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Copyright In The Arts Presentation
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Copyright in the Arts
Friday, December 2, 2011
Robert P. Cogan
Continuum Law San Diego, CA
MCLE by the San
Diego Law Library
2 2
Reap the benefits of your labor and
creativity.
Identify the “pressure points” that
affect your business.
Understand where significant issues
can arise.
Objectives in Understanding
Copyright Issues
Continuum Law [email protected] (858) 831-9000
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Seizing on an Opportunity When a wonderful new work has been
created, what should the initial consultation
cover?
◦ Can I get copyright protection for this work?
◦ What privileges does a copyright give me?
◦ How do I get copyright protection?
◦ How can I use the copyright?
◦ How do I want to exploit the copyright in a way
that is workable and sensible?
3 Continuum Law [email protected] (858) 831-9000
4 4
A copyright is a grant of exclusivity by the Government in rights to original works. ◦ Article 1, Section 8, Clause 8 of the Constitution.
◦ Title 17 of the United States Code.
Original contributions within a larger context are also subject to copyright protection.
International treaties provide copyright protection for US works outside the United States.
Things that are not protected include titles, names, short phrases, and works that have not been fixed in a tangible form of expression.
Copyright Protection
Continuum Law [email protected] (858) 831-9000
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Privileges of a Copyright Holder
A copyright owner may control
Reproduction.
Performance.
“Derivative works.”
Selling copies.
Exclusion of infringing works at customs ports.
Translations into other languages or media.
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Continuum Law [email protected] (858) 831-9000
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Getting Copyright Protection Under the law, the copyright exists as soon as
the work is created.
However, more steps should be taken.
A copyright needs to be registered before it can be enforced.
Prompt registration can enable a copyright holder to seek statutory damages.
◦ Otherwise, the copyright holder must prove actual damages.
6 Continuum Law [email protected] (858) 831-9000
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Types of Rights
◦ Entire work.
◦ Categories of use – imagine how many ways a
work can be used. For example,
Authors can convey rights separately for
reproduction in different media.
Rights may be granted for specific territories
◦ Moral rights – the right to control what is
done to the work after sale. The scope in the
United States is narrower than in Europe.
7 Continuum Law [email protected] (858) 831-9000
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Commissioned Works
Examples include: web sites; portraits, computer
programs, and advertisements.
The creator generally owns the copyright.
There must be a specific agreement between
the creator and the buyer to transfer
ownership.
A “Work for Hire” results in copyright
ownership by the employer.
8 Continuum Law [email protected] (858) 831-9000
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Work for hire
A work prepared by an employee within the scope of his or her employment.
A work made my a non-employee who is closely directed.
A work subject to an express agreement that it will be considered a work made for hire.
A work specially ordered or commissioned for use as: a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, an instructional text, answer material for a test.
9 Continuum Law [email protected] (858) 831-9000
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Filing for Registration
-Many people file their own applications.
Consider using counsel when
◦ Your responses on the application form leave
you unclear as to what is protected.
◦ You are working with others who could claim
an interest in your works.
◦ There may be strategic business and legal
considerations you are not aware of.
◦ You have a large financial or emotional
investment.
Consider cost vs. benefit.
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Thank you!
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Robert Cogan
Continuum Law 10085 Carroll Canyon Road
San Diego CA 92131 (858) 831-9000