History of copyright law of the United States
The copyright law of the United States has a long and complicated history, dating back to colonial times. It was established as federal law with the Copyright Act of 1790. This act was updated many times, including a major revision in 1976.
The British Statute of Anne did not apply to the American colonies. The colonies' economy was largely agrarian, and copyright law was not a priority. As a result, only three private copyright acts were passed prior to 1783. Two of the acts were limited to seven years, the other to five years.
1783 to 1787
In 1783, several authors' petitions persuaded the Continental Congress "that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius and to promote useful discoveries." However, under the Articles of Confederation, the Continental Congress had no authority to issue a copyright. Instead it passed a resolution encouraging the States to "secure to the authors or publishers of any new book not hitherto printed ... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned, ... the copy right of such books for another term of time no less than fourteen years." Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware passed a copyright statute. Seven of the States followed the Statute of Anne and the Continental Congress' resolution by providing two fourteen-year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal.
Prior to the passage of the United States Constitution, several states passed their own copyright laws between 1783 and 1787, the first being Connecticut. Contemporary scholars and patriots such as Noah Webster, John Trumbull, and Joel Barlow were instrumental in securing the passage of these statutes.
United States Constitution
At the Constitutional Convention of 1787 both James Madison of Virginia and Charles C. Pinckney of South Carolina submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause in the United States Constitution, which states:
The Congress shall have 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.
United States Constitution, Article I, Section 8, clause 8.
This clause is understood to grant Congress the power to enact copyright laws. The Copyright Clause forms the basis for both U.S. copyright law ("Science", "Authors", "Writings") and patent law ("useful Arts", "Inventors", "Discoveries"), and requires that these exclusive rights expire ("for limited Times").
Failed bill of rights provision
Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding – years but for no longer term and no other purpose.
Early federal copyright law
Copyright Act of 1790
The Congress first exercised its copyright powers with the Copyright Act of 1790. This act granted authors the exclusive right to publish and vend "maps, charts and books" for a term of 14 years. This 14-year term was renewable for one additional 14-year term, if the author was alive at the end of the first time. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne.
The 1790 Act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were never registered. Between 1790 and 1799, of approximately 13,000 titles published in the United States, only 556 works were registered. Under the 1790 Act, federal copyright protection was only granted if the author met certain "statutory formalities." For example, authors were required to include a proper copyright notice. If formalities were not met, the work immediately entered into the public domain.
And while musical compositions were not explicitly protected by the 1790 Act, its protection of "books" encompassed printed musical works. The first registration of a copyright in a musical composition in the United States was The Kentucky Volunteer in 1794. However, later accounts of the 1790 Act frequently misunderstand this point.
Copyright Act of 1831
Congress first revised the copyright laws with the Copyright Act of 1831. This act extended the original copyright term from 14 years to 28 years (with an option to renew), and changed the copyright formality requirements.
In 1834, the Supreme Court ruled in Wheaton v. Peters (a case similar to the British Donaldson v Beckett of 1774) that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.
During the American Civil War, the law of the Confederate States of America on copyright was broadly the same as that of the existing Copyright Act of 1831: twenty-eight years with an extension for fourteen, with mandatory registration. This was passed into law by an act in May 1861, shortly after the outbreak of hostilities. A later amendment, in April 1863, provided that any copyright registered in the United States before secession, and held by a current Confederate citizen or resident, was legally valid within the Confederacy. Confederate copyrights were apparently honored after the end of the war; when federal copyright records were transferred to the Library of Congress in 1870.
Pan-American Convention of 1910
The Buenos Aires Convention of 1910, commonly known as the Third Pan-American Convention, provided mutual recognition of copyright between most countries in the Americas, and was ratified by the United States in 1911. Canada and some other countries or colonies were not signatories.
Pre-1976 dual state and federal copyright law
Before the 1976 Copyright Act, copyright protection was provided by a dual system under both federal and state laws. Federal law provided "statutory copyright" and the laws of each state provided "common law copyright." Roughly speaking, the old "statutory copyright" protected works that were registered and the old "common-law copyright" protected unregistered works.
With the 1976 Copyright Act, Congress abolished the dual federal-and-state copyright system, replacing it with a single federal copyright system. Federal preemption is codified at , which states:
On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... in works of authorship that ... come within the subject matter of copyright ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
The preemption is complete insofar as works fall within the federal copyright statute. A work that falls generally within the subject matter of copyright (such as a writing) must either qualify to be protected under federal law, or it cannot be protected at all. State law cannot provide protection for a work that federal law does not protect. It covers enforcement too. A person accused of copyright infringement cannot be prosecuted in state courts.
State copyright law is not preempted by non-protected works. For example, those that have "not been fixed in any tangible medium of expression are not covered." "Examples would include choreography that has never been filmed or notated, an extemporaneous speech, original works of authorship communicated solely through conversations or live broadcasts, a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down."
Major amendments to federal copyright law
Since 1790, Congress has amended federal copyright law numerous times. Major amendments include:
- Copyright Act of 1790 – established U.S. copyright with term of 14 years with 14-year renewal
- Copyright Act of 1831 – extended the term to 28 years with 14-year renewal
- Copyright Act of 1909 – extended term to 28 years with 28-year renewal
- Copyright Act of 1976 – extended term to either 75 years or the life of the author plus 50 years (prior to this, "[t]he interim renewal acts of 1962 through 1974 ensured that the copyright in any work in its second term as of September 19, 1962, would not expire before Dec. 31, 1976."); extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
- Berne Convention Implementation Act of 1988 – established copyrights of U.S. works in Berne Convention countries
- Copyright Renewal Act of 1992 – removed the requirement for renewal
- Uruguay Round Agreements Act (URAA) of 1994 – restored U.S. copyright for certain foreign works
- Copyright Term Extension Act of 1998 – extended terms to 95/120 years or life plus 70 years
- Digital Millennium Copyright Act of 1998 (DMCA) – criminalized some cases of copyright infringement and established the Section 512 notice-and-takedown regime.
- Music Modernization Act (MMA) of 2018 – Modernized copyright-related issues for music and other audio recordings to address technological developments such as digital streaming. Title II of the MMA, the CLASSICS Act, preempted state copyright laws for sound recordings made before February 15, 1972.
Key international agreements affecting U.S. copyright law include:
- Universal Copyright Convention
- Berne Convention for the Protection of Literary and Artistic Works
- Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
The United States became a Berne Convention signatory in 1988. The Berne Convention entered into force in the U.S. a year later, on March 1, 1989. The U.S. is also a party to TRIPS, which requires compliance with Berne provisions, and is enforceable under the World Trade Organization dispute resolution process.
To meet the treaty requirements, copyright protection was extended to architecture (where previously only building plans were protected, not buildings themselves), and certain moral rights of visual artists.
- White-Smith Music Publishing Company v. Apollo Company (1908)
- Midway Manufacturing Co. v. Artic International, Inc. (N.D. Ill. 1982)
- Idea/expression dichotomy
- Baker v. Selden (1880)
- Whelan v. Jaslow (1986)
- Broderbund v. Unison (N.D. Cal. 1986)
- Computer Associates Int'l, Inc. v. Altai Inc. (2d Cir. 1992)
- Fair use
- Suntrust v. Houghton Mifflin (11th Cir. 2001) (re Parody)
- Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 142. ISBN 978-0-275-98883-8.
- Brian Pelanda. "Declarations of Cultural Independence: The Nationalistic Imperative Behind the Passage of Early American Copyright Laws, 1783–1787". SSRN 1941506., 58 Journal of the Copyright Society of the U.S.A. 431 (2011).
- Peter K, Yu (2007). Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 143. ISBN 978-0-275-98883-8.
- Pelanda, Brian. Declarations of Cultural Independence: The Nationalistic Imperative Behind the Passage of Early American Copyright Laws, 1783–1787 58 Journal of the Copyright Society of the U.S.A. 431 (2011).
- Donner, Irah (July 1992). "The Copyright Clause of the U. S. Constitution: Why Did the Framers Include It with Unanimous Approval?". The American Journal of Legal History. 36 (3): 361–378. doi:10.2307/845426. JSTOR 845426.
- Stephan Kinsella (174 Posts) (2011-12-01). "Thomas Jefferson's Proposal to Limit the Length of Patent and Copyright in the Bill of Rights". Libertarianstandard.com. Retrieved 2012-06-08.
- Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tul. L. Rev. 991, 1003 n.52 (1990).
- Federal Copyright Records 1790-‐‑1800 at 15 (1987)
- E.g., White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1, 15 (1908)
- Robinson, Raymond V. (1936). "Confederate copyright entries". The William and Mary Quarterly. 16 (2): 248–266. doi:10.2307/1918805. JSTOR 1918805., pp. 248–9
- H.R. Rep. No. 1476, 94th Cong., 2d Sess., at 131 (1976)
- Crow v. Wainwright, 720 F.2d 1224 (11th Cir. 1983), cert. denied, 469 U.S. 819 (1984).
- But see New Hampshire v. Nelson 150 N.H. 569 (2004). In Nelson, the defendant's conviction for receiving stolen property was affirmed. The "property" at issue was scanned copies of photographs that the defendant had removed from another's home. The defendant had returned the photographs, and the lack of any intent to permanently deprive the owner of the photos prevented prosecution based on removal of the physical photographs themselves. Thus, Nelson's conviction was based upon making and retaining the scanned copies. The issue of whether the statute was preempted by § 301 was not discussed. Bauer, Joseph P. (Fall 2007). "Addressing the Incoherency of the Preemption Provision of the Copyright Act of 1976". Vanderbilt Journal of Entertainment and Technology Law. 10 (1): 1–119, 90, n.383. Archived from the original on 2015-01-12.
- S. Rpt. 94-473
- S. Rpt. 94-473. See also Legislative history of Pub.L. 94–553
- Bell, Tom W. "Trend of Maximum U.S. General Copyright Term". Personal Website. Retrieved 23 October 2011.; see also Tom W. Bell, "Escape From Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works," (originally published in the University of Cincinnati Law Review 69), but consult footnote 202 in HTML version found here: http://www.tomwbell.com/writings/(C)Esc.html