by Jack Munday,
Esq. http://wuarchive.wustl.edu/edu/arts/metal/News/Waves/copyrgh2.html
Munday and Stanton
3434 Garrett Road, Suite 100
Drexel Hill, PA 19026 610-259-2381
The English poet Keats has said that "A thing of beauty is a joy for ever."
Whether by intention or by pleasant surprise, metalworking artisans
occasionally create a thing of beauty and a work of art. The
concern we have as artisans, therefore, is not whether the beauty will last
but whether we will be able to reap the benefit from our work. In other
words, while Emerson may have said "The reward of a
thing well done is to have done it" he made his living as a writer, not as
a creator of beauty for the beholder. How does an artisan protect the
beautiful thing that has been created?
Congress has recognized that works of art need to be protected and has
included pictorial, graphic and sculptural works in that class of works
that may be protected by copyrights. Title 17 U.S.C. Section
102(a)(5) covers these types of creations. Congress has also said that the
definition of sculptural works implies no criterion of artistic taste,
aesthetic value or intrinsic quality. In other words, as long as
you made what you consider to be a work of art as a metal worker, it is
capable of being protected by the copyright laws.
There are two separate issues for metalworking artisans and these issues
arise depending upon what the artisan is intending to do. An artisan may
create a sculpture that has no functional use, such as a
statue or ornamental object that has its appearance as its sole function.
The non-functional object is clearly entitled to copyright protection. At
the other end of the scale is the creation of a totally
functional work, as simple as a nail or as complicated as a working
machine. If the functional object also is aesthetically pleasing, such as a
door knocker, bookend, candlestick and the like, then the form
(but not the substance) of the object is properly protected by a copyright.
While the machine may be patentable, and that is a totally different
matter, by itself it is not protectable by copyright laws.
QUESTION: How do I obtain a copyright on my 18 ton artistic,
aesthetically pleasing (to me, if no one else) sculpture?
ANSWER: Registration of copyrights for sculptural works and objects
of art may be accomplished by sending in Form VA with the appropriate
information requested, along with a $20.00
fee to the Register of Copyrights at the Library of Congress. The
form is relatively self explanatory, and can be done by the author without
assistance of an intellectual property lawyer.
QUESTION: If I make a metalwork sculpture, or several incorporating
the same intrinsic artistic appearance, can I sell a copy that I make and
still keep my copyright?
ANSWER: Yes, just as a publisher sells books without concern that
others will make copies of the book to sell, a sculpture or other
ornamental design is sold without giving any right to
the purchaser of the object to make copies. That right remains with
the owner of the copyright, not with the owner of the copy.
If your artistic work is worth protecting, it is advisable to contact an
intellectual property attorney who has had experience in copyright law, at
least for an initial consultation. Getting good advice before
you start is like any precautionary measure. Better safe than sorry, as
someone is always saying.
The owner of a copyright has the exclusive right to display sculptural
works and other solid, physical creations that might be created by an
artist-blacksmith. Included in that right is the exclusive right to
reproduce the pictorial, graphic or sculptural work in copies, including
reproducing the work in or on any kind of article, whether useful or
otherwise. An artist, for example, can paint a picture, register the
copyright of the painting, and then license the right to reproduce the
image on tee-shirts, plates and cups, and other functional objects. The
artist-blacksmith can do the same thing.
Samuel Yellin created the gates at the entrance to Northwestern University,
in Evanston, Illinois. I wonder if he sold the rights to copy the work, or
if he even obtained a copyright. The gates are used
often by the school as a symbol unique to Northwestern.
Here in Philadelphia we are witnessing the demise of the famed Wanamaker
department stores. In the 'showcase' store in center city, Philadelphia,
the 2500 pound bronze eagle has been in residence since
1911. The eagles individually crafted feathers were hammered and bent while
hot, and fit into place by hand. The head alone contains 1600 feathers, and
5,000 more on the body. Created by August Gaul
of Berlin and manufactured in Frankfort, Germany, the eagle was created for
the 1904 Louisiana Purchase Exposition, held in St. Louis.
The Wanamaker eagle, as it is known, has served as a landmark in the city
of brotherly love, and has become a trademark logo of Wanamakers. The
company undoubtedly has made great and substantial use of the work ever
since it took its place. One presumes that the copyright was purchased, for
it is clear copyright law that purchasing an object, even a great work of
art, does not convey the copyright as well. Remember our analogy that one
who buys a book does not obtain the right to copy it.
While most artist-metalsmiths are not fortunate enough to create a work
that becomes the symbol of a major retail organization, they are creating
works all the time. Remember that the right to copy your original work is
not transferred when you sell the work. One advantage of being commissioned
to create a work of art for a company or organization is that the work will
become prominent. It would be worth while reminding your purchasers of that
fact as they intend to use the image of the work in their main business.
Then might want to pay more for all the rights.
In 1990, the Visual Artists Rights Act. 17 U.S.C. § 106A was added to the
copyright laws, hence lawyers are involved with those items that qualify as
visual arts. These things include paintings, drawings,
photographs, sculptures and the like, provided that less than 200 copies
exist, that the author has signed or placed an identifying mark thereon,
and has numbered them consecutively beginning with the
first or original version. Thus sculptures would seem to qualify, and in
fact do qualify under this provision of the law if it is placed in a
building in such a way that it cannot be removed from the building
without modification or destruction. An example would be a major sculpture
created in the lobby of a building , and, of course, the fact that it is in
a building means that there is a real estate owner
involved. Real estate being what it is, mainly something far less lasting
than art, there often comes a time when the owner decides to change the
nature of a property, such as by making a parking lot out
of the building. The use of a bulldozer or other form of building
destruction would, in its use, also destroy the sculpture. To destroy a
wonderful, or not so wonderful, work of art is a violation of the
author's moral right. And all that is true unless the work of art is in the
public domain.
This law is new and applies only to visual art that is protected by a
copyright and that is not created as a work for hire. There is one major
decision on this provision in which an artist was successful in
preventing a major property management firm from removing the work from the
lobby. A trial judge actually found that the work was one of recognized
stature and removing the work would in fact
damage the artists' reputation.
What does this mean to building owners? They are having their lawyers draw
up the appropriate contract language to make sure this never happens again.
In fact, real estate lawyers who don't take this
law into account when it fits may be guilty of malpractice.
What does this mean to a metalsmith? It means that when a metalsmith
creates a work of visual art by creating a sculpture, and when that
sculpture is placed in a building on display, the metalsmith also
creates certain rights that may be valuable to him. These rights are
attribution rights and integrity rights. The former includes the right to
have the author's name used in conjunction with a display of the
work and also to prevent the use of the author's name after the work has
been distorted, mutilated or modified to be prejudicial to his or her honor
or reputation. Integrity rights permit the author to
prevent any intentional distortion, mutilation or other such modification.
Under some circumstances that means the building can't be torn down and
even, possibly, that the sculpture can't even be
removed.
Which brings me back to the lawyer in the situation. If you create
sculpture or any other visual art, see an intellectual property lawyer
before you create it and before you sign any contract relating to that
creation. Knowing your rights puts you no worse than on equal footing with
the building owner.
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Opinions, suggestions, and other controversial matter VOID where prohibited.
Hell is truth learned too late. John Locke
******************************************************************
Elaine T. Hunt, Director elaine.hunt@ces.clemson.edu
Laboratory to Advance Industrial Prototyping
Clemson University 206 Fluor Daniel Bldg.
Clemson, SC 29634-0925
864-656-0321 (voice) 864-656-4435 (fax)
http://www.vr.clemson.edu/credo/persall/persall.html
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