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A Brief Primer on Copyright Law

The need to protect original works of art arose with the development of the printing press in England. To protect authors from printing houses developing a monopoly over the reproduction of their work, the government created laws to protect authors. A copyright gives the author, the one who created the work, ownership rights in the work and the right to reproduce the work. For a more complete history of copyright, read this article.

What is a copyrightable?

An idea captured in tangible form that shows a modicum of creativity can be copyrighted. The amount of inventiveness determines the scope of copyright protection.

Thick vs. Thin Copyright

Not all copyright protection is equal. For example, if you paint a dachshund in a unique way, that is copyrightable; but it will not receive the same level of protection as a completely original design. There are only so many ways to paint a dachshund, so you are limited in your inventiveness. This is an example of thin copyright protection. However, an original design can be copied in many different ways that resemble the “look and feel” of the original and hence infringe the rights of its author. These works have thick protection.

What is Infringement?

Copyright infringement is the unauthorized use of the author’s work. Use does not necessarily mean a direct copy of the work. Use can occur even when other elements are added to the original work as long as it has the “total concept and feel” of the original work.

An author can use another copyrighted work as long as his addition to it adds another layer of creativity and somehow transforms the work. Visual artists who use the work, known as the “derivative work” to create another work are known as attribution artists. Courts have ruled against attribution artists in favor of the creator of derivative works in cases where the two works were substantially the same. Courts look to see if the attributed work takes value away from the original artist. Richard Price and Jeff Koons are examples of attribution artists. For a list of interesting copyright law cases, read this article.

Defenses to Copyright Infringement

Fair use is the defense to copyright infringement. Fair use is when one uses the work in commentary, for educational purposes, or as a parody. Commentary may occur in a publication to site the work as an example or critique it in some fashion. A parody imitates the original work in a humorous way. For more information of Fair Use read this article.

How to Protect My Art Against Infringement?

I suggest that artists register their work with the United States Patent and Trademark Office. It is also wise to take these steps to show authorship of your work: Retain copy of all working papers, sketches and document steps to your process. Place a copyright notice on your work. Watermark images when possible. For an interesting movie dealing with copyright, watch the 2014 movie Big Eyes.

This information is provided for general informational purposes only. No information contained in this article should be construed as legal advice and does not establish an attorney-client relationship.


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