& Contract Law
To answer the questions posed in this program, the user should be familiar with certain basic principles and terms related to copyright. This Principles and Definitions section offers such a foundation as an introduction to using DIRC. If you are already familiar with much of this information, you may review specific terms and concepts by clicking on any of the linked items in the following outline. You may also skip this section entirely and proceed to the section on:
How to Use DIRC or Begin DIRC Query.
Outline of this Section
(For quick definitions click on any sub category located below).
I. Basic Principles
What is Copyright?
How Does Copyright Work?
II. Essential Information
and Definitions about Copyright
A. Essential Information
What is the “Bundle of Rights” in a Copyright?
When Does Copyright Protection Begin?
How Long Does Copyright Protection Last?
B. Essential Definitions
What is the Public Domain?
What is Fair Use?
What are Derivative Works?
What is an “Underlying Work”?
What is a Photographic Reproduction?
What is a Photographic Documentation?
What is a Photographic Interpretation?
III. Information about Contract Law
What is a Contract?
How do Contracts Relate to Copyright Law?
IV. Conclusion
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I.Basic Principles
What Is Copyright?
Copyright is a form of protection provided by the laws of the United States (Title 17,U.S. Code) to creators of original works of authorship or expression, including literary, dramatic, musical, artistic, and certain other intellectual works. (Copyrights are also protected under international and foreign laws). Copyright gives the owner a group of exclusive rights for a limited period of time. Among these is the right to make or distribute copies of a work, and to permit, or restrict (subject to exceptions), the making and distribution of copies by others. Also included in this “bundle of rights” is the exclusive right to produce derivative works based on the original work.
How Does Copyright Work?
Copyright protects the specific form, way or manner in which ideas or information have been expressed (not the idea itself), and begins as soon as a work is created and “fixed” in a tangible form of expression. Under current law, a copyright owner does not need to comply with any formalities (such as using the copyright symbol) for a copyright to attach to that owner’s work.
Copyright is limited with respect to some types of works. For example, a copyright owner cannot prevent the creation, distribution or public display of photographs of an architectural work visible from a public place [see the relevant section of the copyright statute at 17 U.S.C. § 120, available at:
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000120----000-.html].
The copyright owner’s rights are also limited by the doctrine of fair use [see 17 U.S.C. § 107, available at:
http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-notes.html], and other educational exceptions.
Additionally, in some instances, the owner may impose limits with a “compulsory license,” under which certain uses of copyrighted works are permitted upon payment of royalty or licensing fees, and compliance by the user with contractual conditions specified by the owner. See Information about Contract Law.
Works that are not eligible for copyright protection, or where the term of copyright has expired, are considered to be “in the public domain,” and anyone may freely use such works (subject to any contractual limitations, as noted above).
There may be two copyrights in a given image: a copyright in the underlying work represented in the image, and a copyright in the photographic reproduction. For more information about these “layers of copyright,” see the sections below starting with What Are Derivative Works?
II. Essential Information and Definitions about Copyright
A. Essential Information
What Is the “Bundle of Rights” in a Copyright?
When a work is protected by copyright, the creator, in addition to controlling the physical aspects of the work, also controls it as “intellectual property.” Copyright protection is, in fact, a “bundle of rights” including the exclusive right to reproduce, distribute, publicly perform, or publicly display that original creation, and also to prepare derivative works based on that original work. The creator may legally transfer all or some of these rights to another party through a contract, assignment, will, or other transfer.
Copyrights are granted for a specified, limited period of time. Upon expiration of this period, the copyright in the work reverts to public domain status.
When Does Copyright Protection Begin?
Under the terms of the current U.S. copyright law that went into effect on January 1, 1978, an original work is protected from the moment it is “fixed in permanent form” by its creator. Under the previous law of 1909, however, copyright was not automatic; it had to be sought and secured by filing a written application with the U.S. Copyright Office, paying a registration fee, and renewing the copyright based on conditions set forth in the law. Failure by a creator to comply with this procedure in a timely manner could render invalid any subsequent claims of copyright protection for a given work.
Prior to 1989, any work for which protection was claimed under the U.S. Copyright Act was required to be published “with notice.” In other words, it had to include a valid notice of copyright, consisting of all three of the following elements:
*The word “Copyright,” or a recognizable abbreviation thereof, or the copyright symbol ©.
*The name of the owning entity claiming copyright.
*The date from which copyright coverage was claimed.
While failure to provide adequate notice according to this formula did not automatically void copyright, it would make any claim of infringement extremely tenuous and difficult to maintain in court. Many commercial images -- slides, postcards, posters, art prints, etc. -- distributed in the U.S. prior to 1989 were not in compliance with these provisions, particularly in regard to the requirement that providers date reproductions for which they claimed coverage. In addition, most were never officially registered. Although registration with the Copyright Office has never been mandatory as a condition of protection, it remains necessary before a copyright owner can sue for infringement (and note that it was possible to forfeit copyright by failure to affix a notice of your copyright on works published before March 1, 1989).
When the United States adhered to certain international laws (such as the Uruguay Round of the General Agreement on Tariffs and Trade and the North American Free Trade Agreement), copyright was restored to many foreign works that had been previously deemed to be within the public domain because of noncompliance with formalities or because the work originated in a country in which the United States did not recognize copyrights. The copyrights in some United States works have also been extended.
For further information, see the following resources:
What Is Publication?
(USCO: Circular 1, Copyright Basics: Publication) http://www.copyright.gov/circs/circ1.html
Notice of Copyright
(USCO: Circular 1, Copyright Basics: Notice of Copyright)
http://www.copyright.gov/circs/circ1.html
New Terms for Copyright Protection
(USCO: Circular 1, Terms for Copyright Protection) http://www.copyright.gov/circs/circ1.html
How Long Does Copyright Protection Last?
Copyright protection does not last forever. It is the express intent of the copyright law (in accordance with Article I, Section 8 of the United States Constitution) that all copyrights will in time revert to the public domain. Once copyright expires, a work is in the public domain and is freely available for unlimited use by anyone, for any purpose, without copyright restriction. However, if you entered into a contract with an owner of a work, contractual restrictions may still apply even after a work has entered the public domain. Because the terms of protection under current copyright law differ from those under previous law, and because legislation such as the Copyright Term Extension Act of 1998 can increase the period of protection, it is important to determine whether a work is presently covered by copyright. For further information, see the following resources:
When Works Pass Into the Public Domain
(Writings of Professor Gasaway, at University of North Carolina website)
http://www.unc.edu/%7Eunclng/public-d.htm
Duration of Copyright
(USCO: Circular 15a, Duration of Copyright) http://www.copyright.gov/circs/circ15a.html
Copyright Term and the Public Domain in the United States
(Written by Peter B. Hirtle, available at Cornell University website) http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
B. Essential Definitions
What Is the Public Domain?
A work in the public domain is not protected by copyright and copyright does not prevent a work from being used by anyone for any purpose. Under the previous Copyright Act of 1909, a work could revert to the public domain through failure of the creator or owner to secure valid copyright according to the required application and registration procedure. However, the most common way by which works enter the public domain is by expiration of copyright protection, which under the law is granted only for a specific, limited period of time.
Works published in the U.S., with the copyright owner's authorization, prior to 1923 have already reverted to public domain status. Hence, most historic works of art are not subject to copyright in the United States.
For further information, see the following resources:
What Is the Public Domain?
(Benedict O’Mahoney: The Copyright Website: Public Domain) www.benedict.com
When Works Pass Into the Public Domain
(Lolly Gasaway, University of North Carolina) http://www.unc.edu/%7Eunclng/public-d.htm
Duration of Copyright
(USCO: Circular 15a, Duration of Copyright) http://www.copyright.gov/circs/circ15a.html
What Is Fair Use?
The principle of fair use is established in Section 107 of the U.S. Copyright Act to permit certain socially beneficial uses of copyrighted works -- including non-commercial, educational uses -- within clearly specified limitations, while otherwise maintaining intact the rights of the creator or owner of that property. Whether a use is “fair” must be determined in light of individual facts and circumstances. Fair use is a defense to an infringement action. It does not prevent a copyright owner from filing a lawsuit, but it will, if successful, preclude a finding of infringement or the imposition of damages or an injunction. To determine whether a use is fair, the court must consider four factors:
(1) the purpose and character of the use, including whether such use is of commerical nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
In addition, courts often consider whether the use of a copyrighted work is "transformative," i.e., used for a fundamentally different purpose than the original, such as parody, critique, commentary, or electronic indexing. Where a use is transformative, it is very likely to be deemed fair.
The educator who acquires a copy of a work under fair use implicitly acknowledges the existence of the rights of the creator or owner, and therefore accepts limitations upon the nature and extent of uses that can be made of such a copy.
For further information, see the following resources:
Reproduction of Copyrighted Works by Educators
(USCO: Circular 21: Reproduction of Copyrighted Works by Educators)
http://www.copyright.gov/circs/circ21.html
Checklist for Fair Use
(Indiana University-Purdue University-Indianapolis) www.copyright.iupui.edu/checklist.htm
Benedict O’Mahoney: The Copyright Website: Fair Use
www.benedict.com
Fair Use: Overview and Meaning for Higher Education
(Consortium for Educational Technology in University Systems (CETUS))
http://www.cetus.org/fairindex.html
Fair Use of Copyrighted Materials
(University of Texas Website) http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
What Are Derivative Works?
A derivative work is a work based on, or derived from, one or more existing works. A derivative work may be copyrightable if it includes a discernable amount of original content. Certain photographic reproductions of other works – including images of three-dimensional works of art, designed objects, and structures in the built environment – may themselves be eligible for copyright protection if they meet this test of originality.
For further information, see the following resource:
What Are Derivative Works?
(USCO: Circular 14: Copyright Registration for Derivative Works)
http://www.copyright.gov/circs/circ14.html
What Is an “Underlying Work”?
When dealing with images, the underlying work is the subject matter, or work depicted in, a photographic reproduction. This subject can be a unique object, such as a painting or a sculptural work, or an architectural work (but note that copyright owners of an architectural work visible from a public place cannot prevent others from making, displaying or distributing pictorial representations of that architectural work, as discussed above).
It can also be a work produced in multiples, such as a poster or a manufactured object. Any photograph that is regarded as an original work of art can be an underlying work. It may even be a wholly computer-based work, such as a website or an artist’s original digital image, so long as it is somehow “fixed” in a tangible form.
For further information, see the following resources:
What Does Copyright Protect?
(USCO: Circular 1, Frequently Asked Questions About Copyright) http://www.copyright.gov/circs/circ1.html
What Works Are Protected by Copyright?
(USCO: Circular 1, Copyright Basics: What Works Are Protected) http://www.copyright.gov/circs/circ1.html
Does Copyright Protect Architecture?
(USCO: Circular 41, Copyright Claims in Architectural Works) http://www.copyright.gov/circs/circ41.html; see also section 120 of the Copyright statute, found at
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000120----000-.html
What Is a Photographic Reproduction?
A photographic reproduction is a surrogate image, the purpose of which is to record the physical appearance of an underlying work. There are two broad categories of photographic reproductions, which differ fundamentally not only in their intent, but also in their status as intellectual property: photographic documentations and photographic interpretations. (These terms are not defined in the Copyright Act but are useful to distinguish between two common types of reproductions.)
Either of these basic types of photographic reproduction may be produced in many formats, such as: slides, negatives, transparencies, or digital files. Any one of these formats can then provide the means for producing various paper copies (e.g., postcards, posters, book illustrations, printouts from copiers); or, through copy photography, to produce slides; or, through scanning, to produce digital image files. Any one of these secondary copies may, in turn, provide the means for producing further “third-generation” (and beyond) copies.
What Is a Photographic Documentation?
A photographic documentation provides the viewer with an exact visual record of the underlying work, one that seeks to be a mechanical reproduction, both accurate and unbiased; hence, it is specifically not a creative interpretation or commentary. Typical examples include images documenting paintings, drawings, prints, posters, and other two-dimensional works. Most documentation photographs, because their stated purpose is to provide nothing more than a literal and faithful copy of an existing work, do not themselves meet the originality requirement for protection under the U.S. Copyright Act, which specifies that any derivative work must manifest a significant and discernable degree of original intellectual content to so qualify. The “non-copyrightability” of such photographs is a principle clearly articulated in the Bridgeman vs. Corel case adjudicated in November 1998 (36 F. Supp.2d 191 (Nov. 1998)). (A copy of this decision is located at:
www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm).
[n.b. Bridgeman v. Corel is a district court case from the Southern District of New York, and therefore other courts are not bound to follow this ruling; however, as of the date on which DIRC was released, there have been no decisions that reached an opinion contrary to the Bridgeman decision.]
What Is a Photographic Interpretation?
Some photographs, particularly those that have as their subject three-dimensional works such as architecture or free-standing sculpture, may be more appropriately understood as being photographic interpretations or original works of art. Photographs in this category may introduce highly subjective variables, including angle of view, selection of background, and creative use of natural or artificial illumination, to accentuate or reveal a particular aspect of an underlying work. Depending on the nature and degree of original content, interpretive photographs may be regarded as being unique derivative works in their own right, even if their primary purpose is to represent the underlying work. As such, photographic interpretations may qualify for copyright protection for the newly introduced creative elements, but not necessarily for the underlying object depicted in such photographs, which may already be in the public domain.
III. Information About Contract Law
What is a Contract?
A contract is an agreement between two or more parties, under which each party agrees to be bound by certain terms as set forth in the agreement, and from which each party receives something of value. Such contracts can come in many forms: for example, they may appear on websites associated with the sale or license of images. They may be associated with images provided on a CD-Rom or even appear on the back of slide sets. You do not have to sign an agreement to be bound by a contract's terms: you may be bound by electronic terms of use if you “click” your agreement to them, or even if you use a website or other resource that is governed by terms of use. The purchase or license of slides or images may constitute your agreement to terms associated with such purchase or license. Be careful to review any terms associated with your purchase or license, and ask the vendor in advance of payment whether there are terms associated with such purchase or license.
Under some circumstances, there may be some question about whether a contract or some of its terms will be enforced, such as where a user was unaware of the terms before (s)he purchased or licensed a product or work or where the user did not expressly indicate his or her assent to those terms before using that product or work. However, such determinations are highly dependent on individual facts and circumstances.
Generally speaking, if you obtain an image from a source that provides terms of use with the image, you may be contractually bound to use that image only in accordance with those terms. If you wish to use the image for any other purpose, you may need to seek prior permission from the source of the image, and perhaps the copyright owner (if the copyright owner is different from the source). These terms of use may still apply even if the source from which you obtained an image is no longer in business; for example, a successor organization that acquired those images from the original source may have acquired the right to enforce those terms of use.
How Do Contracts Relate to Copyright Law?
When images are obtained pursuant to licenses or other contractual agreements, such contractual terms may restrict or prohibit altogether some uses that would otherwise be permitted under the fair use doctrine or other sections of the copyright law. Terms of use may also limit the uses of images that are in the public domain under copyright law. Visual resources professionals, and users of these visual materials, should therefore evaluate carefully their ability (and intent) to comply with such restrictions when selecting image sources from among the various available options. If different images of the same work are available from multiple sources, you are under no obligation to obtain the work from a source that has terms of use associated with it. It is also possible to negotiate conditions of use. Such negotiations should occur before a license or purchase contract is finalized.
IV. Conclusion:
The legality of each possible act of using copying or transforming an image depends on many factors. Each image must be separately evaluated in regard to the particular use or application contemplated. This evaluation should begin by ascertaining the following:
•The extent of copyright coverage in the underlying work depicted.
•The extent of copyright coverage in a particular photographic reproduction of the underlying work.
•The source of the image, and whether any contractual limitations restrict the potential use of that image.
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