This entry contains information applicable to United States law only. An intangible right granted by statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to the person to make copies of the same for publication and sale.
A copyright is a legal device that gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. Copyright owners have the right to control the reproduction of their work, including the right to receive payment for that reproduction. An author may grant or sell those rights to others, including publishers or recording companies. Violation of a copyright is called infringement.
Copyright is distinct from other forms of author protection such as patents, which give inventors exclusive rights over use of their inventions, and trademarks, which are legally protected words or symbols that represent products or services. Whereas a patent protects the application of an idea, and a trademark protects a device that indicates the provider of particular services or goods, copyright protects the expression of an idea. And whereas the operative notion in patents is novelty, so that a patent represents some invention that is new and has never been made before, the basic concept behind copyright is originality, so that a copyright represents something that has originated from a particular author and not from another. Copyrights, patents, and trademarks are all examples of what is known in the law as intellectual property.
As the media on which artistic and intellectual works are recorded have changed with time, copyright protection has been extended from the printing of text to many other means of recording original expressions. Besides books, stories, periodicals, poems, and other printed literary works, copyright may protect computer programs; musical compositions; song lyrics; dramas; dramatico-musical compositions; pictorial, graphic, and sculptural works; architectural works; pantomimes and choreographic works; motion pictures and other audiovisual works; and sound recordings.
History of Copyright Law
U.S. copyright law grew out of English common law and statutory law. When the printing press was developed in the fifteenth century, rights for the reproduction of written works extended to printers rather than to authors. In England, a printers' guild, the Stationers' Company, claimed for itself the exclusive right — in effect, a monopoly — on written works. It was not until 1710 that Parliament passed a statute related to copyright. This law, called the Statute of Anne, established authors' rights to control the reproduction of their work after it was published. It also created a term of protection of twenty-eight years from the date of publication. After that time, an author's work entered the public domain, meaning that anyone could print or distribute it without obtaining the author's permission or paying a royalty, or fee, to the author. Other European countries developed similar laws in the late eighteenth and early nineteenth centuries.
Under the British system, the author retained a common-law right to ownership of his or her work until publication. After publication, copyright was established as a statutory right, protected by the Statute of Anne. U.S. copyright law retained this distinction between prepublication common-law rights and postpublication statutory rights, until 1976.
By the late eighteenth century, the protection of intellectual property as a means of advancing the public interest was considered important enough to receive mention in the U.S. Constitution. The Patent and Copyright Clause — Article I, Section 8, Clause 8 — of the U.S. Constitution empowers Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors exclusive Right to their respective Writings and Discoveries." Congress passed its first copyright statute in 1790 — and has substantially revised copyright law four times, in 1831, 1870, 1909, and 1976.
Revisions in the copyright law have been driven largely by commercially significant changes in technology. In 1802, for example, graphic prints came under copyright protection, establishing the notion that the Constitution's language regarding copyright not be interpreted to apply literally to "Writings" alone. In 1831, musical compositions were incorporated into copyright protection, and in 1870, paintings, statues, and other works of fine art were placed under copyright law.
The distinction between common-law protection for unpublished works and statutory protection of published works received increasing criticism in the twentieth century, particularly as the notion of publication changed greatly with technological innovations in communication. Congress removed this distinction in the landmark Copyright Act of 1976 (17 U.S.C.A. § 102(a)). According to this act, an author receives copyright protection as soon as a work is recorded in a concrete way — when, for example, it is written on a piece of paper, recorded on an audiotape, or stored on a computer disk. Any unauthorized copying of the work is subject to an infringement suit and criminal charges. The 1976 act also allows copyright protection of works that derive from the original, such as motion pictures, CD-ROM multimedia editions, and other adaptations.
Many features of the 1976 Copyright Act make U.S. copyright law conform more to international copyright standards, particularly with regard to the duration of copyright protection and to the formalities of copyright deposit, registration, and notice. These changes have been greatly influenced by the most important international copyright treaty, the Berne Convention for the Protection of Literary and Artistic Works (828 U.N.T.S. 221, S. Treaty Doc. No. 99-27). In 1988, the United States passed the Berne Convention Implementation Act (102 Stat. 2853), which made the nation an official member of the treaty as of 1989. Section 2(a) of this act holds that provisions of the treaty are not legally binding in the United States without domestic legislation that specifically implements them.
U.S. copyright law has continued to evolve toward greater conformity with international copyright standards. In the 1990s, for example, the Berne Convention added twenty-five years to the minimum standard for copyright duration, changing it to the length of the author's life plus seventy-five years. U.S. copyright law is expected to follow suit.
Copyrightable Works
The 1976 Copyright Act provides that copyright protection "subsists … in original works of authorship fixed in any tangible medium of expression, now known or later developed" (17 U.S.C.A. § 102(a)). Thus, virtually any form of fixed recording is protected, no matter how new the technology.
Originality is the most important quality needed by a work in order for it to receive copyright protection. Originality is not dependent on the work's meeting any standard of aesthetic or artistic quality. Thus, a work need not be fine art to be copyrightable.
Works Not Copyrightable
Copyright protects the expression of an idea or vision, not the idea itself. In legal terminology, this concept is called the idea-expression dichotomy, and it has been an important feature of legal reasoning related to copyright. Ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries are not within the scope of copyright protection. Other works that are not copyrightable are words and short phrases, including slogans; blank forms for recording information (such as bank checks); works containing no original authorship (such as standard calendars or simple phone listings); and works produced for the officers and employees of companies and organizations.
Some works are not copyrightable because they are not fixed in a tangible medium. These include unrecorded dance choreography, and unrecorded speeches, lectures, and other vocal performances. Although typefaces are tangible, they have traditionally been regarded as lying outside of copyright protection. A dramatic character is not copyrightable.
Holders of a Copyright
A copyright is initially owned by the author or authors of the work, except in the case of a "work for hire." A work for hire can arise in two situations: (1) where an employee creates a work within the scope of his or her employment, in which case the employer owns the copyright to the work upon its creation; (2) where two parties enter a written agreement designating the work a work for hire and the work falls within one of nine specific categories of work designated by copyright law. If the work does not fit one of the specified categories, it will not be a work for hire even if the parties have called it one. In such a case, the author or authors retain the copyright and transfer must be accomplished through a written assignment of copyright. Where there is a valid work for hire, the employer who owns the copyright has the same rights as any copyright holder, including the right to initiate an action for copyright infringement.
The ownership of a copyright, or the ownership of any of the five exclusive rights afforded by a copyright (discussed later in this article), can be transferred to another and is regarded as personal property upon the death of the copyright holder. Copyright ownership and ownership of the material object in which the copyrighted work is embodied are two entirely separate legal entities. Furthermore, transfer of an object and transfer of the copyright to that object are separate, independent transactions, neither of which, by itself, has any effect on the other. Therefore, transfer of a material object, such as an original manuscript, photograph negative, or master tape recording, does not transfer the copyright to that work. Likewise, transfer of the copyright to a work does not require transfer of the original copy of the work.
Exclusive Rights
Copyright affords an author a number of exclusive rights: (1) to reproduce, or copy, the work; (2) to prepare new works that derive from the copyrighted work; (3) to distribute the work to the public by sale or other arrangement; (4) to perform the work publicly; and (5) to display the work publicly. The first two rights, involving reproduction and derivation, are infringed whether violated in public or in private, or whether violated for profit or not. The last three rights are infringed only when violated publicly, that is, before a "substantial number of persons" outside of family and friends (17 U.S.C.A. § 101).
All the exclusive rights afforded by copyright may have significant economic value. For example, derivative works, which may include translations, dramatizations, films, recordings, and abridgments, can offer substantial rewards to the author. An author may sell, license, or transfer one or all of the exclusive rights.
Duration of Ownership
Under the Copyright Act of 1976, copyright protection of an authored work extends throughout the life of the author and to fifty years after the author's death. Thus, it is possible for authors to benefit from royalties on their works until their death, and to pass on copyright and associated royalties to their heirs. In the case of joint works, the termination date of the copyright is fifty years after the death of the last surviving author.
As for works made for hire, pseudonymous works, and anonymous works, the copyright generally expires seventy-five years after publication or one hundred years after creation, whichever occurs first. However, in the case of an anonymous or pseudonymous work, an author or interested party, such as an heir, may reveal to the Copyright Office the true identity of at least one author of the work, and be eligible for the full duration of copyright until fifty years after the author's death.
Infringement
Infringement involves any violation of the exclusive rights of the copyright owner. Infringement may be unintentional or intentional. When unintentional, it is called innocent infringement. An example of innocent infringement occurred when George Harrison, of the rock band the Beatles, created his song "My Sweet Lord." Harrison unconsciously copied the tune of another song, "He's So Fine," by the Chiffons, and was found guilty of infringement (Bright Tunes Music Corp. v. Harrisongs Music, 420 F. Supp. 177 [S.D.N.Y. 1976]). Vicarious or related infringement refers to those who profit indirectly from infringement of copyright, as in the case of a theater owner who profits from booking a band that illegally performs copyrighted works.
Since evidence of direct copying or plagiarism of an authored work is difficult to obtain, infringement of copyright is usually established through circumstantial evidence. Such evidence typically must show a substantial similarity between the original and the copy, as well as prove that the copier had access to the original. This means that where two works are similar or identical, there is nevertheless no infringement if each work was produced through the original and independent work of its creator. An infringer is not relieved of liability by crediting the source or the creator of the infringed work. Although infringement does not require that even a large portion of the work be similar, it does require that a substantial part be similar. It is irrelevant if the copied work is an improvement of the original work.
Remedies for Infringement
Because the owner loses the value of a copyright when infringement occurs, relief is often sought through filing a lawsuit in federal court. If infringement is established, the court can grant preliminary and permanent injunctions, or court orders that restrain the offending party from continuing to infringe the copyright. A court may also award monetary damages as a remedy for copyright infringement. The copyright owner can recover for actual financial losses and any additional profits that the infringer earned from the infringement.
The copyright owner may instead choose to receive statutory damages, which range from a minimum of $250 to a maximum of $10,000. The court may adjust these limits based on the innocence or willfulness of the infringer. Innocent infringers may prove their good faith and have damages reduced to as little as $100, whereas willful infringers may be punished by the court with damages as high as $50,000. Courts may also impound and even destroy illicit reproductions of copyrighted works.
Willful copyright infringement can be a federal misdemeanor punishable by as much as $10,000 or one year's imprisonment. Criminal prosecutions on this basis require that infringement be for the "purposes of commercial advantage or private financial gain" (17 U.S.C.A. § 506(a)). Criminal prosecutions for copyright infringement are generally rare. Nevertheless, piracy of music and motion picture recordings — in which criminals mass-produce such recordings without permission and without paying royalties — has become increasingly common. This fact led to the passage of the Piracy and Counterfeiting Amendments Act of 1982 (18 U.S.C.A. § 2318), which allows punishment of up to $250,000 in fines or five years in prison for pirating one thousand phono records or sixty-five films within 180 days. The fraudulent use or removal of copyright notices is also a punishable offense.
Fair Use
Fair use is a judicial doctrine that refers to a use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder. Fair use is an important and well established limitation on the exclusive right of copyright owners. Well-tested examples of fair use include the making of braille copies or audio recordings of books for use by blind people, and the making of video recordings of broadcast TV programs or films by individuals for private, noncommercial use.
Examples of fair use typically involve, according to the Copyright Act of 1976, the reproduction of authored works for the purpose of "criticism, comment, news reporting, teaching … , scholarship, or research" (17 U.S.C.A. § 107). The same act also establishes a four-part test to determine fair use that considers the following factors: (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.A. § 107).
It is usually considered fair use of an authored work to take small quotations or excerpts from it and include them in another work, as when quotations are taken from a book and inserted into a book review. However, courts have found that such quotation is not fair use when material is taken from unpublished sources, as happened in the 1985 case Harper & Row v. Nation Enterprises, 471 U.S. 539, 105 S. Ct. 2218, 85 L. Ed. 2d 588.
The Harper case involved publication by Nation magazine of quotations from Gerald R. Ford's unpublished memoir, A Time to Heal. Harper & Row, publisher of the memoir, sued Nation, claiming that the magazine's actions had caused it to lose a lucrative contract with Time magazine to publish excerpts from the memoir. The Court ruled in favor of Harper, citing the economic value of first publication to the copyright holder as an important factor in its decision. The Court found that Nation had infringed on Ford's copyright by becoming the first publisher of his original expression, thereby inflicting economic losses on Ford. It rejected Nation's argument that it was simply reporting news. Lower courts have subsequently applied the Court's reasoning to other cases involving quotations from unpublished works. In Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987), a federal appeals court blocked publication of a book that used extensive quotations from unpublished letters of the author J. D. Salinger. The court ruled that the author retained copyright ownership of the "expressive content" of the letters, even when the letters themselves were deposited in university library collections.
Parody and satire often constitute fair use of copyrighted material. In cases involving parodies of copyrighted works, courts typically assess the purpose and intent involved in taking material from the original expression, and whether or not the author of the parody has borrowed a reasonable amount of material in producing the parody. For example, in the 1994 case of Campbell v. Acuff-Rose Music, 501 U.S. 569, 114 S. Ct. 1164, 127 L. Ed. 2d 500— which involved a parody by the rap group 2 Live Crew of the Roy Orbison song "Pretty Woman" — the U.S. Supreme Court ruled that a parody can be fair use under copyright law even if it is created for commercial purposes.
Copyright Registration, Deposit, and Notice
Registration of copyright involves recording the existence of an authored work and the identity of its author with the Copyright Office of the Library of Congress. Deposit involves placing the work in its recorded, physical form with the same office. Notice, or notification, involves placing on an authored work the ;cW or the word Copyright or the abbreviation Copr., along with the year of first publication and the name of the owner of the copyright.
Many of the major copyright acts in U.S. history required that works be registered and deposited with a U.S. district court or with the register of copyrights at the Library of Congress, in order to be legally enforceable. Over time, however, deposit, registration, and notice of copyright have increasingly become formalities. Under the Copyright Act of 1976, authors automatically receive federal copyright protection when they fix their work in a tangible medium. Even if a copyright is not registered and an authored work is not deposited, the author maintains exclusive rights to the work.
Nevertheless, registration and deposit may still have significant legal consequences. Most important, owners of copyright cannot sue for copyright infringement until they have registered the copyright (17 U.S.C.A. § § 411, 412). Deposit is not a requirement for copyright protection, but federal law requires that two copies of a published work be deposited within three months of publication. Failure to deposit a copy after it has been demanded by the Copyright Office is an offense punishable by a fine. Registration of copyright requires the deposit of at least one copy of a work and two copies of a published work. The Copyright Office has the power to vary these requirements.
Copyright notice serves a number of functions. A lack of copyright notice has traditionally informed users that a particular work is in the public domain, whereas the presence of a notice has warned users that a work is copyrighted and identifies the date and year of the work. Despite these traditions, copyright notice is optional for works distributed after October 31, 1988. Under prior law, an omission of copyright notice resulted in a loss of copyright protection.
See: copyright, international.