Legal Information
Last Updated 10.19.05
What is copyright all about?
A Copyright is a form
of protection provided by the laws of the United States to authors
of "original works
of authorship," including literary, dramatic, musical, artistic,
and certain other intellectual works. This protection is available
to both published and unpublished works. Material not protected
by copyright (or otherwise protected) is available for use by
anyone, without the author's consent. On the other hand, an author
of
a copyrighted
work may prevent others from copying, performing or otherwise
using the work without the author's consent. Copyright is a form
of protection
provided by the laws of the United States (title 17, U.S. Code)
to the authors of "original works of authorship," including
literary, dramatic, musical, artistic, and certain other intellectual
works. This protection is available to both published and unpublished
works.
How much new art is truly original? Author(s): Michelle
Kaminsky
A new song we're listening to or a new book we're reading often reminds
us of something we've heard or read before. In the case of so-called "appropriated
art," our cases of déjà vu are right on. Appropriated
art is when an artist "borrows" another artist's copyrighted
work to create something new. But, is this legal? A federal district
court in New York had to battle with this very question. The source
of the controversy was a work by feminist artist Barbara Kruger. Kruger
is famous for her collages that combine photographs and words. The
work in question is a cropped image by the German photographer Thomas
Hoepker. Hoepker's photo of his friend Charlotte Dabney shows her holding
a magnifying glass over her right eye. Kruger added her signature red
block lettering over the image: "It's a small world but not if
you have to clean it." Hoepker's original photograph was entitled "Charlotte
As Seen By Thomas." The photograph had been published once in
1960 in the German magazine "Foto Prisma." Kruger created
her untitled work in 1990. She then sold it to the Los Angeles Museum
of Contemporary Art. The museum featured it as part of a larger Kruger
exhibit. The exhibit then showed for three months at New York's WhitneyMuseum.
In 2000, Hoepker sued Kruger, her dealer, and the museums that had
shown the work. The basis for his claim was copyright infringement.
Dabney joined Hoepker in his suit and sued Kruger for violation of
privacy. The court dismissed both claims. However, the court also explained
both decisions. Under the law at the time, Hoepker's copyright on the
photograph was for 28 years. This meant the photo of Charlotte fell
into the public domain in 1988. Kruger's 1990 creation was therefore
lawful. Then, in 1994, Congress extended copyright protection to foreign
works that had come into the public domain. This law offered 95 years
of protection from the time of creation. Under the revised 1994 law,
Hoepker's photograph is copyrighted until 2055. This seems to move
Kruger to the guilty side of the ledger. Well, not quite. In the legislation,
Congress anticipated those like Kruger who had relied on the old public
domain law. Kruger was only subject to infringement actions if the
copyright owner (Hoepker) notified her that the protection is reinstated
AND she continued to use the copyrighted piece after one year. And
Hoepker never notified Kruger about his restored copyright. So, the
court ruled that he had no claim against her. Kruger's case is a well-known
example. The bulk of potential copyright infringements about images
and photographs probably occur on a more basic, everyday level. Thanks
to the internet and image-manipulating software like Adobe Photoshop,
the art of appropriating has gotten much easier. Even major museums
that want to digitize their collections must consider copyright ownership
before reproducing images. To battle infringement, many museums encrypt
images. This allows users to view the images but not to download them.
Other common prevention measures include the use of low-resolution
images, the "burning" of contact and copyright information
directly onto the images, the use of watermarks, and software that
disables the right-click or fragments downloaded images. With the passage
of the Digital Millennium Act of 1998, the net of potential copyright
infringers has widened. Now, you can sue the infringing individual
and the internet service provider if it fails to immediately remove
the offending material. The Kruger case involved special copyright
circumstances. However, there are some basic things to keep in mind
about copyrights: An original work is protected for the life of the
creator plus 50 years before it enters the public domain. For older
works, rules differ, so check to see what law applies to the time of
copyright. Copyright protection is automatic. The advantage to registering
a copyright is that you may be able to sue for damages exceeding monetary
loss. So don't treat unregistered copyrights as part of the public
domain. The test for copyright infringement is "substantial similarity." Basically,
would another viewer recognize the work as a partial or entire copy?
This is shaky ground, so don't rely on this for a defense. The fair
use doctrine allows borrowing another's copyrighted work "for
purposes such as criticism, comment, news reporting, scholarship or
research." But there is no magical percentage for acceptable use.
Keep in mind that using someone else's work for commercial purposes
tends to be unfavorably received in the courtroom. If you're thinking
about using someone else's copyrighted work, you might want to protect
yourself by consulting an intellectual property attorney. Few artists
(and no judges) will accept the defense that "imitation is the
sincerest form of flattery."
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