The visual artist must know his rights. Only when he does, will he be able to protect
his rights. Under the copyright laws, the exclusive rights conveyed are specific, and
embrace more than merely the right to prevent someone's unauthorized copying. In fact,
there are at least five exclusive rights granted under the copyright laws, including:
- the right to reproduce the copyrighted work in copies or phonorecords;
- the right to prepare derivative works based upon the copyrighted work (derivative works
are works which, as one might expect, are derived from a copyrighted work, such as
translations or a theatrical work based on a novel);
- the right to distribute copies or phonorecords of the copyrighted work to the public (by
sale, rental, lease, or lending);
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
motion pictures and other audiovisual works, the right to perform the copyrighted work
publicly; and
- in the case of literary, musical, dramatic and choreographic works, pantomimes, and
pictorial, graphic and sculptural works (including the individual images of a motion
picture or other audiovisual work), the right to display the copyrighted work publicly.
There are several important exceptions to these exclusive rights. For example, the
owner of a lawfully made copy of the copyrighted work is entitled to "sell or
otherwise dispose of" that copy (e.g. rent or lease the copy), without the
authority of the copyright owner. Similarly, the owner of a lawfully made copy of a work
subject to the exclusive right of public display, may show his copy to those persons
present where the copy is located. He may not, however, broadcast an image of the copy to
be viewed at other locations other than the location of the copy.
One of the most important exceptions to the exclusive rights of the copyright owner is
the "fair use" exception. Use is considered "fair" and permissible, if
the reproduction of the work is for the purposes of "criticism, comment, news
reporting, teaching (including multiple copies for classroom use), scholarship or
research." In general, use is fair when the use is for non-commercial purposes.
However, there are so many exceptions to this general rule that it is almost swallowed up
by them. For example, educational use, while clearly a non- commercial use, is not
"fair" when such use materially takes away from the profits which the copyright
holder has a reasonable expectation of receiving. For instance, if the work is a teaching
aid, then the intended consumer is likely the student or the educator. In such cases, if
there was no right to exclude use for educational purposes, there would be no profit
incentive to write treatises and textbooks. Therefore, the copyright laws protect the
author of educational texts against those who might otherwise take advantage of a fair use
exception.
There is yet another exception to the exclusive rights of the copyright owner which is
worthy of mention. Creative persons have the right to independently create any work. This
means that if an author who, not having any exposure at all to, say, the DisneyTM
version of Pocahontas, independently creates a script which, by mere chance, happens to
read identically to that of the Disney production, Disney may have no recourse. However,
due to the striking similarity, Disney would be entitled to an inference that their work
was copied. Under these facts, the inference would be almost impossible to rebut. However,
if the judge or jury is convinced that the work was not copied, the owner of the
independently created work will not be liable for distributing the work without Disney's
permission.
Finally, the exclusive rights of the copyright owner are limited in duration.
Generally, the term of a copyrighted work is the life of the author plus seventy years.
However, determining the term of a copyrighted work is often complex and involved
(primarily due to the changes in the copyright laws over the past years), and, therefore,
will not be discussed in depth here. For a more thorough discussion of the term of
copyright, see Appendix B.
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