USA – CALIFORNIA Law and Practice Contributed by: Jennifer Jordan McCall, Matt Perotti, Drew Reitz and Ashley E. Huh, Pillsbury Winthrop Shaw Pittman LLP
An artist may also have moral rights, such as rights of attribution and integrity, under the Visual Artists Rights Act of 1990 (17 U.S.C. § 106A). 2.2 Copyright in Collaborative Artworks Under Section 101 of the Copyright Act, a “joint work” is “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” When a work qualifies as a joint work, the authors are gener - ally co-owners of the copyright in the entire work. A “collective work” is a work where a number of con - tributions are assembled into a collective work, such as an anthology or periodical issue. In that case, the copyright in the individual contribution stays with each contributor. Violating copyright in art can lead to civil and, in some cases, criminal penalties. Remedies typically include injunctions (17 U.S.C. Section 502), impoundment of the infringing materials (17 U.S.C. Section 503) and damages (actual damages and profits, or statutory damages) (17 U.S.C. Section 504). The court, in its discretion, may also award costs for attorney’s fees. Willful infringement, such as if the infringement was committed for purposes of “commercial advantage or private financial gain,” can be prosecuted criminally under 17 U.S.C. Section 506. Statutory damages are generally USD750 to USD30,000 per work and may be increased up to USD150,000 per work for willful infringement. However, registration of the copyright is a procedural prerequisite for the artist to bring a lawsuit and affects the remedies available to the artist. 3.2 Registering Artwork 3. Protection Against Plagiarism 3.1 Legal Consequences of Copyright Infringement Under 17 U.S.C. Section 408, to register the artwork, the copyright owner should file an application with the US Copyright Office, submit the required deposit and pay the filing fee. Registration of the work cre - ates a written record of the copyright ownership and is “prima facie evidence of the validity of the copyright” (if made before or within five years of first publica - tion). Under 17 U.S.C. Section 410, if the Copyright
Office accepts the claim, it will issue a certificate of registration. The effective date of the copyright reg - istration is the date the application, deposit and fee were accepted by the US Copyright Office. 3.3 Resale Right A resale right is a legal right that allows artist to receive a royalty when their art is sold while their copyright is in effect. With the exception of California and Georgia, US federal and state law does not recognise resale rights. However, the California Resale Royalty Act (Cal. Civ. Code § 986) has been held invalid for most sales after the effective date of the 1976 Copyright Act on the basis of federal pre-emption. Therefore, the resale rights in the United States are limited and not broadly available. 3.4 Using Copyrighted Images The ownership of the copyright is a property right that is separate from the ownership of the physical expression of the underlying work. Although the phys - ical work may be transferred, the copyright rights do not transfer. However, permission to use images of artworks protected by copyright may be obtained by securing permission from the copyright owner or by obtaining a license from the copyright owner, which may be exclusive or non-exclusive. Although a non- exclusive license may be granted by written or oral agreement, it should be in writing to ensure enforce - ability. The individual seeking to use work they did not create should first determine the work’s copyright status. Once the copyright owner’s identity has been determined, the individual should contact the copy - right owner for permission to use the work. The indi - vidual seeking to use the work should specify facts about the use, including the specific work, the dura - tion and their intended use. 4. Authentication of Artworks 4.1 Posthumous Rights to Authenticate Artwork There is no standalone exclusive right to authenticate an artist’s work after the artist’s death. Generally, after an artist’s death, the artist’s estate or a foundation may authenticate their artworks.
215 CHAMBERS.COM
Powered by FlippingBook