Copyright Protection: from Monkey Selfies to Cezanne
| Citado como | Vol. 55 No. 1 Pg. 0026 |
| Páginas | 0026 |
| Año de Publicación | 2014 |
By Kimberly Peaslee.
Every day each of us interacts with works protected by copyright - at work, at home, online. Understanding what can be protected via copyright, how it can affect us as both consumers and creators, and when we need to seek permission to use another's work enables us to avoid potential legal disputes.
Copyright protection in the United States is based on the Constitution and is governed primarily by federal statutes.[1] Additional statutory rights are afforded to authors who federally register their copyrights with the Copyright Office within either three months of publication, or before there is any infringement of the work.[2] These additional rights can be significant and will be discussed in more detail later in this article. Also outside the scope of this writing is the fact that US copyrights are also protectable around the world through various treaties.[3]
As stated in the Copyright Act of 1976, "copyright protects an author's creative expression once it has been fixed in a tangible medium."[4]While this statement may seem simple, further inspection reveals that it is complex. Copyright is not a single right, but rather a bundle of rights including the right to copy, distribute, perform publicly, display publicly, and create derivative works.[5] Each of these rights can be owned and/or licensed, separately or as a whole.[6]
COPYRIGHT OWNERSHIP
To be an "author," one must contribute sufficient creativity to a "work" to satisfy the requirements for copyright protection. The Copyright Office has recently clarified that an author cannot be a plant, an animal, or nature itself [7] While that might seem obvious to some, a series of "monkey selfies" recently garnered international attention when a photographer's camera was stolen by a Black Macaque and used to take a series of self-portraits. See, for example, Figure 1. When the portraits were uploaded onto Wikipedia as part of their creative commons project, the owner of the camera, David Slater, attempted to claim ownership of the copyright in the images, arguing that the camera was his and had cost him a lot of money. As Slater soon found out, ownership of the camera has no bearing on the authorship or ownership of the copyright in the resultant photographs.[8]
The now famous "monkey selfies" are not a case of joint authorship, either. Generally, barring a written agreement, a work created by co-authors is jointly owned by the authors.[9] To be a joint work, the work must be created by two or more authors, the contributions by each author must be inseparable or interdependentparts of a single work (e.g., art for a graphic novel), and the authors must have intended their contributions to be merged into a single work.[10] Furthermore, each contribution must be of sufficient originality as to be independently copyrightable.
When a work is jointly owned, each owner has an undivided interest in the rights to the whole work.[11] Joint authors have the right to exploit those rights without permission of the other owner, but they also have a duty to account to the other owners their share of the profits from any exploitation of the work.[12]
While it may seem counterintuitive, two people can independently create the "same" work.[13] If there is no evidence of copying, either direct or indirect, then each individual person is the sole author and owner of his or her respective work, even though the works are not unique.
Generally, an employer is the author of a work created by an employee within the scope of his or her employment.[14]This is referred to as a "work made for hire." A classic example is a software developer working for a software company. A "work made for hire" is statutorily defined and also refers to limited instances of commissioned works.[15]
Having agreements in writing is important in issues of copyright ownership. Because ownership in a copyright initially vests in the author, it is very important to have the artist/author assign the copyright to you, so there is no confusion as to the intention of the parties.[16] To ensure that you own the copyright to works that you have created specifically for yourself, it is prudent to have an agreement in writing.
QUALIFICATIONS FOR COPYRIGHT
As expected, there must be some element of creativity in a work for it to warrant copyright protection at all.[17] Copyright protection does n ot extend to single words, slogans, ideas, facts, processes, or the like.[18] Those types of "expressions" may be protectable through other means, including trademark or patents if they cannot be copyrighted.
An "expression," as defined in the statute, includes, but is not limited to, a literary work, musical work, dramatic work, pantomime or choreographic work, pictorial, graphic or sculptural work, motion picture or other audiovisual work, sound recording, architectural work, or some combination thereof.[19]
Because some works may fall into various categories, or consist of several protectable forms, a license granted to use a particular work must be clearly defined. For example, if you are interested in publicly playing a sound recording...
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