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made under this section is not subject to protection as a derivative
work under this title except with the express consent of the owners of
copyright in the pre-existing works employed in the program.
$ 113. Scope of exclusive rights in pictorial, graphic, and sculp-

tural works
(a) Subject to the provisions of clauses (1) and (2) of this sub-
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 use-
ful or otherwise.

(1) 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, 1974, as held applicable and construed by a court in an action brought under this title.

(2) 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. (b) When a pictorial, graphic, or sculptural work in which copyright subsists under this title is utilized in an original ornamental design of a useful article, by the copyright proprietor or under an express license from him, the design shall be eligible for protection under the provisions of title III of this Act.

(c) Protection under this title of a work in which copyright subsists shall terminate with respect to its utilization in useful articles whenever the copyright proprietor has obtained registration of an ornamental design of a useful article embodying said work under the provisions of title III of this Act. Unless and until the copyright proprietor has obtained such registration, the copyright pictorial, graphic, or sculptural work shall continue in all respects to be covered by and subject to the protection afforded by the copyright subsisting under this title. Nothing in this section shall be deemed to create any additional rights or protection under this title.

(d) Nothing in this section shall affect any right or remedy held

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1 transmitting organization that made it, and no further copies or 2 phonorecords are reproduced from it; and 3

(2) the copy or phonorecord is used solely for the transmitting 4 organization's own transmissions within its local service area, or 5 for purposes of archival preservation or security; and 6

(3) unless preserved exclusively for archival purposes, the copy 7 or phonorecord is destroyed within six months from the date the 8 transmission

program was first transmitted to the public. 9 (b) Notwithstanding the provisions of section 106, it is not an in10 fringement of copyright for a governmental body or other nonprofit 11 organization entitled to transmit a performance or display of a work, 12 under section 110(2) or under the limitations on exclusive rights in 13 sound recordings specified by section 114(a), to make no more than 14 twelve copies or phonorecords of a particular transmission program 15 embodying the performance or display, if16 (1) no further copies or phonorecords are reproduced from the 17 copies or phonorecords made under this clause; and 18

(2) except for one copy or phonorecord that may be preserved 19 exclusively for archival purposes, the copies or phonorecords are 20 destroyed within five years from the date the transmission pro21 gram was first transmitted to the public. 22 (c) Notwithstanding the provisions of section 106, it is not an in23 fringement of copyright for a governmental body or other nonprofit 24 organization to make for distribution no more than one copy or phono25 record for each transmitting organization specified in clause (2) of this 26 subsection of a particular transmission program embodying a perform27 ance of a nondramatic musical work of a religious nature, or of a sound 28 recording, if29

(1) there is no direct or indirect charge for making or dis30 tributing any such copies or phonorecords; and 31

(2) none of such copies or phonorecords is used for any per32 formance other than a single transmission to the public by a trans33 mitting organization entitled to transmit to the public a perform34 ance of the work under a license or transfer of the copyright; 35

and 36 (3) except for one copy or phonorecord that may be preserved 37 exclusively for archival purposes, the copies or phonorecords are 38 all destroyed within one year from the date the transmission pro39 gram was first transmitted to the public. 40 (d) The transmission program embodied in a copy or phonorecord

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1 made under this section is not subject to protection as a derivative 2 work under this title except with the express consent of the owners of

copyright in the pre-existing works employed in the program. 4 g 113. Scope of exclusive rights in pictorial, graphic, and sculp5

tural works 6 (a) Subject to the provisions of clauses (1) and (2) of this sub7 section, the exclusive right to reproduce a copyrighted pictorial, 8 graphic, or sculptural work in copies under section 106 includes the

right to reproduce the work in or on any kind of article, whether use10 ful or otherwise. 11

(1) This title does not afford, to the owner of copyright in a 12 work that portrays a useful article as such, any greater or lesser 13

rights with respect to the making, distribution, or display of the 14 useful article so portrayed than those afforded to such works under 15 the law, whether title 17 or the common law or statutes of a State, 16 in effect on December 31, 1974, as held applicable and construed 17

by a court in an action brought under this title. 18

(2) In the case of a work lawfully reproduced in useful articles 19 that have been offered for sale or other distribution to the public,

copyright does not include any right to prevent the making, dis21

tribution, or display of pictures or photographs of such articles 22

in connection with advertisements or commentaries related to the 23 distribution or display of such articles, or in connection with news 24

reports. 25

(b) When a pictorial, graphic, or sculptural work in which copy26 right subsists under this title is utilized in an original ornamental 27

design of a useful article, by the copyright proprietor or under an 28 express license from him, the design shall be eligible for protection 29

under the provisions of title III of this Act. 30

(c) Protection under this title of a work in which copyright subsists 31 shall terminate with respect to its utilization in useful articles when

over the copyright proprietor has obtained registration of an orna33

mental design of a useful article embodying said work under the 34 provisions of title III of this Act. Unless and until the copyright

proprietor has obtained such registration, the copyright pictorial, 36 graphic, or sculptural work shall continue in all respects to be covered 37 by and subject to the protection afforded by the copyright subsisting 38 under this title. Nothing in this section shall be deemed to create any 39 additional rights or protection under this title. 40 (d) Nothing in this section shall affect any right or remedy held

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as that term is defined by section 111, the compulsory licensing 2

rates shall be governed exclusively by those respective sec3

tions, and not by this subsection. 4

(D) For all other users not otherwise exempted, the blanket 5

rate is $25 per year for each location at which copyrighted 6

sound recordings are performed. The alternative prorated 7

rate shall be based on the number of separate performances 8

of such works during the year and, in accordance with a 9

standard formula that the Register of Copyrights shall pre10

scribe by regulation, shall not exceed $5 per day of use. 11 (d) EXEMPTION8.—In addition to users exempted from liability by 12 section 110 or subject to the provisions of section 111 or 116, any 13 person who publicly performs a copyrighted sound recording and who 14 would otherwise be subject to liability for such performance is ex15 empted from liability for infringement and from the compulsory 16 licensing requirements of this section, during the applicable annual 17 period, if 18

(1) In the case of a broadcast station, its gross receipts from 19 advertising sponsors were less than $25,000; or 20

(2) In the case of a background music service or other transmit21 ter of performances of sound recordings, its gross receipts from 22 subscribers or others who pay to receive the transmission were less 23 than $10,000. 24 () DISTRIBUTION OF ROYALTIES.25 (1) During the month of September in each year, every person 26 claiming to be entitled to compulsory license fees under this sec27 tion for performances during the preceding twelve-month period 28 shall file a claim with the Register of Copyrights, in accordance 29 with requirements that the Register shall prescribe by regulation. 30 Such claim shall include an agreement to accept as final, except as 31 provided in section 809 of this title, the determination of the Copy32 right Royalty Tribunal in any controversy concerning the distri33 bution of royalty fees deposited under subclause (B) of subsection 34 (c)(2) of this section to which the claimant is a party. Notwith35 standing any provisions of the antitrust laws (the Act of Oc36 tober 15, 1914, 38 Stat. 730, and any amendments of any such 37 laws), for purposes of this subsection any claimants may agree 38 among themselves as to the proportionate division of compulsory 39 licensing fees among them, may lump their claims together and

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file them jointly or as a single claim, or may designate a common agent to receive payment on their behalf.

(2) After the first day of October of each year, the Register of Copyrights shall determine whether there exists a controversy concerning the distribution of royalty fees deposited under subclause (B) of subsection (c) (2). If he determines that no such controversy exists, he shall, after deducting his reasonable administrative costs under this section, distribute such fees to the copyright owners and performers entitled, or to their designated agents. If he finds that such a controversy exists he shall certify to that fact and proceed to constitute a panel of the Copyright Royalty Tribunal in accordance with section 803. In such cases the reasonable administrative costs of the Register under this section shall be deducted prior to distribution of the royalty fee by the tribunal. (3) For the purposes of this section

(A) One half of all royalties to be distributed shall be paid to the copyright owners, and the other half shall be paid to the performers, of the sound recordings for which claims have been made under clause (1); and

(B) During the pendency of any proceeding under this section, the Register of Copyrights or the Copyright Royalty Tribunal shall withhold from distribution an amount sufficient to satisfy all claims with respect to which a controversy exists, but shall have discretion to proceed to distribute any

amounts that are not in controversy. (f) RELATION TO OTHER SECTIONS.—The public performance of sound recordings by means of secondary transmissions and coin-operated phonorecord players is governed by sections 111 and 116, respectively, and not by this section, except that there shall be an equal distribution of royalty fees for such public performances between copyright owners and performers as provided by subsection (e) (3) (A) of this section.

(g) DEFINITIONS.—As used in this section, the following terms and their variant forms mean the following:

(1) “Commercial time” is any transmission program, the time for which is paid for by a commercial sponsor, or any transmission program that is interrupted by a spot commercial announcement at intervals of less than fourteen and one-half minutes.

(2) “Performers” are musicians, singers, conductors, actors,

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