The Art Director and Law of Copyright
Some Questions and Answers
What is a copyright?
Although the term copyright suggests
that a copyright is comprised of a single right, it is actually comprised
of many. Among these are the following:
- The right to reproduce a work in copies (for
example the right to make print reproductions from preprinted or mechanical
art).
- The right to distribute copies (for example the right to disseminate through the mail the reproductions that have been made).
- The right to prepare derivative works, which are works based on the preexisting works (for example the right to make a collage of preexisting illustrations).
-The right to display a work (for example the right to display copies or television images of the work).
- The right to perform a work in instances where
the work is of the type that can be performed.
How Do These Rights Protect the Art Director?
Where the art director is the copyright
owner, the art director is the only person legally entitled to make reproductions,
disseminate copies, display copies, and make other art works based on the
art director's art. Therefore, if derivations or reproductions of the art
director's work are required, the art director must be approached to prepare
them. The fees for preparing these derivatives or additional reproductions
may be an important source of revenue, and the law helps to assure the art
director of payment. Alternatively, the art director may charge for granting
a client permission for the client to prepare the reproductions or derivation
themselves. Unless this permission is granted, the clients exercise of these
rights might constitute an unlawful copyright infringement.
How does the art director obtain these rights?
The copyright law makes it very simple
for an art director to obtain copyrights in works which are created by the
art director. The law says that the art director, if they are the author of
the work is, automatically vested with the copyrights in any work which they
create in tangible form, such as sketches, illustrations, drafts, mechanical
art, computer files, as long as the work is original. Nothing else is required
merely for an author to obtain copyright ownership in a work which is subject
to copyright protection. In the course of creating a finished piece the art
director may create a number of preliminary pieces in each of which the art
director will have a copyrights.
Do Copyrights protect against the unauthorized use of all of the art director's
work?
The law states that copyright subsists in work
as soon as it is fixed in tangible form. This means that the art director's
copyrights spring into being as soon as the art director fixes an image on
paper, film, computer, or any other tangible material. The art director can
therefore have copyrights in illustrations, sketches, photographs, art boards,
and other tangible work which is created in the course of finishing a piece.
The law also provides that in order for the art director to acquire copyright
protection in a work, the work must be original to the Art Director. This
does not mean that the work must be novel or unique. It only means that the
Art Director must have originated, not copied the work.
Are there any works which cannot be copyrighted?
The law provides that certain works are not
copyrightable. These include typeface designs. Theoretically the entire publishing
industry could be stigmatized if people could control or restrict the use
of typefaces used for publishing. Therefore, in enacting the copyright laws,
Congress provided that copyrights could not be used to protect or restrict
the use of a typeface design. On the other hand, certain ornamental embellishments
to type designs may deserve protection.
The law
also provides that copyright protection cannot be acquired for works which
are in the public domain. This means that anything for which copyright protection
was not acquired, or works in which protection has expired, and certain works
created by or for the United States government, are not copyrightable. Anyone
can, use them.
Short phrases and slogans are additional items
which cannot be copyrighted. However, it may be, possible to copyright the
embellishments, illustrative characteristics, or pictorial elements which
are sometimes added to typefaces, slogans and phrases, or to works in the
public domain. Only the uncopyrightable elements will then be unprotected.
Does the art director own the rights in works which are not created
by the art director themselves but by the art director's employees or freelancers?
The law provides that the art director
owns the copyrights to the work which is created by the art director. But
sometimes the art director is not creating the work, but is employing other
people to create a work. In these circumstances the question of who owns the
rights often comes up. Do they belong to the art director or the person whom
the art director has hired?
The Copyright Law's "works made for hire"
provision answers this question in many instances.
Works which are made by hire include works
created for an employer by an employee within their scope of the employment.
The law says that the employer is legally considered the author and creator
of the works done by employees and is therefore considered the owner of the
rights. Under the work made for hire provision art directors are considered
the owners of the works which are created by their employees. However, before
concluding that the art director owns the rights in the works of the people
who are hired, the art director must be certain that the people who are hired
are legally considered "employee." Not everyone who is hired is
an employee.
Whether someone will be legally considered
an employee depends on several factors, perhaps the least of which is whether
they were merely "hired."
The most important factor is whether the art
director controls or has the right to control the physical conduct of the
labors of the person who was hired. If the art director has the control or
right to control with respect to the hired persons physical activities, then
it is possible that an employer-employee relationship exists.
However, other factors can also be considered.
The accoutrements of an employer-employee relationship usually would include
that the art director is providing the space in which the artist creates the
work, provides the tools and supplies with which it is created, pays the artist
on a regular wage as opposed to per job basis, withholds employment taxes.
Other considerations may also apply.
The art
director's ownership of rights may be suspect when the work is created under
circumstances which do not bear the accoutrements of the employer-employee
relationship. For example, the art director's claim of ownership of the rights
in works prepared by freelancers is generally unfounded, either because the
art director does not control the physical conduct of the freelancer's work
(photographers for example), or because the freelancers are not paid on a
wage basis, do not work with the art director's tools and materials at the
art director's premises, or do not have taxes withheld. Whether the doctrine
will apply will of course depend on each situation. When in doubt, the art
director should obtain copyright releases from those who are hired to create
work-.
Does the work made for hire doctrine cover only works created by employees?
The doctrine actually covers works created
in other situations besides those for an employer by an employee. For example,
the doctrine is applied when the art director has requested that a work be
prepared by someone "on commission." But the application of the
doctrine in these circumstances is limited. First, it applies only in certain
situations, which are listed in the statute. These include where answer material
is being prepared for a test, where the work is for audio visual purposes,
where the work being prepared is an atlas, and several other situations. Further,
the application of the doctrine in these "commisioned" situations
is limited by yet another requirement. It applies only where there is a written
agreement which states that the work prepared on commision shall be considered
"a work made for hire." It is therefore unlikely that art
directors will obtain ownership in the rights to works which have been commissioned,
because the doctrine applies only with respect to a few categories of work,
and then only when the commission arrangement includes a written statement
that the work will be a work made for hire.
When a client hires an art director to prepare a work, does the client own
the rights in the work?
The law states very clearly that initially
the author is the owner of the copyrights in a work. Therefore, the fact that
someone hired the art director to prepare a work does not give him ownership
of the rights in the work. A qualification exists when the client is an employer
of the art director (hence the work would be a work made for hire and thus
the employer-client is considered the author), or where the client commissions
the work as work for hire (in which event the work would have to fall within
the categories listed in the statute and would have to be prepared under a
written "work made for hire" agreement). Other issues arise where
there is joint authorship with the client and possible joint ownership.
How can clients obtain authorization to exercise the art director's
rights?
In order for an art director to transfer
ownership of a copyright to a client, the transfer must be made in writing.
It might be contained in a contract, a letter of agreement, or a copyright
assignment form. The writing in which the transfer is made can state that
all of the rights are being transferred, or it can provide that only some
rights are being transferred, such as the right to reproduce a work but not
the right to use the work as the basis for the creation of subsequent works.
Many variations are possible.
Unless a written document is executed the transfer
of rights may not be recognized as being valid. With a valid transfer however,
the art director relinquishes the rights to the client, and the client becomes
the owner and obtains the capacity to sue others who infringe the rights by
using the work without the client's permission. Under some circumstances,
however, even the transferee is precluded from making subsequent transfers.
Distinguished from situations in which ownership
of the rights is transferred are situations in which the art director retains
ownership of the rights while giving the client only limited permission to
exercise them. This is somewhat like retaining ownership of one's car but
loaning it to a friend for the friend's use. By retaining title to the rights,
the art director may still prevent others from utilizing the work, and even
prevent the client from utilizing the work once the client has exhausted the
permission granted. For example the art director might retain the copyrights
in a compuyter file containing art and give the client mere permission to
use it for making fifty thousand reproductions. Since the art director retains
ownership of the rights, the client will have to return to the art director
to acquire further permission to use the work, once fifty thousand copies
have been made. In these situations licensing fees might be charged.
Although the law requires that a transfer of
copyright ownership be made in writing, there is no requirement that a mere
permission (also called a license) be written. This permission may be granted
verbally. Or where there is no written agreement or verbal understanding,
there might be a license or permission which is "implied" based
on the facts, circumstances, and trade customs which apply in a given situation.
It would generally be presumed, for example, that the client who retained
an art director to supply art also is requesting and is being granted some
permisssion to use the art for reporduction in print or possibly on the web,
or in some other media.
The problem with permissions and licenses which
are not written down is that they are usually very ambiguous and leave the
art director and client open to argument, or disagreement, about the scope
of the permission or license being granted. This often happens when the art
director has priced the job in expectation of exercising the right to do further
or additional work, while the client agreed to pay based on the invalid assumption
that there would never be any restrictions on how the client could use the
work. For this reason it is a good idea to arrive at a clear agreement about
the permission being granted in advance, and then to sign a contract or statement
which memorializes the extent fo the permission which is being granted. Standard,
short forms are often used for this purpose.
What rights does the client obtain when the art director provides
the client with production ready art?
The copyright law explicitly states that
copyrights are separate and distinct from the art work in which they subsist.
The ownership of the rights is not affected by a transfer of the art work
underlying them. They can be retained while the artwork is itself sold, transferred
or given away. In light of this one might wonder what good the client
derives from merely obtaining possession of mechanical art without also obtaining
the rights to reproduce it. The answer is quite simply that the art can be
of little value unless the permission to use it is also granted. Obviously,
in most situations, the art director will be called upon to provide the client
with, if not ownership of the copyright(s), permission to use the work. And
if the this is not expressly requested and granted in writing, there will
usually be "some" permission or license to use the work which is
being implied by the facts, and circumstances. The most common exception will
be where the art director will be organizing the printing of the work himself,
and will then be supplying the client with finished reproductions. In these
situations the client will not need rights or permissions since the art director
and not the client is handling the reproduction.
Why do art directors place copyright notices on art work?
The proper form of a copyright notice is the
word copyright (or the abbreviation Copr. or ã , the copyright claimant's
name (whether a company, or individual artist), and the date in which the
work was first published. This notice is placed on copies of the work to give
people notice that there is a copyright claim in the works.
Affixing a copyright notice to the work will
help the enforcement of the art director's rights. Aalthough not a prerequisite
to obtaining a copyright in work after 1978, a failure to affix a notice to
a work may prejudice the artist's rights in certain cases in an infringement
suit against someone who did not have notice of the copyright and who relied
upon an authorized notice omission.
Why do art directors register their rights?
The copyright law provides that the owner of
a copyright in a work may register his claim to copyright on certain forms
provided by the Library of Congress. Registration is required as a pre-requisite
to a suit for infringement of some of the rights under the copyright law,
and unless registration is made prior to the infringement, or within three
months after first publication of the work, the art director may not be entitled
to statutory damages or attorney's fees under certain sections of the copyright
law. Therefore art directors not only provide copyright notice, but attempt
to register their rights for the nominal fees involved, where possible.