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Resale Right / Droit de suite

Rights of Publicity & Personality
Moral Rights
Do U.S. Owners of Works of Art Also Control the Copyrights?
Restoration of Foreign Copyrights in the U.S.
Digital Millennium Copyright Act (DMCA)

 


Resale Right / Droit de suite

A number of foreign countries recognize a resale right or droit de suite, as it is often called. This right allows artists to participate financially in the resale of their original works of art. The resale right has been administered successfully in numerous foreign countries for years, most notably in France and Germany. Laws providing for the resale right were recently harmonized in the European Union. In the United States, however, federal law and almost all state laws fail to provide this right to artists, California being the sole exception. As with copyright, the duration of the resale right is usually the lifetime of the artist plus 70 years.

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Rights of Publicity & Personality

Rights of publicity (also sometimes called rights of personality) refer to an individual’s (or an individual estate’s) exclusive right to authorize how the name, voice, signature, image or likeness of the individual may be used. Many copyrighted works incorporate photographs or other images which depict individuals (for example Andy Warhol’s “Marilyn Monroe”), and publicity rights may be an issue in the reproduction of these works for certain purposes. Similarly, in order to use an artist’s name, signature, or likeness in an advertisement, the advertising agency must clear the artist’s rights of publicity with the artist or estate.

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Moral Rights

Moral rights are the rights of an artist to maintain the integrity of his/her work and to receive full and proper attribution for his/her work. The United States, originally reluctant to adopt moral rights laws, was moved to enact the Visual Artists Rights Act (“VARA”) in 1991 after it became an adherent of the Berne Convention. VARA, a somewhat flawed moral rights measure, recognizes an artist’s limited right of attribution, right of integrity, and right to prevent the derogation or destruction of works.

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Do U.S. Owners of Works of Art Also Control the Copyrights?

The claim is sometimes made by proprietors of works of art in the U.S. that ownership of a physical work of art also carries with it ownership of the copyright. This is quite simply a false and misleading assumption.

There have been only two major U.S. federal copyright acts in the twentieth century. The first was passed in 1909; the second was enacted in 1976 and became effective in 1978. Both acts make it clear that the sale or conveyance by the artist of his work of art does not carry with it the underlying copyright to the work. The following is the text of Section 27 of the 1909 Copyright Act, which remained in force until succeeded by the 1976 Act:

The copyright is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not in itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object.

Section 202 of the 1976 Copyright Act (effective January 1, 1978) is equally unequivocal on the subject:

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any right in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.

The impression that the artist forfeits his copyright when he sells his work was a short-lived one derived from the finding in the New York State case of Pushman v. New York Graphic Society Inc. (1942). A lower New York State court in that case seemed to hold that absent a signed agreement, the artist was presumed to have automatically conveyed the copyright and the rights of reproduction when he sold his work of art. Such at least was the conclusion drawn by a number of owners who sought to control the copyrights to the works in their collections. The clear intent of the 1909 law was that the artist retains the copyright unless he or she specifically signed it away in a written agreement. Pushman stood for the proposition that the artist automatically loses the copyright unless he or she retained it through a written agreement.

Thus "Pushman" contradicted the intent of the 1909 copyright law then in effect, with results which were recognized as so unfair that the New York State Legislature specifically overturned it by legislative action in 1966. The pertinent New York State Business Law provision follows:

Whenever a work of fine art is sold or otherwise transferred by or on behalf of the artist who created it, or his heirs or personal representatives, the right of reproduction thereof is reserved to the grantor until it passes into the public domain by act or operation of law unless such right is sooner expressly transferred by an instrument, note or memorandum in writing signed by the owner of the rights conveyed or his duly authorized agent. (Section 224, Article 12-E, 1966 New York General Business Law)

In spite of this negation of the "Pushman" finding, the presumption in the Pushman case is still erroneously employed by some to justify the marketing of works in their possession. The result over the years had been the growing participation of some owners in the poster, greeting card, toy, merchandise, and calendar business, coupled with a refusal to grant artists or their heirs either a royalty or a right to approve the products marketed. This has also served to encourage some manufacturers to ignore the claims of artists whose works they exploit, although by and large owners now recognize and respect the rights of creators and their heirs.

Additionally, under the national legislation of Canada, the United Kingdom, France, Germany and virtually every other state in Western Europe, as well as under the provisions of the Berne Convention, to which the U.S. became an adherent on March 1, 1989, there has never been any doubt that the copyright always remains with the artist, but may be conveyed to an owner only if the artist specifically signs it away in a written document (a practice which is virtually unknown in Europe.)

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Restoration of Foreign Copyrights in the U.S.

On December 8, 1994, the President of the United States signed into law the Uruguay Round Agreements Act ("URAA"). The Act contains specific provisions which require the U.S. to restore full recognition to all foreign works which fell into the public domain in the U.S. due to non-compliance with formalities imposed by United States Copyright law, provided the source country is a member of the Berne Convention or the World Trade Organization. The bill to restore copyrights brought the United States at long last into virtual compliance with Articles I - XXI of Berne and especially with Article XVIII s.1, which obliged newly adhering states to honor the copyrights of existing member nations.

As a result, all foreign works which had been exploited in the U.S. without authorization in the past, because of failure to comply with U.S. formalities were restored to full copyright protection, effective January 1, 1996. The Act supplanted that portion of the North American Free Trade Agreement (NAFTA) which provided U.S. copyright restoration for certain Mexican and Canadian motion pictures which had fallen into the U.S. public domain because of failure to comply with U.S. copyright formalities.

Section 514 of the Act is titled "Restored Works." It amends Section 104A of the U.S. Copyright Code (Title 17) and reads as follows:


104A. Copyright in restored works.
"(a) AUTOMATIC PROTECTION AND TERM.-
"(1) TERM.-
"(A) Copyright subsists in accordance with this section in restored works,
and vests automatically on the date of restoration.
"(B) Any work in which copyright is restored under this section shall subsist
for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United
States. [emphasis added]
"(b) OWNERSHIP OF RESTORED COPYRIGHT.- A restored work vests initially
in the author or initial rightsholder of the work as determined by the law of the source country of the
work. [emphasis added]

In the definitions section of the Act, the terms restored copyright and restored work are defined in the following fashion:


"(5) The term 'restored copyright' means copyright in a restored work under this section.
"(6) The term 'restored work' means an original work of authorship that -
"(A) is protected under subsection (a);
"(B) is not in the public domain in its source country through expiration of the term of protection.
"(C) is in the public domain in the United States due to -
"(i) noncompliance with formalities imposed at any time by United States copyright law,
including failure of renewal, lack of proper notice, or failure to comply with any manufacturing
requirements; [emphasis added]

All those who reproduced foreign works without artist authorization prior to the date the President signed the URAA, on December 8, 1994, are deemed to have relied on the understanding that the works were in the public domain. Such parties are therefore called Reliance Parties in the Act. Under the copyright restoration provisions of the Act, the restored copyright holder may make a claim against a reliance party in one of two ways:

First, a copyright holder or his agent may file a Notice of Intent to Enforce a Restored Copyright against a Reliance Party (referred to in the Act as an "NIE") with the U.S. Copyright Office. This must be done within 24 months after the date the copyrights were restored. For all European countries, this meant no later than 24 months after January 1, 1996 (the date on which Berne works become eligible for restoration). Such a filing, when published in the Federal Register was effective against all reliance parties. This initial period has of course passed.

However, it will not be necessary to file an NIE with the U.S. Copyright Office to claim a restored copyright against a specific reliance party. Thus, the second way to claim a restored copyright is to serve a notice directly on a particular reliance party. Most importantly, such direct service may be made at any time, and is not limited to the 24 month period mandated for formal filing with the Copyright Office.

Reliance Parties have 12 months from the date they were served with an NIE or from the date of publication in the Federal Register (whichever is earlier) to sell the stock of copies they made prior thereto. Upon the expiry of the 12 month grace period, the reliance party may continue to exploit the work only if it comes to a satisfactory agreement with the copyright holder and pays agreed compensation to the owner of the restored work.

It is also important to emphasize that only those reproducing works prior to December 8, 1994 qualify as reliance parties. All other uses of a restored public domain work commenced after that date are actionable infringements of the restored copyright. A party that has made a new use after December 8, 1994, without authorization of the copyright holder, does not qualify as a reliance party since it should have known of the new legislation, and is thus to be treated as a copyright infringer, subject to the penalties of law, with no grace period to sell out the infringing goods.

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Digital Millennium Copyright Act (DMCA)

On October 28, 1998, the Digital Millennium Copyright Act (DMCA) of 1998 was signed into law, implementing World Intellectual Property Organization (WIPO) copyright treaties of 1996 and updating U.S. copyright law for the information age. It is “designed to facilitate the robust development and worldwide expansion of electronic commerce, communication, research, development, and education in the digital age” (Senate Rpt 105-190), while providing for enhanced protection of copyrights in the digital environment.

Key among the topics included in the DMCA are provisions concerning the circumvention of copyright protection systems, fair use in a digital environment, and Internet service provider (ISP) liability, including details on safe harbors, damages, and "notice and takedown" practices. In general, the DMCA limits Internet service providers from copyright infringement liability for simply transmitting information over the Internet. ISP’s, however, are expected to remove material from web sites that they host which appear to constitute copyright infringement.

A summary of the DMCA can be found at the U.S. Copyright Office at the following Web page:

http://www.loc.gov/copyright/legislation/dmca.pdf.

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