Copyright law of the United States

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The Copyright Law of the United States tries to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death.

United States copyright law is governed by the federal Copyright Act of 1976. The United States Constitution explicitly grants Congress the power to create copyright law. Specifically, Congress has the power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Article 1, Section 8, Clause 8, (the Copyright Clause)

The United States Copyright Office handles copyright registration, recording of copyright transfers, and other administrative aspects of copyright law.

History[edit]

US copyright law traces its lineage back to the British Statute of Anne, which influenced the first US federal copyright law, the Copyright Act of 1790. The Copyright Act has been updated several times, including, notably, the Copyright Act of 1976. For more information, see History of US Copyright Law.

Purpose of copyright[edit]

The goal of copyright law, as set forth in the US Constitution, is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."[1] This includes incentivizing the creation of art, literature, architecture, music, and other works of authorship. As with many legal doctrines, the effectiveness of copyright law in achieving its stated purpose is a matter of debate.[2]

Works subject to copyright law[edit]

The United States copyright law protects "original works of authorship," fixed in a tangible medium[3] including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Copyright law includes the following types of works:

  • Literary
  • Musical
  • Dramatic
  • Pantomimes and choreographic works
  • Pictorial, graphic, and sculptural works
  • Audiovisual works
  • Sound recordings
  • Derivative works
  • Compilations
  • Architectural works

Idea–expression dichotomy[edit]

Copyright law protects the "expression" of an idea, but copyright does not protect the "idea" itself. This distinction is called the idea–expression dichotomy.[4]

The distinction between "idea" and "expression" is fundamental to copyright law. From the Copyright Act of 1976 (17 U.S.C. § 102):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

For example, a paper describing a political theory is copyrightable. The paper is the expression of the author's ideas about the political theory. But the theory itself is just an idea, and is not copyrightable. Another author is free to describe the same theory in their own words without infringing on the original author's copyright.

Although fundamental, the idea-expression dichotomy is often difficult to put into practice. Reasonable people can disagree about where the unprotectable "idea" ends and the protectable "expression" begins. As Judge Learned Hand put it,

“Obviously, no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed its ‘expression.’ Decisions must therefore inevitably be ad hoc.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487 (2d Cir. 1960).

Compilations of facts and the sweat of the brow doctrine[edit]

Mere facts are not copyrightable. However, compilations of facts are treated differently, and may be copyrightable material. The Copyright Act, § 103, allows copyright protection for "compilations", as long as there is some "creative" or "original" act involved in developing the compilation, such as in the selection (deciding which facts to include or exclude), and arrangement (how facts are displayed and in what order). Copyright protection in compilations is limited to the selection and arrangement of facts, not to the facts themselves.

The Supreme Court decision in Feist v. Rural clarified the requirements for copyright in compilations. The Feist case denied copyright protection to a "white pages" phone book (a compilation of telephone numbers, listed alphabetically). In making this ruling, the Supreme Court rejected the "sweat of the brow" doctrine. That is, copyright protection requires creativity, and no amount of hard work ("sweat of the brow") can transform a non-creative list (like an alphabetical listing of phone numbers) into copyrightable subject matter. A mechanical, non-selective collection of facts (e.g., alphabetized phone numbers) cannot be protected by copyright.

Useful articles[edit]

Copyright protects artistic expression. Copyright does not protect useful articles, or objects with some useful functionality. The Copyright Act states:

A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.

“the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[5]

However, many industrial designers create works that are both artistic and functional. Under these circumstances, Copyright Law only protects the artistic expression of such a work, and only to the extent that the artistic expression can be separated from its utilitarian function (what courts call "conceptual separability"). If the aesthetic aspects cannot be separated from the functional aspects, copyright protection is not available.

It can be difficult to gauge whether the artistic aspects of a work can be separated from its useful aspects. Courts often rely on the Denicola test, which asks whether the artistic design was significantly influenced by functional considerations. If so, copyrightability depends on the extent to which the work reflects the artistic expression inhibited by functional considerations. As discussed by Judge Oakes:

Copyrightability "ultimately should depend on the extent to which the work reflects artistic expression uninhibited by functional considerations." To state the Denicola test in the language of conceptual separability, if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements. Conversely, where design elements can be identified as reflecting the designer's artistic judgment exercised independently of functional influences, conceptual separability exists.[6]


Works by the federal government[edit]

For more details on this topic, see Copyright status of work by the U.S. government.

Works created by the federal government are not copyrightable. 17 U.S.C. § 105. This restriction on copyright applies to publications produced by the United States Government, and its agents or employees within the scope of their employment. The specific language is as follows:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

A "work of the United States Government" is defined in 17 U.S.C. § 101 as work prepared by an officer or employee of the United States Government as part of that person's official duties. Note that government contractors are generally not considered employees, and their works may be subject to copyright. Likewise, the US government can purchase and hold the copyright to works created by third parties.

The government may restrict access to works it has produced through other mechanisms. For instance, confidential or secret materials are not protected by copyright, but are restricted by other applicable laws. However, even in case of non-secret materials there are specific prohibitions against automatic access to work otherwise covered under 17 U.S.C. § 105 for commercial purposes.[7]

Federal and state laws are not copyrighted[edit]

Main article: Edict of government

Federal statutes are in the public domain and no copyright attaches to them. The same is true of court decisions. It is not difficult to see the motivations behind this:

The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process.[8]

As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties.[9]

Exclusive rights[edit]

There are six basic rights protected by copyright. The owner of copyright has the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
  • To publicly display the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work.
  • To digitally transmit sound recordings by means of digital audio transmission;

[10]

A violation of any of the exclusive rights of the copyright holder is a copyright infringement, unless fair use (or a similar affirmative defense) applies.


Definition of "copy"[edit]

Several of the exclusive rights above only apply to "copies" of works.[11] For example, Section 106(1) prohibits the reproduction only of copies of works, and section 106(3) prohibits the distribution only of copies of works.[12]

This is why creating a hyperlink (even a deep link or inline link), is not generally an infringing act. A hyperlink does not create a copy. It's more like an instruction to a browser to fetch information from a specific source. See, for example, Perfect 10, Inc. v. Amazon.com, Inc. and Copyright aspects of hyperlinking and framing.


Authorship, Ownership, and Work for Hire[edit]

The initial owner of the copyright to a work is the author, unless that work is a "work made for hire."

  • Works for hire. If a work is made "for hire" within the meaning of the Copyright Act, then the employer or commissioning party, is deemed to be the author and will own the copyright as though it was the true author.[13] The circumstances under which a work may be found to be a work for hire are:
    • Work prepared by an employee within the scope of their employment. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held that the term "employee" in this context should be interpreted according to common law agency principles. If the person doing the work is an "employee" within the meaning of the common law, and the work was done within the scope of their employment (whether the work is the kind they were employed to prepare; whether the preparation takes place primarily within the employer's time and place specifications; and whether the work was activated, at least in part, by a purpose to serve the employer), then the work is a work for hire and the employer is the initial owner of the copyright.[13]
    • Specially ordered or commissioned works. Works created by independent contractors (rather than employees) can be deemed works for hire only if two conditions are satisfied. First, the work must fit into one of these categories: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. Second, the parties must expressly agree in a written, signed instrument that the work will be considered a work made for hire.[13]

If a work is not a work for hire, then the author will be the initial copyright owner. The author generally is the person who conceives of the copyrightable expression and "fixes" it in a "tangible medium of expression." Special rules apply when multiple authors are involved:

  • Joint Work. The authors of a joint work are co-owners of a single copyright in the work. A joint work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole."[13][14]
  • Collective Works: A collective work is a collection of independent, separately copyrightable works of authorship, such as a newspaper, magazine, or encyclopedia.[13] In the absence of an express assignment of copyright, the author of each individual work in the collection retains copyright in that work.[15] The compiler, or author of the collection, owns copyright in the expression he or she contributed, which is primarily the selection and arrangement of the separate contributions, but may include such things as a preface, advertisements, etc., that the collective author created.[13]

Transfers and licenses[edit]

Three types of transfers exist for copyrighted works.

  • Assignment
  • Exclusive license
  • Non-exclusive license

The first two, assignment and exclusive licenses, require the transfer to be in writing. Nonexclusive licenses need not be in writing and they may be implied by the circumstances. Transfers of copyright always involve one or more of the exclusive rights of copyright. For instance, a license may provide a right to perform a work, but not to reproduce it or to prepare a derivative work (adaptation right).[citation needed]

The terms of the license is governed by the applicable contract law, however there is substantial academic debate about to what extent the Copyright Act preempts state contract law principles.[citation needed]

An author, after transferring a copyright, can terminate the transfer under certain circumstances. This right to terminate the transfer is absolute and cannot be waived.[16]

Registration procedure[edit]

Newspaper advert: "United States and Foreign Copyright. Patents and Trade-Marks A Copyright will protect you from Pirates. And make you a fortune. If you have a play, sketch, photo, act, song or book that is worth anything, you should copyright it. Don't take chances when you can secure our services at small cost. Send for our special offer to inventors before applying for a patent, it will pay you. Handbook on patents sent free. We advise if patentable or not. Free. We incorporate stock companies. Small fees. Consult us. Wormelle & Van Mater, Managers, Columbia Copyright & Patent Co. Inc, Washington, D.C."

Copyright is automatically granted to to the author of an original work (that otherwise meets the basic copyright requirements, discussed above). Registration is not necessary. However, registration amplifies a copyright holder's rights in a number of ways. Registration is required before a lawsuit can be filed, and registration creates the possibility for enhanced "statutory" damages.

A copyright can be registered online at the US Copyright Office's website. The Copyright Office reviews applications for obvious errors or lack of copyrightable subject matter, and then issues a certificate of registration. The Copyright Office does not compare the authors new work against a collection of existing works or otherwise check for infringement.

Deposit requirement[edit]

The United States Copyright Office requires a deposit copy of the work for which copyright registration is sought. Deposits can be made through the Copyright Office's eCO System. This deposit requirement serves two purposes. First, if a copyright infringement lawsuit arises, the owner may prove that the material that is infringed is exactly the same material for which the owner has secured a registration. Second, this requirement helps the Library of Congress build its collection of works.

Failure to comply with the deposit requirement, as modified by Copyright Office regulations, is punishable by fine, but does not result in forfeiture of copyright.


Copyright notices[edit]

Main article: Copyright notice

The use of copyright notices is optional. The Berne Convention, amending US copyright law in 1989, makes copyright automatic.[17] However, the lack of notice of copyright using these marks may have consequences in terms of reduced damages in an infringement lawsuit — using notices of this form may reduce the likelihood of a defense of "innocent infringement" being successful.[18]

Duration of copyright[edit]

Copyright protection generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. For works created before 1978, the copyright duration rules are complicated. However, works created before 1923 have generally made their way into the public domain.

Expansion of U.S. copyright term (assuming authors create their works at age 35 and live for seventy years)

Works created before 1978[edit]

The § 302 term above also applies to works created before 1978 that were not yet published or registered prior to 1978, with the exception that such copyrights would not expire before 2003. Prior to 1978, works had to be published or registered to receive copyright protection. Upon the effective date of the 1976 Act (January 1, 1978) this requirement was removed and these works received protection despite having not been published or registered. However, Congress intended to provide an incentive for these authors to publish their unpublished works. To provide that incentive, these works, if published before 2003, will not have their protection expire before 2048.

Works published or registered before 1978 currently have a maximum copyright duration of 95 years from the date of publication, if copyright was renewed during the 28th year following publication[19] (such renewal was made automatic by the Copyright Renewal Act of 1992; prior to this the copyright would expire after 28 years if not renewed). The date of death of the author is not a factor in the copyright term of such works.

All copyrightable works published in the United States before 1923 are in the public domain;[20] works created before 1978 but not published until recently may be protected until 2047.[21] For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Library of Congress Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 1992, but works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain. With rare exceptions (such as very old works first published after 2002), no additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws.

Before 1972, sound recordings were not subject to federal copyright, but copying was nonetheless regulated under various state torts and statutes, some of which had no duration limit. The Sound Recording Amendment of 1971 extended federal copyright to recordings fixed on or after February 15, 1972 (the effective date of the act), and declared that recordings fixed before that date would remain subject to state or common law copyright. The Copyright Act of 1976 maintained this until February 15, 2047, which was subsequently extended by the Copyright Term Extension Act to the same date in 2067.[22] As a result, no sound recording can reliably be considered in the public domain in the United States before that date, even if the recording was in existence before 1923 and even if it originated in another country where it has entered the public domain.[dubious ][23]

In 2010, the United States Copyright Office asked for opinions about bringing pre-1972 recorded music masters under Federal Law protection.[24]

Copyright limitations, exceptions, and defenses[edit]

United States copyright law includes numerous defenses, exceptions, and limitations. Some of the most important include:

  • Copyright applies only to certain subject matter, codified within 17 U.S.C. § 102. Works that are not "original works of authorship fixed in any tangible medium of expression" are not subject to copyright. 17 U.S.C. § 102(b) codifies that copyright protection does not extend to ideas, procedures, processes, systems, etc. Facts may not be copyrighted. "Useful articles" may not be copyrighted. Useful articles includes typeface designs (Eltra Corp. v. Ringer), fashion designs, blank forms, titles, names, short phrases, slogans, lists of ingredients and contents, domain names and band names.[25]
  • The first sale doctrine is codified at 17 U.S.C. § 109, and limits the rights of copyright holders to control the distribution and display of copies of their works. The owner of a particular copy is entitled to "sell or otherwise dispose of the possession of that copy" and to "display the copy publicly ... to viewers present at the place where the copy is located."
  • The "good faith" defense (Section 504(c)(2)) protects educational institutions, libraries, archives, and public broadcasters, by permitting the court to limit statutory damages to only $200 if they reasonably believed their infringement was a fair use under 17 U.S.C. § 107.
  • 17 U.S.C. § 108 and § 110–122 include specific exemptions for types of works and particular entities, such as libraries (§ 108), public broadcasters (§ 110 and § 118), braille (§ 121), software backup copies (§ 117), "cover license" permitting sound recording covers (§ 115), and jukebox compulsory licenses (§ 116).
  • Section 512 ("OCILLA", passed as part of the DMCA in 1998) provides a contingent "safe harbor" for online service providers from secondary liability for their users' copy infringements.
  • An obscenity defense exists for pornographic work that is judged obscene by the miller test. Some courts have suggested pornography may be protected by copyright (Mitchell Brothers Film Co v. Cinema Adult Theater (5th Cir. 1979); Jartech, Inc. v. Clancy, 9th Cir. 1982)), but other courts have held the opposite (Devils Films, Inc. v. Nectar Video (SDNY 1998)), and the issue remains ambiguous.[26][27]

Fair Use[edit]

If a new work is Fair use, it's not a copyright infringement. Fair use is codified at 17 U.S.C. § 107, and states that "the fair use of a copyrighted work ... is not an infringement of copyright." The section lists four factors that must be assessed to determine whether a particular use is fair.

Parodies[edit]

Although a parody can be considered a derivative work under United States Copyright Law, and thus within the exclusive rights of the copyright owner, it may qualify for the "fair use" exception to the exclusive rights, which is codified at 17 U.S.C. § 107. Parodic works are not automatically fair use of the material parodied, however. The Supreme Court of the United States stated that parody (transformative) "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work; in contrast, a satire (exaggerated) (which is not targeted at the work borrowed from) does not require use of the original work to make its point. (See Campbell v. Acuff-Rose Music, Inc.)

Provisions for the handicapped[edit]

The Copyright Act, in 17 USC 121 and 17 USC 110(8), includes specific statutory exceptions for reproduction of material for the blind or other persons with disabilities. Section 121 (the "Chafee Amendment") permits the reproduction of copyright works in Braille, audio, electronic, Web-Braille, or other necessary formats. For instance, the National Library Service for the Blind and Physically Handicapped (NLS) administers a program under Section 121, and the HathiTrust Digital Library also relies on Section 121 in providing access to disabled users.[28]

Infringement[edit]

Copyright infringement occurs when someone violates one of the exclusive rights listed in 17 USC 106. Commonly, this involves someone creating or distributing a copy of a protected work that is substantially similar to the original version.

Infringement requires copying. If two people happen to write the exact same story, without knowledge of the other, there is no infringement.

Consequences of copyright infringement[edit]

A copyright owner whose exclusive rights have been infringed may file a lawsuit in federal court. Federal courts have exclusive subject-matter jurisdiction over copyright infringement cases.[29] The Copyright Office handles copyright registrations, but it does not adjudicate copyright infringement disputes.

Ownership of valid copyright[edit]

United States law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original.[30]

Assuming the plaintiff proves ownership of a valid copyright, the holder must then establish both actual copying and improper appropriation of the work. The burden lies with the plaintiff to establish these three elements in what is known as the prima facie case for infringement. Copyright owners are required to actively enforce rights.

A plaintiff establishes ownership by authorship (by the plaintiff itself or by one who assigned rights to the plaintiff) of (1) an original work of authorship that is (2) fixed in a tangible medium (e.g. a book or musical recording). Registration is not required for copyright itself, but in most cases is a jurisdictional requirement to bring the suit. Registration is also useful because it gives rise to the presumption of a valid copyright, and eliminates the innocent infringement defense, and (if timely made) it allows the plaintiff to elect statutory damages, and to be eligible for a possible award of attorney fees.

Works that are not sufficiently original, or which constitute facts, a method or process cannot enjoy copy protection.[31] U.S. Courts do not recognize the "sweat of the brow" doctrine, which originally allowed protection for those who labored to collect and organize facts. To combat this, business which assemble databases of information have relied on contract law where copyright law offers no protection.[32] For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.[33]

Copyright protects the fixed expression of ideas, but not the original ideas.[34] Nevertheless, an expression must exist in a fixed tangible medium.[35] A movie script writer who discusses a plot idea which has not yet been written would not be protected if another heard his idea and wrote a screenplay themselves. Whether random-access memory (RAM) constitutes a "fixed medium" is a contentious issue in copyright litigation due to the transitory nature of RAM.[36]

A plaintiff establishes actual copying with direct or indirect evidence. Direct evidence is satisfied either by a defendant's admission to copying or the testimony of witnesses who observed the defendant in the act. More commonly, a plaintiff relies on circumstantial or indirect evidence. A court will infer copying by a showing of a "striking similarity" between the copyrighted work and the alleged copy, along with a showing of both access and use of that access.[37] A plaintiff may establish access by proof of distribution over a large geographical area, or by eyewitness testimony that the defendant owned a copy of the protected work. Access alone is not sufficient to establish infringement. The plaintiff must show a similarity between the two works, and the degree of similarity will affect the probability that illicit copying in fact occurred in the court's eyes.[38] Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the United States Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary.[39]

Misappropriation[edit]

A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague."[40] Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method.

The subtractive method, also known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not.[41] The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain.

The totality method, also known as the "total concept and feel" approach takes the work as a whole with all elements included when determining if a substantial similarity exists. This was first formulated in Roth Greeting Cards v. United Card Co (1970).[42] The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.[43]

Modern courts may sometimes use both methods in its analysis of misappropriation.[44] In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.[45]

Civil remedies[edit]

Barring investigation by law enforcement, therefore, a copyright holder must file a lawsuit in federal court to pursue his or her remedies. These remedies fall into two general categories: Injunctions and damages.

Injunctions: Copyright Act § 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement and against violations of the author's rights of attribution and integrity in works of visual art. There are also provisions for impounding allegedly infringing copies, phonorecords, and other materials used to infringe, and for their ultimate destruction upon a final judgment of infringement.

Damages and/or profits: Section § 504 of the 1976 Act gives the copyright owner/author a choice of recovering: (1) their actual damages and any additional profits of the defendant; or (2) statutory damages.

Equitable relief[edit]

Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright.[46] Where the infringer is the government, however, injunctions are not available and the copyright holder can only seek monetary damages.[46]

One form of equitable relief that is available in copyright cases is a seizure order. At any time during the lawsuit, the court may order the impoundment of any and all copies of the infringing products. The seizure order may include materials used to produce such copies, such as master tapes, film negatives, printing plates, etc. Items that are impounded during the course of the lawsuit can, if the plaintiff wins, be ordered destroyed as part of the final decree.

Monetary damages[edit]

A copyright holder can also seek monetary damages. Injunctions and damages are not mutually exclusive. One can have injunctions and no damages, or damages and no injunctions, or both injunctions and damages. There are two types of damages: actual damages and profits, or statutory damages.[47]

United States law permits both equitable (injunction) and monetary damages. The copyright owner may recover the profits he or she would have earned absent the infringement (actual damages) and any profits the infringer might have made as a result of the infringement but that are not already considered in calculating actual damages.[48] In addition, under certain conditions, the infringing goods may be impounded and destroyed, and the copyright owner's costs and reasonable attorney's fees may also be part of the remedies awarded by the court.[49] To recover actual damages, the plaintiff or, more often, a suitable expert witness, must prove to the court that, in the absence of the infringement, the copyright owner would have been able to make additional sales, perhaps been able to charge higher prices on all sales of the infringed work, and that this would have resulted in profits given the owner's cost structure.[50] In some cases, the profits earned by the infringer exploiting the copyrighted material may exceed those earned by or potentially available to the owner. In these circumstances, the copyright owner can recover the infringer's profits if he or she can demonstrate a nexus between the profits and the infringing use.[51] Alternatively and at the copyright owner's election, if the work's copyright was registered within three months of publication or before the infringement, an infringer can be liable for statutory damages.[52] Statutory damages can be awarded by the court within the range of $750 to $30,000, but this can be lowered if the infringement is deemed inadvertent, or increased significantly if the infringement is willful.[53]

Statutory damages are available as an alternative to actual damages and profits.[54] This is sometimes preferable if actual damages and profits are either too small, or too difficult to prove, or both. There are, however, situations where statutory damages are not available. 17 U.S.C. § 412 provides:

  • Statutory damages are not available if the work is unpublished and the infringement began before the effective date of its registration.
  • Statutory damages are not available if the work is published but the infringement commenced after the first publication and before the effective date of its registration, unless registration is made within three months after the first publication.

Statutory damages are calculated per work infringed.[54] Statutory damages range from a few hundred dollars to hundreds of thousands:

  • Statutory damages range from $750 per work to $150,000 per work
  • In case of "innocent infringement", the range is $200 to $150,000 per work. "Innocent" is a technical term. In particular, if the work carries a copyright notice, the infringer cannot claim innocence.[55]
  • In case of "willful infringement" (again, "willful" is a technical term), the range is $750 to $300,000 per work.

Damages in copyright cases can be very high. In Lowry's Reports, Inc. v. Legg Mason Inc.,[56] a 2003 lawsuit between a publisher of stock analysis newsletters against a company that buys one copy of the newsletters and makes multiple copies for use in-house, the jury awarded damages – actual damages for some newsletters and statutory damages for other newsletters – totaling $20 million.

During the course of the lawsuit, the copyright holder can ask the court for both, in the alternative. However, at the end of the case, they are mutually exclusive: Only one can be awarded and not the other.[54]

Attorney's fees[edit]

Cost and attorney fees: Copyright Act § 505 permits courts, in their discretion, to award costs against either party and to award reasonable attorney fees to the prevailing party.

The court may (but is not required to) award to the "prevailing party" reasonable attorney's fees.[57] This applies to both the winning plaintiff (rightsholder) and the winning defendant (accused infringer).[58] However, attorney's fees award is not available against the government. Like statutory damages, attorney's fees are not available if the work infringed is not registered at the time of infringement.

Criminal penalties[edit]

In addition to the civil remedies, the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. There are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright notice, and false representations in applications for copyright registration. The Digital Millennium Copyright Act imposes criminal sanctions for certain acts of circumvention and interference with copyright management information. There are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art.

Criminal penalties for copyright infringement include:

  • A fine of not more than $500,000 or imprisonment for not more than five years, or both, for the first offense.
  • A fine of not more than $1 million and imprisonment for not more than 10 years, or both, for repeated offenses.

Nonprofit libraries, archives, education institutions and public broadcasting entities are exempt from criminal prosecution.

Felony penalties for first offenses begin at seven copies for audiovisual works, and one hundred copies for sound recordings.[59]


Government infringement[edit]

The U.S. government, its agencies and officials, and corporations owned or controlled by it, are subject to suit for copyright infringement. All infringement claims against the U.S. that did not arise in a foreign country must be filed with the United States Court of Federal Claims within three years of the infringing action.[60] Claims filed in the wrong court are dismissed for lack of subject-matter jurisdiction. The government and its agencies are also authorized to settle the infringement claims out of court.

Public domain[edit]

Works are in the public domain if they are not covered by intellectual property rights, such as copyright, at all, or if the intellectual property rights to the works has expired.[61] A number of times Congress has re-instated lapsed copyrights: "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain, principally by aliens of countries with which we had been at war."[62] Works published with notice of copyright or registered in unpublished form in the years 1964 through 1977 automatically had their copyrights renewed for a second term. Works published with notice of copyright or registered in unpublished form on or after January 1, 1923, and prior to January 1, 1964, had to be renewed during the 28th year of their first term of copyright to maintain copyright for a full 95-year term.[63] With the exception of maps, music, and movies, the vast majority of works published in the United States before 1964 were never renewed for a second copyright term.[64]

Works "prepared by an officer or employee of the U.S. government as part of that person's official duties" are automatically in the public domain by law.[65] Examples include military journalism, federal court opinions (but not necessarily state court opinions), congressional committee reports, and census data. However, works created by a contractor for the government are still subject to copyright. Even public domain documents may have their availability limited by laws limiting the spread of classified information.

The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years. For a work made for hire, the copyright in a work created before 1978, but not theretofore in the public domain or registered for copyright, subsists from January 1, 1978, and endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.[66] If the work was created before 1978 but first published 1978–2002, the federal copyright will not expire before 2047.

Until the Berne Convention Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978 and February 28, 1989, this could be prevented by registering the work with the Library of Congress within five years of publication. After March 1, 1989, an author's copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.[67]

Examples[edit]

In the United States, the images of Frank Capra's film It's a Wonderful Life (1946) entered into the public domain in 1974, because the copyright holder failed to file a renewal application with the Copyright Office during the 28th year after the film's release or publication. However in 1993, Republic Pictures utilized the 1990 United States Supreme Court ruling in Stewart v. Abend to enforce its claim of copyright, because the film was a derivative work of a short story that was under a separate, existing copyright, to which Republic owned the film adaptation rights, effectively regaining control of the work in its complete form.[68]

Charlie Chaplin re-edited and scored his 1925 film The Gold Rush for reissue in 1942. Subsequently, the 1925 version fell into the public domain when Chaplin's company failed to renew its copyright in 1953, although the 1942 version is still under United States copyright.[69]

The distributor of the cult film Night of the Living Dead, after changing the film's title at the last moment before release in 1968, failed to include a proper copyright notice in the new titles, thereby immediately putting the film into the public domain after its release.[70] This provision of United States copyright law was revised with the United States Copyright Act of 1976, which allowed such negligence to be remedied within five years of publication.[71]

Orphan works[edit]

The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression"[72] fall into copyright status. The elimination of registration also eliminated a central recording location to track and identify copyright-holders. Consequently, potential users of copyrighted works, e.g., filmmakers or biographers, must assume that many works they might use are copyrighted. Where the planned use would not be otherwise permitted by law (for example, by fair use), they must themselves individually investigate the copyright status of each work they plan to use. With no central database of copyright-holders, identifying and contacting copyright-holders can sometimes be difficult; those works that fall into this category may be considered "orphaned".

See also[edit]

Cases[edit]

Fixation[edit]

Originality[edit]

Idea/expression dichotomy[edit]

Fair use[edit]

References[edit]

  1. ^ United States Constitution, Article 1 section 8
  2. ^ http://www.spiegel.de/international/zeitgeist/0,1518,710976,00.html
  3. ^ 17 U.S.C. § 102
  4. ^ Baker v. Selden, 101 U.S. 99 (1879); see also CDN Inc. v. Kapes, 197 F.3d 1256, 1261–62 (9th Cir. 1999).
  5. ^ U.S. Copyright Act, Section 101 (Definitions)
  6. ^ Brandir Int'l v. Cascade Pacific, 834 F.2d 1142 (2nd Cir. 1987).
  7. ^ For example, the current Seal of the President of the United States is in public domain as a government work, but its commercial use is limited by 18 U.S.C. § 713.
  8. ^ State of Georgia v. Harrison Co, 548 F.Supp. 110, 114 (N.D. Ga 1982)
  9. ^ "Compendium of U.S. Copyright Office Practices, § 313.6(C)(2) ("Government Edicts")" (PDF). United States Copyright Office. December 22, 2014. pp. 37–38. Retrieved December 22, 2014. 
  10. ^ 17 U.S.C. § 106
  11. ^ See 17 U.S.C. § 101 (defining "copy").
  12. ^ 17 U.S.C. §§ 106(1) and 106(3).
  13. ^ a b c d e f 17 U.S.C. § 101
  14. ^ Margoni & Perry (2012). "Ownership in Complex Authorship: A Comparative Study of Joint Works". ssrn. p. 16. 
  15. ^ 17 U.S.C. § 201
  16. ^ 17 U.S.C. § 203(a)(5); 17 U.S.C. § 304(c)(5) ("Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.")
  17. ^ U.S. Copyright Office – Information Circular
  18. ^ 17 U.S.C. § 401(d)
  19. ^ 17 U.S.C. § 304
  20. ^ "Copyright Term and the Public Domain in the United States 1 January 2008.", Cornell University.
  21. ^ 17 U.S.C. § 303
  22. ^ 17 U.S.C. § 301
  23. ^ Capitol Records v. Naxos of America (2005). New York Court of Appeals. Four exceptions are: 1. Sound recordings created by the U.S. government after February 14, 1972, 2. Sound recordings dedicated to the public domain by their owners, 3. Sound recordings first published in the U.S. from February 15, 1972 through December 31, 1977 that failed to carry a proper copyright notice on the recording or its cover, 4. Sound recordings first published in the U.S. from Jan 1, 1978 through February 28, 1989 that failed to carry a proper copyright notice or were not subsequently registered with the United States copyright office.
  24. ^ Federal Law Protection on pre-1972 Recorded Music Masters in the United States?
  25. ^ http://www.copyright.gov/help/faq/faq-protect.html
  26. ^ Bartow, Ann (2008). Pornography, Coercion, and Copyright Law 2.0. Vanderbilt Journal. p. 833. 
  27. ^ http://www.courthousenews.com/2012/02/03/43613.htm
  28. ^ See Authors Guild v. HathiTrust, 902 F.Supp.2d 445 (SDNY 2012).
  29. ^ 28 U.S.C. § 1338
  30. ^ see Feist Publications, Inc., v. Rural Telephone Service Co. 499 U.S. 340, 361 (1991)
  31. ^ see Feist Publications, Inc., v. Rural Telephone Service Co. 499 U.S. 340 (1991) (holding that an arrangement of telephone numbers in alphabetical order was not sufficiently original to garner copyright protection)
  32. ^ see e.g., ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) (holding that a software license agreement was not preempted by copyright law and could legally restrain the purchaser of a database from copying under contract law).
  33. ^ Feist at 346.
  34. ^ see Baker v. Selden, 101 U.S. 99 (1880)
  35. ^ see Midway Manufacturing Co. v. Artic International, Inc. 574 F.Supp. 999, aff'd, 704 F.2d 1009 (7th Cir 1982) (holding the computer Read-only memory (ROM) of Pac-Man to be a sufficient fixation, even though the game changes each time played.)
  36. ^ see Mai Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993) (program in RAM memory a fixation).
  37. ^ see Ty, Inc. v. GMA Accessories, Inc. 132 F.3d 1167 (7th Cir. 1997).
  38. ^ Id. 132 F.3d 1167
  39. ^ see Feist at 361
  40. ^ Judge Learned Hand, Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2nd Cir. 1960).
  41. ^ see Nichols v. Universal Pictures Corp., 45 F.2d 119 (2nd Cir. 1930)
  42. ^ Lehman, Bruce A. (1995-10-01). Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights. DIANE Publishing. p. 104. ISBN 978-0-7881-2415-0. Retrieved 2012-06-23. 
  43. ^ see Sid & Marty Krofft Television Productions Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (holding that a series of McDonald's commercials portraying "McDonaldland" had used as its basis the "H.R. Pufnstuf" television show. Corresponding characters to each, while displaying marked differences, taken altogether demonstrated that McDonald's had captured the total concept and feel of the show and had thus infringed).
  44. ^ see Castle Rock Entertainment, Inc. v. Carol Publishing Group, 150 F.3d 132, 140 (2nd Cir. 1998).
  45. ^ see Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693, (2nd Cir. 1992) (where court chose the subtraction method for two computer programs whose total concept were the same. Individual copied elements of the program were non-protectible material because they constituted a process or idea in the program, their utilitarian aspects barring copyright protection; no infringement found).
  46. ^ a b 17 U.S.C. § 502
  47. ^ 17 U.S.C. § 504
  48. ^ Title 17, U.S.C. Section 504 http://www.copyright.gov/title17/92chap5.html#504
  49. ^ Title 17, U.S.C. Sections 503 & 505 http://www.copyright.gov/title17/92chap5.html#503
  50. ^ Gordon V. Smith & Russel L. Parr, "Intellectual Property: Valuation, Exploitation, and Infringement Damages," John Wiley & Sons, 2005, pp 617–630.
  51. ^ R. B. Troxel and W.O. Kerr, "Assets and Finance: Calculating Intellectual Property Damages", West, 2014, pp 462-472.
  52. ^ Title 17, U.S.C. Section 504(c) http://www.copyright.gov/title17/92chap5.html#504
  53. ^ See, inter alia, http://ipmetrics.net/blog/2010/06/17/copyright-infringement-damages/
  54. ^ a b c 17 U.S.C. § 504(c)
  55. ^ 17 U.S.C. § 402(d)
  56. ^ Lowry's Reports, Inc. v. Legg Mason Inc., 271 F. Supp. 2d 737 (D. Md. 2003)
  57. ^ 17 U.S.C. § 505
  58. ^ Fogerty v. Fantasy, 510 U.S. 517 (1994)
  59. ^ http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/71mcrm.htm
  60. ^ 28 U.S.C. § 1498(b)-(c).
  61. ^ Boyle, James (2008). The Public Domain: Enclosing the Commons of the Mind. CSPD. p. 38. ISBN 978-0-300-13740-8. 
  62. ^ Testimony of Dorothy Schrader, general counsel of the U.S. copyright office, hearing for House Resolution 1623, serial 100/50.
  63. ^ U.S. Copyright Office, Circular 15a, Duration of Copyright: Provisions of the Law Dealing with the Length of Copyright Protection.
  64. ^ Stephen Fishman, The Public Domain, 4th ed., Nolo, 2008, p. 383–384. ISBN 978-1-4133-0858-7.
  65. ^ 17 U.S.C. § ch1 Subject matter and scope of copyright
  66. ^ 17 U.S.C. § ch3 Duration of Copyright
  67. ^ Copyright Notice, U.S. Copyright Office Circular 3, 2008.
  68. ^ James Bates, "Company Town Yule With Less 'Wonderful Life'? Tune In", Los Angeles Times, November 23, 1993, p. D4.
  69. ^ Film Superlist: Motion Pictures in the US Public Domain. Created by Walter E. Hurst; updated edition by D. Richard Baer. Hollywood Film Archive, 1992–94.
  70. ^ George Romero talks about Land of the Dead, About.com, June 21, 2005.
  71. ^ "Circular #3", Copyright Notice, United States Copyright Office Circular 3, January 2008. (PDF)
  72. ^ 17 U.S.C. § 102.

Further reading[edit]

External links[edit]