Issues of Intellectual Property & Copyright

When an artist creates a drawing, painting, sculpture, animation or any of the myriad of other forms a visual communication may take, it is the tangible expression of an idea. Artwork is intellectual property in the same way that written work is intellectual property. A body of copyright law protects intellectual property. Current issues of intellectual properties include:

Orphan Works Legislation

The term "orphan works" describes the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make use of the work in a manner that requires permission of the copyright owner.

The proposed changes to copyright law threaten the exclusive rights and copyright protections afforded to visual artists because each bill permits, and even encourages, wide-scale infringements while depriving creators of exclusive rights and protections currently available under the 1976 U.S. Copyright Act, the Berne Convention for the Protection of Literary and Artistic Works, and the international TRIPs Agreement. http://ipaorphanworks.blogspot.com

Reprographic Rights

Illustrators' published works earn reprographic royalties through licenses granted by copyright collecting societies to secondary rights users like libraries, institutions, corporations, copy shops and others, to permit photocopying and digitally republishing of published material anywhere in the world.

Foreign visual art collecting societies collect royalties for American illustrators, but they can't pay it to us because there hasn't been a properly chartered reprographic royalty collecting society in the U.S. to track usage and distribute the money properly. The U.S. Copyright Clearance Center claims a similar position. Some money has been returned to the US since at least 1995, but it is not reaching rights holders and is going unaccounted for. For more information visit the website of the American Society of Illustrators Partnership.

Work Made for Hire

A work made for hire is an exception to the general rule that the person who creates a work is the legal author of that work. In the case of a work "made for hire" (WFH), the employer - not the employee - is considered the legal author.

Background

Under the U.S. Copyright Act, a work is protected by copyright from the time it is created in a fixed form. In other words, when a work is written down or otherwise set into tangible form, the copyright immediately becomes the property of the author who created it. Only the author or those deriving their rights from the author can rightfully claim copyright.

Although the general rule is that the person who creates a work is the author of that work, there is an exception to that principle: the copyright law defines a category of works called "works made for hire." If a work is "made for hire," the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual.

Statutory Definition

To understand the complex concept of a work made for hire, it is necessary to refer to the statutory definition.

Section 101 of the copyright law defines a "work made for hire" as:

1. A work prepared by an employee within the scope of his or her employment; or
2. A work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a sound recording, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for a publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes; and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

Understanding Work Made for Hire Contracts

This statement is intended to educate members of the Association of Medical Illustrators (AMI) regarding some of the possible problems encountered in "work made for hire" (WFH) contracts. All AMI members are free to conduct their own business arrangements as they see fit. Signing a WFH contract OTHER than within a full-time employee/employer relationship may:

• Deprive independent creators of all authorship and reproduction rights to their work, while vesting those rights in the commissioning party.
• Treat independent creators as employees solely for the purpose of copyright acquisition, but may otherwise provide none of the traditional benefits of employment such as, but not limited to, health/disability insurance and vacation benefits.
• Present independent creators with terms or conditions that are open to little or no modification or negotiation.
• Provide no additional compensation to independent creators for the loss of their intellectual property rights.

Under WFH contracts, independent creators may lose the ability to receive compensation from potential future uses of their work; may lose the right to create derivative images from such work; and may lose the ability to protect the physical integrity of such work from changes and/or distortions that might affect the creator's artistic reputation.

Links for issues of intellectual property and copyright

United States Copyright Office Works Made for Hire Under the 1976 Copyright Act [pdf] Helpful definitions of terms pertaining to copyright and intellectual property