Q: I’m a fashion designer. Does copyright law protect me from people or companies who might emulate my designs as knock-offs?
A: No, currently copyright doesn’t usually protect fashion. Although there is a new proposal that would protect fashion designs for 3 years, it hasn’t yet been passed. One of the qualifications of copyrightable objects is that they must pass a test of functionality; a work’s aesthetic features must be separable from its useful qualities. Fashion (including clothing) is generally regarded as a primarily utilitarian item, since “the design of a useful article…shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, [these features] can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article” (17 U.S.C. §101). With clothing fashion it is challenging to disentangle an article of clothing’s function from its form. This is why so many knockoff designs are able to flood the market.
Q: If I’m making a piece of mixed media art that incorporates a picture of my favorite musician but I completely alter it, am I committing copyright infringement?
A: In the eyes of the law, you are protected under Fair Use if you can prove that your work is “transformative”—that is, if you use copyrighted material to create an entirely new and different work. If you are appealing to your work as a commentary or parody, this only is applicable if an average person can understand that your art is conveying a new comment. Although this interpretation of the law is still being tested in many ways, the overall trend of court decisions in the last 20 years (including rulings that fall on both sides, such as Rogers v. Koons and Blanch v. Koons) reveals greater latitude for the claim of the new artwork being transformative.
Source: http://online.wsj.com/article/SB123319795753727521.html
Q: I’m a tattoo artist; are my tattoos protected under copyright law?
A: This question is far too complex and in many ways too untested in the courts to answer here in its entirely, but under the U.S. Constitution’s Copyright Clause (Article I, Section 8), all original works of authorship are copyrightable. Most tattoos are based on a design that you probably originally created as a drawing or sketch, so the actual tattoo becomes derivative artwork, which is considered a reproduction of the original work. You have the most solid protection for that original drawing under copyright law.
Source: http://news.bmezine.com/wp-content/uploads/2008/09/pubring/guest/20031208.html
Q: As a self-employed architect, are the buildings I design protected under copyright law?
A: The short answer is: Yes. Architectural works (blueprints and the actual structure) are protected under copyright law, but whether or not that copyright belongs to you depends on the circumstances—for instance, if the building you designed is contractually “work for hire,” you do not reserve ownership of the copyright. However, in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work, so you cannot copyright a particular architectural style or theme. Also, note that even if you do own a blueprint’s copyright, this does not legally prevent others from making, distributing, or publically displaying pictorial representations of it (e.g. someone could take photographs of it and then sell them) per 17 U.S.C. §120(a).
Source: http://www.copyright.gov/reports/architecture.pdf
Q: I am a photographer. Are photographs that I take covered under copyright law?
A: If the photograph has sufficient modicum of originality and work of authorship, they are protected. If you took them while under the employment of another entity, you do not own the copyright, even though the photographs themselves are still copyrighted. In 1884, Justice Samuel Miller defined an author as one “to whom anything owes its origin,” and in Burrow-Giles Lithographic Company v. Sarony the court ruled that the photographic portrait in question was “an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell…” thus giving photographs broad protection under copyright law. If you took the photographs (and did so on your own time and accord), you are considered their author and therefore the holder of their copyright.
Sources: http://www.smithsonianmag.com/arts-culture/indelible-may-2004.html?c=y&page=1 and Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53
Q: I recently created an oil painting of a nude woman. My friend saw it and told me that pornography is illegal and that my painting wouldn’t be protected under copyright. Is this true?
A: No. Even if your painting might be considered pornography, pornographic material is protected under the Constitution. Your friend may be confusing pornography (which is legal) with obscenity (which is prohibited). In 1973, Miller v. California established the LAPS Test, which is part of the criteria for determining obscenity. Work (or speech) is considered obscene if it lacks literary, artistic, political, or scientific value, but pornographic works will almost always pass the LAPS Test.
Q: If I’m at an art museum, can I take photographs of a painting from, for example, the 1800s, since it’s public domain?
A: In a word: Yes. As public domain, the painting is no longer covered by copyright, which allows you to make a reproduction (e.g. photograph) of it without legal consequence, but often museums or other locations that may own the work explicitly prohibit photographs of it, so you run the risk of encountering other legal roadblocks. If museums do allow photography, they likely have a policy that photographs must be for personal use only and can’t be reproduced, published, sold, transferred, distributed, or used for any other commercial purpose.
Q: I’m a professional dancer and recently performed a choreographed dance that I created. Am I protected under copyright law?
A: Yes. Choreography, as an original work of authorship, is defined as “the composition and arrangement of dance movements and patterns and…need not tell a story in order to be protected by copyright” (Compendium of Copyright Office Practices, Compendium Il 450.01). However, one of the requirements of copyright is that a work must be fixed in some tangible form to be copyrightable. One way to ensure copyright protection by capturing the choreography in a fixed, tangible form is to have someone videotape you. However, depending on the terms of your work contract, you may discover that your employer actually owns the copyright to your dance, so it’s in your best interest to understand the contractual language you are under.
Q: Several years ago I discussed an idea I had for a series of installation art pieces with a colleague, and I just found out he created a series of installation art that directly copied my idea! What are my rights?
A: Unfortunately, if you did nothing to publish your idea in a fixed and specific way, you are not protected under copyright law. The freedom to copy ideas is pivotal to the constitutional role of copyright, which would conflict with freedom of expression covered under the First Amendment (see Paul Goldstein, Copyright, §2.3.1). Remember: copyright protects expressions, not ideas.
Q: I make collages for my own enjoyment, and don’t plan to sell them. Is this ok?
A: That depends on the source of the material you use for your collages. To avoid risking infringement, you would have to be able to successfully prove in a court of law that your collage is a derivative work; that the material you are using is qualifiedly permissible under Fair Use; that you own the copyright to the material(s) from which you create the collage; and/or that the material(s) you are using is (are) public domain.
