With the hot trends of collage and altered art, copyright law now has double meaning for artists. How to protect your own work, and when it is permissible to use other people’s work within your own? I need tell you that I am an attorney in the State of California, but I have put my license on inactive status because I do not currently practice. Therefore, the information in this article is provided to you artist to artist based upon my research.
Copyright law has changed many times over the years, and I would have to write an entire book to cover all the changes. This article only addresses modern law as it affects us today.
DISPELLING A FEW MYTHS
Because copyright law can be confusing, I’d like to address a few common myths up front.
Please forget any nonsense you have ever heard about “if I change it 10 %” or “if I change 3 things”, or if I’m only using a small part of someone else’s work, it is no longer copyrighted. Those are myths. If the work is in any way recognizable as the work of another artist and you use it without permission, you have created a derivative work of art, which is an infringement on the other artist’s work.
Another myth is that if you don’t sell the work, or you create it for charity, you aren’t infringing on another artist’s copyright because you aren’t’ making any money. That is not true. The law is not based on how much money YOU make, but on how much money the artist might potentially lose had they been able to charge you for your use from licensing or other fees.
Finally, is the myth of “fair use” as a protection for collage or derivative use. Fair Use is a doctrine, which defines certain reasonable uses of copyrighted material, and protects such uses from legal action. The doctrine defines specific categories for us, including: criticism, comment, news reporting, teaching, scholarship, and research. You will notice that art is not mentioned. For example, one of the purposes of this doctrine is to allow articles such as this one to quote books, articles, or other expert sources to as resources for their story.
Recently, musical sampling in rap and electronic music has been the source of numerous lawsuits. In those cases, the courts have held that musical sampling is not considered fair use. Many rap artists landed in court because they believed that a few notes, no matter how recognizable, could be taken from existing recorded music and used in their new compositions. Now musicians get permission on all samples, avoiding the costly mistakes of their predecessors.
WHO OWNS THE COPYRIGHT?
The copyright is owned by the creator unless it is “work for hire”. As a result, it is important that you read your contracts – and if possible have an attorney familiar with “intellectual property law” look them over for you. In a “work for hire” situation, all art you create is considered part of your job duties and therefore the property of the company for which you work. Unless your contract states otherwise, the employer or company hiring you to do the work would own the copyright in that situation.
DURATION OF COPYRIGHT
A work is copyrightable if it is in tangible form. Tangible form means that is more than just an idea in your head, or notes about an idea; that you have actually created a design or writing that others can see.
Before 1978, the work was copyrighted when it was published if it included a copyright notice (e.g. the copyright © symbol with the date and the creator’s name). If they failed to do so, the work is in the public domain. A work is “published” if it was made available to the public by sale or through other sources. There were several changes in the registration period after 1978, but in 1998, Congress made changes that allowed material created before 1978 to be protected for a total of 95 years if all the extensions were filed.
It is difficult to determine whether a pre-1978 work was copyrighted without a search at the Copyright Office records in Washington D.C. The Copyright office will search for you for an hourly fee. As a rule of thumb, I suggest playing it safe and assuming that all material was copyrighted for its full legal duration of 95 years.
It is not possible to renew a copyright forever, however, a new work, for example a recent photographs of a public domain work (such as those postcards sold in museum stores) are copyrighted as new works.
MODERN WORKS
In 1998, Congress changed the law to allow works to be copyrighted for the life of the creator plus 70 years. That means, 70 years after the day the creator dies, the copyright expires. If there is more than one creator, the copyright expires 70 years after the last surviving creator’s death. If the material was created under a “work for hire” agreement, the copyright is owned by the company that hired the work (unless otherwise specified by contract) and lasts 95 years from first publication, or 120 years from creation, whichever expires first.
COPYRIGHT REGISTRATION / PROTECTION
Since a change in the law in 1978, a copyright for your work comes into existence the moment it is actually created. However, for maximum protection under the law, most licensing attorneys will suggest registering your work with the Copyright Office. (You can get forms and information at the website at http://www.copyright.gov/).
Registering your work does give you additional protection, but at an average of $30.00 per piece (you can save money by registering projects in groups), it can be an expensive proposition for many artists. For an excellent source of information, go to the US Copyright office Frequently Asked Questions section at http://www.copyright.gov/faq.html.
It is important to know that even though Copyright law is both Federal and International, it is interpreted by the state in which you live. That means that there as small differences in each state as to the way the laws are applied, and if you have a question, you should contact an attorney familiar with intellectual property law in your jurisdiction.