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Quick Guide to Artists’ Rights under the New Copyright Law

Originally appeared in the CAA Newsletter in September 1977

The President has recently signed a new copyright law which changes the old law and strengthens artists’ rights. This is a quick guide to the new statute. It is by no means complete, but summarizes the basic provisions of the law as they affect artists.

The effect of the new law is best illustrated by a comparison with the former law:

Under the old copyright statute there were two types of copyright: common law copyright and statutory copyright. Common law copyright existed before a work was “published.” What constituted the “publication” of a work of art was difficult to determine. Under some of the cases, it was sufficient if a work was publicly displayed. When a work was “published” without a copyright notice, the reproduction rights fell into the public domain and the work thereafter could be freely reproduced by anyone.

Statutory copyright was acquired by placing a copyright notice on the work. This notice consisted of a “c” in a circle or the word “copyrighted,” together with the date and the artist’s name. A copyright notice placed on a work of art prior to publication provided statutory copyright protection for the duration of the copyright. The statute did not provide for any specific location of the copyright notice, but the cases held that the notice must be in a location reasonably calculated to give notice to the public, i.e., a reasonably prominent place such as the front of a painting or the base of a sculpture.

Although registration of a copyright was required to enforce an artist’s rights, as through an infringement action, the copyright notice itself was sufficient to acquire a copyright. The statute provided for “prompt” registration, but this was interpreted by the Copyright Office to mean registration at any time during the first twenty-eight years after publication.

Where there was a statutory copyright, i.e., when the copyright notice was on the work, the rights remained with the artist even after the work was sold or otherwise transferred. Common law copyright, i.e., the copyright existing prior to publication where there was no copyright notice, however, passed with the work in the absence of a state statute providing for the retention of common law copyright by the artist, such as that in New York.

The law provided for two consecutive twenty-eight-year copyright terms commencing with publication.

Under the 1977 copyright law, the following changes came into effect:

1. There is no longer any common law copyright. A statutory copyright owned by the artist is created as soon as the work is made. No copyright notice is required to create copyright—although a notice is required to keep the work out of the public domain after “publication.” This provision of the statute casts substantial doubt upon the validity of those state statutes which deal with the preservation of common law copyright, since that type of copyright will no longer exist.

2. The public display of a work of art does not in and of itself constitute publication. Publication occurs when a work is sold, leased, or loaned, or when it is offered for sale, lease, or loan to the public. Thus, mere display in a museum or other public place does not deprive the artist of copyright unless the work is also offered for sale or loan. The loan of a work by an artist to a museum for public display probably constitutes publication. The new statute gives to the copyright owner the exclusive right “to display the work publicly,” although unlike the exclusive right of reproduction, this right passes with the work. This means that when an artist owns a work lent to a museum, the artist may condition the loan on a proper public display, subject to agreement with the museum.

3. Publication, as above defined, without a copyright notice causes the work to fall into the public domain. However, if within five years after publication without notice the artist (a) registers and (b) makes “a reasonable effort to add notice to all copies,” the copyright is not invalidated. Innocent infringes are not liable for damages, however, during the period prior to registration.

4. Although registration is not required to create a copyright, the copyright must be registered if the artist wishes to sue for copyright infringement. The new statute provides for registration “at any time during the subsistence of the copyright in any published or unpublished work.”

5. The form of the copyright notice remains the same. The new statute provides that the notice must be in a such a position as to “give reasonable notice of the claim of copyright.” The Register of Copyrights is authorized to issue regulations on the positions of copyrights. Present regulation provide that a copyright notice may in some cases be placed on the back of a work of art.

6. If a copyright notice is on the work, the artist retains the copyright when the work is sold or otherwise transferred unless there is a written transfer of the copyright.

7. The duration of copyright of a work created on or after January 1, 1978 is the life of the artist plus fifty years. Copyright in a work created before January 1, 1978 and not copyrighted or in the public domain, begins on January 1, 1978 and extends for the life of the artist plus fifty years.

Authors and Contributors

Gilbert S. Edelson, Honorary Counsel, CAA