Arts Law class #3 Notes
5/21
Arts Law Class 3
Intellectual Property Law
All intellectual property comes form one sentence in the Constitution. "Congress shall . . . ." but it doesn't say HOW congress shall do it.
COPYRIGHT
right to control copies (just like it says!) includes 5 basic rights
1. Right to make copies (i.e. photocopies)
2. Right to control derivative copies
3. Right to distribute those copies
4. Right to perform (music or choreography)
5. Right to display (visual art)
WHAT IS COPYRIGHT -ABLE? HOW DO YOU OBTAIN?
You can't copyright ideas / facts / history / data - no one owns that stuff - it's public domain
But an expression of ideas / facts/ history / data IS copyright-able
Doctrine of Merger - if there's only one way to express an idea - on one person can control that form of expression.
Two rules of copyright:
1. It must be put into fixed format (improv. Has no copyright)
2. Must be original to yourself
Work created with other (collaboration) - - courts are "loathe" to figure allocations. If you can't / don't they won't either. Each "author" has full rights / ownership with the other
* Length of copyright is life + 70 years if a person holds rights
* If the "creator" is a business / pseudonym then it's 120 years after creation or 95 years from publication (Lots of things are created but never published)
Publication is defined as "transfer to public"
IN 1978 a term of life + 50 years was established, before that it was 28 years from creation with the option to renew it for another 28 years. States had common laws and federal juristration - - it was a mess — so congress put it all under federal juristction - - and ALSO changed the rules on how onto copyright. One must have a (c) on each copy when published AND had to register. If you didn't do both you could loose copyright (but if there was a mistake, you have five years to correct it!)
Anything created before ‘78 was unknown which set of rules it fell under (pre ‘78 rules or post ‘78 rules)
So if someone in ‘30's created something and failed to renew it was in the public domain - - works created between ‘64 - ‘78 were allowed for "step up" plan and didn't have to renew — (so if you want to use something made between ‘64 -'78 you'll have to research .
One can research copyrights by contacting (and paying)library of congress to search records OR by hiring a private search engine to do it.
Remember ownership of copyright is separate from ownership of object.
Obligation for protecting copyright Rights is up to holder (if there is an agregious violation you can petition state to bring chargers - - or copyright owner can just let it go)
REGISTRATION
Not required anymore - but it's valuable
1. Evidence (remember copyright have no requirements of uniqueness — 2 people can create the same thing independent of each other!)
2. If there is an infringement and you have a registration = you can get punitive damages
3. (Most important!) If you have before / 2 month with in creation - defendant must pay legal feels (plus actual damages (lost income to you) and turn over their profits
This means legally things go quicker (Absolut example 3 days!!!)
Average cost of copyright infringement is $72,000 for each party
FAIR USE EXEMPTIONS AND CRITERIA
Est. by statues and the courts
Need rights protected as an incentive to create BUT there's a need for society and people to have usage — to study and talk about creations. Those interests can clash
When is a use allowable for free without consent?
Depends on 4 factors
1. The nature of the work you want to copy.
ex: use someone else's song - - what is the nature - (a commercial jingle vs. Private lullaby) (sacred music vs. Purely commercial) Things that are very private are more difficult to argue as fair use. Private letters get a high degree of protection compared to published work. (Ex: of letters in library!!)
2. Nature of the copy - what are you using it for. Commercial purpose is more difficult to agure than private use.
3. How much of the work (relative to the whole) There is no magical percentage — determined on a case by case basis. Key element might be only 1% but it could be too much! The importance compare to percentage. This allows for the fair use of quotes / excerpts and music sampling.
4. Economic Impact - if usage causes negative economic impact on money the copyright holder otherwise would have gotten.
DOCTRINE OF MORAL RIGHTS
These are the rights of a creator for the integrity of work.
Established in France and part of the Berene Convention - - on recognized on a federal level until a few years ago because people in the US thought it infringed on owners rights of property.
Right now moral rights apply only to traditional visual art (paintings / sculpture) in thie country. Not film / mixed media / literary / etc. (In Europe it covers ALL art!!)
Moral rights scare people - if they bought it they think they can do what they want - - -
ex: Calder mobile in airport bolted and painted still with his name on it
TRADEMARKS
Not automatically given by law - - you must work to get a TM
Only obtained by using a name (product name)
Must be used in commerce
If it's to be protected it must be registered with Patents and Trademarks office
MUST be unique (unlike copyright)
People try to develop LOTS of protections (a copyright protection, a TM and Registered)
ex: Harry Potter!!
Another Trademark becoming more significant is Trade Dress - the look / style that characterizes a band / entertainer
ex: Jessie Ventura with bald head and boa
ex: Michael Jackson with glove
2 Ways to Dilute a Trademark
1. Becomes generic (band-aid / xerox / kleenex / aspirin) then it becomes public domain
2. The negative way - - adverse commentary or parody - courts have rules that takes away a good name - this creates a clash - - the first amendment right of free speech (via parody) vs. Good name (1st amendment trumps trademark law.
