2. What Are Intellectual Property Rights?
C. The Nature of Rights in Copyright (continued)
Rights are conveyed under exclusive or nonexclusive terms. Rights conveyed nonexclusively can be conveyed (usually by license) to any number of individuals or entities any number of times. Nonexclusive terms are preferred by rightsholders in licensing agreements because they keep the rightsholders’ options open for further economic exploitation of their rights. An exclusive right is a right or set of rights conveyed to a particular user to the exclusion of all others. Commercial users often desire exclusive rights because it gives them a market advantage (none of their competitors can use the intellectual property) as well as a unique identity in the marketplace (no other commercial users will have the intellectual property). In reality, exclusive rights can yield satisfactory results for both rightsholders and users if conveyed in a very narrow and well-defined context.23
While copyright law is a framework for protecting creators’ rights to the use of their work, it operates in a broader framework of overlapping rights guaranteed within the U.S. Constitution and the laws of individual states. The right to privacy is one example. Although the scope of this right varies from state to state, in general individuals can expect that their privacy is protected as long as they do nothing illegal. The intersection of this right with copyright occurs most frequently in photography or films that depict people. A photographer who shoots a scene that includes children certainly owns the copyright to the image, but cannot publish it (one of the rights conferred to him or her by copyright) without securing permissions from the legal guardians of those children. Among cultural organizations, privacy issues arise most frequently in archival repositories that contain manuscripts, photographs, and other holdings that portray known individuals. While a repository may hold copyright to these materials, their use in certain circumstances may violate privacy laws unless permission is obtained from the individuals portrayed.
Another right that intersects with copyright is the right of publicity, which acknowledges the potential economic and social value inherent in one’s name, appearance, and other aspects of one’s persona. In most states, laws exist that allow people to control this value during their lifetime, and (in some states) allows their heirs to control it after their death. This is why advertisers must pay celebrities for the use of their name or image in connection with a product ("endorsements") and why, in an economic sense, Elvis lives through the income his estate generates by licensing the use of his image and name. Among cultural organizations, the publicity right is likely to arise when images or other aspects of a celebrity’s persona are used for commercial ends such as in merchandising.24
| Chapter 2: What Are Intellectual Property Rights? | |
| A. Intellectual Property Rights in the United States | |
| D. The Complexity of Rights in an Electronic Environment | |
| E. Current Rights Management Methods | |
| F. The Emergence and Perseverance of Rights Management | |
| Notes | |