Copyright Basics

Marc Chagall (1887-1985)  Memories of Paris , 1976. Location : Private Collection. © 2018 Artists Rights Society (ARS), New York / ADAGP, Paris. Photo © Scala / Art Resource, NY.

Marc Chagall (1887-1985) Memories of Paris, 1976. Location : Private Collection. © 2018 Artists Rights Society (ARS), New York / ADAGP, Paris. Photo © Scala / Art Resource, NY.

What is Copyright?

Copyright is a form of protection provided by the laws of the United States (Title 17, U.S. Code) to the creators of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available for both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phono records;
  • To prepare derivative works based upon the work;
  • To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
  • In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

In addition to copyright, certain authors of works of visual art also have the rights of attribution and integrity as described in section 106A of the 1976 Copyright Act.

It is illegal for anyone to violate any of the rights provided by the copyright law to the copyright holder.

Who Owns Copyrights?

Copyright protection subsists from the time the work is created in fixed, tangible form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works “made for hire”, where an artist has created the work while in his/her capacity of employee, the employer and not the employee is considered to be the author and copyright holder. Where a work was created jointly by more than one artist, the authors of a joint work are all co-owners of the copyright in the work, unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of each contribution.

The mere ownership of a book, manuscript, painting, or any other work does not give the possessor of that work its copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey the copyright or any interest in the copyright. This remains in the possession of the creator and is often referred to as the underlying artist’s copyright, distinct from the physical object which embodies it.

Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred to another party, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the copyright or such owner's duly authorized agent. Such transfers are comparatively rare in the U.S. and are almost never knowingly engaged in by European artists. For more on this subject, go to “Related Topics” and see the pages titled “Do U.S. Owners of Works of Art Also Control the Copyrights?”

How Long Is a Work Copyright-Protected in the United States?

Works created on or after January 1, 1978: A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is given a term of copyright protection enduring for the lifetime of the artist plus an additional 70 years after the artist's death. In the case of "a joint work prepared by two or more artists who did not work for hire," the term lasts for 70 years after the last surviving artist's death. For works made for hire, and for anonymous and pseudonymous works (unless the artist's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from first publication or 120 years from creation, whichever is shorter.

Works originally created before January 1, 1978, but not published or registered by that date: These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as works created on or after January 1, 1978, namely, the life-plus-70 or 95/120-year terms will apply to them as well. The law provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.

Works originally created and published or registered before January 1, 1978: Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years.

The Sonny Bono Copyright Extension Act: The Sonny Bono Copyright Extension Act, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a total term of protection of 95 years from the date of first U.S. publication if the work was published before January 1, 1978. For all works created or first published after January 1, 1978, the term of protection was extended by 20 years from the previous term of protection of the lifetime of the artist plus 50 years, to the lifetime of the artist plus 70 years.

Unpublished works: All works that are unpublished, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country with which the United States has a copyright treaty or that are created by a citizen or domiciliary of a country with which the United States has a copyright treaty are also protected.

How Long Is a Work Copyright-Protected Worldwide?

The term of copyright protection varies from country to country around the world, as determined by national legislation. The countries of the European Union, however, harmonized their respective terms in 1994. In the E.U. countries, the term of protection is the lifetime of the artist plus 70 years.

What Is the “Public Domain”?

A work that is no longer copyright protected is considered to be “in the public domain”. It should be noted, however, that photographs of works of art in the public domain may themselves be copyrighted and will likely require a license for publication, even though the public domain works which are the subject of the photos are no longer protected.

The Berne Convention & International Laws

There is no such thing as an "international copyright" that will automatically protect an author's works throughout the entire world. Generally speaking, protection against unauthorized use in a particular country depends on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.

The most significant international copyright instrument is the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention has approximately 170 members, including the United States which joined in 1989. The Berne Convention is based on national treatment, meaning that a Berne member country must extend the same treatment to the works of nationals of other Berne member countries as are enjoyed by its own nationals. Furthermore, the Convention obligates member countries to adopt minimum standards for copyright protection.

The Universal Copyright Convention of September 1952 ("UCC Agreement") was created to provide an alternative to the Berne Convention. The United States ratified the UCC in 1955. The UCC imposes fewer substantive requirements than the Berne Convention. For countries that are members of both the Berne Convention and the UCC, in cases of conflict between the two conventions the Berne Convention prevails.

The Agreement on Trade-Related Aspects of Intellectual Property Rights of April 15, 1994 ("TRIPS Agreement") became an annex to the agreement establishing the World Trade Organization (WTO). In addition to providing for international minimum standards of protection in the area of intellectual property, TRIPS also establishes standards for the enforcement of such rights. It also restores U.S. copyright to foreign works which were deemed to have fallen into the public domain by virtue of their failure to fulfill the formalities previously required by U.S. Copyright Law. (For more about the results of the TRIPS Agreement, see “Restoration of Foreign Copyrights in the U.S.” in the “Related Topics” section of these pages.)

The World Intellectual Property Organization Copyright Treaty of December 23, 1996 ("WIPO Copyright Treaty") also supplements the provisions of the Berne Convention to provide stronger international protection to copyrighted material in the digital environment.


Artists Rights Society (ARS), The CMO for Visual Artists and Creators