ArtId Art Blog
I frequently receive telephone calls from participants in the art world that have either already submitted or are planning to submit unique concepts, artworks, or inventions for licensing, publishing, or manufacturing purposes to a third party. Key concerns that emerge from our discussions usually consist of (1) ___How do I protect myself against this third party from using my creation without my prior approval?___ and (2) ___How to I maximize my compensation that I will receive from this third party?___
This month__™s Informational Piece will address only the first query; ___How do I protect myself against third parties that I disclose my creation to from using it without my prior approval?___. Briefly, the first query can be broken down into two general questions: (1) ___How does one protect oneself from the misappropriation and use of his or her unique concept, artwork, or invention?___ and (2) ___In the event that a third party does use one__™s unique concept, artwork, or invention without the appropriate authorization, how does one stop the third party from the continued use of such creation and seek restitution for damages already incurred and those damages that continue to accrue?___
It should be noted that Article I__8 of the United States Constitution states that the United States Congress shall have the power ___[T]o Promote the Progress of Science and useful Arts, by Securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries___.
The United States Copyright Act is only one body of laws that enable the copyright owner of unique concepts, artworks, or inventions to control the reproduction of such intellectual creations by preventing the unauthorized or unlawful use of one__™s work of art. Other bodies of law that afford such similar protection include, but are not limited to, trademark and unfair competition laws. The fundamental purpose for Congress enacting the copyright legislation was to advance and cultivate the learning and cultural environment for society by providing the copyright owners with a grant of exclusive rights to: (i) reproduce artwork; (ii) produce derivative artworks; (iii) distribute to works to the public by a transfer of ownership (e.g. assignment of rights), selling, renting, leasing, or lending; (iv) perform the work publicly; (v) display the work publicly; and/or (vi) perform sound recordings of a musical work; where all of such rights are subject to the various exceptions delineated in the US Copyright Act. Essentially, the copyright laws serve as the legal device for such control and protection after the copyright owner discloses his or her intellectual creation to third parties.
The US Copyright Law provides immediate and automatic copyright protection for an original work when it is fixed in tangible form. Copyright protection is afforded to the following works:
(i) literary; (ii) music and any accompanying words; (iii) drama and any accompanying music; (iv) pantomimes and choreography; (v) pictoral, graphic, and sculptural; (vi) audiovisual; (vii) sound recordings; and (viii) architectural. Although concepts, ideas and procedures cannot be copyrighted, there are other methods that can be employed to protect such creations.
In the event that a third party uses a work of art without the proper authorization, the copyright owner does have recourse. The strength of such recourse does vary depending upon the actions taken by the copyright owner; before and after such unauthorized use. Timely registration of a work of art with the US Copyright Office affords the copyright owner a number of advantages that he or she would not have had, had he or she failed to register a work with the US Copyright Office. The cost of such registration is nominal when compared to the cost of injury the copyright owner of the work may experience due to a third party__™s unauthorized or unlawful activities.
- Copyright registration provides the copyright owner
with the right to:
(i) prevent and cease unauthorized and possible unlawful activities by initiating a law suit; (ii) elect to recover for statutory damages (in some cases up to $120,000), rather than for lost profits and actual damages incurred, and (iii) if the copyright owner prevails in such suit, he or she may be awarded possible full recovery of costs and attorneys fees associated with such legal proceeding.
As indicated earlier, although there exist various bodies of law that can provide protection to authors and owners of creative works, understanding the copyright laws and how to work within them can surely provide the copyright owner with a greater position in the marketplace when licensing, publishing, manufacturing, or reproducing such works in any way.
The contents of this article are not offered as legal advice, as this article only serves as a general discussion on the topic on which is discussed. Any specific questions relating to this topic should be directed to a lawyer practicing in this field of law.
PLEASE SEE NEXT MONTH__™S INFORMATIONAL PIECE ADDRESSING THE MAXIMIZATION OF COMPENSATION FROM A LEGAL PERSPECTIVE.
Paula Grafstein-Suarez is an attorney admitted to practice in the States of New York, New Jersey and Connecticut, and maintains an office in New York. Ms. Grafstein-Suarez focuses her practice on issues relating to contractual, licensing and trademark and copyright matters. She uses her ten plus years of business experience in sales, licensing, operations and manufacturing while representing artists, photographers, graphic designers, sculpters, manufacturers in the art community and consumer product industries. Any questions? Call her at 516-622-2292 or e-mail Pgrafsteinsuarez@aol.com.