Compiled by Jessica Hille, Erin McGowan and Laurie Washington, legal interns with the St. Louis Volunteer Lawyers and Accountant for the Arts, www.vlaa.org .
Copyright © 2009 St. Louis Volunteer Lawyers and Accountants for the Arts.
This glossary serves as an introduction to copyright law. Two excellent resources for further information are the United States Copyright Office (www.copyright.gov ) and the Cornell University Law School Legal Information Institute (http://www.law.cornell.edu/ ). Much of the information in this glossary comes from these sites.
Attribution: Attribution is a requirement to acknowledge or credit the copyright owner when their work is used or appears in another work; to attribute the work to the appropriate source.
Author: The author is the creator of an original, fixed work. For example, a writer is the author of a story, and a sculptor is the author of a statue. (See also Joint Authorship, Work Made for Hire, and Corporate Authorship.)
Berne Convention for the Protection of Literary and Artistic Works: The Berne Convention requires its signatories to recognize the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way it recognizes the copyright of its own nationals. On March 1, 1989, the U.S. “Berne Convention Implementation Act of 1988” took force and the United States became a party to the Berne Convention.
Collage: A collage is an artwork created by bringing together a variety of cut-out images (may include digital images), textures and possibly objects in a fresh and unexpected way to create an image that is more than the sum of its parts. Creating a collage using copyrighted material may or may not be a copyright violation (See Fair Use.)
Commission: A commission is a business agreement between an artist and a client, or an authorization by an organization, whereby the artist is given directives and specifications on the creation of a piece of art to be created or showcased for the clients’ purpose. Unless otherwise stated in a contract, the copyright for a commissioned work belongs to the person or entity commissioning it.
Copyright: Copyright gives the creator of a work the exclusive right to reproduce the work, create derivate works, distribute copies of the work, perform the work publically, and display the work publically. These rights can be transferred (i.e. to a publisher) in writing. Copyright protects literary, dramatic, choreographic, pantomime, pictorial, graphic and sculptural works.
Copyright Notice: a notice that material is copyrighted by the author. After January 1, 1978, copyright notice is not required for material to be considered copyrighted. The author obtains copyright at the moment of creation – putting an idea in a physical or fixed form, such as a written story. A copyright notice has three parts: the copyright symbol (©), the year of creation, and the author’s name (ex: © 2009 Jane Author).
Corporate Authorship: (See Work Made for Hire) If a work is “made for hire,” the employer – not the employee or contracted person – of a corporation or organization is considered the legal author of a book, or text, when the writing was contributed by an individual. The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status. Ex: Google hired many programmers to develop the renowned Google search engine, which is credited simply to Google Corporation.
Derivative work: According to U.S. copyright law, derivative works may be protected by copyright. However, the law does not extend copyright protection to portions of the derivative work that use preexisting copyrighted material unlawfully. The author of a derivative work does NOT gain exclusive copyright to the preexisting material as a result of its incorporation into the derivative work. The copyright of preexisting material is unaffected.
Duration: Works created on or after January 1, 1978 are automatically protected by copyright from the moment of creation until 70 years after the author’s death; in the case of work created by a corporation or business entity, the copyright duration is 95 years from the first publication date, or 120 years from the year of creation, whichever expires first.
Fan Art: Fan art is any type of unauthorized work that incorporates preexisting characters, ideas or stories from books, comics, movies or video games. Such works are typically created by unaffiliated amateur artists who are not seeking to be compensated for the works. (See Derivative Work and Fair Use.)
Forgery: A copy or reproduction presented as genuine/original in order to defraud.
Fair use: Generally, a copyright owner has the sole right to make copies or reproductions of his or her copyrighted material. The Fair Use doctrine is an exception to that rule. The Fair Use doctrine allows the limited use of copyrighted material for the purposes of criticism, comment, news reporting, teaching, scholarship, and research. There is no bright-line rule dictating how much or what kind of copyright material you can appropriate or sample before a “fair use” turns into a copyright violation. The courts apply a four-factor balancing test to determine whether a would-be infringer’s use of copyrighted material is permissible under the doctrine. The factors are:
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
A finding of a legitimate fair use is always based on a fact-sensitive analysis, so unless the Fair Use doctrine obviously applies, a good rule of thumb is to always seek permission before using copyrighted material. (www.copyright.gov/fls/fl102.html ) Refer to October 2009 Art Calendar, Is My Work an Infringement or Is My Taking Fair?
Fixed: To be copyrightable, an idea must be fixed in a tangible medium of expression, such as a physical copy, phonorecord, digital file, or other medium that allows the work to be perceived, reproduced, or otherwise communicated for more than a transitory period of time. An idea for a story, for example, is not copyrightable until the story is written down – until it is “fixed.” (See also Idea.)
Form CO: The U.S. Copyright Office requires that Form CO be completed to register the following: a literary work, a visual arts work, sound recording, performing arts, motion picture/audiovisual or single serial issue (a work being issued in successive parts with chronological enumerations). Form CO seeks basic information about the work itself and the work’s author, including the author’s name, a description the author’s contribution to the work being registered, as well as the work’s title and its year of completion.
In the case that the work being registered is a “work made for hire,” the employer or individual who commissioned the work for hire should be listed as the author. Do not provide the author’s name in the case of a work made for hire. If the author has transferred title of the work to another individual or organization, Form CO requires this “claimant’s” information. If the author has not transferred title of the work, then the claimant is the author. In addition, the form seeks a rights and permission contact. A $45 dollar fee must also be submitted along with a copy of the work to be registered. For published works, two copies are generally required. (www.copyright.gov )
Freedom of Information Act: Based on the principle that an informed public is essential to the democratic process, the Freedom of Information Act (FOIA), which can be found at Section 552 of Title 5 of the United States Code (U.S.C.), requires federal agencies to make agency records available to the public either proactively or in response to a request, subject to certain conditions and exceptions. In addition, under Title 17 of the United States Code, the United States government may not claim copyright protection for any work it produces; therefore, most works or documents created by the federal government may be used freely.
Homage: When artists pay respect or acknowledge a renowned artist’s achievements and create a piece of art representing aspects of that artist, including some copying of the artist’s style within that piece of work. (See also Fair Use.)
Idea: Copyright law does not protect ideas. Rather, it protects the expression of an idea in a physical or fixed form, as in a short story that has been written down, not just imagined or discussed.
Joint Authorship: Joint authorship occurs when a work created by more than one author. The authors must have intended to create the work together – to combine their efforts to produce a single work. Unless there is a contract stating otherwise, each author owns copyright in the work and can transfer these rights to a third party without the consent of the other joint author(s) (ex: grant permission for a publisher to print and distribute copies of a jointly authored novel). Authors can be individuals, organizations, or corporations. (See Work Made for Hire and Corporate Authorship.)
License: An arrangement in which a copyright owner permits certain limited uses of a work by another party in exchange for royalty payments. (www.copyright.gov )
Literary works: A classification of copyrightable works that include published or non-published textual works, such as poetry, advertising copy, speeches and games. The US Copyright office classifies computer programs or databases as literary works. Literary works must be fixed in a tangible form (ex: written down in a journal). (See also Idea.)
Made for Hire: see Corporate Authorship, Work Made for Hire
Method: A method for doing something is not protected by copyright. If you write a description of the method, the writing is protected, but the method itself is not.
Montage: A montage is a composite picture made by combining several separate pictures or a succession of images in a motion picture to illustrate an association of ideas; a literary, musical or artistic composite of various elements. A montage may be deemed a violation of copyright if too much copyrighted material is used without permission. (See Fair Use.)
Moral Rights: The international copyright treaty the Berne Convention defines moral rights as an author’s right to claim authorship of his or her work or to “object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” An author’s moral rights are maintained, despite a transfer of the author’s economic rights to the work. (Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971)) (See Visual Artists Rights Act and Berne Convention)
Parody: A type of literary work or other art media in which the style of the original creator is closely imitated for comic effect using satire, spoof, distortion, burlesque, mockery and other forms of exaggerated imitation. Parody may or may not be considered a copyright violation under the Fair Use Doctrine. (See Fair Use.) Refer to October 2009 issue of Art Calendar, Is My Work an Infringement or Is My Taking Fair?
Pastiche: A literary or artistic work from or imitating various sources. Pastiche is different from parody and derivative works in that it does not use exaggeration for satiric expression, or merely regard the replication of a work; pastiche is a “patchwork” form of artistry that is a blend of many works; it is a composition made up of selections of different works, styles and materials. Pastiche may be allowed without violating copyright under the Fair Use Doctrine. (See Fair Use.)
Patent: An official document issued by a government conferring right to exclude others from making, using or selling an invention. In contrast to copyrights, which only protect fixed works, patents can be granted for ideas.
Performing arts works: A classification of copyrightable works that includes works prepared for the purpose of being “performed directly before an audience or indirectly by means of any device or process.” This category includes: musical works; dramatic works and any accompanying music; pantomimes and choreographic works; and motion pictures and other audiovisual works. (www.copyright.gov )
Plagiarism: The passing off of another’s idea, or the expression of that idea, as one’s own. In general, plagiarism is not a crime; it is an ethical violation prosecuted by academic or other authorities, not the courts. If, however, the plagiarized martial was copyrighted and used without the permission of whoever holds the copyright, then the plagiarism may constitute a copyright violation, and could be actionable under copyright law.
Preregistration: The U.S. Copyright Office offers copyright preregistration to authors of works that are vulnerable to prerelease infringement, such as movies and recorded music. Preregistration is used where a copyright owner needs to enforce his rights while a work is still being prepared for commercial release. Preregistration serves as a placeholder until an applicant can fully register the work, and it is not intended to be a substitute for full registration. The following types of works may be preregistered: motion pictures, sound recordings, musical compositions; literary works being prepared for publication in book form; computer programs, and advertising or marketing photographs. (www.copyright.gov ) (See also Registration.)
Publication: The distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease or lending. The offering to distribute copies to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
Public domain: Works that are not protected by copyright are considered to be in the public domain. Anyone can use, copy, perform, etc. these works without the permission of the creator. Works that were protected by copyright enter the public domain 70 years after the author’s death. (See Duration.)
Public performance: The right to public performance of a work, like a play or movie, is protected by copyright.
Registration: Works can be registered with the United States Copyright Office. Though registration is not necessary for copyright, it creates legal evidence of copyright ownership in case of dispute. It is generally necessary to register your work before enforcing your rights in court (ex: sue for infringement). Refer to July/August 2009 issue of Art Calendar, When, Where and How to Register Your Copyright. (See also Preregistration and United State Copyright Office.)
Sightings: Sightings (ex: a sighting of Elvis) are not protected by copyright because copyright only protects tangible products. In contrast, a photograph of Elvis is protected by copyright. (See also Idea; Slogan; Title.)
Single serials: Single serials are works to be issued in successive parts and are considered a classification of copyrightable works by the U.S. Copyright Office. Single serials include periodicals, newspapers, magazines, newsletters, annuals and journals. (www.copyright.gov )
Slogans: Slogans are not protected by copyright. Some slogans may be protected under trademark law. (See Trademark.)
Sound recordings: A category of works protectable by U.S. copyright law that includes music, spoken word, drama, lectures or other sounds fixed in a recording. This category does not include the sounds that accompany a movie or other audiovisual pieces of work. (See also Idea and Performing arts works). (www.copyright.gov )
Titles: Titles of works, such as books and movies, are not protected by copyright.
Trademark: “A trademark includes any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.” (United States Patent and Trademark Office, http://www.uspto.gov/ )
United States Copyright Office: The Constitution empowers Congress “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article I, Section 8). The United States Copyright Office administers the national copyright system. Copyrightable works can be registered with the USCO. (See also Copyright Registration.) (http://www.copyright.gov/ )
Visual Artists Rights Act of 1990 (VARA) (17 U.S.C § 106A): The VARA protects the rights of visual artists even if they transfer some or all of their copyrights to another party. The Act gives an artist (or “author”) the right to claim authorship of the work, prevent her name from being attached to her/the work, prevent the intentional distortion, mutilation, and/or alteration of the work in a way that is “prejudicial to his or her honor or reputation,” to prevent the use of her name as the author if the work is distorted/altered/or mutilated in such a way, and to prevent destruction of the work. The rights provided by the Act cannot be transferred to another person, but they can be waived by the artist/author. Generally, artists hold these rights for the duration of their lives (if the work of art was created after the VARA went into effect).
Visual arts works: A classification of copyrightable works that includes two-dimensional visual arts such as painting, drawings, pictorial advertisements, architectural drawings, fabrics, textiles, photographs, computer and laser artwork, stationery and maps, or three-dimensional visual arts, including games, jewelry and sculptures. As with all copyrightable material, visual arts works must be fixed in a tangible form. In general, if you use a computer program to create a work of art, the company and/or programmer still has copyright over the program, but you own the copyright to your art. (See also Idea.) (www.copyright.gov )
Work Made for Hire: Copyright law defines a work made for hire in two ways: (1) “work prepared by an employee” within the scope of her employment or (2) work that is “specially ordered or commissioned for the use as a contribution to a collective work,” such as through an independent contractor or freelance artist. 17 U.S.C. § 101. Under these circumstances, the “employer” –who may be an individual person, an organization or a corporation—is considered the author in place of the “employee” who actually produced the work. (See “Copyright: Work for Hire” the United state Copyright Office Circular 9 http://www.copyright.gov/circs/circ09.pdf ). The employer retains certain limited copyright over the material. For example, an artist who hires an independent contractor to draw illustrations for a book will have limited copyright over the drawings. It is strongly advised to engage in a work for hire contract to minimize copyright disputes and to designate the responsibilities of each party.
Berne Convention for the Protection of Literary and Artistic Works (text), http://www.wipo.int/treaties/en/ip/berne/index.html
Black’s Law Dictionary, 8th ed. 2004. Print.
Copyright and Fair Use: Stanford University Libraries, http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-b.html#1
St. Louis Volunteer Lawyers and Accountants for the Arts, http://vlaa.org/
Guide to Copyrighting Basics, http://vlaa.org/documents/Copyright-3.pdf
United States Copyright Office, http://www.copyright.gov/
Copyright Basics, http://www.copyright.gov/circs/circ1.pdf
United States Patent and Trademark Office, http://www.uspto.gov/
“U.S. Code Collection,” Cornell University Law School Legal Information Institute, http://www.law.cornell.edu/uscode/
17 U.S.C. § 101 “Definitions002C” http://www.law.cornell.edu/uscode/17/101.html
Visual Art Copyright, http://visualartcopyright.com/
“Visual Art Terminology” http://www.visualartcopyright.com/terminology.html
World Intellectual Property Organization, http://www.wipo.int/portal/index.html.en
THIS GLOSSARY WAS WRITTEN FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE OR A LEGAL OPINION. ONLY YOUR ATTORNEY CAN ADVISE YOU ABOUT WHICH LAWS ARE APPLICABLE TO YOUR SPECIFIC SITUATION.