Copyright Compendium

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2314.1 What Is a Work of Visual Art?

 

2314.1 What Is a Work of Visual Art?

 

Section 101 of the Copyright Act defines a work of visual art as:

 

• “A painting, drawing, [or] print … existing in a single copy, [or] in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author … “;

 

• A “sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, … in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author;” or

 

• “[A] still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.”

 

17 U.S.C. § 101.

 

In other words, to qualify as a work of visual art, the work must be a painting, a drawing, a print, a sculpture, or a still photographic image produced for exhibition, and the work must exist in a single copy or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

 

The legislative history explains that “courts should use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scope of [this] definition.” H.R. REP. NO. 101-514, at 11 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6921. For example, the term “painting” includes “murals, works created on canvas, and the like,” and the term “‘sculpture’ includes, but is not limited to, castings, carvings, modelings, and constructions.” Id. However, the statute expressly states that the following types of works do not qualify as work of visual art:

 

• Posters.

 

• Maps, globes, or charts.

 

• Technical drawings, diagrams, or models.

 

• Applied art.

 

• Motion pictures or other audiovisual works.

 

• Books, magazines, newspapers, or periodicals.

 

• Databases, electronic information services, electronic publications, or similar publications.

 

• Merchandising items.

 

• Advertising, promotional, descriptive, covering, or packaging materials or containers.

 

17 U.S.C. § 101.