When it comes to art, just who owns what? Perhaps there has never been a time when the question was more pressing. Internet giant Google has expressed its intention to make the contents of a great many books available to anyone with a mouse. Amazon is working in that direction, too. Hollywood is scared silly that teen-agers will be happily watching its latest releases before they are even playing in movie houses. Anyone who knows his way around the Internet really well can easily download last night’s television programs — free of charge.
What should — and can — be done to protect an artist’s ownership of his work? Congress has changed the copyright law over time, sometimes with the expressed intention of righting past wrongs. “They have amended the Copyright Act numerous times to help artists and their heirs to regain control over the copyrights to their works,” says attorney Joseph M. Konieczny, a specialist in intellectual property law who practices in Conshohocken.
Konieczny speaks on “Legal Issues in the Arts,” on Wednesday, March 15, at 9 a.m. on the Newtown campus of Bucks County Community College. The sponsor, the Arts & Cultural Council of Bucks County, invites area artists and arts organizations to attend. The seminar is free for members and $15 for non-members. Call 215-968-8229 for more information.
Konieczny talks about changes to copyright law. “There was a time where if you published a work without copyright notice, it went into the public domain,” he says. The legal response was: That’s crazy. Why should the law be prejudiced in that way? From 1978 through March 1, 1989, if an artist published without copyright notice and without subsequent registration, the work went into the public domain, but with registration, the copyright lasted 70 years after the death of the author.
Since March 1, 1989, authors have retained the copyright for 70 years after their death, whether or not they register a copyright.
But there have been egregious abuses — and they began to occur way before the Internet became a part of daily life.
Konieczny says that copyrights have been unfairly negotiated away from artists by corporations. In the 1940s and 1950s, when popular black artists were under contract to record companies, the companies would treat the artists like employees, unfairly negotiating away the copyrights from their owners, and would make millions.
This also occurred in the art world. In 1938 the creators of the Superman character, Jerry Siegel and Joe Schuster, signed over all of their rights to the DC Comics for $130 and promises of future work. To make amends to artists who may have been unfairly compensated for works, Congress created provisions whereby heirs of the families can recapture the copyrights during the last 39 years of the copyright. In 1999 Siegel’s heirs, using these provisions, recaptured rights to the Superman character.
Konieczny talks about the differences between the three rights that exist under the umbrella of intellectual property law: patents, copyrights, and trademarks. He says that copyright law is most relevant to what artists do. It involves subject matter, what can and can’t be protected, rights conveyed, or and the scope of protection.
When Konieczny was a volunteer with the Philadelphia Volunteer Lawyers for the Arts, attorneys would staff a hotline that artists could call with their questions. The volunteers gave free advice in response to general questions, and for more complex questions would offer a discounted rate for representation. “They asked the same questions over and over,” he says, and he offers answers to some of the more common questions:
If you copyright something at work, who owns the copyright? If an artist is in a traditional employer/employee relationship, then the artist would have to get an agreement that the rights would be assigned from the employer back to the employee.
How can I register a copyright with the copyright office? The answer is to visit www.copyright.gov.
What are the advantages of registering versus not registering? Artists don’t absolutely need to get a copyright today. “A copyright vests immediately upon fixation in a tangible medium of expression,” says Konieczny. In other words, as soon as an artists puts paint to canvas, a writer puts words on paper, or a musician enters the recording room. Formerly, registration was required to have any rights.
But even though registration is no longer required, there are advantages to doing so. For one thing, an artist can’t sue for infringement without registration. Registration entitles an artist to statutory damages, that is, damages that are specified in the statute, or law, that fix specific dollar amounts for damages if the artist can prove that a work was stolen or copied.
For example, say a photographer shoots 12 scenes for a company calendar, and the company pays the photographer and uses them the year they were shot. What if the next year the company decides to use the same pictures, but doesn’t ask for permission? They have infringed the photographer’s copyright, but if the artist is not entitled to the already specified statutory damages, then he or she will have to try to prove actual damages by estimating loss of revenue or profit gained by the company. If, however, the photographer has registered a copyright, he can elect statutory damages.
Registration entitles artists to the possibility of getting other damages, including attorney fees, if the registration was made before the infringement occurred.
What is the “fair use” doctrine? If you go into a small mom-and-pop pizza parlor and they are playing the radio to create an ambiance and attract business — is that an infringement of the copyright of the performers?
“Literally, yes,” says Konieczny. “They are using copyright material for commercial purposes, not listening to it in the back while making the food.” But the Copyright Act creates “fair use” exemptions, based on criteria like the size of the store, how many speakers, how far the speakers are from the receiver. If the store fits the category specified in the law, then having the radio on is “fair use.”
“If it is a big chain, with big bucks involved, they have to get a license,” says Konieczny. Or what if a TV film crew goes to a magic show, films a 10-second act, and uses it on the news. Is this legitimate reporting? The fine line is drawn between reporting and displaying. If the audience watches to see the act more than to hear that there is an act, then the news station is said to have “purloined the entire act,” or so said the United States Supreme Court.
Who owns the copyright? It depends on whether an individual owns the work or it is “work for hire” — work that someone hires an artist to create for them such that the copyright vests in the employer, not in the artist/employee. If an artist does something at work as an employee and creates it for the company, then the copyright invests initially in the company, not the artist.
If someone hires an independent contractor to take pictures for a company catalog as an independent contractor, then the artist would own the copyright unless he or she was specifically hired to create the work and there is writing that spells out specifically that it is “a work for hire.” Since the artist is getting paid, however, the employer still has an implied license to use the work for the purpose for which it hired the artist to produce them.
Can I register a copyright, patent, or trademark by myself? The answer here for copyrights is a qualified yes. The forms are available at www.copyright.gov. and, says Konieczny, they are relatively easy to fill out. Filing costs about $30, and the copyright should arrive within two to three months.
Patents and trademarks are much more difficult. “Artists or inventors think that they can do their own patent applications,” says Konieczny, but he always discourages them. “They are good at telling the world what their invention comprises, but horrible about using the claims to spell out their exclusive property,” he says.
Konieczny grew up in Havertown and earned a degree in mechanical engineering from the University of Delaware (Class of 1987). He went on to earn his JD from Dickinson Law School, now part of Penn State, in 1990.
A solo practitioner, he says that intellectual property “never gets dull, because it’s always in flux.”