Copyrights - 17 USC Section 113

01/19/04

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.

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.

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.

Last modified: April 19, 2006