Ideas and Expressions

Copyright protects only the expression of ideas, not the ideas themselves. My painting of a New England seascape at dawn enjoys a copyright, as it is my expression of the subject matter. My idea to paint a particular view, at a certain time and atmospheric conditions, is not subject to copyright. Perhaps the best example of this dichotomy is a photograph. Two photographers may photograph the identical scene, from the same vantage point and under virtually identical conditions. Each has a copyright in their own photograph. Neither has a claim of exclusivity.

We all benefit by this. Monet and Renoir worked side by side in France, each producing a picture of the same scene, same idea but different expression.

Monet

Renoir

Need for Orginality

To be entitled to copyright protection, a work must have some minimum amount of originality. Quality is not an issue. The copyright system does not function as a critic. Tastes change with the times. What was once unappreciated, or even scorned, is now in vogue. Van Gogh sold but a single painting during his lifetime. His paintings today command tens of millions of dollars.

Creation

Copyright protection arises at the moment of creation, the instant the artist fixes his or her work in a tangible medium of expression. Just as soon as the paintbrush is set down, or the sculptor stores his chisel, a copyright is born.

Duration

Generally (for works created after 1978), an artist enjoys copyright protection for his or her life, plus 70 years. For joint works, a work created by two or more artists, who intend to create a unified work, the term is the life of the surviving artist, plus 70 years. The copyright, in works for hire, discussed below, is the shorter of 95 years, from first publication, or 120 years from creation.

Exclusive Rights

A copyright is a bundle of rights. Those rights are the exclusive right to:

1. Reproduce the work;
2. Sell and distribute the work;
3. Adapt and prepare derivative works;
4. Perform the work publicly;
5. Display the work publicly.

For the artist, the right to reproduce the work includes the exclusive right to make reproductions, whether limited editions or posters. No one can use a copyrighted work of art without the permission of the copyright holder.

Copyright law insures that the copyright holder has the exclusive right to sell and distribute the work. This does not prevent someone who has acquired a work of art, from selling it, only from making copies and selling those copies.

The bundle of rights may be broken up and sold, assigned or licensed separately. A painter of horses may assign the right to make a limited number of reproductions to a fine art press. At the same time, he or she may license the right to reproduce the work in porcelain to a company like The Bradford Exchange.

The owner of a copyrighted painting does not have the right to make copies of it, unless he owns the copyright and has a license from the copyright owner.

Who Owns the Copyright?

Generally, the owner of the copyright in work is the person who created the work. Unless there is a specific written assignment of the copyright, the purchaser of such a work does not acquire the copyright. In everyday life, this point is brought home by the unwillingness of photo shops to copy school portraits, or other professional pictures. The parents own the print, but the photographer or studio owns the copyright and the exclusive right to reproduce the pictures.

There are two exceptions to the general rule for works for hire. An employee, who in the course of his employment creates a work of art, is not the owner of the copyright in that work. His employer is. The other "work for hire" exception requires a written agreement providing for a work for hire and requiring the work to fall within one of the following areas:

1. Contributions to collective work, like encyclopedias;
2. Parts of audio-visual works, such as movies;
3. Translations;
4. Supplementary works, such as forewords and prologues;
5. Compilations;
6. Instructional texts;
7. Tests and answers;
8. Atlases.

Whether or not someone is an employee is determined by traditional principles of agency. The U.S. Supreme Court, in the case of Community for Creative Non-Violence v. Reid, 490 U.S. 730, set forth 13 factors to be considered. They are:

1. The hiring party's right to control the manner and means by which the product is accomplished;
2. The skill required;
3. Sources of tools and materials;
4. Location of work (i.e. where it was performed);
5. Duration of the relationship between the parties;
6. Whether the hiring party has the right to assign additional projects to the hired party;
7. The extent of the hired party's discretion over when to work;
8. Method of payment;
9. The hired party's role in hiring and paying assistants;
10. Whether the work is part of the regular business of the hiring party;
11. Whether the hiring party is in business;
12. The provision of employee benefits to the hired party;
13. Tax treatment of the relationship.

No one factor is determinative.

Because of the uncertainty of the ownership of a copyright, an artist may be asked to assign the copyright. This is not something that should be undertaken lightly. If, for instance, the purchaser of a painting wants to use it for the cover of a catalog or annual report, a license permitting such use would be preferable to a general assignment of the copyright.

Registration

A copyright in a painting, print, sculpture or other work of fine art can be registered with the U.S. Copyright Office. Forms are available at the copyright website (www.copyright.gov), as is a step-by-step guide. The filing fee is currently $30.

Registration has a number of benefits, including the following:

1. It establishes a public record to the claim.
2. It is necessary to prosecute an infringement action in the Courts.
3. It is necessary to recover statutory damages. Statutory damages are available for infringement of works registered within three months of publication. Publication, in the 1976 Copyright Act, refers to the offering of, or distribution of multiple copies. It is important to register fine art prints within the three month period to be entitled to recover statutory damages. It would not be necessary to register a single painting. Statutory damages can range, from not less than $200, to a maximum of $150,000, depending on the nature of the infringement.