|
"...Copyright legislation is based...upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their (work)."
H.R. Rep. No. 2222, 60th Cong., 2nd Sess., 7 (1909).
|
|
Copyright: Answers to Quilter's Questions
Part 3
By Janet Jo Smith
This article will wrap up our discussion of copyright law. It addresses questions about the copyright notice and registration, and what you can do if an infringement occurs. The forms necessary for registering copyrights, and instructions for filing, are available from the United States Copyright Offices. First, a quick review of the tenets of copyright that we covered in previous issues:
- A copyright exists from the time an original design is fixed in a tangible form. Registration is not required to create a copyright.
- A copy is a substantially similar reproduction of the original, or any pan of the original, in any medium.
- The copyright holder has the exclusive rights to copy, distribute copies, and to publically display the original work or copies of it.
- Permission to reproduce, distribute, or display a copyrighted work is called a license. Licenses should be in writing.
- In general, reproduction, distribution, or display of the protected work of another, without permission, is an infringement of copyright.
- When a copyright holder publishes a pattern of the work, permission for the purchaser to make a copy is implied.
- Fair use is the exception to copyright that allows copying for non-profit education, news and commentary, and scholarly research.
- Copyright protects original design or text. It does not apply to techniques.
- A copyright holder may give, sell, or bequeath all or part other rights.
- After a fixed period of time, copyrights expire, the design moves into the public domain, and it may be freely used by anyone. The basic rule of copyright is: Always ask permission before you copy the protected work of another.
We begin this installment with Nettie Ninepatch and Betty Bearpaw. Nettie makes a series of twelve original quilts. She places the quilts on exhibit in a local fiber-arts gallery, and offers them for sale. Betty attends the show, falls in love with one of the quilts, and purchases it on the spot.
Can Betty Bearpaw register a copyright in the quilt she purchased from Nettie?
Only the owner of the copyright can register it. Betty has purchased the quilt, but not the copyright. Those rights remain with the artist unless specifically conveyed in writing. Nettie still owns this copyright and only she, or her agent, can register the work.
Why would Nettie want to register a quilt she has sold?
She still owns the design copyright in Betty's quilt and she may want to protect it. If Nettie's quilts have a substantial market value, and she wants to prevent any loss of income resulting from copying, Nettie should register her quilt. If registering one quilt, she would file a form VA for Visual Artists and pay the accompanying fee.
Does Nettie have to register each of the twelve quilts separately?
Recognizing how expensive it is to individually register a series of art works, the copyright office provides a form SE for a series of multiple related works. Only one registration fee is paid for the entire series.
Rocky Road visits the exhibit and falls in love with one of Nettie's quilts. She sketches the design and goes home to copy it patch for patch. Rocky then markets a pattern for it and uses it in a book, making lots of money. Can Nettie stop further sale of these items? What happens to the copies in Rocky's warehouse?
Rocky has infringed Netties copyright by sketching the quilt and by making a copy. The court can order the sheriff to seize all copies of the pattern and book in which the quilt is copied. Nettie can also get an order preventing Rocky from publishing any future patterns or books based upon this quilt.
Does Rocky get to keep the money earned from these books and patterns?
Nettie can recover money damages from Rocky, either in the amount of the profits Rocky made from her work, or by proving how much profit she (Nettie) could have made if the infringement by Rocky had not occurred. Nettie can ask for the amount she believes is greater.
Does registration affect damages?
No legal action can be filed until the original quilt is registered with the Copyright Office. If Nettie registered within three months of the first public showing of the quilt (publication), she can also request reimbursement of attorney fees and court costs if her suit against Rocky is successful. Her prompt registration will be evidence of the validity of her copyright claim.
What are the time limits for recovering any damages?
The statute of limitations for any infringement of copyright is three years.
Is Nettie required to use the © symbol on her quilts?
Although optional on works after 1989, the copyright notice should always be used. It puts the public on notice that you claim these rights. In Nettie's case, it would prevent Rocky from claiming she didn't know of the copyright and that this was an innocent infringement.
Where should Nettie put the symbol and how should it be used?
The correct form of the copyright notice includes the symbol © or the word copyright, the date the work was first published or publicly shown, and the artist's name. It should be placed on the quilt where it is most likely to "give reasonable notice of the claim of copyright." The common practice of labeling quilts on the back means that notice could reasonably be placed there. But to insure that all viewers see the notice, Nettie would be wise to put it on the front also.
Although this quilt was made and purchased in the United States, Betty is a citizen of Australia and takes the quilt home with her. One of her friends, Carolina Rose, makes copies of the quilt and sells them in Australia. Does Nettie have any recourse?
There is no such thing as an international copyright protecting an artist's work throughout the world. Each country has its own set of laws. However, the U.S. belongs to the Universal Copyright Convention and the Berne Convention for the Protection of Literary and Artistic Works. These treaties provide a basic level of protection for American artists in all member nations. Australia is a member country to these agreements and would uphold Nettie's rights to the extent allowed by their law. Nettie should consult an attorney who specializes in the international law of intellectual rights.
This series of articles is for your general information. Although Janet Jo is a licensed attorney as well as an editor, QN cannot give legal advice. For specific, personal questions, consult with an attorney who specializes in Patent, Trademark and Copyright law. Contact information for the U. S. Copyright Office is listed in the Bulletin Board of this issue.
|
