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The Rights of the Copyright Holder

The visual artist must know his rights. Only when he does, will he be able to protect his rights. Under the copyright laws, the exclusive rights conveyed are specific, and embrace more than merely the right to prevent someone's unauthorized copying. In fact, there are at least five exclusive rights granted under the copyright laws, including:

  1. the right to reproduce the copyrighted work in copies or phonorecords;
  2. the right to prepare derivative works based upon the copyrighted work (derivative works are works which, as one might expect, are derived from a copyrighted work, such as translations or a theatrical work based on a novel);
  3. the right to distribute copies or phonorecords of the copyrighted work to the public (by sale, rental, lease, or lending);
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, the right to perform the copyrighted work publicly; and
  5. in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic and sculptural works (including the individual images of a motion picture or other audiovisual work), the right to display the copyrighted work publicly.

There are several important exceptions to these exclusive rights. For example, the owner of a lawfully made copy of the copyrighted work is entitled to "sell or otherwise dispose of" that copy (e.g. rent or lease the copy), without the authority of the copyright owner. Similarly, the owner of a lawfully made copy of a work subject to the exclusive right of public display, may show his copy to those persons present where the copy is located. He may not, however, broadcast an image of the copy to be viewed at other locations other than the location of the copy.

One of the most important exceptions to the exclusive rights of the copyright owner is the "fair use" exception. Use is considered "fair" and permissible, if the reproduction of the work is for the purposes of "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research." In general, use is fair when the use is for non-commercial purposes. However, there are so many exceptions to this general rule that it is almost swallowed up by them. For example, educational use, while clearly a non- commercial use, is not "fair" when such use materially takes away from the profits which the copyright holder has a reasonable expectation of receiving. For instance, if the work is a teaching aid, then the intended consumer is likely the student or the educator. In such cases, if there was no right to exclude use for educational purposes, there would be no profit incentive to write treatises and textbooks. Therefore, the copyright laws protect the author of educational texts against those who might otherwise take advantage of a fair use exception.

There is yet another exception to the exclusive rights of the copyright owner which is worthy of mention. Creative persons have the right to independently create any work. This means that if an author who, not having any exposure at all to, say, the DisneyTM version of Pocahontas, independently creates a script which, by mere chance, happens to read identically to that of the Disney production, Disney may have no recourse. However, due to the striking similarity, Disney would be entitled to an inference that their work was copied. Under these facts, the inference would be almost impossible to rebut. However, if the judge or jury is convinced that the work was not copied, the owner of the independently created work will not be liable for distributing the work without Disney's permission.

Finally, the exclusive rights of the copyright owner are limited in duration. Generally, the term of a copyrighted work is the life of the author plus seventy years. However, determining the term of a copyrighted work is often complex and involved (primarily due to the changes in the copyright laws over the past years), and, therefore, will not be discussed in depth here.

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