So What . . . About Copyright? What Artists Need to Know About Copyright & Trademarks For filmmakers, visual artists, and writers Edited by David Bollier, Gigi Bradford, Laurie Racine and Gigi B. Sohn Produced by PUBLIC KNOWLEDGE “The public’s voice in the digital age.” This work is licensed under the Creative Commons Attribution-NonCommercial License. To view a copy of this license, visit http://creativecommons.org/licenses/by-nc/2.5/ or send a letter to Creative Commons, 559 Nathan Abbott Way, Stanford, California 94305, USA. Attribution. You may copy, distribute, display, and perform this work — and derivative works based upon it — only if you give credit to Public Knowledge and the authors of this work. Noncommercial. You may copy, distribute, display, and perform this work — and derivative works based upon it — but for noncommercial purposes only. Published by Public Knowledge First Edition Library of Congress Catalog Number: ISBN: 1-4116-5379-3 Printed in the United States of America PREFACE Why Would You Read This Book? “Overprotecting intellectual property is as harmful as underprotecting it. Culture is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.” Alex Kozinski, Judge, Ninth Circuit Court of Appeals The post-industrial global world is based on ideas and creativity. Raw materials and industry are no longer the main engines of economic growth. Ideas and inventions zip around the world at lightning speed and have changed the way that we communicate, entertain, copy, produce, and prosper. More and more, our courts are being asked to weigh whether art and culture are the result of various discrete “Eureka” moments or the accumulation of new ways to interpret ageless emotions and questions. The laws we employ to nourish innovation and protect creation have changed. Some wonder if new restrictions hinder creative expression. Could it be the great intellectual land grab of our time? Is it the fencing of the prairie of ideas? Are the established gaining ground at the expense of the emerging? It’s time for artists to understand their existing rights and how those rights may be shrinking. The stakes are enormous. Creators need to know how the public domain – the store of words, sounds, images, and other memories that are free for all to use or build upon – is being corralled. When thinking about copyright, most people focus on protecting completed expression. This is an important part of copyright and has always been so. But what once was the equal half of the equation is shrinking: the ability to tap into to a rich public domain available to all. Read this book. It will lay out in plain and accessible language the social balance written into the U.S. Constitution between access to content in the public domain and control over personal art and expression. It could change what you think is important. It could help you to protect your future work and your ability to make that work in a world that increasingly values, and tries to control, creativity and innovation in this century. Gigi Bradford Washington, DC 2005 How To Use This Book Who this book is for and what this book is about: So What . . .About Copyright? is designed for artists, authors, and scholars of all kinds. It comprises a series of essays written with the creator in mind. The book is framed by a comprehensive overview chapter and then supported by subsequent chapters targeted to different creative groups – filmmakers, visual artists, and writers. It attempts to give you a theoretical and practical understanding of the important and evolving concepts that make up copyright, trademark, fair use, and the public domain. Today’s world relies more and more on creativity and on ideas. Consequently, courts and legislators are increas- ingly being asked to interpret intellectual property laws, many of which have changed a great deal in the last thirty years. Anyone who creates art or ideas and who values both intellectual property and the viability of a robust public domain will benefit from reading this clear and user-friendly book. What this book is not about: So What. . . is not designed to provide legal advice. It is designed to give readers an understanding of the historic balance between copyright and the public domain as it was written into the U. S. Constitution; how copy- right and trademark laws have evolved over time; what they are intended to accomplish; and how you can make sure you understand, benefit from, and follow them. This book is not a how-to or a practical compendium, but rather a clear explanation of a topic that can appear so complex that those who need to know about it often avoid the topic altogether. How this book is organized: Begin with the overview section and the conclusion. Then, delve into sections that are targeted to specific creative genres – filmmaking, visual arts, and writing. Don’t forget to read the conclusion. It will tell you why these changing legal concepts are vitally important to you now. It will suggest ways to stay informed and will help you decide how you want to consider your own rights. CONTRIBUTORS SO WHAT. . . ABOUT COPYRIGHT? What Artists Need to Know About Copyright & Trademarks For filmmakers, visual artists, and writers Produced by PUBLIC KNOWLEDGE “The public’s voice in the digital age.” WHY WOULD Gigi Bradford YOU READ THIS BOOK? HOW TO USE THIS Gigi Bradford BOOK: OVERVIEW: Jessica Litman, Kay Murray, Christine Steiner “What Every Artist Should Know About Copyright and Trademark Law” VISUAL ARTS: Christine Steiner “ Visual Arts and Intellectual Property” FILMMAKERS: Vivian Kleiman and Gretchen Stoeltje “Picking the Lock: Filmmaking in the Digital Age” WRITERS: Kay Murray “Copyright, Contracts, & Publishing Realities for Authors” CONCLUSION: Gigi B. Sohn EDITORS: David Bollier, Gigi Bradford, Laurie Racine and Gigi Sohn • Jessica Litman is author of many publications including Digital Copyright. She teaches at Wayne State University Law School. • Vivian Kleiman is an award-winning documentary filmmaker and Adjunct Professor at Stanford University; Gretchen Stoeltje is an independent filmmaker expert in legal issues. • Christine Steiner is an attorney based in Los Angeles whose cutting-edge concepts and publications addressing intellectual property and copyright issues for visual artists and museums have achieved national and international recognition. Research assistance provided by Valerie Geyber & Sarah Conley. • Kay Murray is General Counsel and Assistant Director of the Writers Guild. She is coauthor of The Writer’s Legal Guide. • David Bollier is a co-founder of Public Knowledge, the author of Brand Name Bullies: The Quest to Own and Control Culture, and the Editor of OntheCommons.org. • Gigi Bradford has worked in arts and culture for over 25 years and is an editor of The Politics of Culture. • Laurie Racine is the co-founder and Chair of Public Knowledge. She is also Chair of Doc Arts, Inc and Teacher's Without Borders. • Gigi B. Sohn is President of Public Knowledge, an organization that advocates a bal- anced approach to copyright and technology policy. The opinions expressed herein are those of the individual writers and are not intended to provide legal advice or counsel. ACKNOWLEDGEMENTS So What . . . About Copyright? What Artists Need to Know About Copyright & Trademarks is supported by the Center for the Public Domain and by grants from the Nathan Cummings Foundation, The Rockefeller Foundation, and the Andy Warhol Foundation for the Visual Arts. Public Knowledge, “the public’s voice in the digital age,” is a public-interest advocacy organization dedicated to fortifying and defending a vibrant infor- mation commons. This publication is part of its Empowering Creators in the Digital Age project, which is designed to address how digital technologies and restrictive copyright policies affect the ability of artists to create. Public Knowledge is: Gigi B. Sohn, President Mike Godwin, Legal Director Art Brodsky, Communications Director Alex Curtis, Government Affairs Manager Peter Suber, Director, Open Access Project Scott Burns, Staff Technologist Ann Oliverio, Office Manager Public Knowledge would also like to thank Nathan Mitchler, its former Intel- lectual Property Counsel, and Jef Pearlman and Heidi Wachs, its 2004 Summer Law Clerks, for providing valuable assistance with this project. Public Knowledge Board of Directors: Hal Abelson David Bollier, Secretary Reed Hundt, Treasurer Lawrence Lessig Jonathan Taplin Laurie Racine, Chair Gigi B. Sohn, President Empowering Creators Project Director: Gigi Bradford Publications Director: Stacey Mewborn Printer: LuLu Enterprises TABLE OF CONTENTS 1. “What Every Artist Should Know About Copyright and Trademark Law” Overview: “What Every Artist Should Know About Copyright and Trademark Law” ..... 11 Copyright Overview ................................................................................................................................... 13 Copyright Law Explained ........................................................................................................................ 17 Fair Use & Copyright ................................................................................................................................. 20 New Technology ........................................................................................................................................... 25 Exclusive Rights ............................................................................................................................................. 28 Copyright Ownership ................................................................................................................................ 32 Copyright Infringement ............................................................................................................................. 42 Recent Developments in Copyright Law ......................................................................................... 43 Trademarks ....................................................................................................................................................... 47 Artists: “Visual Arts & Intellectual Property” ........................................................................... 57 Introduction ...................................................................................................................................................... 59 Licensing Considerations ......................................................................................................................... 59 Artists’ Use of Existing Works ................................................................................................................ 60 Art-Related Applications of Fair Use .................................................................................................. 62 Set Design & Background ....................................................................................................................... 64 Digital & Multimedia Works .................................................................................................................... 65 Reuse for Purely Commercial Purposes .......................................................................................... 67 Filmmakers: “Picking the Lock: Filmmaking in the Digital Age” ............................. 71 Introduction ...................................................................................................................................................... 73 Legal Aspects of Filmmaking ................................................................................................................. 74 Digital Filmmaking and the Digital Millennium Copyright Act .............................................. 76 The Public Domain & The Copyright Term Extension Act ..................................................... 79 Digital Film, Education & Copyright ................................................................................................... 80 Digital Rights, Licensing & Distribution ............................................................................................. 82 Writers: “Copyright, Contracts, & Publishing Realities for Authors .................... 87 Introduction ...................................................................................................................................................... 89 Basics of Copyright for Writers ............................................................................................................. 89 Fair Use and Obtaining Permission to Copy ................................................................................. 90 Exploiting Your Copyrights: Publishing Contracts ...................................................................... 91 eBooks & Other Digital Copyright Issues ...................................................................................... 96 Conclusion: Intellectual Property Law as Cultural Policy ................................................ 99 Glossary .................................................................................................................................................... 106 For More Information ........................................................................................................................... 109 End Notes .................................................................................................................................................. 111