2. Thursday, March 24, 2011
10:00 a.m. â 12:00 p.m.
Presented By:
Kordenbrock & Associates, P.C.
Jean Kordenbrock, Managing Partner
Kate Marchyok, Associate Attorney
Matt Swartz, Law Clerk
Arts Council of Greater Lansing
1208 Turner Street
Lansing, MI 48906
3. Overview of Topics
Covered
ï Copyright
ï What it is & What it is not
ï Copyright Rights
ï Who can claim Copyright
ï Registration
ï Notice
ï Term of Existence
ï Works for Hire & Joint Works
ï Infringement
ï Limitations to Copyright
ï Fair Use
ï Compulsory Licensing
4. Copyright: What is it?
ï Copyright protection subsists, in (1)
original (2) works of authorship (3) fixed in
any tangible medium of expression, now
known or later developed, from which
they can be perceived, reproduced, or
otherwise communicated, either directly
or with the aid of a machine or device.
5. Copyright: What is it?
ïOriginalmeans:
ïThe artist created the work;
and
ïThe artist did not copy it from
someone else.
6. Copyright: What is it?
ï Works of authorship include the following categories:
ï (1) literary works;
ï (2) musical works, including any accompanying
words;
ï (3) dramatic works, including any accompanying
music;
ï (4) pantomimes and choreographic works;
ï (5) pictorial, graphic, and sculptural works;
ï (6) motion pictures and other audiovisual works;
ï (7) sound recordings; and
ï (8) architectural works.
NOTE: These categories are viewed broadly â e.g., computer programs
may be âliterary worksâ and maps & architectural plans may be
âpictorial, graphic, and sculptural works.â
7. Copyright: What is it?
ïFixed means:
ïIn a tangible form of
expression.
ï Therefore,
choreographic work that has
not been notated or recorded, or a
performance that has not been written or
recorded is not fixed in a tangible form
8. Copyright: What it is not
ï Copyright: No protection for
ï ideas or procedures for doing, making or
building things;
ï scientific or technical methods or discoveries;
ï business operations; or
ï mathematical principles (formulas or algorithms)
ï NOTE: Not always easy to tell the difference,
but most of you will not experience any
problems.
9. Copyright: What it is not
ï Copyright: Does not protect
ï Names
ï Titles
ï Slogans
ï Business Names
ï TrademarkLaw: Turn to state and federal
trademark and unfair competition law for
these
10. In English, Please
ï What it is:
ï Exclusive legal right
ï Granted by the United States government
ï Almost all original works may be copyrighted
ï But, certain requirements must be met:
ï Original
ï Fixed
ï Work of authorship
ï Donât worry though, youâre covered because,
ï Copyright secured automatically when the work
is created.
11. Copyright Rights
ï Exclusive Rights: Creator (aka Author) gets
exclusive rights of
ï Reproduction
ï Sale & Distribution
ï Performance
ï Display
ï Derivative Work Rights
ï Transferability
ï Can be assigned (sold)
ï Can be licensed
12. Copyright Rights
ï When might the Author not be entitled to
Exclusive Rights?
ï Works prepared by Employee within scope of
employment (Employer becomes the Author);
ï Works for Hire: Specially ordered or
commissioned work if the parties expressly
agree in a written instrument signed by them
that the work shall be considered Work-for-Hire;
or
ï Authors of Joint Work are co-owners of the
copyright, unless they agree otherwise.
13. Who Can Claim Copyright
ï Independent Creator:
ï Creator obtains rights as soon as work is
âfixedâ
ï No need to register (though registering is
beneficial)
ï Employed/Joint Creator:
ï Copyrighted work may be work made for
hire (to be discussed later)
ï Copyrighted work may be joint work (to be
discussed later)
14. Copyright is a Distinct Right
ï Copyright is Independent of Physical Work
ï Copyright not in physical artwork itself:
ï Painting can be sold w/o selling copyright; and
ï Copyright can be sold w/o selling painting
ï Illustration: Jean is a rock musician, and Jean
wants to sell copyrighted recordings of her
music. Jean may sell CDs with her
copyrighted music, without losing her
copyright in the music itself.
15. Recap and Illustration
ï John is a painter (as a hobbyist) that works for
an graphic design company as a janitor.
John paints a beautiful masterpiece one day
in his basement. Initially, John does not tell
anyone about the painting and never shows
it to anyone. Also, John never registers the
painting with the government. However, one
of Johnâs friends, an art buff, sees the painting
and wants it for his own. John sells the
painting to his friend.
16. Copyright Registration
ï Registration: If you donât need it, then
why?
ï Answer: There are many benefits
ï Public Notice (increased damages);
ï Necessary if you want to bring suit;
ï Easier to prove ownership.
ï It is a relatively cheap & easy process.
ï Fees start at $35
ï Can register online or by mailing in paper
forms.
18. How Long Does Copyright
Last?
ï Works originally created on or after Jan. 1, 1978:
ï Term endures for Authorâs life + 70 years
ï Joint Work â Term endures for 70 years after last
surviving Authorâs death
ï Works for Hire, Anonymous & Pseudonymous
Works â Term endures for 95 from publication or
120 years from creation, whichever is shorter
ï Works originally created & published or registered before Jan.
1, 1978:
ï Copyright may endure for 1st term of 67 years & total term of
protection of 95 years, but
ï Copyright term and renewal of copyright for those works
created prior to Jan. 1, 1978 is complex â for detailed
information, please see U.S. Copyright Officeâs Circular 15A,
Duration of Copyright
19. What happens when
Copyright Term expires?
ï Work goes into the Public Domain, and is
ï Not protected by intellectual property
laws (copyright, trademark or patent law);
and
ï It's free for you to use without permission.
ï As a general rule, most works enter the public
domain because of old age, i.e., their terms
expire.
20. Works for Hire
ï Generally,Creator/Author gets copyright
ï BUT, beware of works made for hire
ï If work is âwork for hire,â then employer is
âauthorâ
ï Employer can be firm, organization or
individual
ï Effect: Artists/Author/Choreographer
herself does not own copyright, has no
rights in work, and cannot sue for
infringement.
21. Is My Work a Work Made
for Hire?
ï TheLaw: A work is a âwork made for hireâ
where it is a âwork prepared by an
employee within the scope of his or her
employment.â
ï Okay, but what does this mean?
ï Look to the relationship of the parties
ï Employee vs. independent contractor
ï Employer control (or lack thereof) over
employee
ï Conduct of employer and employee
23. Joint Works
ï Joint Work: A work prepared by two or
more authors with the intention that their
contributions be merged into inseparable
or interdependent parts of a unitary
whole.
ï Effect: May result in Co-Ownership of Work
AND Co-Ownership of Copyright
24. Infringement
ï Simply stated, itâs when someone uses your work
w/o your permission.
ï TEST: whether an ordinary observer, looking at the
original & alleged copied work, would recognize
that copying has taken place.
ï Ask â is there substantial similarity?
ï Exemptions:
ï Fair Use
ï Parody
ï Compulsory Licensing
25. Infringement Liability
ï The obvious answer â the Infringer (the person who
copies the work)
ï But a Corporation can also be liable
ï And, a corporate officer or employee can be held
personally liable when he or she:
ï Participates in the infringement; or
ï Uses the corporation to carry out the infringement; or
ï Uses his or her discretion to carry out the infringement;
or
ï Commits or causes the employer/employee to
commit an infringement.
26. Limitations to Copyright
ï FairUse
ï Parody/Satire
ï News Reporting
ï Educational Use â Teaching &
Research
ï Compulsory Licensing
27. Fair Use
ï 4-Factor Test:
ï (i) Purpose & character of the use, incl. whether or
not it is for profit;
ï (ii) Character of the copyrighted work;
ï (iii) How much of the total work is used in the course
of the use; and
ï (iv) What effect the use will have on the market for or
value of the copyrighted work.
ï Common types of Fair Use:
ï Parody â using a work to poke fun at or comment on
the work itself
ï Satire â using a work to poke fun at or comment on
something else
28. Real-life Illustration: Rogers v
Koons and Sonnabend Gallery,
Inc., 960 F2d 301 (1992)
Puppies, by Art Rogers String of Puppies, by Jeff Koons
29. Compulsory Licensing
ï Copyright law provides for the compulsory
licensing of published pictorial, graphic,
and sculptural works for transmission by
noncommercial educational broadcast
stations.
ï Simply stated, a copyright owner has no
right to prevent the use of copyrighted work
by PBS.
ï However, a compulsory license does not permit a
program to be drawn extensively from compilation of
picture, graphic, or sculpture; and
ï It does not permit any use of audiovisual works
30. Image Licensing
ï Photos,graphic design, & images
may be sold by purchasing rights
under terms of a license.
ï Rights
are set out in a license
agreement between Buyer and Seller.
31. Image Licensing
ï 3 Types of Licenses: (agreement can be anything you
want it to be, but these are common types of
agreements)
ï (i) Traditional Usage License: sold w/ fee based on Buyerâs
specified use; fee can be calculated on size, placement,
duration of use, geographic distribution, etc.
ï (ii) Royalty-Free License: Buyer pays once for mage that
can be used for multiple purposes by Buyer and for
unlimited period of time
ï ISSUE: Other Buyers may have acquired similar rights so image
rights may be sold many times
ï (iii) Reserved Rights License: similar to Traditional Usage but
includes terms that restrict Seller from making sales in
specified location(s); gives Buyer exclusive rights to image
license
33. Any Further Questions or for More
Information, or if you need Legal
Assistance, Please Contact Us!
Kordenbrock & Associates, P.C.
215 S. Washington Sq., Suite 210
Lansing, MI 48933
517.977.0587 (office)
517.580.0516 (fax)
www.kordenbrocklaw.com
Jean Kordenbrock â jean@kordenbrocklaw.com
Kate Marchyok â kate@kordenbrocklaw.com
Matt Swartz â matt@kordenbrocklaw.com
