What You Need to Know About Copyright


Disclaimer: this is not intended to be legal advice, but a helpful tool and
resource. Consult a
copyright lawyer for specific circumstances and counsel.

 

Updates:

There are no updates at this time. Check back again.

The Basics
U.S. Copyright Office Definitions
Work for Hire
Duration of Copyright
Digitally inserting
metadata into artwork to embed author information
What is an Orphan Work?
What is a resale royalty?
What are reprographic rights?
Keeping a Record
Copyright Law of the United States of America
Infringement…best practices
Copyright Registries
What
is the American Society of Illustrators Partnership?

The Basics

a.

Copyright right protects
your creation at the time of creation.

b.

THE DIGITAL MILLENNIUM COPYRIGHT
ACT OF 1998
highlights

1.
2.

3.

4.

Limited certain online
infringement liability for Internet Service Providers
Created an exemption
permitting temporary reproduction of a computer program made by activating
a computer in the course of maintenance or repair
Created an exemption
permitting temporary reproduction of a computer program made by activating
a computer in the course of maintenance or repair
Created a form of
protection for vessel hulls [boat hull design]

c.

Copyright law does not protect your idea; it protects the tangible expression of your idea. Copyright is the right
of the creator of the work or the creator’s heirs, not of the person who
found or possesses the tangible expression of your idea.

d.

The difference between a copyright,
a patent and a trademark
[1]

1.

©

A copyright protects
works of authorship, such as writings, music, and works of art that have
been tangibly expressed.

2.

patent
pending”

“pat.
pend.”

or

“pat.
pending”

A patent is a limited duration property right relating to an invention,
granted by the United States Patent and Trademark Office in exchange for
public disclosure of the invention.

Patent Pending: the expressions “patent pending” or “patent
applied for” refer to a warning that inventors are entitled to use
in reference to their product or process once a patent application has
been filed, but prior to the patent being issued or the application abandoned.

3.


®

A trademark is a word,
phrase, symbol, and/or design that identifies and distinguishes the source
of the goods of one party from those of others. A service mark is a
word, phrase, symbol, and/or design that identifies and distinguishes
the source of a service rather than goods. The term “trademark”
is often used to refer to both trademarks and service marks.

Note: symbol for an unregistered trademark (™)
symbol for a registered trademark ®

e.

The Internet: copyright protects text
and pictures on websites just like books, CDs, DVDs, and works in other
media are protected. You might not see a copyright notice on a website;
that does not mean you are free to copy what you see or hear.

f.

Registration: Copyright protection begins at the
moment the work is created on paper, recorded, or otherwise made permanent.
For certain types of works, registration is advisable because you get
certain additional benefits. Registration establishes a public record,
which is necessary to sue someone in court for infringement. If you win
your case, you may also be eligible for statutory damages and attorney’s
fees. [2]

The process from creating a work to registering it is straightforward.

1.
2.

Create a work
Register the creation at the U.S. Copyright Office:

Primary Registration Method

Registration with Electronic Copyright
Office (eCO)

To file a claim to
copyright in your work, we recommend you use the Copyright Office online
system.

Before using the
service, we recommend you first read
eCO Acceptable File
Types
, eCO Tips, eCO FAQs, or eCO Tutorial (PowerPoint) eCO Tutorial (PDF).

Advantages include:

Lower filing fee
of $35 for a basic claim (for online filings only)
Fastest processing time
Online status tracking
Secure payment by credit or debit card, electronic check, or Copyright
Office deposit account
The ability to upload certain categories of deposits directly into eCO as electronic files

Processing Time:
The time the Copyright Office requires to process an application varies,
depending on the number of applications the Office is receiving and clearing
at the time of submission and the extent of questions associated with
the application. Current Processing Times

Login to eCO: eCO

Alternate Registration
Method:
Registration with
Paper Forms

The fee for a basic registration
using one of these forms is $65 payable by check or money order. Form
CON (continuation sheet for applications) is also still available in paper.
Paper forms are also available by postal mail
upon request. Short forms are
no longer available online. See below for
Group Registrations.
Visual Arts form

Group Registration
Forms:

Visual Arts
Form
GR/CP w/instructions
— For groups of visual art works works published as contributions to periodicals (
Read more)
Form
GR/PPh/CON
— For groups of
published photographs (
Read more)

Preregistration — For certain
works that have had a history of prerelease infringement

Electronic
Form PRE

Renewal:

Form RE
Form RE/CON: Continuation form
to be used only in conjunction with RE application form
Addendum to Form
RE
: For all works published
between January 1, 1964, and December 31, 1977, that were not registered during their first 28-year term. Must accompany form RE.

Licensing Electronic
Funds Transfer Form – For use by statutory licensees to receive refund
payments via electronic funds transfer

ETF form [3]

Do I have to register?

According to the
Berne Convention [4] , copyright
protection is obtained automatically without the need for registration
or other formalities
. Some national copyright offices and laws do however provide for registration
of works. This can facilitate, for example, questions involving disputes
over ownership or creation, financial transactions, sales, assignments
and transfer of rights. [5]

Advantage of registering

Registration is still
required to enjoy additional remedies against infringers. For one thing,
registration offers the possibility to obtain statutory damages, rather
than only the actual damages from the infringer. The Berne Convention
does not contain any provisions on formalities for starting a copyright
lawsuit, and so this is no problem. [6]

g.

Fair Use: under certain
circumstances, “fair use” allows you to use parts of someone
else’s work. There’s no magic formula, though. Scholarly criticism, teaching,
and news reporting may be valid reasons for reproducing a copyrighted
work. A number of other factors also need to be considered. (See Fair
Use). in doubt, and with respect for another’s creative work,
it’s always a good idea to find and ask the copyright owner for permission
first.

Section 107 of the
Copyright Act contains a list of the various purposes for which the reproduction
of a particular work may be considered fair, such as criticism, comment,
news reporting, teaching, scholarship, and research. Section 107 also
sets out four factors to be considered in determining whether or not a
particular use is fair. http://www.copyright.gov/fls/fl102.html

How to evaluate for
fair use-see chapter 4 (for teachers, but a good sound approach for anyone): http://www.loc.gov/teachers/professionaldevelopment/selfdirected/copyright/

1.

2.
3.
4.

The purpose and character
of the use, including whether such use is of commercial nature or is for
nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted
work as a whole
The effect of the use upon the potential market for, or value of, the
copyrighted work

The distinction
between what is fair use and what is infringement in a particular case
will not always be clear or easily defined. There is no specific number
of words, lines, or notes that may safely be taken without permission.
Acknowledging the source of the copyrighted material does not substitute
for obtaining permission.

The
1961 Report of the Register of Copyrights on the General Revision of the
U.S. Copyright Law cites examples of activities that courts have regarded
as fair use: “quotation of excerpts in a review or criticism for purposes
of illustration or comment; quotation of short passages in a scholarly
or technical work, for illustration or clarification of the author’s
observations; use in a parody of some of the content of the work parodied;
summary of an address or article, with brief quotations, in a news report;
reproduction by a library of a portion of a work to replace part of a
damaged copy; reproduction by a teacher or student of a small part of
a work to illustrate a lesson; reproduction of a work in legislative or
judicial proceedings or reports; incidental and fortuitous reproduction,
in a newsreel or broadcast, of a work located in the scene of an event
being reported.” [7]

h.

The correct copyright notice

1.

The formal language
from the Universal Copyright Convention, September 1952 Geneva,
revised July 1971 Paris:
Article III.1:
1. Any Contracting
State which, under its domestic law, requires as a condition of copyright,
compliance with formalities such as deposit, registration, notice, notarial
certificates, payment of fees or manufacture or publication in that Contracting
State, shall regard these requirements as satisfied with respect to all
works protected in accordance with this Convention and first published
outside its territory and the author of which is not one of its nationals, if from the time of the first publication all the copies
of the work published with the authority of the author or other copyright
proprietor bear the symbol © accompanied by the name of the copyright
proprietor and the year of first publication placed in such manner and
location as to give reasonable notice of claim of copyright.
[8]

2.

Layperson’s explanation: [9]

a.

b.

The copyright notice consists of
these three elements, in this order:

-The word “copyright”,
its abbreviation “copr.” or the
C-in-a-circle symbol ©.

-The year of
first publication of the work. If this is a modified version, the years
of each modification should be added. For example, the text “1985,
1987-1989” indicates the work was created in 1985 and modified in
1987, 1988 and 1989.

-The name of
the author. This may be an abbreviation or a pseudonym, as long as the
author can be identified.

If any of the elements
is omitted or not in the correct form, the copyright notice is invalid.

When such a notice
is given, Often the phrase All rights
reserved
is also present. This phrase is not a required
part of the copyright notice itself. It indicates that the author not
only claims to be copyright holder, but also does not want to give up
any of his rights under copyright.
Effect on copyright status

Today there is no
legal requirement to include a copyright notice on a work in order to
get copyright protection. The presence or absence of a notice does not
change the copyright status of a work.

Effect on infringement lawsuits

However in certain
jurisdictions, most notably the USA, including a valid notice means that
an infringer is deemed to have known of the copyright status of the work.
As a result the court will hold him accountable for willful infringement,
which carries a much higher penalty than innocent infringement.

Effect of an incorrect notice

An incorrect notice
today, at worst, can mean it is harder to prove willful infringement in
the USA. In most other jurisdictions an incorrect notice makes no difference
whatsoever.

i.

All rights reserved clause

1.

The formal language
from article 3 of the 1910 Buenos Aires Copyright Convention:
3rd.–The acknowledgement
of a copyright obtained in one State, in conformity with its laws, shall
produce its effects of full right, in all the other States, without the
necessity of complying with any other formality, provided always there
shall appear in the work a statement that indicates the reservation of the property right.

2.

Layperson’s explanation [10]

a.

Legal effect of the phrase

The phrase “All
rights reserved” indicates that the copyright holder does not want
to give up any of the exclusive rights he has under copyright law. This
is only relevant for members of the Buenos Aires Copyright Convention.

Today all members
of the Buenos Aires Copyright Convention are also member of the Berne
Convention. The Berne Convention states that unless explicitly stated
otherwise, all rights are reserved. Further, a copyright law may not require
any formalities as a condition for copyright protection. Therefore “All
rights reserved” has no legal significance anymore.

Free press exception

There is one location
in the (Dutch) Copyright Act where the “all rights reserved”
notice is relevant. The so-called free press exception in copyright law
states that the press can freely copy news and articles about current
topics, despite any copyrights on such articles. The source must be noted.

The free press exception
can however easily be stopped by adding the “all rights reserved”
notice to the original article. This bars the exception, according to
copyright law. In this specific situation therefore the notice is relevant.

For most people this
situation will not occur. The free press exception only applies to news,
which is copied from a press medium by another press medium.

Some rights reserved

Even though the phrase
“all rights reserved” has no legal significance today, it is
still used with almost all copyright notices. The only practical function
is that of a warning: the author realizes he has a copyright and he really
means to keep it.

The Creative Commons
initiative uses a slightly different phrase, Some rights reserved, to
indicate its more liberal approach to copyright. The phrase then is used
as a link text to the applicable Creative Commons license. Their “dedication
to the public domain” statement uses the phrase “No rights reserved”.

h.

If a project is “killed”
(“canceled” or “rejected”)

1.

The original written
agreement defining the copyright holder remains intact if a project is
“killed” (cancelled or rejected). The copyright holder retains all of
the originally written agreed upon rights to use the artwork upon payment
of the kill fee, canceled fee or rejected fee unless there is an written
agreement that the rights revert back to the artist (creator).

a.
b.

Cancellation fee:
when a client decides to not use an artwork for their own reasons.
Rejection fee: when a client rejects a work because it does not satisfy
their stated requirement.

I.

Electronic Use Rights

1.

Electronic use rights
should be negotiated at the beginning of a project and included in a written
agreement. See one suggestion below which incorporates both print and
electronic usage. A good reference page for this discussion:
http://www.writing-world.com/rights/erights.shtml

RIGHTS
TRANSFERRED:

a.

b.

___(Quantity)______ print copyright usage (your
name)
______________
painting in ____________________________by ____________________________

___(Quantity)______ ElectronicInternet Publishing copyright usage in ____________________________by ______________________

DURATION
OF USAGE:

a.

b.

__
print use for an edition of ___

Electronic Internet Publishing Rights: for an
edition of __(quantity)___ electronic copies
for the duration __(Date from)______-__(Date to)_______.

Electronic Internet Archiving Rights: for the duration __(Date
from)______-__(Date to)_______.

LIMITATIONS
ON MEDIA IN WHICH USED:
(if
not covered under “rights” for example: print rights only, no
electronic usage)

limitations
on number of insertions
:

limitations
on geographical use:
for instance, United states, North
America, (non-exclusive or exclusive Worldwide
English language use etc)

FEES
FOR RIGHTS GRANTED:
(list names & amounts if more than yourself): $_______.00 USD

U.S. Copyright Office
Definitions
[11]

a.

Who is an author?
Under the copyright law, the creator of the original
expression in a work is its author. The author is also the owner of copyright
unless there is a written agreement by which the author assigns the copyright
to another person or entity, such as a publisher. In cases of works made
for hire, the employer or commissioning party is considered to be the
author. See
Circular 9, Work-Made-For-Hire Under the 1976 Copyright Act.

b.

What
is a deposit?

A deposit is usually one copy (if unpublished) or
two copies (if published) of the work to be registered for copyright.
In certain cases such as works of the visual arts, identifying material
such as a photograph may be used instead. See
Circular 40a, Deposit Requirements for Registration of Claims to Copyright in Visual
Arts Material
. The deposit is sent with the application and fee and
becomes the property of the Library of Congress.

c.

What
is publication?

Publication has a technical meaning in copyright
law. According to the statute, “Publication is the distribution of
copies or phonorecords of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. The offering to
distribute copies or phonorecords to a group
of persons for purposes of further distribution, public performance, or
public display constitutes publication. A public performance or display
of a work does not of itself constitute publication.” Generally, publication
occurs on the date on which copies of the work are first distributed to
the public. For further information see Circular 1, Copyright Basics,
section “
Publication.”

d.

What
is a copyright notice? How do I put a copyright notice on my work?

A copyright notice is an identifier placed on copies
of the work to inform the world of copyright ownership. The copyright
notice generally consists of the symbol or word “copyright (or copr.),”
the name of the copyright owner, and the year of first publication, e.g.,
©2008 John Doe. While use of a copyright notice was once required
as a condition of copyright protection, it is now optional.
Use of
the notice is the responsibility of the copyright owner and does not require
advance permission from, or registration with, the Copyright Office. See
Circular 3, Copyright Notice, for requirements for works published before March 1, 1989, and for
more information on the form and position of the copyright notice.

e.

What
is copyright infringement?

As a general matter, copyright infringement occurs
when a copyrighted work is reproduced, distributed, performed, publicly
displayed, or made into a derivative work without the permission of the
copyright owner.

f.

What
is peer-to-peer (P2P) networking?

A type of network where computers communicate directly
with each other, rather than through a central server. Often referred
to simply as peer-to-peer, or abbreviated P2P, a type of network in which
each workstation has equivalent capabilities and responsibilities in contrast
to client/server architectures, in which some computers are dedicated
to serving the other computers. A “network” is a group of two
or more computer systems linked together by various methods. In recent
usage, peer-to-peer has come to describe applications in which users can
use the Internet to exchange files with each other directly or through
a mediating server.

g.

Where
is the public domain?

The public domain is not a place. A work of authorship
is in the “public domain” if it is no longer under copyright protection
or if it failed to meet the requirements for copyright protection. Works
in the public domain may be used freely without the permission of the
former copyright owner.

h.

What
is mandatory deposit?

Copies of all works under copyright protection that
have been published in the United States are required to be deposited
with the Copyright Office within three months of the date of first publication.
See
Circular 7d, Mandatory Deposit of Copies or Phonorecords for the Library of Congress, and the Deposit Regulation 202.19.

I.

What
is a work made for hire?

Although the general rule is that the person who
creates the work is its author, there is an exception to that principle.
The exception is a work made for hire, which is a work prepared by an
employee within the scope of his or her employment or a work specially
ordered or commissioned in certain specified circumstances. When a work
qualifies as a work made for hire, the employer, or commissioning party,
is considered to be the author. See
Circular 9, Work-Made-For-Hire
Under the 1976 Copyright Act
.

j.

What
is a Library of Congress number?
The Library of Congress
Control Number is assigned by the Library at its discretion to assist
librarians in acquiring and cataloging works. For further information,
go to the Cataloging in Publication program website at www.loc.gov/publish/cip/.

k.

What
is an ISBN number?
The International Standard
Book Number is administered by the R.R. Bowker Company. The ISBN is a numerical identifier intended
to assist the international community in identifying and ordering certain
publications.

Work for Hire

Definition [12] : Section 101 of the Copyright Act (title 17 of the U.S.Code)
defines a “work made for hire” in two parts:

a.

a work
prepared by an employee within the scope of his or her employment

OR

b.

a
work specially ordered or commissioned for use

1.
2.
3.
4.
5.
6.
7.
8.
9.

as a contribution to a collective work,
as
a part of a motion picture or other audiovisual work,

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.

The
law defines a “supplementary work” as 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.

The
law defines an “instructional text” as a literary, pictorial,
or graphic work prepared for publication and intended to be used in systematic
instructional activities.

Owner
of the Copyright in a Work Made for Hire

If a work is made for hire, the employer or other person
for whom the work was prepared is the initial owner of
the copyright unless both parties involved have signed a written agreement
to the contrary.

Term
of Copyright Protection

The term of copyright protection of a work made for hire is 95 years from
the date of publication or 120 years from the
date of creation, whichever expires first. (A work not made for hire is ordinarily
protected by copyright for the life of the author plus 70 years.) For
information about terms of copyright protection, see
Circular 15a, Duration of Copyright

Ways to Avoid having your work being classified as “Work
for Hire”

a.

b.

c.

Don’t sign a contract that includes the work for hire provision

Have a well-written, signed contract before work/artwork is done.

Include a contract clause that states the work prepared shall not be considered
a work for hire
as defined by sections
101 and 201(b) of the Copyright Act of 1976.

Duration of Copyright [13]

a.

Works
Created on or after January 1, 1978

The law automatically protects a work that is created and fixed in a tangible
medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting
for the author’s life plus an additional 70 years.
For a “joint
work prepared by two or more authors who did not work for hire,”
the term lasts for 70 years after the last surviving author’s death. For
works made for hire and anonymous and pseudonymous works, the duration
of copyright is 95 years from first publication or 120 years from creation,
whichever is shorter (unless the author’s identity is later revealed in
Copyright Office records, in which case the term becomes the author’s
life plus 70 years). For more information about works made for hire, see
Circular 9, Works Made for Hire under the 1976 Copyright Act . For details
about pseudonymous works, see fl 101, Pseudonyms.

b.

Works
in Existence but Not Published or Copyrighted on January 1, 1978

The law automatically gives federal copyright protection to works that were
created but neither published nor registered before January 1, 1978. The duration of copyright in these works is generally
computed the same way as for works
created on or after January 1, 1978: life plus 70 years or 95 or 120 years, depending
on the nature of authorship.
However, all works
in this category are guaranteed at least 25 years of statutory protection.
The law specifies that in no case would copyright in a work in this category
have expired before December 31, 2002. In addition, if a work in this
category was published before that date, the term extends another 45 years,
through the end of 2047

c.

Works
Already Under Statutory Protection before 1978

For works that had already secured statutory copyright protection before January
1, 1978, the 1976 Copyright Act retains the system in the previous copyright
law—the Copyright Act of 1909—for computing the duration of
protection, but with some changes. See
Circular 15a, Duration
of Copyright

Digitally inserting metadata
into artwork to embed author information

a.

What is IPTC metadata? [14]

1.

Metadata is “data about data” – in the scope of photographs that
is data about the digital image. Data about digital images.

a.

b.

c.

d.

describe what you can see on the photo, either using free text or codes from
a controlled vocabulary

provide administrative information about the photo like who has taken it,
when and where it was taken, etc.

provide rights related information (copyright, usage rights)

provide workflow related information like an identifier and title for the photo or
a job identifier.

These data may be stored with the digital image data in an image file. Well
known formats are JPEG or TIFF files.

These data may also be stored outside a photo file in a digital asset
management system or by a external file, e.g. the XMP sidecar file or XML based news exchange format
files as specified by the IPTC.

b.

Adding Descriptions to Digital Photos [15]

http://blogs.loc.gov/digitalpreservation/2011/10/mission-possible-an-easy-way-to-add-descriptions-to-digital-photos/

c.

IPTC-PLUS Photo Metadata Toolkit for Adobe CS [16]

http://www.iptc.org/cms/site/single.html?channel=CH0099&document=CMS1279131209658

d.

Software supporting IPTC photo metadata standards IIM and “IPTC Core” [17]

http://www.iptc.org/site/Photo_Metadata/Software_list/

E.

Embed file properties with Windows OS

1.

2.

3.

4.

Right click a file

Select “details” panel

Enter information such as title, author, your address, phone number, website
date created, copyright etc

Click Apply & then OK to save

f.

Embed file properties with Mac OS

1.

2.

3.

Click the file

Select “get info

Enter the information you wish and save

g.

Embed file properties with Mac OS: No Clue! Someone help me out here

h.

Cutting Edge News

http://blogs.loc.gov/digitalpreservation/category/tools-and-infrastructure/

What is an Orphan
Work?

An orphan work is
a copyright protected work for which rightsholders are positively indeterminate or uncontactable.
Sometimes only originator or rightsholder name(s) are known, yet contact is stymied by the exhaustive unavailability
of sufficient further details.[1] A work can
become orphaned through rightsholders being
unaware of their holding, or by their demise (e.g. deceased persons or
defunct companies) and establishing inheritance has proved impracticable.[2]
In other cases, comprehensively diligent research fails to determine any
authors, creators or originators for a work. [18]

a.

Orphan Works Resource Page for Artists
http://www.illustratorspartnership.org/01_topics/article.php?searchterm=00185

b.

5/16/2013 ILLUSTRATORS’
PARTNERSHIP ORPHAN WORKS BLOG update
http://ipaorphanworks.blogspot.com/

What is a resale
royalty?

An artist resale
royalty, or droit de suite as it is often called in Europe, provides artists
with an opportunity to benefit from the increased value of their works
over time by granting them a percentage of the proceeds from the resale
of their original works of art. The royalty originated in France in the
1920s deriving from estate issues of Jean Francois Millet, who died a
pauper, and is in general practice throughout Europe, but is not part
of current United States copyright law. Under the Copyright Act (the “Act”),
17 U.S.C. 101 et seq., visual artists, like other authors, are provided
a bundle of exclusive rights, including rights to reproduce, distribute
and create adaptations of their works. These rights, however, do not affect
the disposition of the original work of authorship. Instead, the first
sale doctrine, codified in 17 U.S.C. § 109, generally permits the lawful
owner of a copyrighted work “to sell or otherwise dispose of the possession
of that copy” and to “display that copy publicly . . .” without
the authorization of the creator.

For many works, such
as books, musical works and sound recordings, this system provides substantial
economic benefits and incentives for creators. A question is whether the
system is as advantageous for certain artists of visual works. For some
artwork, where the primary financial benefit may be through the sale of
the original work rather than multiple copies, the creator may receive
less financial benefit from the work than do subsequent collectors or
other downstream entities that are able to take advantage of the increase
in the value of the artwork over time. A resale royalty right is one way
by which to address this perceived inequity by allowing artists to receive
additional compensation from later sales of the original work of art.
Some foreign countries have experience with this approach.

The Copyright Office has been asked by Congress to review how the current
copyright legal system affects and supports visual artists; and how a
federal resale royalty right for visual artists would affect current and
future practices of groups or individuals involved in the creation, licensing,
sale, exhibition, dissemination, and preservation of works of visual art.
This initial notice of inquiry seeks comments from the public on the means
by which visual artists exploit their works under existing law as well
as the issues and obstacles that may be encountered when considering a
federal resale royalty right in the United States.

a.

Who collects the royalties for visual
artists?

Artists Rights Society
(ARS) is a copyright, licensing, and monitoring organization for visual
artists in the United States. Founded in 1987, ARS represents the intellectual
property rights interests of over 50,000 visual artists and estates of
visual artists from around the world (painters, sculptors, photographers,
architects and others). [19]

1.

2.

Artists Rights Society
(ARS) , located in New York City, is the preeminent copyright, licensing,
and monitoring organization for visual artists in the United States. Founded
in 1987, ARS represents the intellectual property rights interests of
over 50,000 visual artists and estates of visual artists from around the
world (painters, sculptors, photographers, architects and others).

ARS’ membership derives
from two sources. First, ARS represents American artists who become its
direct adherents and it represents foreign artists who are members of
affiliated arts organizations abroad. A complete list of ARS’ American
members is to be found in the “Artists Represented” section of
this site; it includes such names as Milton Avery, Alexander Calder, Sam
Francis, Arshile Gorky, Red Grooms, Robert Indiana, Sol LeWitt, Willem de Kooning,
Lee Krasner, Barnett Newman, Bruce Nauman,
Georgia O’Keeffe, Jackson Pollock, Ad Reinhardt, Susan Rothenberg, Mark
Rothko, Richard Serra, Frank Stella, Andy Warhol, Frank Lloyd Wright,
and many others.

ARS is also a member
of CISAC (Confédération Internationale des Sociétés d’Auteurs et Compositeurs), the Paris-based, umbrella
organization which oversees the activities of international copyright
collecting societies in all media. As part of this international network
of rights organizations, ARS maintains relationships with like-minded
“sister societies” abroad. Through reciprocal agreements ARS
represents the artist repertories of its foreign sister societies in the
U.S., and they in turn represent ARS’ American repertory in their territories.

Links to CISAC and
ARS’ sister societies may be found in the “Affiliated Organizations”
section of this site, and a complete, current listing of all artists represented
by ARS, both American and foreign, can be found under the “Artists
Represented” section. A roster of most frequently sought artists may
also be found in that same section. It includes such names as Georges
Braque, Joseph Beuys, Pierre Bonnard, Constantin Brancusi, Marc Chagall,
Jean Dubuffet, Marcel Duchamp, Max Ernst, Alberto Giacometti, Vassily Kandinsky, Paul Klee, Le Corbusier, Fernand Léger, Henri Matisse, Rene
Magritte, Joan Miró, Edvard Munch, Pablo
Picasso, Man Ray, and many others. [20]

Frequently asked
Questions from Artists, ARS
http://www.arsny.com/faqartists.html

What are reprographic
rights?
[21]

a.

Reprographic rights
are held individually by each artist but are licensed collectively by
a copyright collecting society that artists have mandated to administer
these rights. Regrettably, there has not been a U.S. copyright collecting
society to represent American illustrators, and illustrators do not currently
receive any compensation for the exploitation of their reprographic rights. [22]

1.


2.

3.

Why are they important visual artists & what are the issues?
http://www.asip-repro.org/

2/4/2013 document
submitted to the US Copyright office by ASIP (American Society of Illustrators
Partnership):
http://www.copyright.gov/orphan/comments/noi_10222012/American-Society-Illustrators-Partnership-ASIP.pdf

REPROGRAPHIC RIGHTS
AUTHORIZATION & AGREEMENT
http://www.asip-repro.org/images/ASIP_ReproAuthorize.pdf

Keeping a Record

a.

Best defense

1.

2.

Keep permanent records
of all registered works and keep them up to date

Your best defense
will be good record keeping if you have not registered a work with the
Copyright office or any other registry.

a.

b.

Document all contracts
& correspondence, including when a project was started through completion .

Prepare a double
set of authenticity information included such as date created, author,
medium, size and include a good image including a close of your signature,
copyright, date to establish provenance before a work gets published or
sent to client. Keep one set in your file and mail yourself one set in
a sealed envelope with authenticity information included such as date
created, author, medium, size and include a good image including a close
of your signature, copyright, date to establish provenance before a work
gets published or sent to client. Retain the unopened, sealed, postmarked/dated enveloped
indefinitely as part of the work’s record.

Copyright Law of
the
United States of America

a.

For the whole works:

http://www.copyright.gov/title17/92chap1.html#107

b.

§ 101 . Definitions [23]

Except as otherwise
provided in this title, as used in this title, the following terms and
their variant forms mean the following:

An “anonymous
work
” is a work on the copies or phonorecords of which no natural person is identified as author.

An “architectural
work
” is the design of a building as embodied in any tangible
medium of expression, including a building, architectural plans, or drawings.
The work includes the overall form as well as the arrangement and composition
of spaces and elements in the design, but does not include individual
standard features.3

Audiovisual
works
” are works that consist of a series of related images which
are intrinsically intended to be shown by the use of machines or devices
such as projectors, viewers, or electronic equipment, together with accompanying
sounds, if any, regardless of the nature of the material objects, such
as films or tapes, in which the works are embodied.

The “Berne
Convention
” is the Convention for the Protection of Literary and
Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and
all acts, protocols, and revisions thereto.4

The “best
edition
” of a work is the edition, published in the United States
at any time before the date of deposit, that the Library of Congress determines to be
most suitable for its purposes.

A person’s “children
are that person’s immediate offspring, whether legitimate or not,
and any children legally adopted by that person.

A “collective
work
” is a work, such as a periodical issue, anthology, or encyclopedia,
in which a number of contributions, constituting separate and independent
works in themselves, are assembled into a collective whole.

A “compilation
is a work formed by the collection and assembling of preexisting materials
or of data that are selected, coordinated, or arranged in such a way that
the resulting work as a whole constitutes an original work of authorship.
The term “compilation” includes collective works.

A “computer
program
” is a set of statements or instructions to be used directly
or indirectly in a computer in order to bring about a certain result.5

Copies
are material objects, other than phonorecords,
in which a work is fixed by any method now known or later developed, and
from which the work can be perceived, reproduced, or otherwise communicated,
either directly or with the aid of a machine or device. The term “copies”
includes the material object, other than a phonorecord,
in which the work is first fixed.

Copyright
owner
“, with respect to any one of the exclusive rights comprised
in a copyright, refers to the owner of that particular right.

A “Copyright
Royalty Judge
” is a Copyright Royalty Judge appointed under section
802 of this title, and includes any individual serving as an interim Copyright
Royalty Judge under such section.6

A work is “created
when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the
portion of it that has been fixed at any particular time constitutes the
work as of that time, and where the work has been prepared in different
versions, each version constitutes a separate work.

A “derivative
work
” is a work based upon one or more preexisting works, such
as a translation, musical arrangement, dramatization, fictionalization,
motion picture version, sound recording, art reproduction, abridgment,
condensation, or any other form in which a work may be recast, transformed,
or adapted. A work consisting of editorial revisions, annotations, elaborations,
or other modifications, which, as a whole, represent an original work
of authorship, is a “derivative work”.

A “device“,
machine“, or “process” is one now known
or later developed.

A “digital
transmission
” is a transmission in whole or in part in a digital
or other nonanalog format.7

To “display
a work means to show a copy of it, either directly or by means of a film,
slide, television image, or any other device or process or, in the case
of a motion picture or other audiovisual work, to show individual images nonsequentially.

An “establishment
is a store, shop, or any similar place of business open to the general
public for the primary purpose of selling goods or services in which the
majority of the gross square feet of space that is nonresidential is used
for that purpose, and in which nondramatic musical works are performed
publicly.8

The term “financial
gain
” includes receipt, or expectation of receipt, of anything
of value, including the receipt of other copyrighted works.9

A work is “fixed
in a tangible medium of expression when its embodiment in a copy or phonorecord,
by or under the authority of the author, is sufficiently permanent or
stable to permit it to be perceived, reproduced, or otherwise communicated
for a period of more than transitory duration. A work consisting of sounds,
images, or both, that are being transmitted, is “fixed” for purposes
of this title if a fixation of the work is being made simultaneously with
its transmission.

A “food service
or drinking establishment
” is a restaurant, inn, bar, tavern,
or any other similar place of business in which the public or patrons
assemble for the primary purpose of being served food or drink, in which
the majority of the gross square feet of space that is nonresidential
is used for that purpose, and in which nondramatic musical works are performed
publicly.10

The “Geneva
Phonograms Convention
” is the Convention for the Protection of
Producers of Phonograms Against Unauthorized Duplication of Their Phonograms,
concluded at Geneva, Switzerland, on October 29, 1971.11

The “gross
square feet of space
” of an establishment means the entire interior
space of that establishment, and any adjoining outdoor space used to serve
patrons, whether on a seasonal basis or otherwise.12

The terms “including
and “such as” are illustrative and not limitative.

An “international
agreement
” is —

(1) the Universal
Copyright Convention;

(2) the Geneva Phonograms
Convention;

(3) the Berne Convention;

(4) the WTO Agreement;

(5) the WIPO Copyright
Treaty;13

(6) the WIPO Performances
and Phonograms Treaty;14 and

(7) any other copyright
treaty to which the United States is a party.15

A “joint work
is a work prepared by two or more authors with the intention that their
contributions be merged into inseparable or interdependent parts of a
unitary whole.

Literary
works
” are works, other than audiovisual works, expressed in words,
numbers, or other verbal or numerical symbols or indicia, regardless of
the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards,
in which they are embodied.

The term “motion
picture exhibition facility
” means a movie theater, screening
room, or other venue that is being used primarily for the exhibition of
a copyrighted motion picture, if such exhibition is open to the public
or is made to an assembled group of viewers outside of a normal circle
of a family and its social acquaintances.16

Motion pictures
are audiovisual works consisting of a series of related images which,
when shown in succession, impart an impression of motion, together with
accompanying sounds, if any.

To “perform
a work means to recite, render, play, dance, or act it, either directly
or by means of any device or process or, in the case of a motion picture
or other audiovisual work, to show its images in any sequence or to make
the sounds accompanying it audible.

A “performing
rights society
” is an association, corporation, or other entity
that licenses the public performance of nondramatic musical works on behalf
of copyright owners of such works, such as the American Society of Composers,
Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC,
Inc.17

Phonorecords” are material objects in which
sounds, other than those accompanying a motion picture or other audiovisual
work, are fixed by any method now known or later developed, and from which
the sounds can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term “phonorecords
includes the material object in which the sounds are first fixed.

Pictorial,
graphic, and sculptural works
” include two-dimensional and three-dimensional
works of fine, graphic, and applied art, photographs, prints and art reproductions,
maps, globes, charts, diagrams, models, and technical drawings, including
architectural plans. Such works shall include works of artistic craftsmanship
insofar as their form but not their mechanical or utilitarian aspects
are concerned; the design of a useful article, as defined in this section,
shall be considered a pictorial, graphic, or sculptural work only if,
and only to the extent that, such design incorporates pictorial, graphic,
or sculptural features that can be identified separately from, and are
capable of existing independently of, the utilitarian aspects of the article.18

For purposes of section
513, a “proprietor” is an individual, corporation, partnership,
or other entity, as the case may be, that owns an establishment or a food
service or drinking establishment, except that no owner or operator of
a radio or television station licensed by the Federal Communications Commission,
cable system or satellite carrier, cable or satellite carrier service
or programmer, provider of online services or network access or the operator
of facilities therefor, telecommunications company, or any other such
audio or audiovisual service or programmer now known or as may be developed
in the future, commercial subscription music service, or owner or operator
of any other transmission service, shall under any circumstances be deemed
to be a proprietor.19

A “pseudonymous
work
” is a work on the copies or phonorecords of which the author is identified under a fictitious name.

Publication
is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by
rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance,
or public display, constitutes publication. A public performance or display
of a work does not of itself constitute publication.

To perform or display
a work “publicly” means—

(1) to perform or
display it at a place open to the public or at any place where a substantial
number of persons outside of a normal circle of a family and its social
acquaintances is gathered; or

(2) to transmit or
otherwise communicate a performance or display of the work to a place
specified by clause (1) or to the public, by means of any device or process,
whether the members of the public capable of receiving the performance
or display receive it in the same place or in separate places and at the
same time or at different times.

Registration“,
for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412, and 506(e),
means a registration of a claim in the original or the renewed and extended
term of copyright.20

Sound recordings
are works that result from the fixation of a series of musical, spoken,
or other sounds, but not including the sounds accompanying a motion picture
or other audiovisual work, regardless of the nature of the material objects,
such as disks, tapes, or other phonorecords,
in which they are embodied.

State
includes the District of Columbia and the Commonwealth of Puerto Rico,
and any territories to which this title is made applicable by an Act of
Congress.

A “transfer
of copyright ownership
” is an assignment, mortgage, exclusive
license, or any other conveyance, alienation, or hypothecation of a copyright
or of any of the exclusive rights comprised in a copyright, whether or
not it is limited in time or place of effect, but not including a nonexclusive
license.

A “transmission
program
” is a body of material that, as an aggregate, has been
produced for the sole purpose of transmission to the public in sequence
and as a unit.

To “transmit
a performance or display is to communicate it by any device or process
whereby images or sounds are received beyond the place from which they
are sent.

A “treaty
party
” is a country or intergovernmental organization other than
the United States that is a party to an international agreement.21

The “United
States
“, when used in a geographical sense, comprises the several
States, the District of Columbia and the Commonwealth of Puerto Rico,
and the organized territories under the jurisdiction of the United States
Government.

For purposes of section
411, a work is a “United States work” only if—

(1) in the case of
a published work, the work is first published—

(A) in the United
States;

(B) simultaneously
in the United States and another treaty party or parties, whose law grants
a term of copyright protection that is the same as or longer than the
term provided in the United States;

(C) simultaneously
in the United States and a foreign nation that is not a treaty party;
or

(D) in a foreign
nation that is not a treaty party, and all of the authors of the work
are nationals, domiciliaries, or habitual
residents of, or in the case of an audiovisual work legal entities with
headquarters in, the United States;

(2) in the case of
an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States,
or, in the case of an unpublished audiovisual work, all the authors are
legal entities with headquarters in the United States; or

(3) in the case of
a pictorial, graphic, or sculptural work incorporated in a building or
structure, the building or structure is located in the United States.22

A “useful
article
” is an article having an intrinsic utilitarian function
that is not merely to portray the appearance of the article or to convey
information. An article that is normally a part of a useful article is
considered a “useful article”.

The author’s
widow” or “widower” is the author’s
surviving spouse under the law of the author’s domicile at the time
of his or her death, whether or not the spouse has later remarried.

The “WIPO
Copyright Treaty
” is the WIPO Copyright Treaty concluded at Geneva,
Switzerland, on December 20, 1996.23

The “WIPO
Performances and Phonograms Treaty
” is the WIPO Performances and
Phonograms Treaty concluded at Geneva, Switzerland, on December 20, 1996.24

A “work of
visual art
” is—

(1) a painting, drawing,
print or sculpture, existing in a single copy, in a limited edition of
200 copies or fewer that are signed and consecutively numbered by the
author, or, in the case of a sculpture, in multiple cast, carved, or fabricated
sculptures of 200 or fewer that are consecutively numbered by the author
and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes
only, existing in a single copy that is signed by the author, or in a
limited edition of 200 copies or fewer that are signed and consecutively
numbered by the author.

A work of visual
art does not include—

(A)(i) any poster, map, globe, chart, technical drawing, diagram,
model, applied art, motion picture or other audiovisual work, book, magazine,
newspaper, periodical, data base, electronic information service, electronic
publication, or similar publication;

(ii) any merchandising
item or advertising, promotional, descriptive, covering, or packaging
material or container;

(iii) any portion
or part of any item described in clause (i)
or (ii);

(B) any work made
for hire; or

(C) any work not
subject to copyright protection under this title.25

A “work of
the United States Government
” is a work prepared by an officer
or employee of the United States Government as part of that person’s
official duties.

A “work made
for hire
” is—

(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 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 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.

In determining whether
any work is eligible to be considered a work made for hire under paragraph
(2), neither the amendment contained in section 1011(d) of the Intellectual
Property and Communications Omnibus Reform Act of 1999, as enacted by
section 1000(a)(9) of Public Law 106-113, nor the deletion of the words
added by that amendment—

(A) shall be considered
or otherwise given any legal significance, or

(B) shall be interpreted
to indicate congressional approval or disapproval of, or acquiescence
in, any judicial determination,

by the courts or the
Copyright Office. Paragraph (2) shall be interpreted as if both section
2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000
and section 1011(d) of the Intellectual Property and Communications Omnibus
Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113,
were never enacted, and without regard to any inaction or awareness by
the Congress at any time of any judicial determinations.26

The terms “WTO
Agreement
” and “WTO member country” have the meanings
given those terms in paragraphs (9) and (10), respectively, of section
2 of the Uruguay Round Agreements Act.27

Infringement…best
practices

a.

Copyright office Infringement Questions
& Answers [24]

What Is Infringement?

Section 501 of the
copyright law states that “anyone who violates any of the exclusive
rights of the copyright owner …is an infringer of the copyright or right
of the author.”

Generally, under
the law, one who engages in any of these activities without obtaining
the copyright owner’s permission may be liable for infringement. Nevertheless,
there are several limitations of the exclusive rights of the copyright
owner. The copyright law provides exemptions from infringement liability
by authorizing certain uses under particularized circumstances. These
exemptions are enumerated generally in
sections 107-122
of the copyright law.
[25]

1.

§ 107 . Limitations on exclusive rights: Fair use

2.

§ 108 . Limitations on exclusive rights: Reproduction by
libraries and archives

3.

§ 109 . Limitations on exclusive rights: Effect of transfer
of particular copy or phonorecord

4.

§ 110 . Limitations on exclusive rights: Exemption of certain
performances and displays

5.

§ 111 . Limitations on exclusive rights: Secondary transmissions
of broadcast programming by cable

6.

§ 112 . Limitations on exclusive rights: Ephemeral recordings

7.

§ 113
.
Scope of exclusive rights in pictorial, graphic, and sculptural
works

a.

b.

c.

Subject to the provisions
of subsections (b) and (c) of this section, the exclusive right
to reproduce a copyrighted pictorial, graphic, or sculptural work in copies
under section 106 includes the right to reproduce the work in or on any
kind of article, whether useful or otherwise.

This title does not
afford, to the owner of copyright in a work that portrays a useful article
as such, any greater or lesser rights with respect to the making, distribution,
or display of the useful article so portrayed than those afforded to such
works under the law, whether title 17 or the common law or statutes of
a State, in effect on December 31, 1977, as held applicable and construed
by a court in an action brought under this title.

In the case of a
work lawfully reproduced in useful articles that have been offered for
sale or other distribution to the public, copyright does not include any
right to prevent the making, distribution, or display of pictures or photographs
of such articles in connection with advertisements or commentaries related
to the distribution or display of such articles, or in connection with
news reports.

d.

1.

In a case in which—

A.

B.

a work of visual
art has been incorporated in or made part of a building in such a way
that removing the work from the building will cause the destruction, distortion,
mutilation, or other modification of the work as described in section
106A(a)(3), and

the author consented
to the installation of the work in the building either before the effective
date set forth in section 610(a) of the Visual Artists Rights Act of 1990,
or in a written instrument executed on or after such effective date that
is signed by the owner of the building and the author and that specifies
that installation of the work may subject the work to destruction, distortion,
mutilation, or other modification, by reason of its removal, then the
rights conferred by paragraphs (2) and (3) of section 106A(a) shall not
apply.

2.

If the owner of a
building wishes to remove a work of visual art which is a part of such
building and which can be removed from the building without the destruction,
distortion, mutilation, or other modification of the work as described
in section 106A(a)(3), the author’s rights under paragraphs (2) and (3)
of section 106A(a) shall apply unless—

a.

b.

the owner has made
a diligent, good faith attempt without success to notify the author of
the owner’s intended action affecting the work of visual art, or

the owner did provide
such notice in writing and the person so notified failed, within 90 days
after receiving such notice, either to remove the work or to pay for its
removal.

For purposes of subparagraph
(A), an owner shall be presumed to have made a diligent, good faith attempt
to send notice if the owner sent such notice by registered mail to the
author at the most recent address of the author that was recorded with
the Register of Copyrights pursuant to paragraph (3). If the work is removed
at the expense of the author, title to that copy of the work shall be
deemed to be in the author.

3.

The Register of Copyrights shall
establish a system of records whereby any author of a work of visual art
that has been incorporated in or made part of a building, may record his
or her identity and address with the Copyright Office. The Register shall
also establish procedures under which any such author may update the information
so recorded, and procedures under which owners of buildings may record
with the Copyright Office evidence of their efforts to comply with this
subsection.

8.

§ 114 . Scope of exclusive rights in sound recordings

9.

§ 115 . Scope of exclusive rights in nondramatic musical
works: Compulsory license for making and distributing phonorecord

10.

§ 116 . Negotiated licenses for public performances by means
of coin-operated phonorecord players

11.

§ 117 . Limitations on exclusive rights: Computer programs

12.

§ 118 . Scope of exclusive rights: Use of certain works in
connection with noncommercial broadcasting

13.

§ 119 . Limitations on exclusive rights: Secondary transmissions
of distant television programming by satellite

14.

§ 120 . Scope of exclusive rights in architectural works

15.

§ 121 . Limitations on exclusive rights: Reproduction for
blind or other people with disabilities

16.

§ 122 . Limitations on exclusive rights: Secondary transmissions
of local television programming by satellite

b.

Resolving infringement cases

1.

Formal Remedies; US Copyright Office [26]

§ 501. Infringement of copyright

(a) Anyone who violates
any of the exclusive rights of the copyright owner as provided by sections
106 through 122 or of the author as provided in section 106A(a),
or who imports copies or phonorecords into
the United States in violation of section 602, is an infringer of the
copyright or right of the author, as the case may be. For purposes of
this chapter (other than section 506), any reference to copyright shall
be deemed to include the rights conferred by section 106A(a).
As used in this subsection, the term “anyone” includes any State,
any instrumentality of a State, and any officer or employee of a State
or instrumentality of a State acting in his or her official capacity.
Any State, and any such instrumentality, officer, or employee, shall be
subject to the provisions of this title in the same manner and to the
same extent as any nongovernmental entity.

(b) The legal or
beneficial owner of an exclusive right under a copyright is entitled,
subject to the requirements of section 411, to institute an action for
any infringement of that particular right committed while he or she is
the owner of it. The court may require such owner to serve written notice
of the action with a copy of the complaint upon any person shown, by the
records of the Copyright Office or otherwise, to have or claim an interest
in the copyright, and shall require that such notice be served upon any
person whose interest is likely to be affected by a decision in the case.
The court may require the joinder, and shall permit the intervention,
of any person having or claiming an interest in the copyright.

(c) For any secondary
transmission by a cable system that embodies a performance or a display
of a work which is actionable as an act of infringement under subsection
(c) of section 111, a television broadcast station holding a copyright
or other license to transmit or perform the same version of that work
shall, for purposes of subsection (b) of this section, be treated as a
legal or beneficial owner if such secondary transmission occurs within
the local service area of that television station.

(d) For any secondary
transmission by a cable system that is actionable as an act of infringement
pursuant to section 111(c)(3), the following shall also have standing
to sue: (i) the primary transmitter whose
transmission has been altered by the cable system; and (ii) any broadcast
station within whose local service area the secondary transmission occurs.

(e) With respect
to any secondary transmission that is made by a satellite carrier of a
performance or display of a work embodied in a primary transmission and
is actionable as an act of infringement under section 119(a)(5), a network
station holding a copyright or other license to transmit or perform the
same version of that work shall, for purposes of subsection (b) of this
section, be treated as a legal or beneficial owner if such secondary transmission
occurs within the local service area of that station.

(f)(1) With respect
to any secondary transmission that is made by a satellite carrier of a
performance or display of a work embodied in a primary transmission and
is actionable as an act of infringement under section 122, a television
broadcast station holding a copyright or other license to transmit or
perform the same version of that work shall, for purposes of subsection
(b) of this section, be treated as a legal or beneficial owner if such
secondary transmission occurs within the local market of that station.

(2) A television
broadcast station may file a civil action against any satellite carrier
that has refused to carry television broadcast signals, as required under
section 122(a)(2), to enforce that television
broadcast station’s rights under section 338(a) of the Communications
Act of 1934.

§ 502. Remedies for infringement:
Injunctions

(a) Any court having
jurisdiction of a civil action arising under this title may, subject to
the provisions of section 1498 of title 28, grant temporary and final
injunctions on such terms as it may deem reasonable to prevent or restrain
infringement of a copyright.

(b) Any such injunction
may be served anywhere in the United States on the person enjoined; it
shall be operative throughout the United States and shall be enforceable,
by proceedings in contempt or otherwise, by any United States court having
jurisdiction of that person. The clerk of the court granting the injunction
shall, when requested by any other court in which enforcement of the injunction
is sought, transmit promptly to the other court a certified copy of all
the papers in the case on file in such clerk’s office.

§ 503. Remedies for infringement:
Impounding and disposition of infringing articles

(a)(1) At any time
while an action under this title is pending, the court may order the impounding,
on such terms as it may deem reasonable—

(A) of all copies
or phonorecords claimed to have been made
or used in violation of the exclusive right of the copyright owner;

(B) of all plates,
molds, matrices, masters, tapes, film negatives, or other articles by
means of which such copies of phonorecords may be reproduced; and

(C) of records documenting the manufacture, sale, or receipt
of things involved in any such violation, provided that any records seized
under this subparagraph shall be taken into the custody of the court.

(2) For impoundments
of records ordered under paragraph (1)(C),
the court shall enter an appropriate protective order with respect to
discovery and use of any records or information that has been impounded.
The protective order shall provide for appropriate procedures to ensure
that confidential, private, proprietary, or privileged information contained
in such records is not improperly disclosed or used.

(3) The relevant
provisions of paragraphs (2) through (11) of section 34(d) of the Trademark
Act (15 U.S.C. 1116(d)(2) through (11)) shall
extend to any impoundment of records ordered under paragraph (1)(C) that
is based upon an ex parte application, notwithstanding the provisions
of rule 65 of the Federal Rules of Civil Procedure. Any references in
paragraphs (2) through (11) of section 34(d) of the Trademark Act to section
32 of such Act shall be read as references to section 501 of this title,
and references to use of a counterfeit mark in connection with the sale,
offering for sale, or distribution of goods or services shall be read
as references to infringement of a copyright.

(b) As part of a
final judgment or decree, the court may order the destruction or other
reasonable disposition of all copies or phonorecords found to have been made or used in violation of the copyright owner’s
exclusive rights, and of all plates, molds, matrices, masters, tapes,
film negatives, or other articles by means of which such copies or phonorecords may be reproduced.

§ 504. Remedies for infringement:
Damages and profits

(a) In General. — Except as otherwise provided by
this title, an infringer of copyright is liable for either —

(1) the copyright
owner’s actual damages and any additional profits of the infringer, as
provided by subsection (b); or

(2) statutory damages, as provided by subsection (c).

(b) Actual Damages
and Profits. — The copyright owner is entitled to recover the actual
damages suffered by him or her as a result of the infringement, and any
profits of the infringer that are attributable to the infringement and
are not taken into account in computing the actual damages. In establishing
the infringer’s profits, the copyright owner is required to present proof
only of the infringer’s gross revenue, and the infringer is required to
prove his or her deductible expenses and the elements of profit attributable
to factors other than the copyrighted work.

(c) Statutory Damages.

(1) Except as provided
by clause (2) of this subsection, the copyright owner may elect, at any
time before final judgment is rendered, to recover, instead of actual
damages and profits, an award of statutory damages for all infringements
involved in the action, with respect to any one work, for which any one
infringer is liable individually, or for which any two or more infringers
are liable jointly and severally, in a sum of not less than $750 or more
than $30,000 as the court considers just. For the purposes of this subsection,
all the parts of a compilation or derivative work constitute one work.

(2) In a case where
the copyright owner sustains the burden of proving, and the court finds,
that infringement was committed willfully, the court in its discretion
may increase the award of statutory damages to a sum of not more than
$150,000. In a case where the infringer sustains the burden of proving,
and the court finds, that such infringer was not aware and had no reason
to believe that his or her acts constituted an infringement of copyright,
the court in its discretion may reduce the award of statutory damages
to a sum of not less than $200. The court shall remit statutory damages
in any case where an infringer believed and had reasonable grounds for
believing that his or her use of the copyrighted work was a fair use under
section 107, if the infringer was: (i) an
employee or agent of a nonprofit educational institution, library, or
archives acting within the scope of his or her employment who, or such
institution, library, or archives itself, which infringed by reproducing
the work in copies or phonorecords; or (ii) a public broadcasting entity which
or a person who, as a regular part of the nonprofit activities of a public
broadcasting entity (as defined in section 118(f)) infringed by performing
a published nondramatic literary work or by reproducing a transmission
program embodying a performance of such a work.

(3) (A) In a case
of infringement, it shall be a rebuttable presumption that the infringement
was committed willfully for purposes of determining relief if the violator,
or a person acting in concert with the violator, knowingly provided or
knowingly caused to be provided materially false contact information to
a domain name registrar, domain name registry, or other domain name registration
authority in registering, maintaining, or renewing a domain name used
in connection with the infringement.

(B) Nothing in this
paragraph limits what may be considered willful infringement under this
subsection.

(C) For purposes
of this paragraph, the term “domain name” has the meaning given
that term in section 45 of the Act entitled “An Act to provide for
the registration and protection of trademarks used in commerce, to carry
out the provisions of certain international conventions, and for other
purposes” approved July 5, 1946 (commonly referred to as the “Trademark
Act of 1946”; 15 U.S.C. 1127).

(d) Additional Damages
in Certain Cases. — In any case in which the court finds that a
defendant proprietor of an establishment who claims as a defense that
its activities were exempt under section 110(5) did not have reasonable
grounds to believe that its use of a copyrighted work was exempt under
such section, the plaintiff shall be entitled to, in addition to any award
of damages under this section, an additional award of two times the amount
of the license fee that the proprietor of the establishment concerned
should have paid the plaintiff for such use during the preceding period
of up to 3 years.

§ 505. Remedies for infringement:
Costs and attorney’s fees

In any civil action
under this title, the court in its discretion may allow the recovery of
full costs by or against any party other than the United States or an
officer thereof. Except as otherwise provided by this title, the court
may also award a reasonable attorney’s fee to the prevailing party as
part of the costs.

§ 506. Criminal offenses

(a) Criminal Infringement.

(1) In general. —
Any person who willfully infringes a copyright shall be punished as provided
under section 2319 of title 18, if the infringement was committed —

(A) for purposes
of commercial advantage or private financial gain;

(B) by the reproduction
or distribution, including by electronic means, during any 180-day period,
of 1 or more copies or phonorecords of 1 or
more copyrighted works, which have a total retail value of more than $1,000;
or

(C) by the distribution of a work being prepared for commercial
distribution, by making it available on a computer network accessible
to members of the public, if such person knew or should have known that
the work was intended for commercial distribution.

(2) Evidence. —
For purposes of this subsection, evidence of reproduction or distribution
of a copyrighted work, by itself, shall not be sufficient to establish
willful infringement of a copyright.

(3) Definition. —
In this subsection, the term “work being prepared for commercial distribution”
means —

(A) a computer program,
a musical work, a motion picture or other audiovisual work, or a sound
recording, if, at the time of unauthorized distribution —

(i) the copyright owner has a reasonable expectation of
commercial distribution; and

(ii) the copies or phonorecords of the work have not been commercially
distributed; or

(B) a motion picture,
if, at the time of unauthorized distribution, the motion picture —

(i) has been made available for viewing in a motion picture
exhibition facility; and

(ii) has not been made available in copies for sale to the general
public in the United States in a format intended to permit viewing outside
a motion picture exhibition facility.

(b) Forfeiture, Destruction,
and Restitution.—Forfeiture, destruction, and restitution relating
to this section shall be subject to section 2323 of title 18, to the extent
provided in that section, in addition to any other similar remedies provided
by law.

(c) Fraudulent Copyright
Notice. — Any person who, with fraudulent intent, places on any
article a notice of copyright or words of the same purport that such person
knows to be false, or who, with fraudulent intent, publicly distributes
or imports for public distribution any article bearing such notice or
words that such person knows to be false, shall be fined not more than
$2,500.

(d) Fraudulent Removal
of Copyright Notice. — Any person who, with fraudulent intent, removes
or alters any notice of copyright appearing on a copy of a copyrighted
work shall be fined not more than $2,500.

(e) False Representation.
— Any person who knowingly makes a false representation of a material
fact in the application for copyright registration provided for by section
409, or in any written statement filed in connection with the application,
shall be fined not more than $2,500.

(f) Rights of Attribution
and Integrity. — Nothing in this section applies to infringement
of the rights conferred by section 106A(a).

§ 507. Limitations on actions7

(a) Criminal Proceedings.
— Except as expressly provided otherwise in this title, no criminal
proceeding shall be maintained under the provisions of this title unless
it is commenced within 5 years after the cause of action arose.

(b) Civil Actions. — No civil action shall be maintained under the
provisions of this title unless it is commenced within three years after
the claim accrued.

§ 508. Notification of filing and
determination of actions

(a) Within one month
after the filing of any action under this title, the clerks of the courts
of the United States shall send written notification to the Register of
Copyrights setting forth, as far as is shown by the papers filed in the
court, the names and addresses of the parties and the title, author, and
registration number of each work involved in the action. If any other
copyrighted work is later included in the action by amendment, answer,
or other pleading, the clerk shall also send a notification concerning
it to the Register within one month after the pleading is filed.

(b) Within one month
after any final order or judgment is issued in the case, the clerk of
the court shall notify the Register of it, sending with the notification
a copy of the order or judgment together with the written opinion, if
any, of the court.

(c) Upon receiving
the notifications specified in this section, the Register shall make them
a part of the public records of the Copyright Office.

§ 509. [Repealed]

§ 510. Remedies for alteration of
programming by cable systems

(a) In any action
filed pursuant to section 111(c)(3), the following remedies shall be available:

(1) Where an action
is brought by a party identified in subsections (b) or (c) of section
501, the remedies provided by sections 502 through 505, and the remedy
provided by subsection (b) of this section; and

(2) When an action
is brought by a party identified in subsection (d) of section 501, the
remedies provided by sections 502 and 505, together with any actual damages
suffered by such party as a result of the infringement, and the remedy
provided by subsection (b) of this section.

(b) In any action
filed pursuant to section 111(c)(3), the court
may decree that, for a period not to exceed thirty days, the cable system
shall be deprived of the benefit of a statutory license for one or more
distant signals carried by such cable system.

§ 511. Liability of States, instrumentalities
of States, and State officials for infringement of copyright

(a) In General. — Any State, any instrumentality of
a State, and any officer or employee of a State or instrumentality of
a State acting in his or her official capacity, shall not be immune, under
the Eleventh Amendment of the Constitution of the United States or under
any other doctrine of sovereign immunity, from suit in Federal Court by
any person, including any governmental or nongovernmental entity, for
a violation of any of the exclusive rights of a copyright owner provided
by sections 106 through 122, for importing copies of phonorecords in violation of section 602, or for any other violation under this title.

(b) Remedies. —
In a suit described in subsection (a) for a violation described in that
subsection, remedies (including remedies both at law and in equity) are
available for the violation to the same extent as such remedies are available
for such a violation in a suit against any public or private entity other
than a State, instrumentality of a State, or officer or employee of a
State acting in his or her official capacity. Such remedies include impounding
and disposition of infringing articles under section 503, actual damages
and profits and statutory damages under section 504, costs and attorney’s
fees under section 505, and the remedies provided in section 510.

§ 512. Limitations
on liability relating to material online

(a) Transitory Digital
Network Communications. — A service provider shall not be liable
for monetary relief, or, except as provided in subsection (j), for injunctive
or other equitable relief, for infringement of copyright by reason of
the provider’s transmitting, routing, or providing connections for, material
through a system or network controlled or operated by or for the service
provider, or by reason of the intermediate and transient storage of that
material in the course of such transmitting, routing, or providing connections,
if —

(1) the transmission
of the material was initiated by or at the direction of a person other
than the service provider;

(2) the transmission,
routing, provision of connections, or storage is carried out through an
automatic technical process without selection of the material by the service
provider;

(3) the service provider
does not select the recipients of the material except as an automatic
response to the request of another person;

(4) no copy of the
material made by the service provider in the course of such intermediate
or transient storage is maintained on the system or network in a manner
ordinarily accessible to anyone other than anticipated recipients, and
no such copy is maintained on the system or network in a manner ordinarily
accessible to such anticipated recipients for a longer period than is
reasonably necessary for the transmission, routing, or provision of connections;
and

(5) the material is transmitted through the system or network
without modification of its content.

(b) System Caching.—

(1) Limitation on
liability. — A service provider shall not be liable for monetary
relief, or, except as provided in subsection (j), for injunctive or other
equitable relief, for infringement of copyright by reason of the intermediate
and temporary storage of material on a system or network controlled or
operated by or for the service provider in a case in which —

(A) the material
is made available online by a person other than the service provider;

(B) the material
is transmitted from the person described in subparagraph (A) through the
system or network to a person other than the person described in subparagraph
(A) at the direction of that other person; and

(C) the storage is
carried out through an automatic technical process for the purpose of
making the material available to users of the system or network who, after
the material is transmitted as described in subparagraph (B), request
access to the material from the person described in subparagraph (A),
if the conditions set forth in paragraph (2) are met.

(2) Conditions. —
The conditions referred to in paragraph (1) are that —

(A) the material
described in paragraph (1) is transmitted to the subsequent users described
in paragraph (1)(C) without modification to its content from the manner
in which the material was transmitted from the person described in paragraph
(1)(A);

(B) the service provider
described in paragraph (1) complies with rules concerning the refreshing,
reloading, or other updating of the material when specified by the person
making the material available online in accordance with a generally accepted
industry standard data communications protocol for the system or network
through which that person makes the material available, except that this
subparagraph applies only if those rules are not used by the person described
in paragraph (1)(A) to prevent or unreasonably impair the intermediate
storage to which this subsection applies;

(C) the service provider
does not interfere with the ability of technology associated with the
material to return to the person described in paragraph (1)(A) the information
that would have been available to that person if the material had been
obtained by the subsequent users described in paragraph (1)(C) directly
from that person, except that this subparagraph applies only if that technology

(i) does not significantly interfere with the performance
of the provider’s system or network or with the intermediate storage of
the material;

(ii) is consistent
with generally accepted industry standard communications protocols; and

(iii) does not extract
information from the provider’s system or network other than the information
that would have been available to the person described in paragraph (1)(A)
if the subsequent users had gained access to the material directly from
that person;

(D) if the person
described in paragraph (1)(A) has in effect a condition that a person
must meet prior to having access to the material, such as a condition
based on payment of a fee or provision of a password or other information,
the service provider permits access to the stored material in significant
part only to users of its system or network that have met those conditions
and only in accordance with those conditions; and

(E) if the person
described in paragraph (1)(A) makes that material available online without
the authorization of the copyright owner of the material, the service
provider responds expeditiously to remove, or disable access to, the material
that is claimed to be infringing upon notification of claimed infringement
as described in subsection (c)(3), except that this subparagraph applies
only if —

(i) the material has previously been removed from the originating
site or access to it has been disabled, or a court has ordered that the
material be removed from the originating site or that access to the material
on the originating site be disabled; and

(ii) the party giving the notification includes in the notification
a statement confirming that the material has been removed from the originating
site or access to it has been disabled or that a court has ordered that
the material be removed from the originating site or that access to the
material on the originating site be disabled.

(c) Information Residing
on Systems or Networks at Direction of Users.—

(1) In general. —
A service provider shall not be liable for monetary relief, or, except
as provided in subsection (j), for injunctive or other equitable relief,
for infringement of copyright by reason of the storage at the direction
of a user of material that resides on a system or network controlled or
operated by or for the service provider, if the service provider –

(A)(i) does not have actual knowledge that the material or
an activity using the material on the system or network is infringing;

(ii) in the absence
of such actual knowledge, is not aware of facts or circumstances from
which infringing activity is apparent; or

(iii) upon obtaining
such knowledge or awareness, acts expeditiously to remove, or disable
access to, the material;

(B) does not receive
a financial benefit directly attributable to the infringing activity,
in a case in which the service provider has the right and ability to control
such activity; and

(C) upon notification of claimed infringement as described
in paragraph (3), responds expeditiously to remove, or disable access
to, the material that is claimed to be infringing or to be the subject
of infringing activity.

(2) Designated agent.
— The limitations on liability established in this subsection apply
to a service provider only if the service provider has designated an agent
to receive notifications of claimed infringement described in paragraph
(3), by making available through its service, including on its website
in a location accessible to the public, and by providing to the Copyright
Office, substantially the following information:

(A) the name, address, phone number, and electronic mail address
of the agent.

(B) other contact information which the Register of Copyrights
may deem appropriate.

The Register of Copyrights
shall maintain a current directory of agents available to the public for
inspection, including through the Internet, and may require payment of
a fee by service providers to cover the costs of maintaining the directory.

(3) Elements of notification.

(A) To be effective
under this subsection, a notification of claimed infringement must be
a written communication provided to the designated agent of a service
provider that includes substantially the following:

(i) A physical or electronic signature of a person authorized
to act on behalf of the owner of an exclusive right that is allegedly
infringed.

(ii) Identification
of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works at a single online site are covered by a single notification,
a representative list of such works at that site.

(iii) Identification
of the material that is claimed to be infringing or to be the subject
of infringing activity and that is to be removed or access to which is
to be disabled, and information reasonably sufficient to permit the service
provider to locate the material.

(iv) Information
reasonably sufficient to permit the service provider to contact the complaining
party, such as an address, telephone number, and, if available, an electronic
mail address at which the complaining party may be contacted.

(v) A statement that
the complaining party has a good faith belief that use of the material
in the manner complained of is not authorized by the copyright owner,
its agent, or the law.

(vi) A statement
that the information in the notification is accurate, and under penalty
of perjury, that the complaining party is authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.

(B)(i) Subject to clause (ii), a notification from a copyright
owner or from a person authorized to act on behalf of the copyright owner
that fails to comply substantially with the provisions of subparagraph
(A) shall not be considered under paragraph (1)(A)
in determining whether a service provider has actual knowledge or is aware
of facts or circumstances from which infringing activity is apparent.

(ii) In a case in
which the notification that is provided to the service provider’s designated
agent fails to comply substantially with all the provisions of subparagraph
(A) but substantially complies with clauses (ii), (iii), and (iv) of subparagraph
(A), clause (i) of this subparagraph applies
only if the service provider promptly attempts to contact the person making
the notification or takes other reasonable steps to assist in the receipt
of notification that substantially complies with all the provisions of
subparagraph (A).

(d) Information Location
Tools. — A service provider shall not be liable for monetary relief,
or, except as provided in subsection (j), for injunctive or other equitable
relief, for infringement of copyright by reason of the provider referring
or linking users to an online location containing infringing material
or infringing activity, by using information location tools, including
a directory, index, reference, pointer, or hypertext link, if the service
provider —

(1)(A) does not have
actual knowledge that the material or activity is infringing;

(B) in the absence
of such actual knowledge, is not aware of facts or circumstances from
which infringing activity is apparent; or

(C) upon obtaining
such knowledge or awareness, acts expeditiously to remove, or disable
access to, the material;

(2) does not receive
a financial benefit directly attributable to the infringing activity,
in a case in which the service provider has the right and ability to control
such activity; and

(3) upon notification
of claimed infringement as described in subsection (c)(3), responds expeditiously
to remove, or disable access to, the material that is claimed to be infringing
or to be the subject of infringing activity, except that, for purposes
of this paragraph, the information described in subsection (c)(3)(A)(iii)
shall be identification of the reference or link, to material or activity
claimed to be infringing, that is to be removed or access to which is
to be disabled, and information reasonably sufficient to permit the service
provider to locate that reference or link.

(e) Limitation on
Liability of Nonprofit Educational Institutions. — (1) When a public
or other nonprofit institution of higher education is a service provider,
and when a faculty member or graduate student who is an employee of such
institution is performing a teaching or research function, for the purposes
of subsections (a) and (b) such faculty member or graduate student shall
be considered to be a person other than the institution, and for the purposes
of subsections (c) and (d) such faculty member’s or graduate student’s knowledge or awareness of his or her infringing
activities shall not be attributed to the institution, if —

(A) such faculty member’s or graduate student’s infringing activities do
not involve the provision of online access to instructional materials
that are or were required or recommended, within the preceding 3-year
period, for a course taught at the institution by such faculty member
or graduate student;

(B) the institution
has not, within the preceding 3-year period, received more than 2 notifications
described in subsection (c)(3) of claimed infringement by such faculty
member or graduate student, and such notifications of claimed infringement
were not actionable under subsection (f); and

(C) the institution provides to all users of its system or
network informational materials that accurately describe, and promote
compliance with, the laws of the United States relating to copyright.

(2) For the purposes
of this subsection, the limitations on injunctive relief contained in
subsections (j)(2) and (j)(3), but not those
in (j)(1), shall apply.

(f) Misrepresentations.
– Any person who knowingly materially misrepresents under this section

(1) that material
or activity is infringing, or

(2) that material
or activity was removed or disabled by mistake or misidentification,

shall be liable for
any damages, including costs and attorneys’ fees, incurred by the alleged
infringer, by any copyright owner or copyright owner’s authorized licensee,
or by a service provider, who is injured by such misrepresentation, as
the result of the service provider relying upon such misrepresentation
in removing or disabling access to the material or activity claimed to
be infringing, or in replacing the removed material or ceasing to disable
access to it.

(g) Replacement of
Removed or Disabled Material and Limitation on Other Liability.—

(1) No liability
for taking down generally. — Subject to paragraph (2), a service
provider shall not be liable to any person for any claim based on the
service provider’s good faith disabling of access to, or removal of, material
or activity claimed to be infringing or based on facts or circumstances
from which infringing activity is apparent, regardless of whether the
material or activity is ultimately determined to be infringing.

(2) Exception. —
Paragraph (1) shall not apply with respect to material residing at the
direction of a subscriber of the service provider on a system or network
controlled or operated by or for the service provider that is removed,
or to which access is disabled by the service provider, pursuant to a
notice provided under subsection (c)(1)(C), unless the service provider

(A) takes reasonable
steps promptly to notify the subscriber that it has removed or disabled
access to the material;

(B) upon receipt
of a counter notification described in paragraph (3), promptly provides
the person who provided the notification under subsection (c)(1)(C) with
a copy of the counter notification, and informs that person that it will
replace the removed material or cease disabling access to it in 10 business
days; and

(C) replaces the
removed material and ceases disabling access to it not less than 10, nor
more than 14, business days following receipt of the counter notice, unless
its designated agent first receives notice from the person who submitted
the notification under subsection (c)(1)(C)
that such person has filed an action seeking a court order to restrain
the subscriber from engaging in infringing activity relating to the material
on the service provider’s system or network.

(3) Contents of counter
notification. — To be effective under this subsection, a counter
notification must be a written communication provided to the service provider’s
designated agent that includes substantially the following:

(A) A physical or
electronic signature of the subscriber.

(B) Identification
of the material that has been removed or to which access has been disabled
and the location at which the material appeared before it was removed
or access to it was disabled.

(C) A statement under
penalty of perjury that the subscriber has a good faith belief that the
material was removed or disabled as a result of mistake or misidentification
of the material to be removed or disabled.

(D) The subscriber’s
name, address, and telephone number, and a statement that the subscriber
consents to the jurisdiction of Federal District Court for the judicial
district in which the address is located, or if the subscriber’s address
is outside of the United States, for any judicial district in which the
service provider may be found, and that the subscriber will accept service
of process from the person who provided notification under subsection
(c)(1)(C) or an agent of such person.

(4) Limitation on
other liability. — A service provider’s compliance with paragraph
(2) shall not subject the service provider to liability for copyright
infringement with respect to the material identified in the notice provided
under subsection (c)(1)(C).

(h) Subpoena to Identify
Infringer.—

(1) Request. —
A copyright owner or a person authorized to act on the owner’s behalf
may request the clerk of any United States district court to issue a subpoena
to a service provider for identification of an alleged infringer in accordance
with this subsection.

(2) Contents of request.
— The request may be made by filing with the clerk —

(A) a copy of a notification
described in subsection (c)(3)(A);

(B) a proposed subpoena;
and

(C) a sworn declaration
to the effect that the purpose for which the subpoena is sought is to
obtain the identity of an alleged infringer and that such information
will only be used for the purpose of protecting rights under this title.

(3) Contents of subpoena.
— The subpoena shall authorize and order the service provider receiving
the notification and the subpoena to expeditiously disclose to the copyright
owner or person authorized by the copyright owner information sufficient
to identify the alleged infringer of the material described in the notification
to the extent such information is available to the service provider.

(4) Basis for granting
subpoena. — If the notification filed satisfies the provisions of
subsection (c)(3)(A), the proposed subpoena
is in proper form, and the accompanying declaration is properly executed,
the clerk shall expeditiously issue and sign the proposed subpoena and
return it to the requester for delivery to the service provider.

(5) Actions of service
provider receiving subpoena. — Upon receipt of the issued subpoena,
either accompanying or subsequent to the receipt of a notification described
in subsection (c)(3)(A), the service provider
shall expeditiously disclose to the copyright owner or person authorized
by the copyright owner the information required by the subpoena, notwithstanding
any other provision of law and regardless of whether the service provider
responds to the notification.

(6) Rules applicable
to subpoena. — Unless otherwise provided by this section or by applicable
rules of the court, the procedure for issuance and delivery of the subpoena,
and the remedies for noncompliance with the subpoena, shall be governed
to the greatest extent practicable by those provisions of the Federal
Rules of Civil Procedure governing the issuance, service, and enforcement
of a subpoena duces tecum.

(i) Conditions for Eligibility.—

(1) Accommodation
of technology. — The limitations on liability established by this
section shall apply to a service provider only if the service provider

(A) has adopted and
reasonably implemented, and informs subscribers and account holders of
the service provider’s system or network of, a policy that provides for
the termination in appropriate circumstances of subscribers and account
holders of the service provider’s system or network who are repeat infringers;
and

(B) accommodates and does not interfere with standard technical
measures.

(2) Definition. —
As used in this subsection, the term “standard technical measures”
means technical measures that are used by copyright owners to identify
or protect copyrighted works and—

(A) have been developed
pursuant to a broad consensus of copyright owners and service providers
in an open, fair, voluntary, multi-industry standards process;

(B) are available
to any person on reasonable and nondiscriminatory terms; and

(C) do not impose substantial costs on service providers or
substantial burdens on their systems or networks.

(j) Injunctions.
— The following rules shall apply in the case of any application
for an injunction under section 502 against a service provider that is
not subject to monetary remedies under this section:

(1) Scope of relief.
— (A) With respect to conduct other than that which qualifies for
the limitation on remedies set forth in subsection (a), the court may
grant injunctive relief with respect to a service provider only in one
or more of the following forms:

(i) An order restraining the service provider from providing
access to infringing material or activity residing at a particular online
site on the provider’s system or network.

(ii) An order restraining
the service provider from providing access to a subscriber or account
holder of the service provider’s system or network who is engaging in
infringing activity and is identified in the order, by terminating the
accounts of the subscriber or account holder that are specified in the
order.

(iii) Such other
injunctive relief as the court may consider necessary to prevent or restrain
infringement of copyrighted material specified in the order of the court
at a particular online location, if such relief is the least burdensome
to the service provider among the forms of relief comparably effective
for that purpose.

(B) If the service
provider qualifies for the limitation on remedies described in subsection
(a), the court may only grant injunctive relief in one or both of the
following forms:

(i) An order restraining the service provider from providing
access to a subscriber or account holder of the service provider’s system
or network who is using the provider’s service to engage in infringing
activity and is identified in the order, by terminating the accounts of
the subscriber or account holder that are specified in the order.

(ii) An order restraining
the service provider from providing access, by taking reasonable steps
specified in the order to block access, to a specific, identified, online
location outside the United States.

(2) Considerations.
— The court, in considering the relevant criteria for injunctive
relief under applicable law, shall consider —

(A) whether such
an injunction, either alone or in combination with other such injunctions
issued against the same service provider under this subsection, would
significantly burden either the provider or the operation of the provider’s
system or network;

(B) the magnitude
of the harm likely to be suffered by the copyright owner in the digital
network environment if steps are not taken to prevent or restrain the
infringement;

(C) whether implementation
of such an injunction would be technically feasible and effective, and
would not interfere with access to noninfringing material at other online locations; and

(D) whether other less burdensome and comparably effective
means of preventing or restraining access to the infringing material are
available.

(3) Notice and ex
parte orders. — Injunctive relief under this subsection shall be
available only after notice to the service provider and an opportunity
for the service provider to appear are provided, except for orders ensuring
the preservation of evidence or other orders having no material adverse
effect on the operation of the service provider’s communications network.

(k) Definitions.—

(1) Service provider.
— (A) As used in subsection (a), the term “service provider”
means an entity offering the transmission, routing, or providing of connections
for digital online communications, between or among points specified by
a user, of material of the user’s choosing, without modification to the
content of the material as sent or received.

(B) As used in this
section, other than subsection (a), the term “service provider”
means a provider of online services or network access, or the operator
of facilities therefor, and includes an entity described in subparagraph
(A).

(2) Monetary relief.
— As used in this section, the term “monetary relief” means
damages, costs, attorneys’ fees, and any other form of monetary payment.

(l) Other Defenses
Not Affected. — The failure of a service provider’s conduct to qualify
for limitation of liability under this section shall not bear adversely
upon the consideration of a defense by the service provider that the service
provider’s conduct is not infringing under this title or any other defense.

(m) Protection of
Privacy. — Nothing in this section shall be construed to condition
the applicability of subsections (a) through (d) on —

(1) a service provider
monitoring its service or affirmatively seeking facts indicating infringing
activity, except to the extent consistent with a standard technical measure
complying with the provisions of subsection (i); or

(2) a service provider gaining access to, removing, or disabling
access to material in cases in which such conduct is prohibited by law.

(n) Construction.
— Subsections (a), (b), (c), and (d) describe separate and distinct
functions for purposes of applying this section. Whether a service provider
qualifies for the limitation on liability in any one of those subsections
shall be based solely on the criteria in that subsection, and shall not
affect a determination of whether that service provider qualifies for
the limitations on liability under any other such subsection.

§ 513. Determination of reasonable
license fees for individual proprietors

In the case of any
performing rights society subject to a consent decree which provides for
the determination of reasonable license rates or fees to be charged by
the performing rights society, notwithstanding the provisions of that
consent decree, an individual proprietor who owns or operates fewer than
7 nonpublicly traded establishments in which
nondramatic musical works are performed publicly and who claims that any
license agreement offered by that performing rights society is unreasonable
in its license rate or fee as to that individual proprietor, shall be
entitled to determination of a reasonable license rate or fee as follows:

(1) The individual
proprietor may commence such proceeding for determination of a reasonable
license rate or fee by filing an application in the applicable district
court under paragraph (2) that a rate disagreement exists and by serving
a copy of the application on the performing rights society. Such proceeding
shall commence in the applicable district court within 90 days after the
service of such copy, except that such 90-day requirement shall be subject
to the administrative requirements of the court.

(2) The proceeding
under paragraph (1) shall be held, at the individual proprietor’s election,
in the judicial district of the district court with jurisdiction over
the applicable consent decree or in that place of holding court of a district
court that is the seat of the Federal circuit (other than the Court of
Appeals for the Federal Circuit) in which the proprietor’s establishment
is located.

(3) Such proceeding
shall be held before the judge of the court with jurisdiction over the
consent decree governing the performing rights society. At the discretion
of the court, the proceeding shall be held before a special master or
magistrate judge appointed by such judge. Should that consent decree provide
for the appointment of an advisor or advisors to the court for any purpose,
any such advisor shall be the special master so named by the court.

(4) In any such proceeding,
the industry rate shall be presumed to have been reasonable at the time
it was agreed to or determined by the court. Such presumption shall in
no way affect a determination of whether the rate is being correctly applied
to the individual proprietor.

(5) Pending the completion
of such proceeding, the individual proprietor shall have the right to
perform publicly the copyrighted musical compositions in the repertoire
of the performing rights society by paying an interim license rate or
fee into an interest bearing escrow account with the clerk of the court,
subject to retroactive adjustment when a final rate or fee has been determined,
in an amount equal to the industry rate, or, in the absence of an industry
rate, the amount of the most recent license rate or fee agreed to by the
parties.

(6) Any decision
rendered in such proceeding by a special master or magistrate judge named
under paragraph (3) shall be reviewed by the judge of the court with jurisdiction
over the consent decree governing the performing rights society. Such
proceeding, including such review, shall be concluded within 6 months
after its commencement.

(7) Any such final
determination shall be binding only as to the individual proprietor commencing
the proceeding, and shall not be applicable to any other proprietor or
any other performing rights society, and the performing rights society
shall be relieved of any obligation of nondiscrimination among similarly
situated music users that may be imposed by the consent decree governing
its operations.

(8) An individual
proprietor may not bring more than one proceeding provided for in this
section for the determination of a reasonable license rate or fee under
any license agreement with respect to any one performing rights society.

(9) For purposes
of this section, the term “industry rate” means the license fee
a performing rights society has agreed to with, or which has been determined
by the court for, a significant segment of the music user industry to
which the individual proprietor belongs.

2.

Ways to document infringement

a.

Conduct a reverse
image search for online infringement
www.images.google.com
-At the
top of the screen, select file>save page as>web page complete (html).
This will save the whole page and can be viewed without being online
-make a screen shot of the page, which will show the time and date stamp:
hit the “PrtScn” button on your keyboard>open
up a Word Document or Photoshop and paste from the clipboard>save the
file as a record.

3.

When litigation is
not a viable economic option

a.

b.

If your copyrighted
artwork is not registered, you may find it is too expensive to litigate
the infringement. Consider approaching the infringer to negotiate an out
of court but binding settlement.

Create and send a
‘cease and desist’ letter
Free cease and desist letter format:
http://formswift.com/cease-and-desist-copyright-infringement-letter
Below is one suggestion:

request
to cease and desist
all copyright infRingment

Your Name
Address
City, State, zip code

(Date) CERTIFIED
MAIL #:______________________________

Infringer Name
Address
City, State, zip code

Dear Infringer Name:

The purpose of this
letter is to inform you that I reserve and own all rights to ‘COPYRIGHT
WORK NAME HERE’ that was first published on 02/06/2014 and protected under
the 1976 U.S. Copyright Act.

It has been brought
to my attention, that you have made unauthorized use of my copyrighted
work which is titled ‘COPYRIGHT WORK NAME HERE’. Your work titled ‘COPYRIGHT
WORK NAME HERE’ is fundamentally a close duplication of my work filed
under the copyright of ‘REGISTERED COPYRIGHT INFORMATION HERE’.

The U.S. Copyright
ACT Title 17 of U.S. Code, Section 102(a) protection extends to “original
works of authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device”
such as:

1)literary works,
2)musical works, including any accompanying words,
3)dramatic works, including any accompanying music,
4)pantomimes and choreographic works,
5)pictorial, graphic, and sculptural works,
6)motion pictures and other audio/visual works, and
7)sound recording, and
8)architectural works.

In addition, U.S.
Copyright ACT Title 17, Section 106-122 grants the following exclusive
rights to copyright holders:

1)the right to reproduce
the copyrighted work into copies and phonorecords;
2)the right to create or prepare derivative works based upon the copyrighted
work;
3)the right to distribute copies and phonorecords of the copyrighted work to the public by sale, lease, lending or rental;
4)the right to perform the copyrighted work publicly (if the work is a
literary, musical, dramatic, choreographic, pantomime, motion picture
or other audio/visual work.);
5)the right to display the copyrighted work publicly (if the work is a
literary, musical, dramatic, choreographic, pantomime, pictorial, graphic,
sculptural, motion picture, or other audio/visual work.), and
6)the right to perform the copyrighted work by means of a digital audio
transmission.

As you have not sought
or requested permission/authorization to use, nor to make and/or distribute,
sell, lend or lease my copyrighted work entitled ‘COPYRIGHT WORK NAME
HERE’, you are hereby notified to CEASE AND DESIST any and all further
unlawful acts of copyright infringement with regards to your actions and/or
statements relating to this matter.

Failure to comply
with this notice will confirm your complicity and leave me no other alternative
but to proceed to file a civil action suit seeking monetary damages and
compensation for court and attorney’s fees incurred as a direct result
of your unlawful actions of copyright infringement.

It is not my wish
to seek legal recourse; however, I will vehemently do all that is necessary
to protect my work, ‘COPYRIGHT WORK NAME HERE’, and interests. Please
note that this letter will be the only warning I will provide. THEREFORE,
you are hereby requested to immediately CEASE AND DESIST any further acts
of copyright infringement and within 10 business days return the signed
written assurance below affirming that you will refrain from any further
acts of copyright infringement.

Sincerely,

__________________________________
(Your name)cc: Regular Mail
Certified Mail
File

_________________________

Page 2 of 2

ASSURANCE TO CEASE
AND DESIST
FURTHER ACTS OF COPYRIGHT INFRINGEMENT

In accordance with
U.S. Copyright ACT Title 17 of U.S. Code, Section 102(a), U.S. Copyright
ACT Title 17, Section 106-122 and the above request and stipulations,
I, Baker, do hereby agree to immediately CEASE AND DESIST further acts
of Copyright Infringement with regards to ‘COPYRIGHT WORK NAME HERE’.
And in turn, Mr. Barker will release me from all acts of Copyright Infringement
relating to this specific incident.

HOWEVER, should I act or behave in such a manner that would result in
a breach of this agreement, Mr. Barker shall be entitled to filing fees,
court’s costs and attorney’s fees in any action which may be filed in
an effort to enforce this agreement, in addition to any injunctive relief
and/or monetary damages that Mr. Barker may have been entitled to had
this assurance never been signed.

_________________________________________________
(Infringer’s name)

Date Signed: ______________________________________

Please sign, date and return to: (your name and address)

4.

World Intellectual Property Organization (WIPO) http://www.wipo.int/amc/en/center/faq/index.html

WIPO US contact info:

WIPO offices: http://www.wipo.int/directory/en/contact.jsp?country_id=179&type=DEP_WIPO
Copyright offices:
http://www.wipo.int/directory/en/contact.jsp?country_id=179
Depository libraraies:
http://www.wipo.int/directory/en/contact.jsp?country_id=179&type=DEP_LIB

Recommended WIPO Contract Clauses
and Submission Agreements

http://www.wipo.int/amc/en/clauses/#4

WIPO Dispute resolution procedures
offered:

a.

b.

c.

d.

Mediation: a non-binding
procedure in which a neutral intermediary, the mediator, assists the parties
in reaching a settlement of the dispute. (Depending on the parties’ choice,
mediation may be followed, in the absence of a settlement, by arbitration,
expedited arbitration or expert determination.)

Arbitration: a neutral
procedure in which the dispute is submitted to one or more arbitrators
who make a binding decision on the dispute. (Depending on the parties’
choice, arbitration may be preceded by mediation or expert determination.)

Expedited Arbitration:
an arbitration procedure that is carried out in a short time and at a
reduced cost. (Depending on the parties’ choice, expedited arbitration
may be preceded by mediation or expert determination.)

Expert Determination:
a procedure in which a dispute or a difference between the parties is
submitted to one or more experts who make a determination on the matter
referred to by the parties. The determination is binding, unless the parties
have agreed otherwise. (Depending on the parties’ choice, expert determination
may be preceded by mediation or followed by (expedited) arbitration.)

Copyright Registries

a.

U.S. Copyright Office

Works registered and documents recorded
by the U.S. Copyright Office since January 1, 1978.

b.

Plus (Picture Licensing Universal System.) [27]

The PLUS Registry at www.PLUSregistry.org is an online resource
developed and operated cooperatively by a global Coalition of all communities
engaged in creating, using, distributing and preserving images.
http://plus.useplus.org/PR/ASPP_Whats_Up_With_PLUS_October2013.pdf

c.

Copyright Collaborative [28]

A membership based collaborative
offering educational material, support, registering work etc.

What is the American
Society of Illustrators Partnership?

a.

“ASIP is a non-profit
organization founded by 6 illustrators groups. As part of its mission,
ASIP hopes to bring accountability to the reprographic rights of American
popular artists.” [29]

Collecting societies are a new concept to most American illustrators.
They exist in countries around the world, but currently, there are none
for illustrators in the US. The Illustrators’ Partnership brought together
12 prominent visual arts organizations. (ASAI is one of six original founding
members.) These groups have incorporated as the American Society of Illustrators
Partnership (ASIP). ASIP, which has been chartered as a collecting society,
hopes to begin the long-overdue process of bringing accountability to
illustrators’ reprographic rights. The 12 founding groups of ASIP also
formed the nucleus of the 85 organizations that opposed the Orphan Works
bill. [30]

The ASIP website is full of helpful information and news: http://www.asip-repro.org/

1.

What illustrator groups comprise
ASIP?

a.

b.

c.

d.

e.

f.

g.

h.

i.

j.

k.

l.

m.

Illustrators’
Partnership of America

Association of Medical Illustrators

American Society of Architectural Illustrators (one of the six original
founding members)

National Cartoonists Society

Guild of Natural Science Illustrators

San Francisco Society of Illustrators

Pittsburgh Society of Illustrators

American Society of Aviation Artists

Society of Illustrators of San Diego

Society of Illustrators of Los Angeles

Illustrators Club of Washington DC, Maryland and Virginia

Association of American Editorial Cartoonists

Illustrators-at-Large (nonaffiliated)

2.

ASIP Board of Directors [31]

a.

Brad Holland
Co-Chair, Representative for Illustrators’ Partnership of America (IPA)

b.

Cynthia Turner, Co-Chair

c.

Frank Costantino,
ASAI, FSAI, JARA; 1st Vice-President, Representative for American Society
of Architectural Illustrators (ASAI)

d.

Michael Belknap, 2nd Vice-President,
Representative for Association of Medical Illustrators

e.

Michel Bohbot,
Treasurer, Representative for San Francisco Society of Illustrators

f.

Dolores R. Santoliquido,
Secretary, Representative for Guild of Natural Science Illustrators (GNSI)

g.

Don Kilpatrick,
Unaffiliated Illustrators at Large

h.

General Board Members

1.

2.

3.

4.

5.

6.

7.

Joe Azar,
Representative for Illustrators Club of Washington DC, Maryland &
Virginia

Ilene Winn-Lederer,
Representative for Pittsburgh Society of Illustrators

Kim Fraley, Representative for
Society of Illustrators San Diego

C.F. Payne, Representative for
National Cartoonists Society

Joe Cepeda,
Society of Illustrators Los Angeles

Nick Anderson, American Society
of Editorial Cartoonists

Keith Ferris, American Society
of Aviation Artists

i.

Legal Advisors [32]

8.

9.

10.

Honorable Bruce A. Lehman,
Counsel to American Society of Illustrators’ Partnership, Chairman,
International Intellectual Property Institute (IIPI), Senior Counsel,
Akin Gump Strauss Hauer and Feld

Peter Rooney, Esq., McDermott,
Will & Emery, Pro Bono Counsel, American Society of Illustrators’
Partnership

Elena M. Paul, Esq.,
Executive Director of Volunteer Lawyers for the Arts, New York, Board
Member, Illustrators’ Partnership of America; Advisor to American
Society of Illustrators’ Partnership