Levy & Miosek

Feeding the Starving Artist

The Public Domain

When our country’s Founding Fathers adopted the U.S. Constitution, they wanted to make sure that, unlike in England, no person could have an unlimited monopoly over property, whether it was real property, personal property, or intellectual property. So Article I, Section 8 of the Constitution gave Congress the power to secure “for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

The “limited times” stated in this section refers to a time period that has changed over the years, as Congress updated the Copyright Act. Between 1909 and 1978, for example, the copyright term was 28 years, renewable once for an additional 28 years. But the 1976 Copyright Act, which went into effect on January 1, 1978, changed the term of copyright from a maximum of 56 years to the creator’s entire life plus 50 years. More recently, Congress acted again, allowing those with copyright rights (e.g., movie makers, song writers, sculptors, 2-D artists, novelists, screenwriters, etc.) to prevent copying part or all of their creations for their entire life plus 70 years. That’s a long time, of course, but still within what Congress defined as a “limited times.”

Looking backward, however, to works created before 1978, the pre-1976 Copyright Act applies. If someone made a movie, for example, in 1970, and applied for a 28-year copyright registration, it would have expired in 1998, unless the copyright holder decided to renew the registration for another 28 years. Then the expiration of the copyright rights wouldn’t occur until 2065.

The Copyright Office provided a handy table for calculating when the copyright rights of a particular work will expire, depending upon when the work was initially registered and whether the registration had been renewed. For instance, following is an abridged timeline for works published within the United States. You can access the rest of the table by visiting

http://www.copyright.cornell.edu/resources/publicdomain.cfm

You can access some of the Copyright Office database at  http://www.copyright.gov/records/. If you don’t know when a work was registered, the Copyright Office can search its database for you for $150 per hour.

Here’s a rule of thumb that may come in handy: any work that was created before 1923 is now in the public domain, regardless of whether the registration was ever renewed. That’s the magic year. All works created before 1923 can be used without permission by the creator of those works. That would include the music of Brahms, the poetry of Shelley, the plays of Shakespeare, and the paintings of Rembrandt. Be careful, though, that you don’t use a modern recording of a Brahms musical piece, since that particular recording is most likely still under copyright, even though the rights to the underlying musical work are in the public domain.

There are exceptions to the copyright law. For example, under the fair use clause of the Copyright Act, in certain situations you may use copy-protected works without permission. See 17 U.S.C. §107. Also, works created by the federal government cannot be protected by copyright. We are allowed to copy part or all of government publications, photographs, videos, soundtracks, etc. That means that you can copy some or all of productions of the Department of Defense, NASA, Congress, the FBI, and the like without obtaining permission.

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Now that you know how to protect yourself in the “public domain,” who will shoulder the responsibility of promoting your work?  Throughout the contract process an artist should not overlook the minute details with respect to promotion of the display of their hard work. This includes all artists, not just gallery artists.  The producer of a film, the performance dancer, the writer, all should concern themselves with how the work will be promoted and, most importantly, how will it affect their overall bottom line. 

Many galleries, agents, production houses, etc. (“promoter”), will agree to take on the responsibility of promotion of the work.  However, the cost of this promotion most times will be passed on to the artist through higher commission rates received by the promoter. Terms in the contract that address the promotion of the work will aid the artist in realizing the maximum gain for the hard work that has been put into creating it.  As we have said all along, emerging artists should not be timid about insisting on terms in the contract that maximize their gain.  Precedent is a hard obstacle to get around as the artist progresses with his or her career.

Promotion of the work needs to be set out in the contract in detail. Specifically, the artist will want to get in writing who will handle any press releases, handbills, posters, and the all important opening reception.  As mentioned above, many galleries will take on these responsibilities, but will pass on the overall cost to the artist through the commission that the gallery will take on a sold piece.  As added leverage for the artist to reduce the amount of the commission the gallery will take on the sale of the work, he/she may consider assisting the promoter in organizing the promotion of the show.

Whomever takes on the responsibility of promotion, the contract should be clear as to what promotion will be done.  At a minimum, the artist will want to make sure the contract includes terms that address, (a) how many posters will be produced, (b) where will the posters be hung to gain the maximum amount of exposure, (c) who will hang them, (d) how long before the show will promotion begin, and (e) how long will promotion of the show continue after the show has begun.  The more involved the artist can be with the promotion of her/his own show, the more she/he will be able to control the overall passalong costs.

In the end, whether the show is a success or not depends on what was done to get people to attend.  A weak promotion will result in a weak turnout.  Specific terms in the contract will give the artist control to direct how the promotion will be accomplished.  Overall success will depend on the willingness of the artist to get involved and have his or her opinions not only heard – but also included.

Mark Levy & Ryan Miosek are attorneys with the Binghamton-based law firm of Hinman Howard and Kattell. They specialize in trademarks, copyrights, and the general protection of intellectual property. You can telephone Ryan Miosek at  (607) 231-6804 and Mark Levy at  (607) 231-6991, or contact them by e-mail at rmiosek@hhk.com and mlevy@hhk.com.

Lotus Weave, Valerie Brown Photograph