by Lee Morin, Esq.
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In our last blog, Copyright for the Freelance Artist, Pt. 2, we discussed three types of agreements employers and artists might use when collaborating: work for hire, assignment, and license. In Copyright for the Freelance Artist, Pt. 1, we defined copyright, stated what subject matter it protects, the exclusive rights it grants, and outlined the benefits of registration, for example, access to federal courts and statutory damages in enforcement proceedings.
Moral Rights/ Les Droits Morale
As a freelance artist, you may decide that registering federal copyright in your creative works provides you with the means to protect them. Moral rights, which exist in Europe, provide artists with the means to further protect their works, which rights are inalienable, meaning they cannot be contracted away, and include the right to create, to determine completeness, to withdraw, to attribution, and to integrity. The United States recognizes a limited set of moral rights for visual artists [.1]; thus, an artist, who paints, draws, prints, sculpts, and photographs images for exhibition only, in single copies or limited editions of 200 or less, signed and consecutively numbered, may assert their moral rights to attribution and integrity.
Copyright Registration for Artists
For all other artists, copyright registration is the sole method by which you may protect your creative works from impermissible exploitation, by enabling the copyright owner to exclude others from use. The use of your work comprises the exclusive rights granted in copyright [.2], including the right to reproduce, to make derivative works, to distribute, to publicly perform, and to publicly display the work. Thus, if I am an artist, I may create characters embodied as graphic works [.3], that I license to a publisher for distribution as a comic book[.4], or to a filmmaker or game designer for adaptation into a motion picture or interactive game [.5], or, on an exclusive basis in North America to a fashion designer to create Halloween costumes that are based on my characters [.6].
Copyright Registration for Employers
Freelance artists are not the only parties seeking to protect creative works. Employers, who hire freelance artists, either as an employee, or as a contractor, also take precautionary measures. If you agree to a work for hire [.7], the employer is the author of your works and thus has the right to register copyright. If you agree to a combination of work for hire and assignment [.8], then whatever cannot be claimed as a work for hire is assigned in your contract. If you simply assign your work to the employer, then once the work is registered, the employer records the assignment at the Copyright Office, which keeps a record of the assignment in which your employer is the claimant [.9].
Representations, Warranties, and Indemnity
In the event that you produce work, which allegedly violates the exclusive rights of a third party, then you might be the defendant in an enforcement proceeding. To protect their assets, employers will require you agree to certain representations and warranties in the course of your employment. The most common is that you represent your work is original, and if it is not, then you have permission from the owner to use their original work in your work. If you misrepresent this part of your agreement, then employers also require that you hold them harmless, i.e. indemnify them, against any and all claims arising out of your acts or omissions. In other words, your employer can shift liability for any lawsuit to you if they find that you misrepresented your work.
Licensing Derivative Works
In the example above, if an artist adapts a pre-existing work into a new artistic medium without consent of the copyright owner, then he or she has infringed upon the exclusive right to prepare derivative works [.10]. In the case of derivative works, there are two general approaches. Either the threat of a lawsuit provides the copyright owner with the leverage to negotiate a license and substantial fees for use of their creative work, or, the copyright owner does not settle and pursues a remedy instead.
Remedies for Infringement
Typical remedies for copyright infringement include injunctions [.11] , where the infringing party is required to cease all use of the work; impounding and disposition [.12], where the infringing articles are disposed of or destroyed; damages and profits [.13], which includes actual damages and profits, or statutory damages, which can be substantial; and finally, costs and “reasonable” attorneys’ fees to the prevailing party [.14], which party very well could be your accuser if he or she proves an infringement claim.
Defenses to Infringement
So what constitutes an adequate defense to copyright infringement? It depends, on the subject matter and exclusive rights involved. For example, a claim against the unlawful sale or distribution [.15] of literature [.16] or sound recordings [.17] might be countered by a right of first sale [.18]; thus a market exists for the sale and distribution of used records and comic books. A claim against the unlawful public performance of a motion picture or non-dramatic literary or musical work might be countered by an exemption[.19].
A commonly pursued infringement claim alleges the unlawful reproduction [.20] of a copyrighted work, which requires two things be proven in order to prevail: (1) access to, and (2) substantial similarity to the creative work. A common defense is independent creation, which asserts that the defendant did not have access to the work, but rather created a similar or same work independently of the copyrighted work.
Perhaps, the most common defense to unlawful reproduction is fair use [.21], an affirmative defense, which means the party raising it agrees that he or she copied, but the law permits it. Only a court has the authority to determine whether a use is fair; thus, to raise the defense requires that one be party to an active lawsuit. The goal is to avoid lawsuits not only because they are time consuming and expensive, but also because of the uncertainty over how courts interpret the statutory guidelines.
The factors courts weigh in a fair use defense are: (1) the purpose and character of the use, including whether such use is of a commercial nature, or is for nonprofit, educational purposes [.22]; (2) the nature of the copyrighted work [.23]; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole [.24]; and, (4) the effect of the use upon the potential market for or value of the copyrighted work [.25]. All factors are weighed together, which means if one factor is, or is not, in your favor, that does not necessarily mean it is, or is not, a fair use.
Transformative Works: Parody and Satire
Purposes that weigh in favor of a finding of fair use include criticism, comment, news reporting, teaching, scholarship, or research. Transformative works, “add something new, with a further purpose or different character, altering the first with new expression, meaning, or message [.26].” Parody and satire are transformative works because with comment and/or criticism they add something new to the original work. However, “[p]arody […] is directed toward a particular literary or artistic work, [and] satire, […] more broadly addresses the institutions and mores of a slice of society [.27] .”
For example, Spaceballs is a parody based on Star Wars. Starballz, a pornographic animated film, is also a parody of Star Wars, which went to court. The Starballz court quoted its higher court saying, “[Starballz is] a literary or artistic work that broadly mimics an author’s characteristic style and holds it up to ridicule [.28] .” An entire blog could be written on fair use. The goal here is to cover some of the more familiar terms you might have heard and know how they fit into the greater scheme.
At the onset of an infringement lawsuit, it is wise to confirm the copyright being enforced is valid. A copyright is invalid if it falls into the public domain. Works published prior to 1923 are in the public domain. Works published without the proper notice © between 1923 and 1989 are also in the public domain. Works published between 1923 and 1963 with notice but without an application for renewal are in the public domain. Consult with an attorney to confirm whether works have fallen into the public domain.
A copyright is invalid if unregistered. Only registered copyrights may be enforced under federal law [.29] . However, if registration is refused, a claim for infringement still may be filed under certain conditions [.30] . Even if a copyright registers, then it may as yet be invalidated if it is shown the applicant knowledgeably provided inaccurate information in his or her application for registration, and if known, such inaccuracy would have lead the Register of Copyrights to refuse registration [.31] .
The best advice is if in doubt, don’t. Don’t use someone else’s work if you are unsure if it is copyrighted. All works published prior to 1923 are in the public domain. That means Victorian inventions like Dracula and Frankenstein are free for all to use.
Ideas and Facts
Furthermore, ideas and facts are not protected. For example, World War II is an historical fact. Tanks, machine guns, and missiles are ideas. This is why there is a plethora of war games in the market, because everyone can use a fact or an idea! It is only the specific expression of that fact or idea, which copyright protects.
Scenes à Faire/ Stock Characters
If you are creating a character or setting for script, stage, or series, the more delineated your work, the more likely you will be able to enforce your copyright. Copyrights are not tested for merit until they are litigated. The registration process provides a superficial examination; applications are not examined for substance. Thus, if you write, “a land far away,” or create a character that is “a lazy bum,” without sufficient detail, then your work may be characterized as a scenes à faire (common scene) or a stock character, neither of which may be enforceable because of insufficient originality.
The flip side of the argument is that stock characters or settings that are scenes à faire contain common elements that are not copyright protected. Thus, you may incorporate these common elements into your own characters or settings. An example is you create a hero with a cape, which does not infringe upon Batman because the characterization is too generic to be deemed an original production by its author. You might also create a fantasy world with an elf and princess, but not infringe upon the Legend of Zelda since these elements are too common to create a monopoly on use.
Creative Commons License
In Copyright for the Freelance Artist Pt. 4, we will entertain a case study of copyright law at an Atlanta convention, MomoCon. We will discuss the role of cosplay, anime music videos, doujinshi, fan art, and fansubs, and how fans and promoters can shield themselves from liability and comply with the law.
DISCLAIMER: THE INFORMATION CONTAINED IN THIS BLOG IS FOR INFORMATION PURPOSES ONLY AND IS NOT LEGAL ADVICE.
Lee Morin, Esq., is Principal Attorney at MORIN Entertainment Law, a boutique law firm in metro Atlanta that specializes in serving artists and entrepreneurs in creative industries, including music business, fine art, game design, book publishing, theatre, film, television, and fashion design. Please sign up for our monthly newsletter to receive news, events, and special reports delivered periodically to your inbox. Thank you for your interest!