Copyright and Licensing

Code of Best Practices in Fair Use for the Visual Arts

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"The Code of Best Practices in Fair Use was created with and for the visual arts community. Copyright protects artworks of all kinds, audiovisual materials, photographs, and texts (among other things) against unauthorized use by others, but it is subject to a number of exceptions designed to assure space for future creativity. Of these, fair use is the most important and the most flexible. (Appendix A is an essay by Peter Jaszi presenting a perspective on fair use.) The Code describes common situations in which there is a consensus within the visual arts community about practices to which this copyright doctrine should apply and provides a practical and reliable way of applying it." Click here to download the full guide.Courtesy of the College Art Association
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Photography Laws

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Courtesy of PhotographyBay.com The materials offered on and through this website are provided for informational purposes only, and are believed to be accurate, but are not intended to be and should not be considered or relied upon as legal advice regarding any specific topic or matter. Further, the information contained herein does not reflect the legal opinions of Photography Bay or its authors and is not intended to be a solicitation or to render legal advice. If you think you have a legal issue regarding photography or your rights as a photographer, seek the advice of an experienced licensed attorney in the jurisdiction in which you live.This page is a work in progress. I’m going to try to pin down the relevant laws relating to photography for jurisdictions throughout the United States and post those here on this page. In some cases, as you will see, rather than try to summarize the law or post the language of statutes, I will refer you to an outside source that is relevant to the topic at hand. If you have a suggestion or direction, I’m all ears.As a general resource of frequent and developing topics, I highly recommend reading Carolyn Wright’s Photo Attorney blog.Copyright for Photographers – Copyright is often one of the first topics that comes up with regard to photography and the law. Rather the regurgitate what countless others have already written, let me simply post some sources for your consideration and review:United States Copyright Office: This should be a no-brainer. There is a wealth of information available through the Copyright Office’s website. It has a intro to copyright page, which includes everything from “What is Copyright?” to the forms you need to apply for your copyright. There’s also a tutorial on how to register a visual arts work (a photo) and, if you’re a real nerd, you can be like me and subscribe to NewsNet to get updates on hearings, deadlines for comments, new and proposed regulations, new publications, and other copyright-related subjects. Use the site, our tax dollars pay for it.NatureScapes.net – How to Register the Copyrights for Your Photos: Speaking of Carolyn Wright, this is a great intro/tutorial that, as the title implies, explains how to register the copyrights for your photos.ASMP’s Copyright Application Tutorial: The American Society of Media Photographers has an in-depth tutorial for your copyright application (not the table of contents on the right of the page).Model (and Property) ReleasesA lot of folks get confused when it comes to model releases (e.g., why they’re needed, whether you can register your copyright, etc.). Model releases are a different animal of their own. Specifically, a model release is needed with regard to the subject of the photo’s rights to privacy and commercial use of their image.
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Who owns the rights to documentations of performance art?

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By Klaus Ottmann, courtesy of The Phillips Collection Blog. As a curator specializing in contemporary art from the 1960s to the present, with a particular interest in performative works by such artists as James Lee Byars and Yves Klein, I was alarmed by a recent court ruling on the issue of who owns the copyright to the photographic documentation of artistic performances. A German court ruled in favor of Eva Beuys, the widow of the artist Joseph Beuys, who claims that she controls the rights to photographs taken during Beuys’s 1964 performance Das Schweigen von Marcel Duchamp ist überbewertet (The silence of Marcel Duchamp is Overrated). The photographs were taken by the late Manfred Tischer who was granted permission to document the performance by Beuys at the time, but apparently was not authorized explicitly to publish or exhibit them. When the German museum Schloss Moyland, which houses an extensive collection and archive of Beuys’s works, decided to exhibit 19 of Tischer’s photographs, the artist’s widow sued the museum of copyright infringement with the help of the German copyright society, VG Bild-Kunst. Even before this ruling, authorial ownership of works of art has not been without revisions. When the French painter and protoconceptul artist Yves Klein decided to hire two young photographers, Harry Shunk and John Kender, to photograph his leap off the projecting ledge of the roof of a house in the Parisian suburb of Fontenay-aux-Roses in 1960 and then asked them to “erase” on the negative the tarpaulin that was held below in order to catch him, the resulting photograph was long considered anephemera – a visual record of his performance, and its authorship was often contributed to the two photographers. In recent years, however, the photograph has been elevated to the status of a work of art created by Yves Klein and is now prominently displayed next to his monochrome paintings and sculptures in museum exhibitions of his works, such as the one held by the Hirshhorn Museum last year . . . read more.
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Performing Rights Laws for Dancers

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By Ne-Kajira Jannan, courtesy of OrientalDancer.net "Please note: this article provides informational guidelines only, obtained from public sources and from the performing rights organizations mentioned here. Professional legal advice should be sought whenever legal issues are a concern. Also consult your BMI, ASCAP or SESAC representative before purchasing a license. In a world of laws, it is important even for the part-time dancer, promoter/producer or instructor to understand copyright laws. In this article, I will attempt to give a simplified overview of the licensing laws you should be aware of as a soloist, troupe performer or dance instructor, whether at classes or workshops, before your next performance. Information from this article comes from interviews with BMI, ASCAP and SESAC staff, musicians, music publishers, and performers. First, unless a music composition is in public domain, it is considered protected by copyright. A musician/composer copyrights the score/composition he or she creates and can give permission to another person to use his or her score or lyrics for the purpose of recording a variation, a reproduced arrangement or a different arrangement of the score. This is called a Master Use License, and is usually obtained through such companies as the Harry Fox Agency. The composer/lyricist doesnot give permission for the performance of the score, nor can he/she give permission to dancers to perform to the score if the music is covered by one of the licensing agencies (ie BMI, ASCAP or SESAC). Artists who compose, copyright, record, and produce their own music and recordings cangive this permission and usually charge a fee for the use of their music. Performing rights are held by one of three organizations: BMI, ASCAP or SESAC. Music is further protected under the 1988 Berne Convention and by the General Agreement on Trade and Tariffs (GATT), a treaty with over 100 member nations. The GATT and the Berne Convention protect copyrights internationally. BMI, ASCAP and SESAC have reciprocal agreements with multiple nations, so it should never be assumed that music from another country is "free for using". The three performing rights organizations (PRO’s) license establishments, studios, schools, universities and other businesses, including individuals. They license entities. A dance troupe that rents a hall and sells tickets for the express purpose of making a profit is an entity. A dance organization registered as a non-profit group that rents a hall and sells tickets, whether for the purposes of making a profit or no, is an entity. For the purpose of this article, we will use the word entity to represent all institutions, businesses or organizations that will employ or utilize dancers and dance instructors, including but not limited to studios, health clubs, restaurants, social/civic organizations, schools, and universities. The word entity will also apply to the group or individual who promotes events, festivals, showcases, production and shows. In an attempt to clarify some of the issues surrounding performing rights in the simplest way, I’ll use a question-answer format, giving the answers I received from PRO representatives to dancers' most frequently-asked questions.Dancers' FAQs About Performing Rights Who needs a performing rights license? If an entity hires a troupe or a soloist to perform, the entity, not the performer, must have the license. If an entity hires an instructor for classes or a workshop, the entity must have the license. If a dance troupe rents a hall, promotes themselves, sells tickets to the production and performs, the dance troupe must have a license because they are functioning as an entity. A dancer who is hired to perform at a restaurant does not need a performing license (though she may need a state license as a business - please check your individual state requirements). The restaurant is to assume responsibility for having a license from one or all of the performing rights organizations. A dance instructor who is hired to teach by another organization, studio or school does not need a license (again, except maybe a business license). The organization, studio, or school needs a license.
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BMI. Broadcast Music, Inc.

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Formed in 1939 as a non-profit-making performing right organization, BMI was the first to offer representation to songwriters of blues, country, jazz, r&b, gospel, folk, Latin and, ultimately, rock & roll.BMI was founded by radio executives to provide competition in the field of performing rights, to assure royalty payments to writers and publishers of music not represented by the existing performing right organization and to provide an alternative source of licensing for all music users.BMI’s history coincides with one of the most vibrant, evolving and challenging periods in music history. As popular music has moved from big-band to rock & roll and hip-hop, and formats have evolved from 78 and 33 1/3-rpm vinyl records to compact discs, MP3s and beyond, BMI has worked on behalf of its members to maintain a leadership position not only in the United States, but worldwide.Underlying everything BMI does is its philosophy: an open-door policy that welcomes songwriters, composers and music publishers of all disciplines, and helps them develop both the creative and business skills crucial to a career in music.If you’re a songwriter or composer and have written songs that have the potential to be used on radio, television, the Internet, in restaurants and or any of the thousands of other businesses that use music, you need performing right representation, which will ensure that you get paid when any of those businesses plays your song.Music LicensingBroadcast Music Inc. (BMI), the global leader in rights management, processes almost 100 billion copyright transactions annually, providing a vital link between music-content creators and the businesses that use that music.A recognized leader and innovator in harnessing new technologies to expedite transactions, BMI licenses a broad range of businesses, including radio; broadcast, cable and satellite television; bars and restaurants; performance venues; websites and mobile media, among others. Find out more about BMI, music licensing and the transactional tools available to licensees in our licensing section.
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ASCAP. The American Society of Composers, Authors and Publishers.

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 What Is ASCAP?The American Society of Composers, Authors and Publishers (ASCAP) is a membership association of more than 427,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. Through agreements with affiliated international societies, ASCAP also represents hundreds of thousands of music creators worldwide. ASCAP is the only U.S. performing rights organization created and controlled by composers, songwriters and music publishers, with a Board of Directors elected by and from the membership.ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. ASCAP's licensees encompass all who want to perform copyrighted music publicly. ASCAP makes giving and obtaining permission to perform music simple for both creators and users of music. Who Is ASCAP?ASCAP is its members — creative people who write the music and lyrics that enrich lives in every corner of the world.ASCAP is home to the greatest names in American music, past and present — from Duke Ellington to Dave Matthews, from George Gershwin to Stevie Wonder, from Leonard Bernstein to Beyoncé, from Marc Anthony to Alan Jackson, from Henry Mancini to Howard Shore — as well as many thousands of writers in the earlier stages of their careers.ASCAP represents every kind of music. ASCAP's repertory includes pop, rock, alternative, country, R&B, rap, hip-hop, Latin, film and television music, folk, roots and blues, jazz, gospel, Christian, new age, theater and cabaret, dance, electronic, symphonic, concert, as well as many others — the entire musical spectrum. 
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Agreements Between Band Members: Dealing Fairly with Members Who Don’t Write Songs

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By George Howard, courtesy of Artists House Music.org In many bands there is either a single songwriter or a songwriting “team.” This archetype was established early — Jagger/Richards, Lennon/McCartney, et al. — and persists to this day. Whether it’s a single songwriter or songwriting team who come up with the necessary elements to create a copyright in a song, there are often others in the band (drummer, bass player, etc.) who have no claim over this copyright. Only Songwriters are Automatically Granted Rights Associated with Copyright. As we’ve discussed in prior articles (Control Your Revenue: Transfer Your Rights, Your Public Performance Rights, Your First Asset, The Right To Reproduce, The State of The Music Industry & the Delegitimization of Artists) the owner(s) of the copyright are immediately — upon creation of an original melody and lyric that is “fixed” in a tangible form (i.e., written down or recorded) — granted six exclusive rights. From these rights comes the ability to make money in the music business. Whether the song is downloaded, streamed, used in a movie, or exploited in numerous other ways, it is the songwriter, and the songwriter only, who is compensated for the use of the exclusive copyright. So, if the guitar player and the singer write a song, and that song gets used in a TV show, it will be the guitar player and the singer who receive the income from the synchronization fee (and its associated royalties; e.g. public performance royalties if the show is broadcast, etc). The drummer, bass player and any other member of the band will see none of this money. Zip. Band members may not understand the rights around either creation of the copyright of the income generated from the various means of exploitation; too often, they believe that all income the band earns will be divided up.  While they may be correct with respect to money earned from gigs, and potentially money earned from the so-called artist royalty if they are signed to a recording agreement with a label, they are gravely mistaken when it comes to money derived from the exploitation of copyrights of songs they did not write . . . read more at artistsmusichouse.org
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Star Power in the Lone Star State: The Right of Publicity in Texas

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By Keith Jaasma.  Courtesy of The University of Texas School of Law, Texas Intellectual Property Law Journal.  Since the United States Court of Appeals for the Second Circuit in 1953 in Haelan Laboratories v. Topps Chewing Gum coined the term “right of publicity” to describe the right of individuals to control the use of their name and likenesses for commercial and other valuable purposes, more than half the states in the U.S. have granted rights of publicity to individuals through either the common law or by stat-ute. Texas has done both, establishing a right of publicity for living individuals through the common law tort of misappropriation of the name or likeness of an-other, and providing a right of publicity for deceased individuals under chapter 26 of the Texas Property Code.   Other states, especially California, have expanded the right of publicity to protect not only the literal names and likenesses of individuals, but also distinctive singing voices, catchphrases associated with individuals, nicknames, and other items associated with those individuals. Texas and federal courts have largely re-lied on these states’ decisions and the Restatement of Torts in defining Texas right of publicity law. This article discusses the elements of a right of publicity claim for both living and deceased individuals under Texas law, as well as issues regarding damages and attorneys’ fees, federal preemption, and sovereign immunity.   In addition to detailing the current state of Texas law, this article suggests that the right of publicity should not be extended to business entities, that courts should be flexible in considering damages claims based on right of publicity violations, and that the right of publicity for the deceased terminates on the fiftieth anniversary of that individual’s death given the Texas Property Code’s clear statement that names or likenesses of individuals may be used for “any purpose” fifty years after that person’s death . . . download full article below.  Article originally appears in the Texas Intellectual Property Law Journal.  Volume 18: 123-181, Fall 2009.
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The Right of Publicity: Using the Famous, Infamous, and Regular Folks in Art

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Spacetaker presentation courtesy of Keith Jaasma, Patterson &Sheridan, LLP.The Right of Publicity: Using the Famous, Infamous, and Regular Folks in ArtView more presentations from Spacetaker

Copyright in Derivative Works and Compilations

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Courtesy of the United States Copyright Office  A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions,abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as awhole, an original work. . . read more.
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