Copyright Basics in the United States

Basic Concepts and Issues Under United States Copyright Law*

Introduction

The following outline addresses some of the basic concepts and issues involved in developing and exploiting proprietary materials for both print and electronic distribution.  It is not intended to be exhaustive but merely illustrative of the basic development and exploitation process.

 

 Copyright Basics

 

1.    What does copyright protect?

In the United States copyright protects original works of authorship that are fixed in a tangible medium of expression.  See 17 USC § 102.  In the United States, copyright law protects a wide variety of original works of authorship, including novels, poetry, movies, architectural designs, software, songs, sound recordings, and even web sites.  However, copyright does not protect 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 a work.

 

The level of creativity required to develop an “original” work is low.  The United States Supreme Court explained this requirement stating:

 

“To qualify for copyright protection, a work must be original to the author.  Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.  To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be.  Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.  To illustrate, assume that two poets, each ignorant of the other, compose identical poems.  Neither work is novel, yet both are original and, hence, copyrightable.”  Feist Publications, Inc. v. Rural Telephone Service Co. 499 U.S. 340, 345-46 (1991) (Citations Omitted).

 

A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.  A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.

 

Original works of authorship are categorized as follows:

 

  • literary works;

 

”Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.  17 USC § 101.

 

A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.  17 USC § 101.  Computer programs are considered literary works.

 

  • musical works, including any accompanying words

 

  • dramatic works, including any accompanying music

 

  • pantomimes and choreographic works

 

  • pictorial, graphic, and sculptural works

 

”Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.  Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; 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.  17 USC § 101.

 

  • motion pictures and other audiovisual works

 

”Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.  17 USC § 101.

 

”Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.  17 USC § 101.

 

  • sound recordings

 

”Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.  17 USC § 101.

 

  • architectural works

 

2.    How are copyrights created?

Copyrights are created as soon as an original work is fixed in a tangible medium of expression that is perceptible either directly or with the aid of a machine or device.  There is no requirement that the work be registered to create copyrights.

 

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.  17 USC § 101.

 

3.    Who can claim copyright ownership?

Generally, the author of the original work can claim ownership of the copyrights in the work.  However, there are some important exceptions.

 

A “work made for hire” is —

 

a work prepared by an employee within the scope of his or her employment; or

a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

17 USC § 101.  For more information on Works Made for Hire see US Copyright Office Circular 9.

 

A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.  17 USC § 101.  Joint works are jointly owned by all authors who contributed to the work.

 

A ”copyright owner”, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.  17 USC § 101.

 

4.    Can a state or county government claim ownership of copyright in original works of authorship it creates?

A ‘work of the United States Government’ is a work prepared by an officer or employee of the United States Government as part of that person’s official duties.  17 USC § 101.  A work of the United States Government is not protected by US copyright law.  17 USC § 105.  However, there is nothing in the U.S. Copyright Act prohibiting a state or county from claiming copyright in its original works of authorship.  Unless otherwise prohibited by state law, a state, county or other state municipality may claim copyright in its works.

 

5.    Can a state or county government claim ownership of copyright in an original work of authorship that it creates using federal grant funds?

It depends on the grant.  Generally grants that contemplate the creation of original works of authorship will have a provision addressing ownership of copyrights in the resulting works.  Also, the regulations governing awards from specific government agencies may reserve certain rights.  For example, under 34 CFR 80.34 (dealing with the uniform administrative requirements for education grants) the “Federal awarding agency reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes” the copyright in any resulting work developed or purchased with grant support.

 

6.    What are the copyright owner’s rights under the copyright law?

Subject to certain fair use and other exceptions, a copyright owner has the following rights:

Under 17 USC § 106

 

  • To reproduce the copyrighted work in copies or phonorecords;

 

”Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.  17 USC § 101.

 

”Phonorecords” are material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.  17 USC § 101.

 

  • Prepare derivative works based on the copyrighted work;

 

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, 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.  A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.  17 USC § 101.

 

  • Distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

 

”Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.  17 USC § 101.

 

A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.  17 USC § 101.

 

  • In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.  17 USC § 101.

To perform or display a work “publicly” means —

 

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

 

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.  17 USC § 101.

 

  • 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 display the copyrighted work publicly;

 

To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonsequentially.  17 USC § 101.

 

  • In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

 

To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.  17 USC § 101.

 

Under 17 USC § 106A authors of works of visual art also have the rights of attribution and integrity which include the right to:

 

  • Claim authorship of that work;

 

  • Prevent the use of his or her name as the author of any work of visual art which he or she did not create;

 

  • Prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation;

 

  • Prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation (any intentional distortion, mutilation, or modification of that work is a violation of that right);

 

  • Prevent any destruction of a work of recognized stature (any intentional or grossly negligent destruction of that work is a violation of that right).

 

7.    What are the fair use exceptions?

The fair use of a copyrighted work, including such use by reproduction for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.  In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

 

(2) the nature of the copyrighted work;

 

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

 

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

 

8.    How long do copyrights last?

In general, copyright in a work created on or after January 1, 1978, subsists from its creation and endures for a term consisting of the life of the author and 70 years after the author’s death.

The term of copyright in works made for hire endures for a term of 95 years from the year of its first publication, or 120 years from the year of its creation, whichever expires first.

 

9.    Is it necessary to use a copyright notice?

No.  A copyright notice is not required to create or maintain copyright in a work.  However, using a proper copyright notice will help to protect the copyright owner’s rights.

 

10.    Is it necessary to register copyright in a work?

No.  Copyrights are not created based on registration.  Registering copyrights in the United States Copyright Office provides these benefits:

 

  • It is a public record of your claim of copyright ownership in the work;

 

  • You may use the United States federal courts to protect your copyrights;

 

  • It will aid in your efforts to prevent importation of infringing copies of your work;

 

  • Your registration will serve as evidence in court of the validity of your copyright claim, provided you register your claim either before you publish your work, or within 5 years after you publish your work;

 

  • Provided you register you claim of copyright no later than 3 months after you first publish your work and prior to any infringement, you will have the right to claim statutory damages and attorney’s fees if you are forced to sue someone for infringing your copyrights.

 

11.    Who is the author of a compilation?

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.  The term “compilation” includes collective works.  17 USC § 101.

 

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.  17 USC § 101.

 

A complete compilation typically will have multiple layers of copyright ownership.  One layer of copyright protection exists for the compilation as a whole work.  The compilation copyright is in the original or “creative” way in which the elements of the compilation are selected, coordinated, or arranged.  In other words, in the organization and layout of the content.

Another layer of copyright protection may exist in separate and independent works that are included in the compilation.  For example, a newspaper article or a chapter in a textbook are each separate independent works in which copyright subsists.

 

It is also possible that each independent work may include preexisting material such as a copyright protected photograph that the author included in the article or chapter to help communicate a particular point.  Use of a photograph often require permission from the person or entity that owns the copyright in the photograph.  This is also true of other materials such as illustrations and significant passages of text from other publications that are protected by copyright.

 

Some of the preexisting copyrighted materials may be useable without the copyright owner’s permission if the usage qualifies as a fair use under the copyright law.  The fair use doctrine is a limitation on the copyright owners exclusive rights.

 

A compilation may also include public domain materials which are not protected by copyright because the term of copyright protection has expired or because the materials have otherwise entered into the public domain.

So the works of many authors may be compiled into one work.  The “compiler” is considered the “author” and copyright owner of the compilation as a whole.  However, each of the other contributors may retain their individual copyright in their separate individual works.

 

12.    What is the “first sale” doctrine?

The first sale doctrine deals with the first and subsequent sales of a tangible copy of a copyrighted work — for example, a printed book.  A copyright owner who prints copies of a book will own the intangible intellectual property that is embodied in the book as well as the tangible copies of the books that the copyright owner prints.  However, once the copyright owner sells a tangible book, the buyer will own the tangible book and may freely transfer — by reselling, lending, renting, etc. — that copy to anyone else without any obligation to the copyright owner.  The copyright owner’s ability to control circulation of any given copy ends upon the “first sale” of the copy.

 

13.    What is copyright infringement?

Anyone who violates any of the exclusive rights of the copyright owner or of the author as provided in 17 USC 106A(a), or who improperly imports copies or phonorecords into the United States, is an infringer of the copyright or right of the author, as the case may be.  The term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.  17 USC 501(a).

 

To establish infringement of the right to reproduce a copyrighted work, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.

 

14.    What remedies are available against a copyright infringer?

The following civil remedies are available to a copyright owner:

 

  • Injunction against ongoing infringement.  17 USC 502.

 

  • Impounding of infringing articles.  17 USC 503.

 

  • Actual damages and the infringer’s profits; or statutory damages of not less than $750 or more than $30,000 as the court considers just.  The court may increase the award up to $150,000 if it determines that the infringement was willful or reduce the award to no less than $200 if it determines that the infringer was not aware and had no reason to believe his or her acts were infringing. 17 USC 504.

 

  • The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in subsection (g) of section 118) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

 

  • In any civil action, the court may allow the recovery of full costs by or against any party, (except the United States or an officer thereof), including a reasonable attorney’s fee to the prevailing party.  17 USC 505.

 

Criminal penalties are also available.

 

 

*This outline summarizes illustrative statutory provisions and case law.  The legal effect of a particular statute or case can change for various reasons including new legislation, the outcome of an appeal, or a later court decision. The citations are for reference and in some instances to illustrate a specific point or outcome under specific conditions at a specific point in time.  You should not rely on these materials as representing current law without consulting a competent attorney.

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