FAQ

U.S. Copyright Law is voluminous and in the 21st Century, with a global marketplace at our fingertips with the Internet, International Copyright Law must be considered. Actually, there is no such thing as “International Copyright Law” because all copyright law is derived from domestic law. Generally, copyright law encompasses many types of creative works. Worldwide, the basic manifestations of creative authorship that are protectable under copyright include but are not limited to music, drama including literature and stage directions, literature including, books, novels, screenplays, and poetry, motion pictures including film, television and internet video, dance, and visual arts including paintings, prints, photography, fixed 2D, or 3D images and sculptures.

 What copyright law does not do is protect ideas. This jurisprudential philosophy of Intellectual Property Law is known as the idea expression dichotomy. The conundrum is: how do you protect an idea that is still in the mind of the person? The answer: the best the law can do is protect the manifestation of ideas also known as the expression of an idea so conceptual works of art are not protected because they are only conceptual and not manifested into physical form of some kind. The best way to protect your ideas is to not tell anyone (i.e., keep it a secret), and/or manifest it into some physical form and seek some form of intellectual property protection.

 The Berne Convention is an international copyright agreement for the protection of literary and artistic works. Like the United States Copyright Law, The Berne Convention recognizes that as soon as the creative work is made, the copyright is owned by the creator. The Berne Convention requires member countries to provide copyright protection for the life of the artist plus at least fifty years postmortem while the US Copyright law offer protection for the life of the artist plus seventy years postmortem, automatically upon creation of the work. It is important to register your copyright with the appropriate governing body to maintain a clear title on the ownership internationally and to preserve your intellectual property rights. For example, in the United States, if you don’t have a registered copyright in your intellectual property at the time the infringement occurs, then you’ll be denied statutory damages for copyright infringement and attorney’s fees.

 Needless to say, it is extremely important to get the assistance of legal counsel when traversing the international copyright landscape.

Basically, there are two moral rights:

 1. The Right of Integrity: if you created a work of art then you may have the right to stop someone from mutilating it, destroying it, or changing it in a manner that harms the reputation of the artist.

 2. The Right of Attribution (i.e., the Right of Paternity): if you created a work of art, then you may have the right to have your name associated with it. You may also have the right to stop someone from using your name in association with the work and to stop someone else from claiming authorship.

 Protecting Moral Rights under United States Law is accomplished a number of ways, including contractually, through defamation doctrine, false light, invasion of privacy, trademark law such as false endorsement or false advertising, copyright law such as right of adaptation or VARA (Visual Artists Rights Act), or through various state moral rights legislation.

 Each country has a different take on the specifics of moral rights and will differ on things such as: how long do moral rights last, can moral rights be waived, can moral rights be assigned or alienated (sold)? France has the most prominent moral rights protections for artists. Moral Rights actually originate with the French, known as droit moral. The Berne Convention requires that any member state must protect moral rights in its law; not necessarily in the Copyright Law, but somewhere in the law.

The Visual Artists Rights Act of 1990, commonly known as VARA grants certain “moral” rights to artists and is codified in the United States Code at 17 U.S.C. § 106A. VARA grants authors of original works: (1) the right to claim authorship in their work; (2) the right to prevent the use of their name on works they didn’t create; (3) the right to prevent the use of their name on works that have been distorted, mutilated, or modified in such a way as to be prejudicial to the author’s honor or reputation; and (4) the right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation. Furthermore, if an author is well-known, she may prevent the intentional or grossly negligent destruction of her work. VARA narrowly applies only to visual works such as paintings, drawings, prints, sculptures, and still photographs. Moreover, the works must have been produced for exhibition, in limited editions of less than 200 signed and numbered by the artist, or original, or single copy works. These rights are also known as “moral rights”. It’s important to note that if you are purchasing such artwork from an artist, you should obtain a written waiver of these rights from the author. If you don’t obtain such waiver, you may be bound to honor these moral rights in the work. Even though you own the work, even if you contractually obtained the copyrights in the work, the artist will retain these moral rights. For example, you may be unable to remove site-specific work from exhibition. This has been a point of contention for commission of public sculptures in the U.S.; the United States Court of Appeals decided that a site-specific work might be removed from the site only if the move didn’t destroy, distort, or mutilate the work.

International law, also known as transnational law entails the many various legal systems, bodies of law, compacts, treaties, agreements, and conventions around the globe and creates a business and legal labyrinth that can be daunting to navigate. The professional guidance and counsel from an attorney can ease the burden of navigating these tumultuous waters.

 60% of the countries in the world are civil law countries and follow the Civil Law (or Civil Code) system, sometimes also known as the Napoleonic System because it was invented by Napoleon. In this type of system, the law will dictate the terms and conditions of the business entity and the contracts in business transactions. 40% of the countries are common law countries and follow the Anglo system, also known as the common law system. This is the system of the United States of America, Canada, India, Australia and anywhere the British colonized. It’s the opposite of the Civil Law system because it allows people who want to do business transaction together to just do it, in whatever manner they wish, in writing or not. There are also religious law systems in countries like Saudi Arabia, Jordan, etc. They are considered civil law countries because the religious state government controls. There are also customary law countries. Mongolia for example is a customary law country because the people are nomadic and they don’t have a way of solving things except for their tribal law.

Typically intellectual property is referring to copyrights, trademarks, patents, trade secrets, and ideas. Intellectual property are creations of the mind such as inventions and designs (patents), creative and artistic works such as literary works, novels, poems and plays, films, music, drawings, paintings, photos, sculptures, and architectural design (copyrights), brand names, symbols, sounds, fragrances and images used in commerce to identify the source of goods (trademarks), or confidential business information such as manufacturing, industrial, or commercial secrets that may give a company a competitive advantage (trade secrets).

 Intellectual Property Law creates rights in any these creations of the mind for the creators, or owners to benefit from their creations. The purpose of protecting intellectual property rights is for the progress and well being of humanity, to promote the creation and invention of new works in technology and culture. By providing these protections, this progress is promoted because it encourages people to continue to innovate. These protections also stimulate economic growth by not only creating jobs, but also creating new industries.

 The U.S. Commerce Department report, “Intellectual Property and the U.S. Economy: 2016 Update” released September 26, 2016 found that IP-intensive industries support at least 45 million U.S. jobs and represents approximately 38.2% of the U.S. GDP; that’s over $6 trillion dollars. Artists, entertainers, entrepreneurs, and innovators must harvest and protect intellectual property in the 21st century. A.E.I Law business and intellectual property lawyers manage, police and enforce intellectual property rights.

Copyright Law grants protection for original works of authorship (original art) that is fixed in a tangible medium of expression. This protection is grounded in the U.S. Constitution and granted by law at Title 17 of the United States Code. Original works of authorship including but not limited to literary (book, novel, play, poem, computer code, etc.), dramatic, musical (music compositions and sound recordings), artistic works (art, sculptures, etc.), computer software and architecture.

A trademark is typically a brand name, slogan, or logo in the form of a word, phrase, symbol, or design, but can also be a sound or fragrance, that a business uses to identify itself. This identifier allows consumers to identify the source of the goods or services of one party and distinguish them from those of others. Trademark rights can be registered federally with the United States Patent and Trademark Office in the United States (USPTO.gov), or with each states Secretary of State for more localized rights, or are automatic under common law through use in commerce. Trademarks can also be protected internationally through the Madrid Protocol and other international treatise and compacts. The purpose of a trademark is to identify the source of goods being sold in commerce.

A patent provides a limited duration property right on an invention that essentially allows the inventor to prevent others from using her invention for a limited time as a reward for investing time, energy, and money in creating the invention. A patent There are two types of patents: Design Patents and Utility Patents. In very basic terms, the utility patent protects the way an article is used and works, and a design patent protects the way an article looks. There are also plant patents.

A Trade Secret is confidential business information such as manufacturing, industrial, or commercial secrets that may give a company a competitive advantage. Trade Secrets are the strongest form of intellectual property right. A trade secret is simply some information that is valuable because it gives a company an advantage over competitors. The Uniform Trade Secrets Act and the Lanham Act protect trade secrets although there is no way to formally register a trade secret. To maintain a trade secret, one must maintain the secret.

Publicity Rights include the Right of Publicity and the Right to Privacy.

 The Right of Publicity is a person’s right to keep their name, image and likeness from being commercially exploited without permission or contractual compensation. In California there is a common law right and a statutory right that can be asserted. At common law, a person would have to prove the use of his or her identity (name, image, likeness) for some advantage, commercial or otherwise, without consent, and that he or she suffered resulting injury. The statutory right of publicity claim requires everything under common law plus two additional elements: the person must have knowingly used the name, image, likeness for advertising or solicitation of purchases, and there must be a direct connection between the use of the name, image, likeness and the commercial purpose. If a person can prove all of the above (common law & statutory) factors, then under the statute he or she can get statutory damages. That is the greater of $750 or the actual damages suffered, plus any profits from the unauthorized use of the name, image, likeness, that are attributable to the use.

 The Right of Privacy is basically the right to be left alone. There are four distinct torts included under the umbrella of Right of Privacy including; Public Disclosure of Private Facts, Intrusion Upon Solitude or Into Private Affairs; False Light Publicity; and Appropriation of Name and Likeness.

 To prove a claim of Public Disclosure Of Private Facts a person has to prove that another publically disclosed private facts about him or her that would be highly offensive to a reasonable person and that the facts are not of public concern.

 Intrusion is the qualified right to be left alone in your own home, in conversations, and in places where you have a reasonable expectation of privacy. To prove a claim of intrusion upon solitude or into private affairs a person would have to show that someone intentionally intruded on them (i.e., with the desire to intrude or knowledge to a substantial certainty that the intrusion would occur). The person would have to show that it was a substantial intrusion, physically or otherwise such as intrusion into their home, hotel room, or private office. It can also be non-physical such as intrusion with binoculars or tapping their phone. The person would have to prove that the intrusion would be highly offensive to a reasonable person of ordinary sensibilities and that there was resulting injury from the intrusion. For injury it is sufficient to show mental anguish and injury to feelings and it may be sufficient for the person to merely testify to the emotional distress and anxiety caused by the intrusion.

 False Light Invasion Of Privacy is a tort closely associated with defamation (slander and libel) but is different. This tort differs from defamation because the statement doesn’t need to be defamatory, it only needs to be disclosed to the public and be highly offensive. The tort includes making a false statement about a person (or entity) that has placed the person in a false light in the public eye. The person offended would have to prove that there has been a false statement about her publically disclosed, that it was presented as a fact, and that the false statement would be highly offensive to a reasonable person of ordinary sensibilities. The tort of false light would only apply if the disclosing party knew that a reasonable person would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity. The persons “privacy” would not be invaded if the false statements are unimportant even if made deliberately. Only major misrepresentations of character, history, activities or beliefs are actionable. This privacy tort can also implicate the first amendment so a person’s freedom of speech may offer them protection if accused of this tort.

 Appropriation of Name and Likeness is a privacy tort that requires a person to allege that another person used his or her name, likeness, image or signature, for their own benefit, which resulted in injury to him or her. It doesn’t have to be in connection with private information, it doesn’t need to be false, and it doesn’t have to be disseminated to the public. The injury under this tort could be mental anguish, or harm to self-esteem, peace of mind, or dignity as a result of the appropriation of his or her identity.