⚖️Art Law and Ethics Unit 3 – Copyright and Fair Use in the Arts

What's Copyright All About?

• Copyright protects original works of authorship fixed in a tangible medium of expression (literary works, musical works, dramatic works, pantomimes, choreographic works, pictorial, graphic, sculptural works, motion pictures, audiovisual works, sound recordings, architectural works)
• Grants the creator exclusive rights to reproduce, distribute, perform, display, or create derivative works based on their original creation
• Encourages creativity and innovation by providing creators with control over their works and the ability to profit from them
• Balances the interests of creators with the public's interest in accessing and using creative works
  • Allows for certain limitations and exceptions to copyright, such as fair use, to promote the free exchange of ideas and information
• Copyright protection is automatic as soon as a work is created and fixed in a tangible form (written down, recorded, saved on a computer)
• Copyright protection lasts for the life of the author plus 70 years, or 95 years from publication for works made for hire
• Registering a copyright with the U.S. Copyright Office provides additional benefits, such as the ability to sue for infringement and the potential for statutory damages and attorney's fees

Key Copyright Laws and Regulations

• The U.S. Constitution grants Congress the power to enact copyright laws to promote the progress of science and useful arts
• The Copyright Act of 1976 is the primary copyright law in the United States, providing the basic framework for copyright protection
  • Defines the subject matter of copyright, the rights of copyright owners, and the limitations and exceptions to those rights
• The Berne Convention is an international agreement that requires member countries to provide certain minimum standards of copyright protection
  • Eliminates the requirement of formal registration and notice for copyright protection
• The Digital Millennium Copyright Act (DMCA) addresses copyright issues in the digital age, such as online infringement and circumvention of technological protection measures
  • Provides safe harbors for online service providers that meet certain requirements and promptly remove infringing content upon notice
• The Sonny Bono Copyright Term Extension Act extended the term of copyright protection by 20 years, to life of the author plus 70 years or 95 years from publication
• The Music Modernization Act (MMA) updates copyright law to better address the challenges of music licensing in the digital age (streaming services, digital downloads)
• The Visual Artists Rights Act (VARA) grants certain moral rights to authors of works of visual art, such as the right to claim authorship and prevent distortion or mutilation of their works

How Copyright Applies to Different Art Forms

• Literary works, including books, articles, and poetry, are protected by copyright as soon as they are written down or saved in a tangible form
• Musical works, including compositions and lyrics, are protected by copyright, as are sound recordings of those works
  • Copyright in a musical work is separate from copyright in a sound recording of that work
• Dramatic works, such as plays and screenplays, are protected by copyright, as are any accompanying music, lyrics, or choreography
• Pantomimes and choreographic works are protected by copyright if they are fixed in a tangible form, such as a video recording or written notation
• Pictorial, graphic, and sculptural works, including paintings, drawings, prints, sculptures, and photographs, are protected by copyright
  • Copyright protects the original expression in these works, but not the underlying ideas or concepts
• Motion pictures and other audiovisual works are protected by copyright, including both the visual and audio elements of the work
• Architectural works, including designs of buildings, are protected by copyright, but protection is limited to the overall form and arrangement of spaces and elements
• Computer programs and software are protected by copyright as literary works, but may also be eligible for patent protection if they meet certain requirements

Fair Use: The Artist's Best Friend

• Fair use is a legal doctrine that allows for the use of copyrighted material without permission from the copyright owner under certain circumstances
• Provides a balance between the rights of copyright owners and the public interest in using and building upon creative works
• Four factors are considered in determining whether a use is fair:
  1. The purpose and character of the use (commercial vs. non-profit educational, transformative vs. merely duplicative)
  2. The nature of the copyrighted work (factual vs. creative, published vs. unpublished)
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole (small vs. large portion, heart of the work vs. less important part)
  4. The effect of the use upon the potential market for or value of the copyrighted work (competes with vs. complements the original work)
• Examples of fair use in the arts include parody, criticism, commentary, news reporting, teaching, scholarship, and research
• Artists can rely on fair use to incorporate elements of existing works into their own creations, such as using a short clip from a movie in a video essay or creating a collage from magazine photographs
• Fair use is a case-by-case determination, and there are no bright-line rules or percentages that automatically qualify as fair use
• Artists should consider the four factors and be prepared to defend their use as fair if challenged by a copyright owner

Common Copyright Pitfalls for Artists

• Using others' work without permission or a valid fair use justification can result in copyright infringement claims and potential liability
• Failing to obtain necessary licenses or clearances for the use of music, images, or video in a work can lead to infringement claims
  • This includes using copyrighted material in the background of a scene or as part of a larger work
• Assuming that giving credit or attributing the source is enough to avoid infringement, when permission or a license is still required
• Believing that non-commercial or educational use automatically qualifies as fair use, without considering the four factors
• Not understanding the scope of copyright protection, such as thinking that ideas or facts are protected, or that copyright lasts forever
• Relying on "poor man's copyright" methods, such as mailing a copy of a work to oneself, which do not provide any additional legal protection
• Not registering copyrights in one's own works, which can limit the ability to enforce rights and recover damages in case of infringement
• Transferring ownership of a copyright without a written agreement, which can lead to disputes over ownership and control of the work

Navigating Copyright in the Digital Age

• The internet and digital technologies have made it easier than ever to create, distribute, and access creative works, but have also created new challenges for copyright law
• Digital works, such as e-books, digital music files, and online videos, are protected by copyright just like their physical counterparts
• The DMCA provides a notice-and-takedown system for online service providers to avoid liability for user-generated content that infringes copyright
  • Copyright owners can send a takedown notice to the service provider, who must promptly remove the infringing content to maintain their safe harbor protection
• Digital rights management (DRM) technologies, such as encryption and access controls, are used by copyright owners to prevent unauthorized copying and distribution of digital works
  • The DMCA prohibits the circumvention of DRM and the distribution of tools that enable circumvention
• Online platforms, such as YouTube and Facebook, have developed automated systems to identify and remove potentially infringing content, such as Content ID
  • These systems can sometimes result in false positives and the removal of non-infringing content, raising concerns about fair use and free speech
• The rise of streaming services (Spotify, Netflix) has changed the way people consume and pay for creative works, creating new challenges for licensing and royalty payments
• Blockchain technology and non-fungible tokens (NFTs) are being explored as potential solutions for managing digital rights and ensuring proper attribution and compensation for creators

Ethical Considerations in Using Others' Work

• Artists have a moral and ethical obligation to respect the rights of other creators and to use their works only in ways that are fair and legal
• Obtaining permission or a license to use others' work, even when not legally required, shows respect for their creative efforts and can help avoid misunderstandings or disputes
• Providing proper attribution and credit to the original creators, even when using works under fair use, helps to acknowledge their contributions and maintain the integrity of the creative ecosystem
• Being mindful of the cultural and social context of the works being used, and avoiding appropriation or misuse that could be seen as disrespectful or harmful to the original creators or their communities
• Considering the potential impact of one's use on the market for the original work, and whether it could undermine the creator's ability to profit from their own work
• Engaging in open and honest communication with other creators when questions or concerns arise, and being willing to modify or remove works if necessary to address valid concerns
• Supporting efforts to reform and update copyright law to better balance the interests of creators and the public in the digital age, such as through advocacy and participation in the legislative process
• Educating oneself and others about copyright law and best practices, and leading by example in one's own creative practice

Protecting Your Own Artistic Creations

• Register copyrights in your works with the U.S. Copyright Office to establish a public record of your ownership and to be eligible for statutory damages and attorney's fees in case of infringement
• Use copyright notices (© [year] [name]) on your works to indicate your claim of ownership and to deter potential infringers
• Keep records of the creation process, such as drafts, sketches, and correspondence, to help prove your ownership and the originality of your work
• Be cautious when sharing your work online or with others, and consider using watermarks, low-resolution images, or other technological measures to deter unauthorized use
• Use written contracts or licenses when transferring ownership or granting permission to use your work, to clearly define the terms and conditions of the agreement
• Monitor the internet and other sources for potential infringement of your work, and take action to enforce your rights when necessary, such as through cease-and-desist letters or legal action
• Consider joining a professional organization or collecting society in your field, which can provide resources and support for protecting your rights and collecting royalties
• Educate yourself about your rights as a creator and stay up-to-date on changes in copyright law and best practices in your industry
• Consider alternative licensing models, such as Creative Commons, which allow you to grant certain permissions for the use of your work while retaining other rights
• Seek legal advice from a qualified attorney when facing complex copyright issues or disputes, to ensure that your rights are fully protected and enforced.