Promotion of the Arts
Copyright law is intended to promote and advance art. We all like art, so we would like to see more of it. How do we get artists to create more of it? We can help them get paid for their efforts. Hundreds of years ago, most artists struggled to survive. Even Mozart, a brilliant musician and composer, was reported to be relatively poor.
The first copyright law came from England in 1710 when the “Statute of Ann” was passed to protect booksellers and printers from anyone copying their work without permission. In the United States, the Constitution was first to direct Congress to make laws to promote the arts and sciences. 1 Today, many artists still struggle financially until they produce something that is in high demand.
Eminem says he used to be poor. But now, because he has sold so many CDs, he is a multimillionaire. Stephen King sells many books, so he is paid very well. George Lucas is quite wealthy because he created the Star Wars movies. Because of copyright law, artists, writers, and musicians have a monetary incentive to make as much of their art as they can. It seems to work because we now have artwork everywhere. Radios play music continuously. We have libraries full of books to educate and entertain us. Our clothing has designs created by professional artists. Just about everywhere you look, art in some form can be seen and appreciated.
The Difference Between Copyright, Patent, and Trademarks
Copyrights, patents, and trademarks are considered “intellectual property.” Patents give inventors the exclusive right to duplicate their invention’s design. Patents cover devices, formulas, tools, and anything that has utility. The recipe for a unique sausage can have a patent. To get a patent, you must apply to the U.S. Patent and Trademark Office and submit the invention’s design. You must show that the design is unique. A patent examiner will determine if you are entitled to a patent. If so, a patent is granted that prohibits anyone else from making, using, offering for sale, selling, or importing the invention. A patent lasts 20 years.
© ® ™
A trademark is a word, phrase, or logo that identifies a product, a service, or the person or company that offers a product or service to the public. You must apply to the U.S. Patent and Trademark Office to register a federal trademark. If your trademark is registered, you can generally prevent anyone else from using a mark that may confuse the public about who offers the product or service. There are also common-law trademarks that are automatic in the area where the product or service is being advertised, unless a federal trademark has been previously registered.
Copyrights apply to art, music, plays, movies, literature, and scholarly works. They are automatic and require no registration or other formality. They prevent others from copying the work. Copyrights last for the artist’s or author’s life plus 70 years. For more information about patents and trademarks, visit www.uspto.gov.
Artists’ Exclusive Rights
How do they work? Copyright law gives artists a monopoly on their work—certain rights that only the artist may exercise. The artwork’s creator is the only one who can:
- Make copies of the work;
- Make derivatives or revisions;
- Distribute or publish the work;
- Perform the work in public (if the work is a poem, song, play, or movie);
- Display the work in public (if the work is a painting, graphic, photo, sculpture, or other still-image work); and
- Perform the work in public by digital transmission (if the work is a sound recording). 2
The artist can sell the work or any of the exclusive rights to it. Eminem sold his copyrights to the recording company. Stephen King, for some of his first books, sold his copyrights to the publisher. Artists can sell rights to their work because no one else can entertain the public without the rights or at least permission from the artist. If someone does anything with an artist’s work that falls within any of the exclusive rights without owning them or having permission, he “infringes” the artist’s copyright. If you made bootleg copies of Eminem’s music, his record company can sue you for copyright infringement because they hold the copyrights to the music.
What is Required to be Protected by Copyright
What kinds of work are protected by copyright? Any work that is expressed in a tangible medium, original, and has the least bit of creativity is protected by copyright.
- Fixed in a Tangible Medium. The work must be recorded somehow. If the work is a book, the content must be written down. Even an audiotape of the author telling the story fixes the work in a tangible medium. A book written entirely in Braille is fixed in a tangible medium. A song must either be recorded or scored so that someone else can hear or read the music. Photographs are tangible mediums and meet this requirement automatically. In other words, the idea behind the work must be able to be read, seen, heard, or understood by others.
- Original. It has to be original. You cannot claim copyright protection to work that was created by someone else or copy someone else’s work and claim you are the author or artist.
- Creative. The material must also be creative. How creative? The Supreme Court says, “…the requisite level of creativity is extremely low; even a slight amount will suffice.” The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble, or obvious” it might be.” 3
Art can be expressed in an infinite number of ways. Copyright law is designed so that any original work that has the slightest creativity may be protected from unauthorized copying, performing, displaying, or any of the other rights that only the artist may exercise. The Copyright Act recognizes specifically these works:
- Literary works (such as poems, fiction, and nonfiction books)
- Music including the lyrics
- Dramatic works including the soundtrack or music (includes plays and operas)
- Pantomimes and choreography
- Pictorial, graphic, and sculptural works
- Movies and audiovisual recordings
- Sound recordings
- Architecture 4
Many other works are also protected by copyright. A child’s finger painting. A doodle in a notebook by a student bored in class. A snowman. A sand castle. A love letter. Graffiti. Even email can be protected if it’s original and the least bit creative.
What is Not Required
Until 1978, you were required to register your work with the Library of Congress and to provide a copyright notice before your work was protected. After 1978 and presently, formalities are no longer required. Your copyright springs into existence the instant the work becomes fixed to a tangible medium.
1 The Congress shall have Power…to 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. U.S. Constitution, Art. 1, Section 8, Clause 8.
2 17 USC Section 106.
3 Feist Publications, Inc. vs. Rural Telephone Service Co., 499 U.S. 340 (1991)
4 17 USC Section 102(a)