized use of the work (i.e., a derivative work)

Examples of Fair Use:

  • Scholarship or research
  • News reporting (A newspaper printing portions of a work for a news report)
  • Educational purposes (A teacher using a limited amount of copies for educational purposes)
  • Criticism and comment (A parody)

Fair Use Test: When determining whether a use was a fair use, the court will look at the following factors:

  • Purpose and character of use
  • Nature of the copyrighted work
  • Amount and substantiality of portion used
  • Effect on the commercial market

How Do I Find the Author to Get Permission to Use?

  • Find and contact the author
    • Find and contact the author directly through related materials
    • Search copyright registrations on US copyright website (www.copyright.gov)
  • Contact the publisher or owner of the work
  • Google, Google, Google!

Determining if a Work Is in the Public Domain

  • Current methods for calculating copyright are not the same as used in the past
  • With each update of the law the method has changed, so when a work was created determines what test will govern
  • Best bet: 

Helpful Resources

*This information was pulled from a presentation made by the Volunteers Lawyers for the Arts

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