Intellectual Property and the Arts

US Copyright: Fundamentals and Documents

This section includes the primary documents and resources that define US Copyright Law. The secondary sources included here are summary tools created by experts and widely accepted in community practices for understanding the application of basic concepts in copyright law.

Title 17 of the US Code: Copyright

The Legal Information Institute, Cornell University Law School, offers a user-friendly searchable version of the law.

Visual Artists Rights Act - VARA (1990)

“Rights of certain authors to attribution and integrity” - Section 106A, US Code - Title 17 - Copyrights -

Definition of a “work of visual art” in Section 101, US Code

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of sculpture, in multiple cast, carved, or fabricated sculpture of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

“A work of visual art does not include–(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, database, electronic information service, electronic publication, or similar publication; (ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; (iii) any portion or part of any item described in clause (i) or (ii); (B) any work made for hire; or (C) any work not subject to copyright protection under this title.

Work Made for Hire

Definition in Section 101, US Code:

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a ‘supplementary work’ is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

See also “Works Made for Hire Under the 1976 Copyright Act - Circular 9, United States Copyright Office

Architectural Works Copyright Protection Act (1990)

“Scope of exclusive rights in architectural works” - Section 120 - US Code - Title 17 - Copyrights

See also “Copyright Claims in Architectural Works” - Circular 41, United States Copyright Office

Fair Use

One of the rights accorded to the owner of a copyright is the right to reproduce or authorize others to reproduce the work in copies or phonorecords. One important limitation to this right is the doctrine of “fair use,” developed through a substantial number of court decisions through the years and codified in section 107 of the copyright law.

Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
The nature of the copyrighted work;
The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
The effect of the use upon the potential market for, or value of, the copyrighted work.

Stanford University Libraries provides a good primer on fair use.

See also “Checklist for Conducting a Fair Use Analysis Before Using Copyrighted Materials.”
(Revised for use by Cornell University from “Checklist for Fair Use,” a project of the IUPUI Copyright Management Center, directed by Kenneth D. Crews, Associate Dean of the Faculties for Copyright Management.)

The American Library Association makes tools for evaluating fair use of copyrighted materials and other exceptions to copyright law available on its website.

The Digital Image Rights Computator (DIRC), developed by the Visual Resources Association, assists the user in assessing the intellectual property status of a specific image that documents a work of art, a designed object, or a portion of the built environment. Understanding the presence or absence of rights in the various aspects of a given image will allow the user to make informed decisions regarding the intended educational uses of that image.

See also Reclaiming Fair Use: How to Put Balance Back in Copyright, by Patricia Aufderheide and Peter Jaszi (Chicago: University of Chicago Press, 2011).

Digital Millennium Copyright Act (1998)

The US Copyright Office offers a summary of the Digital Millennium Copyright Act (DMCA), codified as Public Law 105–304.

The Library of Congress defines exemptions to the DMCA in “Rulemaking on Exemptions from Protection on Circumvention of Technological Measures that Control Access to Copyrighted Works” (including “Statement of the Librarian of Congress on the Anticircumvention Rulemaking,” “Determination of the Librarian of Congress and Text of the Regulation,” and “The Recommendation of the Register of Copyrights” (2010).

Copyright Term Extension Act (1998)

The “Duration of Copyright” is codified in Chapter 3 - US Code - Title 17 - Copyrights.

The TEACH Act amends chapter 1 of title 17, US Code, relating to the exemption of certain performances or displays for educational uses from copyright infringement provisions, to provide that the making of copies or phonorecords of such performances or displays is not an infringement under certain circumstances, and for other purposes.

Copyright Registration Forms

Paper and Electronic Forms
“A Guide for Completing your Electronic Copyright Registration"

Orphan Works

“An ‘orphan work’ is any copyrighted work—book or other text, picture, music, recording, film, etc.—whose copyright owner cannot be identified or located.

“Works can become ‘orphaned’ for a number of reasons: the creator died and his or her heirs cannot be found; the work was made anonymously to begin with (e.g., a graffiti image on the street or an anonymous photo found in an attic or in a flea market); the owner sold the copyright rights in the work and did not register the transfer; the corporate publisher has gone out of business . . . the list goes on.”

Read the complete text at http://www.collegeart.org/publications/ow.

US Copyright Office Orphan Works

Public Domain

Legal definition of Public Domain:

“A work of authorship is in the ‘public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.”

Center for the Study of the Public Domain (Duke University School of Law)

“Copyright Term and the Public Domain in the United States [and Other Countries]” by Peter B. Hirtle

Copyright Law: A Practitioner’s Guide, by Bruce P. Keller and Jeffrey P. Cunard (Practicing Law Institute, 2001–12)