Limits To Copyright
Time and Borders
by
Cindy Hill, Esq. for Fine Art Registry™
Copyright laws strike a balance between the artist’s rights and the public’s interest in works that have historical significance by placing time limits on how long a copyright lasts. Once copyright expires, a work is in the 'public domain' and can be used without the permission of the descendants of the artist. Works in the public domain can be publicly displayed, copied, and used for commercial purposes by their owners without authorization.
American copyright law changed significantly on January 1, 1978, the date which now divides creative works protected by the old law, and those protected by the new law. An artistic work created after January 1, 1978, is protected by copyright from the moment of its creation, through the life of the artist (whether that’s one day after the work was created, or another 100 years), plus 70 years from the date of the artist’s death (during which time it is owned by the artist’s estate and heirs – a good reason to have a will even if you’re a ‘starving artist’). Even if you know the date a painting or sculpture was created, you can not know when the copyright protections expire until the artist has died.
For works created before January 1, 1978, copyright did not arise automatically, but was secured either on the date a work was published with a copyright notice on it (that letter 'c' inside a circle) or on the date the work was registered with the U.S. Copyright Office. In either case, copyright endured for a first term of 28 years from the date it was secured. During the 28th year, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years, protecting these works for a total of 75 years. A 1998 law extended the renewal term for these pre-1978 copyrights by an additional 20 years, for a total of 95 years from the date of first U.S. publication.
The length of time that copyright is protected varies in different countries. Under a 1994 agreement, European Union countries set the term of copyright protection to be the life of the artist plus 70 years. Spain adds an extra ten years to this, and France provides special extensions for artists whose works were disrupted by the two world wars. The African Union has been studying copyright issues to devise a system of protection for the artists of that region, but no uniform agreement has yet been signed.
The copyright of artwork created in a nation under colonial rule is controllec by the law of the legally dominant nation in existence at that time. An interesting example is found in a current court suit regarding a song by a Zulu musician recorded in 1939 under the name ‘Mbube.’ In 1939, South Africa was a British colony, and the song was protected by British Copyright law. A close derivative of this song, after several intervening folk recordings, can now be heard as the theme song "The Lion Sleeps Tonight" in Disney’s "Lion King" movies and Broadway play. The Zulu musician’s three daughters are suing for copyright infringement, as Disney did not obtain permission to use the song. Several folk musicians who had earlier recorded the song under the mistaken belief that it was not copyrighted, including Pete Seeger and TRO/Folkways Records, have acknowledged the Zulu composer’s claim and, as fellow artists, warmly agreed to pay royalties where royalties were due. As of the date of this writing, Disney continues to fight the claim.
While Mbube is a song instead of a painting, the case illustrates the profound importance of copyright protection, and the complexities of international law over time and across borders in protecting a creative work. The case also points out that even good-meaning people can not honor an artist’s copyright if they can’t find it. Pete Seeger and TRO/Folkways records were under the belief that the song Mbube was 'in the public domain' – that is, a 'traditional' folk work which could not be attributed to a particular artist as the creator – because they could not find any database, registration, or information bank which showed an attributed source for the song.
The song Mbube could just as easily have been a piece of visual art: Consider an African statue or mask, handcarved by a regionally respected artist, which winds up being used as a corporate logo, book cover, or poster art by an American company thirty years after it was purchased from a European gallery that bought it in a box of art objects on a dock in Morocco. It is impossible to tell at the time of creation of an artistic piece what it’s eventual fate, or economic return, will be. That's why registration with Fine Art Registry at the time of creation of a piece plays a critical role in the protection of that artist’s rights throughout the lifetime of legal copyright and moral rights protection. And because of the global accessibility of internet technology, registration with Fine Art Registry helps protect an artist’s interest around the world.
There is no one global "copyright" law. Protection against someone using art images without permission in another country depends on the law of that country in place at that time. Countries vary widely in how seriously to consider, and how much priority to give, copyright enforcement. Many a film maker has found piles of ‘bootlegged’ tapes of their works on flea market tables in certain countries – and gotten naught but a shrug from government officials who had other things on their plates. Other nations have thousands of government employees engaged in copyright protection and enforcement.
Most countries do protect foreign artworks to some extent, and the terms of these protections have been set down in a series of international copyright treaties. The most significant of these is the 1886 Berne Convention for the Protection of Literary and Artistic Works. There are about 170 members of the Berne Convention; the U.S. joined in 1989. Berne Convention member countries must extend the same protection to works of artists from other Berne member countries as they apply to their own citizen artists. The 1996 World Intellectual Property Organization Copyright Treaty strengthened the Berne Convention relative to new developments in digital technology.
The 1952 Universal Copyright Convention, ratified by the U.S. in 1955, is an alternative to the Berne Convention which imposes fewer substantive requirements on its signatories. Like the U.S., many countries are members of both conventions, and in cases of conflict between the two, the Berne Convention prevails. The 1994 Trade-Related Aspects of Intellectual Property Rights Agreement is part of the establishing documents of the World Trade Organization, and establishes minimum protection and enforcement standards for WTO nations.
While these international agreements set out an artist's legal protections on paper, they aren't worth the paper they are written on unless a person who intends to use an artwork can determine who the artist is and where to obtain the necessary permission. Like the U.S., many nations have government copyright registry offices which accept registration of fine art works. Submitting applications to every country's copyright offices requesting a search is far too costly, time consuming, and difficult for even the most diligent and well-funded art consumer. This means that artists are often deprived of recognition and return on their creative work – either because an art consumer puts their work to commercial use without paying for permission, or because the user decides they can’t use that particular artwork and buys some less-satisfactory, but more easily obtainable, image, such as clip art and commercial archived works.
An internationally accessible digital archive like Fine Art Registry solves the copyright problems of both the artist and the art consumer. With a Fine Art Registry listing, the corporation looking to use that incredible African carving as a logo can locate the artist and negotiate appropriate terms of usage, and the artist can realize the honor and compensation due for their creative work.
— Cindy Ellen Hill, Esq. | May 30, 2006
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