Intellectual property rights

Creator copyright

Does copyright vest automatically in the creator, or must the creator register copyright to benefit from protection?

For works created on or after 1 January 1978, copyright vests in the author once the work is fixed in a tangible form. Works in existence but not published or copyrighted before 1 January 1978 are also given automatic copyright protection. (Before 1 January 1978, copyright protection was contingent upon registration or publication with notice, and renewal registrations.)

Although copyright registration is not mandatory under current US copyright law, registration is required for US owners to commence litigation for copyright infringement. Further, where an author registers a work before the infringement or within three months after publication of the work, the copyright owner may be eligible for an award of statutory damages or attorneys’ fees. Additionally, a registration made within five years after first publication of the work constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate.

Copyright duration

What is the duration of copyright protection?

For works created on or after 1 January 1978, in general, the term of the copyright is the life of the author plus 70 years. For joint works, the copyright term is the life of the last surviving author plus 70 years. For works made for hire or anonymous or pseudonymous works, the copyright term lasts for the shorter of: 95 years from publication; or 120 years from creation. For works created before 1 January 1978 that were neither published nor registered as of that date, the term of copyright protection is generally the same as work created on or after 1 January 1978, except that the term would not be deemed to have expired before 31 December 2002, and if the work was published on or before that date, the term shall not expire before 1 December 2047.

For works created and either published or registered before 1 January 1978, the initial term of copyright protection was 28 years from the date of registration or publication with notice, and at the end of the initial term, according to a 1998 amendment to the US Copyright Act, the copyright could be renewed for an additional 67 years (for a total of 95 years of copyright protection). Before the 1998 amendment, the total protection possible was 75 years, so that any pre-1923 work fell into the public domain. Whether a work is protected by copyright is complicated (eg, foreign owners, termination of transfers), and an attorney should be consulted with any questions about a specific work.

Display without right holder's consent

Can an artwork protected by copyright be exhibited in public without the copyright owner’s consent?

The first-sale doctrine (codified in section 109 of the US Copyright Act) provides a limited exception to the copyright owner’s exclusive right of public display. Under section 109(c), the owner of the artwork or anyone authorised by such owner may display the work publicly to viewers present at the place where the work is located.

Reproduction of copyright works in catalogues and adverts

Can artworks protected by copyright be reproduced in printed and digital museum catalogues or in advertisements for exhibitions without the copyright owner’s consent?

Generally speaking, no. Included among the copyright owner’s exclusive rights is the right to authorise the reproduction of copies of the copy­righted work, and to distribute copies of the work to the public by sale or other transfer of ownership. Therefore, absent a fair use, an artist’s consent should be (and typically is) sought by museums for reproductions of artworks in connection with the promotion of an exhibition.

Copyright in public artworks

Are public artworks protected by copyright?

Yes, public artwork can be protected by copyright, as long as it is not a work of the US government (ie, a work prepared by an officer or employee of the federal government as part of that person’s official duties), for which copyright protection is unavailable. Although some commentators have suggested that illegal street art may not be protectable, the Copyright Act does not contain any exclusion for protection on the basis of illegality of fixation.

Artist's resale right

Does the artist’s resale right apply?

New York does not have a law affording artists royalties on the resale of a work. Additionally, although federal legislation has been introduced at various points over the years regarding a federal resale royalty, no such legislation has been passed into law.

Moral rights

What are the moral rights for visual artists? Can they be waived or assigned?

Under section 106A of the Copyright Act, an author of a ‘work of visual art’ (as that term is defined) has certain rights of attribution and integrity. Under that statute, the artist has the right to claim authorship of his or her work, and to prevent the use of his or her name as the author of any artwork that he or she did not create. The artist also has the right to prevent the use of his or her name as the author of an artwork ‘in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to [his or her] honour or reputation’. Additionally, the artist shall have the right to prevent any such intentional distortion, mutilation or other modification of his or her work that would be prejudicial to his or her honour or reputation, and to prevent any destruction of a work of ‘recognised stature’. For works created on or after the effective date of the statute (1 June 1991), these moral rights endure through the end of the calendar year in which the artist dies, and for works created before 1 June 1991, but to which title had not by that time been transferred from the artist, the rights endure through the calendar year of the work’s copyright term. In the case of a joint work, moral rights endure through the end of the calendar year of the death of the last surviving author. These rights can be waived by written instrument signed by the artist, but may not be transferred.