17 U.S.C. § 106 — Exclusive rights in copyrighted works

Page 22 TITLE 17—COPYRIGHTS § 106 cerned, the Government could not restrain the em- ployee or official from disseminating the work if he or she chooses to do so. The use of the term ‘‘work of the United States Government’’ does not mean that a work falling within the definition of that term is the prop- erty of the U.S. Government. LIMITED EXCEPTION FOR NATIONAL TECHNICAL INFORMATION SERVICE At the House hearings in 1975 the U.S. Department of Commerce called attention to its National Technical Information Service (NTIS), which has a statutory mandate, under Chapter 23 [§ 1151 et seq.] of Title 15 of the U.S. Code, to operate a clearinghouse for the collec- tion and dissemination of scientific, technical and engi- neering information. Under its statute, NTIS is re- quired to be as self-sustaining as possible, and not to force the general public to bear publishing costs that are for private benefit. The Department urged an amendment to section 105 that would allow it to secure copyright in NTIS publications both in the United States and abroad, noting that a precedent exists in the Standard Reference Data Act (15 U.S.C. § 290(e) [§ 290e]). In response to this request the Committee adopted a limited exception to the general prohibition in section 105, permitting the Secretary of Commerce to ‘‘secure copyright for a limited term not to exceed five years, on behalf of the United States as author or copyright owner’’ in any NTIS publication disseminated pursuant to 15 U.S.C. Chapter 23 [§ 1151 et seq.]. In order to ‘‘se- cure copyright’’ in a work under this amendment the Secretary would be required to publish the work with a copyright notice, and the five-year term would begin upon the date of first publication. Proposed Saving Clause. Section 8 of the statute now in effect [section 8 of former title 17] includes a saving clause intended to make clear that the copyright pro- tection of a private work is not affected if the work is published by the Government. This provision serves a real purpose in the present law because of the ambi- guity of the undefined term ‘‘any publication of the United States Government.’’ Section 105 of the bill, however, uses the operative term ‘‘work of the United States Government’’ and defines it in such a way that privately written works are clearly excluded from the prohibition; accordingly, a saving clause becomes su- perfluous. Retention of a saving clause has been urged on the ground that the present statutory provision is fre- quently cited, and that having the provision expressly stated in the law would avoid questions and expla- nations. The committee here observes: (1) there is noth- ing in section 105 that would relieve the Government of its obligation to secure permission in order to publish a copyrighted work; and (2) publication or other use by the Government of a private work would not affect its copyright protection in any way. The question of use of copyrighted material in documents published by the Congress and its Committees is discussed below in con- nection with section 107. Works of the United States Postal Service. The intent of section 105 [this section] is to restrict the prohibi- tion against Government copyright to works written by employees of the United States Government within the scope of their official duties. In accordance with the objectives of the Postal Reorganization Act of 1970 [Pub. L. 91–375, which enacted title 39, Postal Service], this section does not apply to works created by employ- ees of the United States Postal Service. In addition to enforcing the criminal statutes proscribing the forgery or counterfeiting of postage stamps, the Postal Service could, if it chooses, use the copyright law to prevent the reproduction of postage stamp designs for private or commercial non-postal services (for example, in phil- atelic publications and catalogs, in general advertising, in art reproductions, in textile designs, and so forth). However, any copyright claimed by the Postal Service in its works, including postage stamp designs, would be subject to the same conditions, formalities, and time limits as other copyrightable works. Editorial Notes AMENDMENTS 2024—Pub. L. 118–159 amended section generally. Prior to amendment, section related to copyright protection for United States Government works. 2022—Subsec. (b). Pub. L. 117–263, § 3514(1), substituted ‘‘Certain Works’’ for ‘‘Certain of Works’’ in heading. Subsec. (c). Pub. L. 117–263, § 6306(2), added subsec. (c) and struck out former subsec. (c). Text read as follows: ‘‘A covered Secretary may direct the covered author of a covered work to provide the Federal Government with an irrevocable, royalty-free, world-wide, nonexclu- sive license to reproduce, distribute, perform, or dis- play such covered work for purposes of the United States Government.’’ Pub. L. 117–263, § 3514(2), substituted ‘‘A covered Sec- retary’’ for ‘‘The Secretary of Defense’’. Subsec. (d). Pub. L. 117–263, §§ 3514(3), 6306(1), made identical amendments, redesignating subsec. (c) relat- ing to definitions as (d). Subsec. (d)(2)(M). Pub. L. 117–263, § 6306(3), added sub- par. (M) relating to National Intelligence University. Pub. L. 117–263, § 3514(4)(A), added subpar. (M) relating to United States Merchant Marine Academy. Subsec. (d)(3), (4). Pub. L. 117–263, § 3514(4)(B), (C), added par. (3) and redesignated former par. (3) as (4). 2019—Pub. L. 116–92 designated existing provisions as subsec. (a), inserted heading, and added subsec. (b) and two subsecs. (c). Heading of subsec. (a) was conformed to the style used in this title. Statutory Notes and Related Subsidiaries COORDINATION WITH OTHER AMENDMENTS MADE BY DIVISION F OF PUB. L. 118–159 Pub. L. 118–159, div. F, title LXIX, § 6902(f), Dec. 23, 2024, 138 Stat. 2519, provided that: ‘‘For purposes of ap- plying amendments made by provisions of this division [div. F of Pub. L. 118–159, see Tables for classification] other than this section, the amendments made by this section [amending this section and sections 3024, 3033, 3232a, 3234, 3244, 3304, and 3614 of Title 50, War and Na- tional Defense] shall be treated as having been enacted immediately before any such amendments by other provisions of this division.’’ § 106. Exclusive rights in copyrighted works Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the fol- lowing: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, includ- ing the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to per- form the copyrighted work publicly by means of a digital audio transmission. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–318, § 3(d), July 3, 1990, 104 Stat. Page 23 TITLE 17—COPYRIGHTS § 106 288; Pub. L. 101–650, title VII, § 704(b)(2), Dec. 1, 1990, 104 Stat. 5134; Pub. L. 104–39, § 2, Nov. 1, 1995, 109 Stat. 336; Pub. L. 106–44, § 1(g)(2), Aug. 5, 1999, 113 Stat. 222; Pub. L. 107–273, div. C, title III, § 13210(4)(A), Nov. 2, 2002, 116 Stat. 1909.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 General Scope of Copyright. The five fundamental rights that the bill gives to copyright owners—the ex- clusive rights of reproduction, adaptation, publication, performance, and display—are stated generally in sec- tion 106. These exclusive rights, which comprise the so- called ‘‘bundle of rights’’ that is a copyright, are cumu- lative and may overlap in some cases. Each of the five enumerated rights may be subdivided indefinitely and, as discussed below in connection with section 201, each subdivision of an exclusive right may be owned and en- forced separately. The approach of the bill is to set forth the copyright owner’s exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, or exemptions in the 12 sections that follow. Thus, ev- erything in section 106 is made ‘‘subject to sections 107 through 118’’, and must be read in conjunction with those provisions. The exclusive rights accorded to a copyright owner under section 106 are ‘‘to do and to authorize’’ any of the activities specified in the five numbered clauses. Use of the phrase ‘‘to authorize’’ is intended to avoid any questions as to the liability of contributory in- fringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an in- fringer if he or she engages in the business of renting it to others for purposes of unauthorized public per- formance. Rights of Reproduction, Adaptation, and Publication. The first three clauses of section 106, which cover all rights under a copyright except those of performance and display, extend to every kind of copyrighted work. The exclusive rights encompassed by these clauses, though closely related, are independent; they can gen- erally be characterized as rights of copying, recording, adaptation, and publishing. A single act of infringe- ment may violate all of these rights at once, as where a publisher reproduces, adapts, and sells copies of a per- son’s copyrighted work as part of a publishing venture. Infringement takes place when any one of the rights is violated: where, for example, a printer reproduces cop- ies without selling them or a retailer sells copies with- out having anything to do with their reproduction. The references to ‘‘copies or phonorecords,’’ although in the plural, are intended here and throughout the bill to in- clude the singular (1 U.S.C. § 1). Reproduction.—Read together with the relevant defi- nitions in section 101, the right ‘‘to reproduce the copy- righted work in copies or phonorecords’’ means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be ‘‘perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.’’ As under the present law, a copyrighted work would be infringed by reproducing it in whole or in any substantial part, and by dupli- cating it exactly or by imitation or simulation. Wide departures or variations from the copyrighted work would still be an infringement as long as the author’s ‘‘expression’’ rather than merely the author’s ‘‘ideas’’ are taken. An exception to this general principle, appli- cable to the reproduction of copyrighted sound record- ings, is specified in section 114. ‘‘Reproduction’’ under clause (1) of section 106 is to be distinguished from ‘‘display’’ under clause (5). For a work to be ‘‘reproduced,’’ its fixation in tangible form must be ‘‘sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise commu- nicated for a period of more than transitory duration.’’ Thus, the showing of images on a screen or tube would not be a violation of clause (1), although it might come within the scope of clause (5). Preparation of Derivative Works.—The exclusive right to prepare derivative works, specified separately in clause (2) of section 106, overlaps the exclusive right of reproduction to some extent. It is broader than that right, however, in the sense that reproduction requires fixation in copies or phonorecords, whereas the prepa- ration of a derivative work, such as a ballet, panto- mime, or improvised performance, may be an infringe- ment even though nothing is ever fixed in tangible form. To be an infringement the ‘‘derivative work’’ must be ‘‘based upon the copyrighted work,’’ and the definition in section 101 refers to ‘‘a translation, musical arrange- ment, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.’’ Thus, to con- stitute a violation of section 106(2), the infringing work must incorporate a portion of the copyrighted work in some form; for example, a detailed commentary on a work or a programmatic musical composition inspired by a novel would not normally constitute infringe- ments under this clause. Use in Information Storage and Retrieval Systems.—As section 117 declares explicitly, the bill is not intended to alter the present law with respect to the use of copy- righted works in computer systems. Public Distribution.—Clause (3) of section 106 estab- lishes the exclusive right of publication: The right ‘‘to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of owner- ship, or by rental, lease, or lending.’’ Under this provi- sion the copyright owner would have the right to con- trol the first public distribution of an authorized copy or phonorecord of his work, whether by sale, gift, loan, or some rental or lease arrangement. Likewise, any un- authorized public distribution of copies or phonorecords that were unlawfully made would be an infringement. As section 109 makes clear, however, the copyright owner’s rights under section 106(3) cease with respect to a particular copy or phonorecord once he has parted with ownership of it. Rights of Public Performance and Display. Performing Rights and the ‘‘For Profit’’ Limitation.—The right of public performance under section 106(4) extends to ‘‘lit- erary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio- visual works and sound recordings’’ and, unlike the equivalent provisions now in effect, is not limited by any ‘‘for profit’’ requirement. The approach of the bill, as in many foreign laws, is first to state the public per- formance right in broad terms, and then to provide spe- cific exemptions for educational and other nonprofit uses. This approach is more reasonable than the outright exemption of the 1909 statute. The line between com- mercial and ‘‘nonprofit’’ organizations is increasingly difficult to draw. Many ‘‘non-profit’’ organizations are highly subsidized and capable of paying royalties, and the widespread public exploitation of copyrighted works by public broadcasters and other noncommercial organizations is likely to grow. In addition to these trends, it is worth noting that performances and dis- plays are continuing to supplant markets for printed copies and that in the future a broad ‘‘not for profit’’ exemption could not only hurt authors but could dry up their incentive to write. The exclusive right of public performance is expanded to include not only motion pictures, including works recorded on film, video tape, and video disks, but also audiovisual works such as filmstrips and sets of slides. This provision of section 106(4), which is consistent with the assimilation of motion pictures to audiovisual works throughout the bill, is also related to amend- ments of the definitions of ‘‘display’’ and ‘‘perform’’ discussed below. The important issue of performing rights in sound recordings is discussed in connection with section 114. Page 24 TITLE 17—COPYRIGHTS § 106 Right of Public Display.—Clause (5) of section 106 rep- resents the first explicit statutory recognition in American copyright law of an exclusive right to show a copyrighted work, or an image of it, to the public. The existence or extent of this right under the present statute is uncertain and subject to challenge. The bill would give the owners of copyright in ‘‘literary, musi- cal, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works’’, including the individual images of a motion picture or other audiovisual work, the exclusive right ‘‘to display the copyrighted work publicly.’’ Definitions. Under the definitions of ‘‘perform,’’ ‘‘dis- play,’’ ‘‘publicly,’’ and ‘‘transmit’’ in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is trans- mitted or communicated to the public. Thus, for exam- ple: a singer is performing when he or she sings a song; a broadcasting network is performing when it trans- mits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable tele- vision system is performing when it retransmits the broadcast to its subscribers; and any individual is per- forming whenever he or she plays a phonorecord em- bodying the performance or communicates the per- formance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a ‘‘performance’’ or ‘‘display’’ under the bill, it would not be actionable as an infringement unless it were done ‘‘publicly,’’ as defined in section 101. Certain other performances and displays, in addition to those that are ‘‘private,’’ are exempted or given qualified copy- right control under sections 107 through 118. To ‘‘perform’’ a work, under the definition in section 101, includes reading a literary work aloud, singing or playing music, dancing a ballet or other choreographic work, and acting out a dramatic work or pantomime. A performance may be accomplished ‘‘either directly or by means of any device or process,’’ including all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other tech- niques and systems not yet in use or even invented. The definition of ‘‘perform’’ in relation to ‘‘a motion picture or other audiovisual work’’ is ‘‘to show its im- ages in any sequence or to make the sounds accom- panying it audible.’’ The showing of portions of a mo- tion picture, filmstrip, or slide set must therefore be sequential to constitute a ‘‘performance’’ rather than a ‘‘display’’, but no particular order need be maintained. The purely aural performance of a motion picture sound track, or of the sound portions of an audiovisual work, would constitute a performance of the ‘‘motion picture or other audiovisual work’’; but, where some of the sounds have been reproduced separately on phonorecords, a performance from the phonorecord would not constitute performance of the motion pic- ture or audiovisual work. The corresponding definition of ‘‘display’’ covers any showing of a ‘‘copy’’ of the work, ‘‘either directly or by means of a film, slide, television image, or any other device or process.’’ Since ‘‘copies’’ are defined as in- cluding the material object ‘‘in which the work is first fixed,’’ the right of public display applies to original works of art as well as to reproductions of them. With respect to motion pictures and other audiovisual works, it is a ‘‘display’’ (rather than a ‘‘performance’’) to show their ‘‘individual images nonsequentially.’’ In addition to the direct showings of a copy of a work, ‘‘display’’ would include the projection of an image on a screen or other surface by any method, the trans- mission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or simi- lar viewing apparatus connected with any sort of infor- mation storage and retrieval system. Under clause (1) of the definition of ‘‘publicly’’ in sec- tion 101, a performance or display is ‘‘public’’ if it takes place ‘‘at a place open to the public or at any place where a substantial number of persons outside of a nor- mal circle of a family and its social acquaintances is gathered.’’ One of the principal purposes of the defini- tion was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O.Bull. 203 (D.Md.1932), performances in ‘‘semipublic’’ places such as clubs, lodges, factories, summer camps, and schools are ‘‘public performances’’ subject to copy- right control. The term ‘‘a family’’ in this context would include an individual living alone, so that a gathering confined to the individual’s social acquaint- ances would normally be regarded as private. Routine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering of a ‘‘substantial number of persons.’’ Clause (2) of the definition of ‘‘publicly’’ in section 101 makes clear that the concepts of public perform- ance and public display include not only performances and displays that occur initially in a public place, but also acts that transmit or otherwise communicate a performance or display of the work to the public by means of any device or process. The definition of ‘‘transmit’’—to communicate a performance or display ‘‘by any device or process whereby images or sound are received beyond the place from which they are sent’’— is broad enough to include all conceivable forms and combinations of wired or wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds com- prising a performance or display are picked up and con- veyed is a ‘‘transmission,’’ and if the transmission reaches the public in my [any] form, the case comes within the scope of clauses (4) or (5) of section 106. Under the bill, as under the present law, a perform- ance made available by transmission to the public at large is ‘‘public’’ even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential re- cipients of the transmission represent a limited seg- ment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service. Clause (2) of the definition of ‘‘publicly’’ is applicable ‘‘whether the members of the public capable of receiv- ing the performance or display receive it in the same place or in separate places and at the same time or at different times.’’ Editorial Notes AMENDMENTS 2002—Pub. L. 107–273 substituted ‘‘122’’ for ‘‘121’’ in in- troductory provisions. 1999—Pub. L. 106–44 substituted ‘‘121’’ for ‘‘120’’ in in- troductory provisions. 1995—Par. (6). Pub. L. 104–39 added par. (6). 1990—Pub. L. 101–650 substituted ‘‘120’’ for ‘‘119’’ in in- troductory provisions. Pub. L. 101–318 substituted ‘‘119’’ for ‘‘118’’ in intro- ductory provisions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–39 effective 3 months after Nov. 1, 1995, see section 6 of Pub. L. 104–39, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–650 applicable to any ar- chitectural work created on or after Dec. 1, 1990, and any architectural work, that, on Dec. 1, 1990, is unconstructed and embodied in unpublished plans or drawings, except that protection for such architectural work under this title terminates on Dec. 31, 2002, unless the work is constructed by that date, see section 706 of Page 25 TITLE 17—COPYRIGHTS § 106A Pub. L. 101–650, set out as a note under section 101 of this title. Pub. L. 101–318, § 3(e)(3), July 3, 1990, 104 Stat. 289, pro- vided that: ‘‘The amendment made by subsection (d) [amending this section] shall be effective as of Novem- ber 16, 1988.’’ PERFORMING RIGHTS SOCIETY CONSENT DECREES Pub. L. 115–264, title I, § 105, Oct. 11, 2018, 132 Stat. 3726, provided that: ‘‘(a) DEFINITION.—In this section, the term ‘per- forming rights society’ has the meaning given the term in section 101 of title 17, United States Code. ‘‘(b) NOTIFICATION OF REVIEW.— ‘‘(1) IN GENERAL.—The Department of Justice shall provide timely briefings upon request of any Member of the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Rep- resentatives regarding the status of a review in progress of a consent decree between the United States and a performing rights society. ‘‘(2) CONFIDENTIALITY AND DELIBERATIVE PROCESS.— In accordance with applicable rules relating to con- fidentiality and agency deliberative process, the De- partment of Justice shall share with such Members of Congress detailed and timely information and perti- nent documents related to the consent decree review. ‘‘(c) ACTION BEFORE MOTION TO TERMINATE.— ‘‘(1) IN GENERAL.—Before filing with the appropriate district court of the United States a motion to termi- nate a consent decree between the United States and a performing rights society, including a motion to terminate a consent decree after the passage of a specified period of time, the Department of Justice shall— ‘‘(A) notify Members of Congress and committees of Congress described in subsection (b); and ‘‘(B) provide to such Members of Congress and committees information regarding the impact of the proposed termination on the market for licens- ing the public performance of musical works should the motion be granted. ‘‘(2) NOTIFICATION.— ‘‘(A) IN GENERAL.—During the notification de- scribed in paragraph (1), and not later than a rea- sonable time before the date on which the Depart- ment of Justice files with the appropriate district court of the United States a motion to terminate a consent decree between the United States and a performing rights society, the Department of Jus- tice should submit to the chairmen and ranking members of the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a written notification of the intent of the Department of Justice to file the motion. ‘‘(B) CONTENTS.—The notification provided in sub- paragraph (A) shall include a written report to the chairmen and ranking members of the Committee on the Judiciary of [the] Senate and the Committee on the Judiciary of the House of Representatives setting forth— ‘‘(i) an explanation of the process used by the Department of Justice to review the consent de- cree; ‘‘(ii) a summary of the public comments re- ceived by the Department of Justice during the review by the Department; and ‘‘(iii) other information provided to Congress under paragraph (1)(B). ‘‘(d) SCOPE.—This section applies only to a consent decree between the United States and a performing rights society.’’ § 106A. Rights of certain authors to attribution and integrity (a) RIGHTS OF ATTRIBUTION AND INTEGRITY.— Subject to section 107 and independent of the ex- clusive rights provided in section 106, the author of a work of visual art— (1) shall have the right— (A) to claim authorship of that work, and (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create; (2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutila- tion, or other modification of the work which would be prejudicial to his or her honor or rep- utation; and (3) subject to the limitations set forth in section 113(d), shall have the right— (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. (b) SCOPE AND EXERCISE OF RIGHTS.—Only the author of a work of visual art has the rights conferred by subsection (a) in that work, wheth- er or not the author is the copyright owner. The authors of a joint work of visual art are co- owners of the rights conferred by subsection (a) in that work. (c) EXCEPTIONS.—(1) The modification of a work of visual art which is a result of the pas- sage of time or the inherent nature of the mate- rials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A). (2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, dis- tortion, mutilation, or other modification de- scribed in subsection (a)(3) unless the modifica- tion is caused by gross negligence. (3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any repro- duction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of ‘‘work of visual art’’ in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, dis- tortion, mutilation, or other modification de- scribed in paragraph (3) of subsection (a). (d) DURATION OF RIGHTS.—(1) With respect to works of visual art created on or after the effec- tive date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term con- sisting of the life of the author. (2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coex- tensive with, and shall expire at the same time as, the rights conferred by section 106. (3) In the case of a joint work prepared by two or more authors, the rights conferred by sub- section (a) shall endure for a term consisting of the life of the last surviving author.