Introduction
The United States Constitution grants Congress 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.” U.S. CONST., art 1, sec. 8, cl. 8. The Copyright Act of 1976 (or “Copyright Act”) provides the framework for the current copyright laws, which include several revisions since January 1, 1978, the enactment date of the Copyright Act.1 “The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors.” Harper and Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 546 (1985) (analyzing unauthorized use of quotations from a public figure’s unpublished manuscript and finding no fair use under Section 107 of the Copyright Act). “This limited grant … is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.” Id. “The monopoly created by copyright thus rewards the individual author in order to benefit the public.” Id. This article explores some basic provisions of the Copyright Act in order to provide a basic working knowledge of certain of the myriad aspects of copyright law, including the basic requirements for obtaining a copyright and the benefits and limitations of owning a copyright.
What is a Copyright
A copyright is a form of legal protection that “subsists … in original works of authorship fixed in any tangible medium of expression ….” 17 United States Code (“U.S.C.”) § 102(a). Works of authorship broadly include: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. See id. However, “[i]n no case does copyright protection … extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery ….” 17 U.S.C. § 102(b). Stated otherwise, “a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – not the idea itself.” Mazer v. Stein, 347 U.S. 201, 217 (1954) (italics added). “Unlike other forms of intellectual property, copyright protection is both instant and automatic [and] [i]t vests as soon as a work is captured in a tangible form, triggering a panoply of exclusive rights that can last over a century.” Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 275 (2020) (holding copyright protection does not extend to a state’s official annotated code). In general, for works created on or after January 1, 1978, the term of a copyright is the life of the author, plus seventy years after the author’s death. See 17 U.S.C. § 302. On the other hand, for works published prior to January 1, 1929, those works are in the public domain. Id.
Requirements for Copyright Protection in the United States
There are three basic requirements for copyright protection in the United States, each of which follows from the statutory definition stated above. First, the subject matter of the copyright must comprise a work of authorship. See, e.g., Google, LLC v. Oracle America, Inc., 593 U.S. 1, 17 (2021) (discussing the definitional provision set forth at 17 U.S.C. § 102(a)). As noted in the preceding section, such works fall into several broadly worded statutory classifications. Second, the work of authorship “must be original to the author.” Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 345 (1991) (holding white pages of telephone book are not entitled to copyright). “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.” Id (italics added). Third, the work of authorship must be fixed in some tangible medium. A work is “fixed” in a tangible medium of expression when its embodiment is captured in a sufficiently permanent or stable medium to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. § 101. Further, “[a] work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ … if a fixation of the work is being made simultaneously with its transmission.” Id.
Exclusive Rights Afforded the Owner of a Copyright
Six exclusive rights of a copyright owner are set forth in 17 U.S.C. § 106. These rights are as follows: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based on the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer or ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of digital audio transmission. In addition to engaging in the activities encompassed by these six enumerated exclusive rights, the copyright owner also has the right to authorize others to engage in the rights.
Exceptions to the Exclusive Rights Afforded the Owner of a Copyright
The exclusive rights enumerated in 17 U.S.C. § 106 are limited by several exceptions set forth in 17 U.S.C. §§ 107-122. Certain of the more common exceptions (e.g., Sections 108 (limited rights for libraries and archives), 109 (first sale doctrine) and 110 (face-to-face and virtual classroom teaching exceptions)) are briefly discussed below, with the fair use exception set forth at 17 U.S.C. § 107 discussed in the following section. Section 108, for example, provides limited rights for libraries and archives to reproduce and distribute copyrighted works. Among other things, this exception contemplates: (1) the actions are not undertaken for commercial advantage; (2) the works are open to the public or available to researchers regardless of whether they are affiliated with the library or archive; and (3) the copy that is made or reproduced includes a copyright notice. In general, this exception applies only to literary and sound recordings, typically found in libraries. See, generally, 17 U.S.C. § 108.
Section 109, often referred to as the first sale rule, provides rights to purchasers of copyrighted works. In general, if a copy or phonorecord of a work is lawfully acquired under the provisions of Title 17, the owner is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. Stated otherwise, the copyright owner’s exclusive right of public distribution under Section 106 has been exhausted with respect to that particular copy or phonorecord. This exception is often referred to as the exhaustion doctrine and permits, for example, subsequent sales of books, records and CDs at thrift stores or on internet sites. This exception also requires the copy or phonorecord to have been made in the United States and not in a foreign country. The exception also extends to the commercial rental of copies and phonorecords, permitting companies such as Amazon and Netflix, for example, to rent movies to the public (e.g., streaming over the internet) for commercial gain without further consent of the copyright owner. The exception also provides for public displays by the owner of copyrighted works, either directly or by projection of no more than one image at a time to the public. For example, the owner of a copyrighted painting may permit a library or museum to display the painting to the public without further consent of the copyright owner. See, generally, 17 U.S.C. § 109.
Section 110 applies, among other situations, to classroom teaching activities of nonprofit educational institutions, either face-to-face or virtually. In the face-to-face context, the exception permits public performance or display of a copyrighted work by instructors or pupils in a classroom or similar place devoted to instruction. In the virtual context, the exception permits transmission of reasonable portions of a performance or display of a copyrighted work, so long as the transmission is comparable to that typically performed or displayed in a face-to-face classroom setting. Similar to classroom settings, the transmission must be made under the supervision of an instructor and the performance or display must be directly related and of material assistance to the teaching content of the transmission. Other exceptions under Section 110 apply to circumstances involving religious, charitable and other non-profit organizations and to circumstances involving individuals having handicaps preventing them from reading or hearing. Section 110 also permits small businesses (e.g., food service or drinking establishments), in various circumstances, to employ radios or televisions where customers may hear or see a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public. See, generally, 17 U.S.C. § 110.
The Fair Use Defense/Exception
The fair use exception began as a judicially created defense to a claim of infringement.2 The defense was codified by Congress at Section 107 of the Copyright Act. Section 107 sets forth a non-exclusive list of factors for a court to consider in determining whether a particular use of a copyrighted work is fair. The factors 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.” 17 U.S.C. § 107; see also Harper and Row, 471 U.S. at 560-69 (analyzing challenged use using four statutory factors). As set forth in the preamble to Section 107, “the fair use of a copyrighted work … for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom work), scholarship, or research, is not an infringement of copyright.” 17 U.S.C. § 107. Note, however, the fact that a particular use of a copyrighted work fits into one of the foregoing categories of fair use does not establish fair use in and of itself. Rather, the statutory factors set forth in Section 107 – e.g., whether the use is of a commercial nature – must be considered in the fair use analysis.
Copyright Notice, Registration and Deposit
As noted above, one need not do anything to obtain a copyright – “[i]t vests as soon as a work is captured in a tangible form ….” Public.Resource.Org, 590 U.S. at 275. Further, as of March 1, 1989, and in adherence with the Berne Convention Implementation Act of 1988, Congress abolished the notice requirement for works published on or after that date. Thus, for works published today, there is no requirement the work contain the familiar copyright notice – e.g., the date of first publication, the © symbol, and identification of the owner; note that while notice is no longer required, notice may be affixed regardless (see, e.g., 17 U.S.C. §§ 401-406).
Under the Copyright Act, registration is, generally, not required to secure copyright protection. However, under Section 411 of the Act, registration is a prerequisite to bringing an action for copyright infringement. Registration of a work is governed by the requirements set forth at Sections 409 and 410 of the Copyright Act. In general, registration is accomplished by submitting a form appropriate for the type of work and paying the required fee (currently $45 for works not made for hire where the registrant is the only author and claimant).3 Further, as part of the registration process, the owner of a work is required to deposit with the Copyright Office a copy of the work, although in certain situations, the Copyright Office may waive the requirement or impose alternatives to an actual deposit, particularly where practical or financial hardships on the depositor arise. See 17 U.S.C. §§ 407 and 408.
Ownership and Transfer of a Copyright
Ownership of a copyright to a work of authorship initially vests in the author, and if two or more individuals contributed to the work, they are considered co-owners of copyright in the work. See 17 U.S.C. § 201(a). In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for ownership purposes, unless the parties have expressly agreed otherwise in a written instrument signed by each party. See 17 U.S.C. § 201(b).
Ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, andlaw and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession. Further, any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred and owned separately. See 17 U.S.C. § 201(d). In addition, a transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. See 17 U.S.C. § 204.
Conclusion
Copyright laws in the United States play an important role for individuals to protect their creations in situations or circumstances where patent or trademark protection are generally unavailable. Indeed, unlike patent and trademark protection, which may cost upward of several thousand dollars and beyond to acquire and maintain, copyright protection is relatively inexpensive and easy to obtain, the tradeoff being copyright protection applies only to the expression of ideas, and not to the ideas themselves. Accordingly, copyright protection should always be considered when developing a plan for protecting the intellectual property of an individual or of an entity that has acquired the intellectual property of an individual.
This article does not constitute legal advice but presents only a general overview of common legal principles. Those principles may vary by jurisdiction. You should consult legal counsel with regard to your specific situation. No attorney-client relationship is formed by the publishing of this article.
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