§ 113. — Scope of exclusive rights in pictorial, graphic, and sculptural works.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 17USC113]
TITLE 17--COPYRIGHTS
CHAPTER 1--SUBJECT MATTER AND SCOPE OF COPYRIGHT
Sec. 113. Scope of exclusive rights in pictorial, graphic, and
sculptural works
(a) 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.
(b) 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.
(c) 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) 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
(B) 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) 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
(B) 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.
(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2560; Pub.
L. 101-650, title VI, Sec. 604, Dec. 1, 1990, 104 Stat. 5130.)
Historical and Revision Notes
house report no. 94-1476
Section 113 deals with the extent of copyright protection in ``works
of applied art.'' The section takes as its starting point the Supreme
Court's decision in Mazer v. Stein, 347 U.S. 201 (1954) [74 S.Ct. 460,
98 L.Ed. 630, rehearing denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed.
1096], and the first sentence of subsection (a) restates the basic
principle established by that decision. The rule of Mazer, as affirmed
by the bill, is that copyright in a pictorial, graphic, or sculptural
work will not be affected if the work is employed as the design of a
useful article, and will afford protection to the copyright owner
against the unauthorized reproduction of his work in useful as well as
nonuseful articles. The terms ``pictorial, graphic, and sculptural
works'' and ``useful article'' are defined in section 101, and these
definitions are discussed above in connection with section 102.
The broad language of section 106(1) and of subsection (a) of
section 113 raises questions as to the extent of copyright protection
for a pictorial, graphic, or sculptural work that portrays, depicts, or
represents an image of a useful article in such a way that the
utilitarian nature of the article can be seen. To take the example
usually cited, would copyright in a drawing or model of an automobile
give the artist the exclusive right to make automobiles of the same
design?
The 1961 Report of the Register of Copyrights stated, on the basis
of judicial precedent, that ``copyright in a pictorial, graphic, or
sculptural work, portraying a useful article as such, does not extend to
the manufacture of the useful article itself,'' and recommended
specifically that ``the distinctions drawn in this area by existing
court decisions'' not be altered by the statute. The Register's
Supplementary Report, at page 48, cited a number of these decisions, and
explained the insuperable difficulty of finding ``any statutory
formulation that would express the distinction satisfactorily.'' Section
113(b) reflects the Register's conclusion that ``the real need is to
make clear that there is no intention to change the present law with
respect to the scope of protection in a work portraying a useful article
as such.''
Section 113(c) provides that it would not be an infringement of
copyright, where a copyright work has been lawfully published as the
design of useful articles, to make, distribute or display pictures of
the articles in advertising, in feature stories about the articles, or
in the news reports.
In conformity with its deletion from the bill of Title II, relating
to the protection of ornamental designs of useful articles, the
Committee has deleted subsections (b), (c), and (d) of section 113 of S.
22 as adopted by the Senate, since they are no longer relevant.
References in Text
Section 610(a) of the Visual Artists Rights Act of 1990 [Pub. L.
101-650], referred to in subsec. (d)(1)(B), is set out as an Effective
Date note under section 106A of this title.
Amendments
1990--Subsec. (d). Pub. L. 101-650 added subsec. (d).
Effective Date of 1990 Amendment
Amendment by Pub. L. 101-650 effective 6 months after Dec. 1, 1990,
see section 610 of Pub. L. 101-650, set out as an Effective Date note
under section 106A of this title.
Section Referred to in Other Sections
This section is referred to in sections 106, 106A, 301, 501, 511 of
this title; title 18 section 2319.
