Protection of Artistic Works

The Berne Convention for Protection of Artistic Works affords copyright protection to qualifying works without formalities in Convention party countries. In other words, artistic works have some copyright protection as soon as they exist.

The United States is a party to the Berne Convention and also maintains a national Copyright Office. The U.S. has its own laws that allow for registration of works seeking U.S. copyright protection.

U.S. Copyright Protection of Artistic Works

Artistic works generally have U.S. copyright protection. However, certain facts, ideas, systems, or methods of operation are not. Recent U.S. cases suggest the bar assessing creativity is rising and judges could begin declining copyright protection of artistic works. In general, a copyright owner has the exclusive right to reproduce, copy, distribute and/or perform the work publicly. An owner can assert certain copyright protection to prevent others from doing the same.

Limitation of Rights

U.S. copyright protection is not absolute and certain copyright laws limit a copyright owner’s exclusive rights. The fair use doctrine, for example, provides exceptions to copyright protection and allows certain copying by third parties for criticism, news reporting, teaching, and research.  Copyright can include, for example:

  • Music

  • Lyrics

  • Books

  • Plays

  • Poems

  • Paintings

  • Sculpture

  • Photographs

  • Architectural Designs

  • Software

Copyright Registration Advantages

U.S. copyright registration serves as prima facie evidence in a U.S. court of law of copyright protection in such works. An author of a work need not register the work with the U.S. Copyright Office to create copyright protection in the work. However, an author must register a work to enforce a copyright, and is a prerequisite to obtain certain statutory damages and attorneys’ fees in successful litigation of registered works.

An owner should register a work to have the facts of their copyright on public record as well as obtain a certificate of registration. The symbol © is an identifier placed on copies of the work to inform the world of copyright ownership. In general, the copyright notice should include the name of the copyright owner and the year of first publication (e.g., © 2006 John Doe). Under U.S. copyright protection laws, registration of the work is not required to use the © symbol. However, if an infringed work carries the proper notice, a defendant cannot rely on an innocent infringement defense to reduce damages that the copyright owner would otherwise receive.

Term of Copyright Protection of Artistic Works

The term of U.S. copyright protection can vary according to the date of creation, the date of publication, and the type of work. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, copyright protection is generally afforded for 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

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