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United States Copyright law

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Title: United States Copyright law  
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Subject: Visual Artists Rights Act
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United States Copyright law

The Copyright Law of the United States intends to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Federal 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.

US Copyright law is governed by the federal Copyright Act of 1976. The 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.


Copyright in Colonial America

The British Statute of Anne did not apply to the American colonies, although some scholars have asserted otherwise. The colonies' economy was largely agrarian, hence copyright law was not a priority, resulting in only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. 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." But under the Articles of Confederation, the Continental Congress had no authority to issue 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.[1] 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.[2] 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.[3]

Copyright Clause of the U.S. Constitution

At the Constitutional Convention 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.[4] These proposals are the origin of the Copyright Clause in the United States Constitution.

The US Constitution grants Congress the power to enact copyright laws in Article I, Section 8, Clause 8 (the Copyright Clause). The Copyright Clause states that congress shall have 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.

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").

Early Federal Copyright Law

The U.S. Congress first exercised its copyright powers with the Copyright Act of 1790.

The 1790 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.[3]

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.

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.[3]

During the American Civil War, the law of the Confederate States 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 honoured after the end of the war; when federal copyright records were transferred to the Library of Congress in 1870,[5]

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 § 301(a), 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.[6] It covers enforcement too. A person accused of copyright infringement cannot be prosecuted in state courts.[7][8]

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."[9] "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."[10]

Major Amendments to U.S. Copyright Law

Since 1790, Congress has amended US Copyright law several times. Major amendments include:

Key international agreements affecting U.S. copyright law include:

  • Berne Convention for the Protection of Literary and Artistic Works
  • Universal Copyright Convention
  • Agreement on Trade-Related Aspects of Intellectual Property Rights

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 itself requires compliance with Berne provisions, and is enforceable under the WTO 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.

Purpose of copyright

The purpose of copyright law 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.".[12] Current copyright law has expanded coverage to include the idea of stimulating the creation of art, literature, architecture, music, and other works of authorship. Historically, the United States recognized no absolute, natural right in an author to prevent others from copying or otherwise exploiting his/her work, but court and legislative attitudes in this regard have rapidly changed since the 1970s.

Although copyright limits freedom of speech, it generally avoids giving rights in the idea being expressed, or in facts or other elements of the public domain which an author may incorporate into his work. Others are free to express the same idea as the author did, or use the same facts, as long as they do not copy the author's original way of expressing the ideas or facts. In addition, even those rights granted in the author's expression are limited in duration and are subject to certain exceptions permitting public use under limited circumstances.

As with many legal doctrines, the effectiveness of copyright law in achieving its stated purpose is a matter of debate.[13]

Works subject to copyright law

The United States copyright law protects "original works of authorship,"[14] 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

Copyright law protects the expression of an idea, but copyright does not protect the idea itself. This limitation is called the idea/expression dichotomy.[15]

The distinction between "idea" and "expression" is fundamental, but not always clear. From the § 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.

A paper describing a political theory, for example, is copyrightable; it may not be reproduced without the author's permission. But the theory itself (which is an idea rather than a specific expression) is not copyrightable. Another author is free to describe the same theory in her own words without infringing on the original author's copyright. In fact, the second author does not even need to credit the original author (although failing to credit the source of an idea may be plagiarism, an ethical transgression).

For novels and films, there are no clear rules separating the story's ideas from the expression of those ideas. 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).

Compilation of Facts and the Sweat of the Brow Doctrine

Since facts are considered "ideas" or "discoveries", they are not copyrightable. However, compilations of facts are treated differently. 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 ordered in a non-creative way cannot be protected by copyright.

Useful articles

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.”[16]

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.[17]

Definition of "copy"

Several important rights exist under the United States copyright law only for "copies" of works — material objects in which the work is embodied.[18] Section 106(1) prohibits the reproduction only of copies of works, and section 106(3) prohibits the distribution only of copies of works.[19] Thus, as the Ninth Circuit held in Perfect 10, Inc. v., Inc., a link (even a deep link or inline link) to an image does not involve reproduction of a copy of the image by the person on whose web page the link appears.[20] An instruction to a browser to jump to an URL is not a reproduction or distribution of a copy of what is at the referenced URL.[21]

Furthermore, a three-dimensional counterpart of a two-dimensional drawing is usually not a "copy" of the drawing. Thus, the copyright of a drawing of the approach to the Triboro Bridge is not infringed when the bridge approach is built.[22] On the other hand, because the essence of what is protected in a cartoon is captured by a doll depicting the cartoon figure, courts have repeatedly held unauthorized dolls to infringe the copyright of the underlying cartoons.[23]

Works by the federal government

public domain in some sense. 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.

The intent of the section is to place in the public domain all work of the United States Government, which is defined in § 101 as work prepared by an officer or employee of the United States Government as part of that person's official duties. In most cases, contractors are not employees.

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

Federal and state laws are not copyrighted

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. (State of Georgia v Harrison Co, 548 F Supp 110, 114 (ND Ga 1982))
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments. ([1] Paragraph 3.6 at 14 February 2006)

In the United States the exclusion of legislation from the scope of copyright laws dates to 1834, when the Supreme Court interpreted the first federal copyright laws and held that "no reporter has or can have any copyright in the written opinions delivered by this Court". In the same case it was argued – and accepted by the Court – that "it would be absurd, for a legislature to claim the copyright; and no one else can do it, for they are the authors, and cause them to be published without copyright … Statutes were never copyrighted." Further, "it is the bounden duty of government to promulgate its statutes in print". "[A]ll countries ... subject to the sovereignty of the laws" hold the promulgation of the laws, from whatever source, "as essential as their existence." "If either statutes or decisions could be made private property, it would be in the power of an individual to shut out the light by which we guide our actions." (Wheaton v. Peters, 33 US (8 Pet) 591, 668 (1834))

That the public interest is the primary determinant is clear from Banks v Manchester (128 US 244, 9 S Ct 36 (1888)). In this the United States Supreme Court denied a copyright to a court reporter in opinions of the Ohio Supreme Court, on the grounds that "There has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, that no copyright could, under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or statute."

The law, as thus (widely) defined, is in the public domain, and therefore not amenable to copyright. In Howell v Miller, (91 F 129 (1898)) Justice Harlan denied an injunction sought for the compiler of Michigan statutes, holding that "no one can obtain the exclusive right to publish the laws of the state in a book prepared by him." The question of formal ownership of the text of laws and decisions is perhaps secondary to the question of the dissemination of the law.

An interesting situation arises when a governing body adopts copyrighted works to serve as legal standards. For example, in Veeck vs. Southern Building Code Congress Int'l, 293 F.3d 791 (5th Cir. 2002), the court determined that once the copyrighted model building codes of the plaintiff had been adopted into law by a municipality, its copyright protections were outweighed by the policies favoring unfettered access by members of the public to republish the laws in any manner they see fit. However, Veeck recognized a distinction between verbatim recitations of copyrighted materials in the law itself, as opposed to mere references in the law which point to copyrighted materials. For example, the 9th Circuit Court of appeals held that a law that instructs physicians to adopt copyrighted standards developed by the American Medical Association to assign codes to medical procedures does not place the copyrighted work in the public domain. Practice Management Info. Corp. v. American Medical Ass'n, 121 F.3d 516 (9th Cir. 1997), opinion amended by 133 F.3d 1140 (9th Cir. 1998). These two holdings are not capable of being reconciled, despite the distinguishing facts in each case, since it is apparent that even when a law requires compliance with a copyrighted standard by mere reference, it is no less "the law."

The Colorado Revised Statutes (C.R.S.) are the codified statutory law of Colorado.[25] The Colorado General Assembly has claimed copyright protection of the C.R.S. under the aegis of the Committee on Legal Services since 1970.[26] The assertion has been called "one of the most aggressive state government uses of copyright".[27] Beginning in 1989, West Publishing began its own distribution, challenging the copyright claim was an impermissible copyright of the public domain and was unconstitutional as a violation of due process, freedom of speech, and prior restraint prohibitions.[27] West settled with the state after the law was changed in 1990 to allow access to the legislative database for a very large fee.[27][28] As of August 2013, the statutory database can be purchased with the annotations or editorial notes for $6,000 per year, or for $2,000 per year without the annotations or editorial notes.[29]

Exclusive rights

There are six basic rights protected by copyright, sometimes called the six "pillars" of 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;


A violation of any of the exclusive rights of the copyright holder is said to be a copyright infringement.

First owner of copyright

The author of a work is the initial owner of the copyright in it, and may exploit the work himself or transfer some or all the rights conferred by the copyright to others.[31] The author generally is the person who conceives of the copyrightable expression and fixes it or causes it to be fixed in a tangible form. Exceptions and special cases in determining the author are:

  • Works for hire. If a work is made "for hire" within the meaning of the Copyright Act, the employer or commissioning party, who paid for the work and took the economic risk of it, is deemed the author for copyright purposes and is the initial owner of the copyright.[32] Any other work done by that writer on his own without compensation and without using company resources usually is owned by the writer (though employers often try to claim ownership of such work). 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 his 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 his employment (whether the work is the kind he was 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, rather than the employee who actually conceived and fixed the expression.[32]
    • 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.[32]
  • Ownership of copyright in a 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."[32][33]
  • Ownership of copyright in a collective work: A collective work is a collection of independent, separately copyrightable works of authorship, such as a newspaper, magazine, or encyclopedia.[32] In the absence of an express assignment of copyright, the author of each individual work in the collection retains copyright in that work.[31] 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.[32]

Transfers and licenses

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).

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.

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.[34]

Registration procedure

While copyright in the United States automatically attaches upon the creation of an original work of authorship, registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright. A copyright holder desiring to register his or her copyright should do the following:

  1. Obtain and complete appropriate form.
  2. Prepare clear rendition of material being submitted for copyright
  3. Send both documents to U.S. Copyright Office in Washington, D.C.

Registration of copyright refers to the act of registering the work with the United States Copyright Office, which is an office of the Library of Congress. As the United States has joined the Berne Convention, registration is no longer necessary to provide copyright protection. However, registration is still necessary to obtain statutory damages in case of infringement.

Copyright Act § 407 provides that the owner of copyright in a published or unpublished work may, at any time during the copyright, register the work with the Copyright Office. The purpose of the registration provisions is to create as comprehensive a record of U.S. copyright claims as is possible. To register, the registrant must complete an application form and send it, along with the filing fee and copies or phonorecords of the work, to the Copyright Office.

The Copyright Office reviews applications for obvious errors or lack of copyrightable subject matter, and then issues a certificate of registration.

Registration as a prerequisite to claim of moral rights violation: it's not necessary for any author to register prior to bringing suit for violation of the rights of attribution or integrity in a work of visual art, pursuant to Copyright Act § 106A.

Deposit requirement

The United States Copyright Office requires that applicants for registration must deposit with that office copies of the work for which protection is sought. This requirement serves two purposes. First, if an action arises from the infringement of the work, 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 assists the Library of Congress in building its collection of works.

The Copyright Office has authority to make some exceptions to this rule by regulation, and has done so. 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.

Deposits can be made electronically through the eCO Online System.

Copyright notices

Main article: Copyright notice

Prior to 1989, use of a copyright notice — consisting of the copyright symbol (©, the letter C inside a circle), the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder — was part of United States statutory requirements.[35][36] Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol (, the letter P inside a circle), which indicates a sound recording copyright. Similarly, the phrase All rights reserved was once required to assert copyright.

In 1989, the U.S. enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act to conform to most of the provisions of the Berne Convention. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic.[37] 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.[38]

Duration of copyright

Works created in or after 1978 are extended copyright protection for a term defined in Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.

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[39] (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;[40] works created before 1978 but not published until recently may be protected until 2047.[41] 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 exception (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 Sonny Bono Copyright Term Extension Act to the same date in 2067.[42] 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.[43]

In 2010, the US Copyright Office asked for opinions about bringing pre-1972 recorded music masters under Federal Law protection.[44]

Limitations on copyright and defenses

US copyright law includes numerous defenses, exceptions, and limitations.

Some of the most important include:

  • Copyright applies only to certain subject matter, codified within § 102(b) codifies that copyright protection does not extend to ideas, procedures, processes, systems, etc. Facts may not be copyrighted. This doctrine was explored in some detail in the Feist case discussed above.
  • Copyright law excludes typeface designs (Eltra Corp. v. Ringer), fashion design, useful articles (lamps, computer monitors, bathroom sinks), blank forms, titles, names, short phrases, slogans, lists of ingredients and contents, domain names and band names.[45] Trademark and patent protection is available for some of these items. Architecture and architectural plans gained protection on December 1, 1990.
  • Some types of works, especially digital works, do not fit comfortably within the categorization system. For example,
  • The "§ 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.
  • The § 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 § 107.
  • § 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 (Dvils Films, Inc. v. Nectar Video, NY 1998), and the issue remains ambiguous.[47][48]


Although a Campbell v. Acuff-Rose Music, Inc.)

Provisions for the handicapped

There is specific statutory provision for reproduction of material for the blind or other persons with disabilities. National Library Service for the Blind and Physically Handicapped (NLS).


Infringement is defined in § 501. Infringement requires

  • a protected work
  • that the defendant copied the protected work
  • that the defendant's copying of the protected work was an infringement

If a work is not protectable it cannot be infringed upon. For instance, spoken conversations that are unrecorded ("fixed in a tangible medium of expression") are not protectable. Similarly, if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying. Typically this is referred to as the defense of independent creation; however, technically this is not a defense since without copying there is not an infringement to begin with. Even if a defendant copied protected works that act might be permissible under one of the defenses or limitations. Fair use is one such defense. Quoting from a book in a review might be a copying of protected material, however this copying may well be permissible under § 107. The fair use factors are described below.

Subject matter jurisdiction

The United States district courts have exclusive subject-matter jurisdiction over copyright infringement cases.[49]

Government infringement

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.[50] 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.

Relief available for infringement

A copyright owner whose exclusive rights have been infringed may pursue relief. There is no "copyright police" that enforces copyright without the copyright owner taking action. For example, the FBI investigates cases of criminal infringement (mostly audio and video products), but even then, it does not do so on its own, only on cases where a complaint is received from the copyright holder. The FBI has its own guidelines on which cases to investigate.

Ownership of copyright

US law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original.[51] 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.[52] 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.[53] For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.[54]

Copyright protects the fixed expression of ideas, but not the ideas themselves.[55] Nevertheless, an expression must exist in a fixed tangible medium.[56] 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 himself. Whether RAM constitutes a "fixed medium" is a contentious issue in copyright litigation because of the transitory nature of RAM.[57]

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.[58] 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.[59] Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the US Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary.[60]


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."[61] 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.[62] 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)[63] 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.[64]

Modern courts may sometimes use both methods in its analysis of misappropriation.[65] In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.[66]

Civil remedies

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

Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright.[67] Where the infringer is the government, however, injunctions are not available and the copyright holder can only seek monetary damages.[67]

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

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.[68]

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.[69] 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.[70] 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.[71] In some cases, the copyright owner may not have commercially exploited the infringed work, but the infringer may have profited from it. In these circumstances, the copyright owner can recover those profits.[72] 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[73] 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.[74]

§ 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.[75] 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.[76]
  • 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.,[77] 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.[75]

Attorney's fees

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.[78] This applies to both the winning plaintiff (rightsholder) and the winning defendant (accused infringer).[79] 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

Main article: Criminal Copyright Law in the United States

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.[80]

Public domain

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.[81] 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."[82] 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.[83] 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.[84]

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.[85] 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.[86] 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.[87]


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.[88]

Charles 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 US copyright.[89]

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.[90] This provision of US copyright law was revised with the United States Copyright Act of 1976, which allowed such negligence to be remedied within five years of publication.[91]

Orphan works

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"[92] 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".

Ashcan copy

Numerous comic books and some films have been made purely to satisfy copyright laws, never being intended for actual release. These are known as ashcan copy.

See also




Idea/expression dichotomy

  • Baker v. Selden (1880)
  • Whelan v. Jaslow (1986)
  • Broderbund v. Unison (1986)
  • Computer Associates Int. Inc. v. Altai Inc. (1992)

Fair use


Further reading

  • Roederer, Charlotte (1990). "Question Tree" for Analyzing the Copyright Status of Sound Recordings According to U.S. Copyright Law Provisions and a List of U.S. Copyright Law Resources. Amherst, N.Y.: C. Roederer. Without ISBN

External links

  • Archived version)
  • Year-by-year graph for determining renewal and expiration dates of U.S. copyright terms
  • United States Copyright Office
  • Copyright Office list of circulars
    • Circular 21, Reproduction of copyrighted Works by Educators and Librarians
  • USPTO Small Business Resources
  • Congressional Research Service (CRS) Reports regarding copyright
  • Copyright Timeline: A History of Copyright in the U.S.
  • Copyright and Culture by Christopher D. Hunter
  • Text of every version of U.S. Copyright Act for 1909 to the present
  • Question-and-answer trees and tables to determine copyright status of a work
  • Digital copyright slider to determine copyright status of a work
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