Published FCAA, May 2017
Author: Bridget Lyons
Copyrights and Street Art
(A Bland, Boring article on why you should ask for permission)
We all find that one image we want to reproduce, but when are we infringing on a copyright? Everyone knows Disney is strict with use of their original characters, although they have recently relaxed their prosecution of these in many cases, but other artists, including The Estate of Norman Rockwell and the creator of Tin Tin, are also strict about reproduction of their works. Copyright law is considered a very gray area of the law. Art by Marvel (owned by Disney), DC, and Star Wars (also owned by Disney) encourage fanart to keep the general population interested in the storylines in between releases.
What is a Copyright?
A Copyright is a protection under the laws of the United States Title 17, U.S. Code to the creators of original work, including, but not limited to, literary, dramatic, musical, artistic, and photographic. This protection is available for both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of a copyright the exclusive right to do and to authorize others to do the following:
▬ reproduce the work as a copy or in a photo record;
▬ prepare additional works based upon the original image or content(see fair use);
▬ distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
▬ perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
▬ display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the still images of a motion picture or other audiovisual work;
▬ in the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
In other words, it is illegal for anyone to violate any of the rights provided by the copyright law to the copyright holder.
Who Owns Copyrights?
Copyright protection starts at the time the work is completed. The copyright immediately becomes the property of the author who created the work. Only the original author or those owning rights through the author can rightfully claim a copyright.
In the case of works “made for hire”, where an artist has created the work while in his/her capacity of employee, the employer, not the employee, is considered to be the author and copyright holder. Where a work was created jointly by more than one artist, the authors of a joint work are all co-owners of the copyright in the work, unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of each contribution.
The ownership of any other work does not give the person in possession ownership of its copyright. The law provides that transfer of ownership of any material object that is a protected work does not of itself convey the copyright or any interest in the copyright. This remains in the possession of the creator and is often referred to as the underlying artist’s copyright. Therefore sale or trade of an original work does not convey copyright.
Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred to another party, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the copyright.
How Long Is a Work Copyright-Protected in the United States?
Works created on or after January 1, 1978: A work that is created on or after January 1, 1978, is automatically protected from the moment of its creation and is given a term of copyright protection enduring for the lifetime of the artist plus an additional 70 years after death. In the case of a joint work prepared by two or more artists who collaborated and hold the copyright jointly, the term lasts for 70 years after the last surviving artist's death. For works made for hire, and for anonymous and pseudonymous works (unless the artist's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from first publication or 120 years from creation, whichever is shorter.
Works originally created before January 1, 1978, but not published or registered by that date: These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as works created on or after January 1, 1978, the life-plus-70 or 95/120-year terms will apply to them. The law provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002.
Works originally created and published or registered before January 1, 1978: Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration. In either case, the copyright lasted for a first term of 28 years from the date it was secured. During the last year of the first 28 year term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were existing on January 1, 1978, making these works eligible for a total term of protection of 75 years.
The Sonny Bono Copyright Extension Act: The Sonny Bono Copyright Extension Act, enacted on October 27, 1998, further extended the renewal term of copyrights still protected on that date by an additional 20 years, providing for a total of 95 years protection from the date of first U.S. publication, if the work was published before January 1, 1978. For all works created or first published after January 1, 1978, the term of protection was extended by 20 years, then an additional 50 years, to the lifetime of the artist plus 70 years.
Unpublished works: All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which the United States has a copyright treaty or that are created by a citizen or resident of a country with which the United States has a copyright treaty are also protected.
How Long Is a Work Copyright-Protected Worldwide?
The term of copyright protection varies from country to country around the world, as determined by individual national legislation. The countries of the European Union, however, align with the laws of the United States; the lifetime of the artist plus 70 years.
What Is the “Public Domain”?
A work that is no longer copyright protected is considered to be in the public domain. It should be noted that photographs of works of art in the public domain may themselves be copyrighted and will likely require a license for publication, even though the public domain works are the subject of the photos and are no longer protected.
The Berne Convention & International Laws
There is no such thing as an "international copyright" that will automatically protect work throughout the entire world. Protection against unauthorized use in a particular country depends on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions.
The most significant international copyright protection is the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention has approximately 170 members, including the United States. The Berne Convention is based on national laws, meaning that a Berne country must extend the same treatment to the works of nationals of other Berne countries as its own nationals. Furthermore, the Convention obligates member countries to create minimum standards for copyright protection.
The Universal Copyright Convention of September 1952 ("UCC Agreement") was created to provide an alternative to the Berne Convention. The United States ratified the UCC in 1955. The UCC imposes fewer requirements than the Berne Convention. For countries that are members of both the Berne Convention and the UCC, in cases of conflict between the two conventions the Berne Convention prevails.
The Agreement on Trade-Related Aspects of Intellectual Property Rights of April 15, 1994 ("TRIPS Agreement") became an addition to the agreement establishing the World Trade Organization (WTO). While providing for international minimum standards of protection in the area of copyright, TRIPS also establishes enforcement standards. It also restores U.S. copyright to foreign works which were deemed to have fallen into the public domain by virtue of their failure to fulfill the formalities previously required by U.S. Copyright Law.
The World Intellectual Property Organization Copyright Treaty of December 23, 1996 ("WIPO Copyright Treaty") also supplements the provisions of the Berne Convention to provide stronger international protection to copyrighted material in the digital age.
What is Fair Use?
In its most general sense, a fair use is any copying of a copyrighted work done for a limited purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement and if your use qualifies as a fair use, then it would not be considered an illegal infringement.
So what is a “transformative” use? There Is no specific definition, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition, they wanted it to have an expansive meaning that could be open to interpretation.
Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.
* Commentary and Criticism
If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:
▬ quoting a few lines from a popular song in a music review
▬ summarizing and quoting from a published article in a news report
▬ copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
▬ copying a portion of an article or news story for use in a related court case.
The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material.
A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original.
But isn’t street art ephemeral?
As a street artist, creating ephemeral art, copying of any work or photograph may be considered copyright infringement. Not only is permission best obtained, but credit to the original artist as a courtesy would be best practice. The use of a completed work in a portfolio used to solicit business shows the potential to earn money from use of a copyrighted work and can be held against a street artist in a court of law. Also, sharing of photos by spectators and “tagging” of companies and people on social media create additional exposure that can be used against an artist. Although the fair use law creates a very grey area for prosecution, most companies (i.e. Disney) rely on the monetary backing of taking the matter to the court system. In other words, the cost of persecution is high and a street artist may not be able to defend themselves at these high costs.