Bo's bLAWg: Foreign Copyright Registration in US

An artist in Europe (UK) was wondering if they needed to register a copyright with the US too.

Fantastic!  Bo’s bLAWg goes international!

The short answer to this question is “No.”  The better answer is “they should.”

It is understandable that there is confusion over whether or not foreign works should be registered in the US.  Until the US joined the international Copyright treaty, the “Berne Convention,” which it failed to do for 100 years until 1989, the foreign copyright holder could not know whether the US courts would provide her a legal remedy under US law as the courts of any other Berne Convention signatory would.  Under the Convention, the foreign copyright holder had the right to bring an action to enforce their copyright interest under that country’s copyright laws.  They could do so whether or not they had included a copyright notice on their works, and whether or not their own country required registration – which few did. The US Copyright Act required both copyright notice and registration before an action could be brought.

Once the US signed the treaty, it still did not deem its mutual recognition of copyright laws to be “self-executing,” but took the position that the US would pass its own laws to conform with Convention procedures and remedies.

Since the Berne Convention requires its signatory countries to mutually recognize the copyright interests of each others citizens without an obligation to register those copyright interests in each foreign country, the US had to amend the Copyright Act to allow for protection of foreign works without requiring registration of those works.  To that end, the US amended USC 17 § 411 of the Copyright Act to limit its registration requirement for infringement action purposes to US works only.  Section 411 now expressly provides that, “…no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.  (See http://www.copyright.gov/title17/92chap4.html#411 )

Hence the short answer, “No, the European artist need not register her copyright in the US to protect her copyright interests here.  BUT…

The US Copyright Act deprives not only foreign copyright holders, but US holders too, of key remedies in the course of bringing a copyright infringement action unless they have registered their copyrights within three month of publication of their works.  (Again, see http://www.copyright.gov/title17/92chap4.html#411 )

Section 412 of the Act provides as follows:

In any action under this title… [exceptions]  no award of statutory damages or of attorney’s fees, as provided by sections 504 and 505, shall be made for —

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or

(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.

As discussed more particularly in my January 16 bLAWg earlier this year, registration of copyrights with the US Copyright Office – including those belonging to foreigners -- adds valuable statutory protections that the copyright holder would not otherwise have.  Unless registration has been timely made and these statutory rights secured, if an unregistered artwork is infringed upon, the copyright holder may not be able to afford to bring a lawsuit.  These statutory registration benefits include: 1) the right to elect statutory damages of up to $150,000 for a willful infringement of your copyright instead of being limited to “actual damages” which may consist only of the infringer’s profits – if any; and 2) the right to ask the court to have the infringer pay your legal fees and costs, which you would otherwise have to bear yourself.  (See Copyright Act Sections 504 and 505 http://copyright.gov/title17/92chap5.html )

So, does a UK copyright holder “need” to register her copyrights in the US?  No. But if they are going to be published here in the US, or there is any likelihood that they will be infringed upon here, as a practical necessity, she should register her copyrights.

If you have further questions about this that you want to direct to me personally, I can be contacted through my website linked below.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com.



You can use the search box at the top of the page to read more Bo's bLAWgs.
Send me your questions for Bo! Thanks, info@AnnGraphics.com

Bo's bLAWg: Creative Commons - Free Public Licenses - pmp-art.com

Here's my question. I get most of my reference photos for my pastel drawings from a website called www. http://pmp-art.com/ .  Photographers put their photos on this site for artists to use as references to paint.  The site says that this can be done without copyright infringement.

 My questions are: 1. Can I license the art work I produce from this site? 
2. Can I or should I copyright my interpretation of art from these reference photos? 
Thanks a bunch,  Debbie B

Dear Debbie,

You pose a very interesting pair of questions, the answers to which relate directly to a copyright topic I had wanted to mention:  Free Public Licenses. 

My answers to your questions are “not commercially” and “yes, but” respectively.  You have to take into consideration the application of the Free Public Licenses purportedly offered through the PMP-art.com website.

Before we go there, however, here is some background on Free Public Licenses:

There are alternatives to the conventional copyright system.  A number of them are grouped under the term Copyleft (vs. Copyright; get it?)  These are rights systems that turns copyright upside down – or ‘right side left’ as the case may be.  Instead of prohibiting use without a license from the copyright holder, copyleft automatically allows permissive use, but on certain underlying terms.  These terms are set by the copyleft organization to which the copyright holder subscribes.  In the case of http://pmp-art.com/ , the terms are purported to be set by the copyleft group, Creative Commons.

The http://pmp-art.com/ website has led you to believe that you cannot infringe on the photographers’ copyrights by their informational posting as follows:

“Paint My Photo (PMP) is a social networking site dedicated to sharing Photos for artistic inspiration without fear of infringing copyright.”

However, you can’t stop reading there.  Read on:

“Note the following that applies to PMP. Please consider all photographic material uploaded by members to be under a creative commons attribution non-commercial license...  This basically means you cannot download and sell members photos or use them commercially in any way.”

There are four alternative Creative Commons “CC” licenses.  They are:

The “BY” Attribution License with the
icon that allows user Licensees to copy, distribute, display and perform the work and make derivative works based on it only if they give the author or licensor the credits in the manner specified by these;

The “SA” Share-Alike License with the
icon whereby Licensees may distribute derivative works only under a license identical to the license that governs the original work;

The “NC” Non-Commercial License with the
icon that allows Licensees to copy, distribute, display, and perform the work and make derivative works based on it, but only for noncommercial purposes, and

The “ND” No Derivative Works License with the
icon that allows Licensees to copy, distribute, display and perform only verbatim copies of the work, not derivative works based on it.
The specific terms of the NC Non-Commercial license are spelled out on the CC website at the following link:  http://creativecommons.org/licenses/by-nc/3.0/legalcode

You will note that paragraph 4b of the NC license states:  “You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.”

The PMP website goes on to say:  “You can of course make paintings based on photos and sell them.”

I beg to differ.  If the NC License is applicable as stated, you are limited to non-commercial use only.  Selling a painting is a commercial activity!   Giving away the paintings you make is not commercial.  Trading it for something of value would also be commercial.  Similarly, you cannot license your derivative works for money, but could offer your derivative copies subject to the same terms as afforded you by the NC License.

Additionally, as provided in paragraph 4c of the linked NC License, you must provide notice of the Author of the underlying work (the photograph upon which you painting is based) and their name, unless they have expressly released you from those obligations.  If you fail to abide by these NC copyright notice and credit terms, you are subject to a claim for copyright infringement and/or breach of contract(!)

As stated above, you can copyright your adaptation, but must register it as a derivative work.  Authors under CC licenses are not giving up their copyrights, they are only allowing your use on specific terms.  Similarly, you must allow use on the same terms, but if Your work is infringed by someone who does not abode by such terms, you would have a right to claim an infringement of your copyright. Hence, it may well be worth registering your copyright, just as the photographer may have registered hers.  Make sense?

If you have further questions about this that you want to direct to me personally, I can be contacted through my website linked below.

Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

You can use the search box at the top of the page to read more Bo's bLAWgs.
Send me your questions for Bo! Thanks, info@AnnGraphics.com