Copyright in General

U.S. Copyright laws are enacted pursuant to Article 1, Section 8 of the U.S. Constitution, which provides that “[t]he Congress shall have Power . . . to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In order to foster development of creative works, copyright law provides a limited grant of exclusive rights. This

limited grant is a means by which an important public purpose may be achieved. It 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.

Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984).

Protections

The Copyright Act protects “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. These works include literary works (which encompass software), musical works, dramatic works, pictorial works, sculptural works, graphical works, motion pictures, sound recordings and architectural works. These terms are defined in 17 U.S.C. § 101.

Copyright law protects only creative works, not facts. See, e.g., Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 349 (1991). Only expression, but not ideas, are copyrightable. See 17 U.S.C. § 102(b); Eldred v. Ashcroft, U.S. 537, 219 (2003); Baker v. Selden, 101 U.S. 99, 103-104 (1880) (holding ideas within copyrighted works unprotectable).

Notice

Use of a copyright notice is not required under U.S. law, although copies of works published before March 1, 1989, must bear the notice or risk loss of copyright protection. The notice has several benefits. It informs the public that the work is protected, identifies the owner and shows the year of first publication. In addition, in the event a work is infringed, a proper notice precludes a defense for mitigation of damages based on innocent infringement.

Proper notice consists of symbol, year of first publication, and name of copyright owner (e.g., © 2003 Copyright Holder).

Creation and Scope

1. Copyright protection exists from the time the work is fixed in a tangible medium of expression. Copyright protection is available for all unpublished works, regardless of the nationality or domicile of the author. For published works, copyright protection is available if: (1) on the date of publication, the author is a national or domiciliary of the United States or a country that is a party to a copyright treaty; (2) the work is first published in the Unites States or a country that is a party to the Universal Copyright Convention; (3) the work is first published on or after March 1, 1989, in a country that is a party to the Berne Convention; or (4) the work is a foreign work restored from the public domain under the General Agreement on Tariffs and Trade (GATT).
2. Copyright protection lasts for the author’s life plus 70 years after the author’s death, the shorter of 95 years from publication or 120 years from creation in the case of corporate authorship, and 95 years (provided it is renewed) for works first published before January 1, 1978, pursuant to the Sonny Bono Copyright Term Extension Act of 1998. See generally Eldred v. Ashcroft, 123 U.S. 769 (2003) (rejecting constitutional challenge to term extension); see also Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 31 (2003) (affirming right to distribute public domain works as supportive of the Copyright Act’s purpose). A handy flow chart for determining what is in the public domain: http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm.
3. A “publication” of a work means the distribution of copies or phonorecords (copies of sound recordings) of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication. 17 U.S.C. 101. A website, including the underlying source code, is deemed published when the site becomes live on the Internet. See Getaped.com, Inc. v. Cangemi, 188 F. Supp. 2d 398, 402 (S.D.N.Y. 2002). Publication requires depositing a copy of the work with the Library of Congress. U.S. Copyright Office, “Copyright Basics,” Office Circular No. 1, p. 4 (2002).
4. For works transmitted online, the copyrightable work may consist of text, artwork, music, audiovisual materials (including any sounds), sound recordings and other works of authorship. U.S. Copyright Office, “Copyright Registration for Online Works,” Office Circular No. 66, p. 1 (2000).
5. Materials not eligible for copyright include works not fixed in a tangible form of expression (i.e., performed but not written or recorded), titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic lettering, ideas, procedures, methods, systems, processes, concepts, principles, discoveries, devices, or works consisting entirely of information that is common property (public domain) and containing no original authorship. See, e.g., Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 907 (1st Cir. 1995) (holding that menu command hierarchies are not copyrightable subject matter); Feist Publications v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (finding that telephone white pages are not protected by copyright).

Exclusive Rights

The Copyright Act reserves to the copyright owner the exclusive right to do the following:

1. To reproduce the work in copies or phonorecords;
2. To prepare derivative works based upon the work;
3. To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
5. To display the copyrighted work publicly, 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; and
6. In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

In addition, certain authors of works of visual art have the moral rights of attribution and integrity as described in section 106A of the 1976 Copyright Act. The copyright owner can license some or all of these rights to a third party. These rights are not unlimited. Sections 107 through 121 of the 1976 Copyright Act establish limitations on these rights.

What constitutes a digital public performance?

The question of what constitutes a "public performance" in the digital world is a complex one and that has largely been left unanswered by the courts. Performance licensing organizations such as ASCAP, BMI, and SESAC insist that both streaming a digital music file and downloading it are each separate and distinct public performances of the underlying musical work.

However, in U.S. v. ASCAP (S.D.N.Y. 2007), a New York District Court ruled that since the Copyright Act defines "performing" a work as "reciting", "rendering", or "playing" it, a public performance requires that the work be "transmitted in a manner designed for contemporaneous perception." Since downloads were not transmitted in such a manner, they were not considered public performances by the court. Specifically, the court said that while the term "performance" has historically been interpreted broadly, "we can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition." Instead, the court found that such activities were more appropriately classified as "reproductions" under Section 106.

Moral Rights

1. Foreign Application. In many countries outside the United States, authors have personal or “moral rights” apart from and in addition to proprietary or economic interests. Generally, moral rights include:
   1. Right of Attribution: The right to be known as the author of a work and to prevent others from claiming authorship, and the right not to have authorship falsely attributed to oneself.
   2. Right of Publication: The right to decide whether and when to publish a work and the right to withdraw the work from the public after it is published.
   3. Right of Integrity: The right to prevent others from distorting, dismembering, mutilating or misrepresenting a work in a way that may prejudice the honor or reputation of the author.

Moral rights are not easily waived. Many countries’ laws require a specific written agreement by the author for waiver.

1. Visual Artists Rights Act. 17 U.S.C. § 106A. The Berne Convention requires member countries (which include the United States) to protect the right of attribution and the right of integrity. In 1990, Congress enacted the Visual Artists Rights Act amending the Copyright Act to conform to the Convention. The Act affords protection against false attribution, intentional distortion or mutilation, and destruction of a work of recognized stature.
   1. Scope. Section 106A only applies to works of “visual art.” The term includes paintings, drawings, prints, sculpture or still photographic images produced for exhibition purposes only and existing in a single copy or limited edition of 200 copies or fewer, if signed by the artist and consecutively numbered.
   2. Limits. “Visual art” does not include many types of authorship, such as posters, applied art, audiovisual works, magazines, databases, electronic information services or publications. Merchandising items, advertising, promotional materials and “works for hire” also are excluded. Moral rights are also limited by the fair use defense.

Ownership

The creator of a work originally owns the copyright in the work. Only the author, whether a person or company, can rightfully obtain a copyright. Joint authors share the copyright unless there is an agreement to the contrary. 17 U.S.C. § 101. Copyright ownership may be shown by proof of originality and copyright-ability in the work as a whole and compliance with the statutory formalities of the Copyright Act. Engineering Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335, 1340 (5th Cir. 1994). See main article on Rights Acquisition.

Infringement of Rights

Anyone who violates any of the copyright owner’s exclusive rights is an infringer of the copyright. 17 U.S.C. § 501(a). In any suit for copyright infringement, a plaintiff must show: (1) ownership of a valid copyright, and (2) violation of one or more of the exclusive rights accorded to the copyright owner. Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991). To be liable for direct infringement, one must “actively engage in” and “directly cause” the copying. See Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F.Supp. 1361 (N.D. Cal. 1995).

See main article on Infringement Issues.

Registration

1. Registration is not a requirement to secure copyright protection.
2. A Certificate of Registration, if timely obtained, constitutes prima facie evidence of the validity of a copyright. 17 U.S.C. § 410(c); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085-86 (9th Cir. 1989). See Denenberg v. Berman, 2002 U.S. Dist. LEXIS 20490 (D. Neb. 2002) (holding that the mere filing of an application for copyright registration does not satisfy the registration requirement of the federal copyright statute and that “registration … means that the Copyright Office has issued an actual certificate of registration”). But see Goebel v. Manis, 39 F. Supp. 2d 1318 (D. Kan. 1999) (holding that registration occurs once the applicant initiates the registration process by mailing to the Copyright Office the application, the applicable fee and the work to be copyrighted).
3. There are other advantages of registration: (1) registration establishes a public record of a copyright claim; (2) registration is a prerequisite to any infringement action for works of U.S. origin; (3) statutory damages and attorneys’ fees are available if infringement occurs after registration (damages are not always available where infringement occurs before registration); and (4) registration allows the copyright owner to record the registration with the U.S. Customs Service to prevent importation of infringing copies. See generally 17 U.S.C. §§ 408-12.

Infringement Remedies

1. Injunctive relief is authorized by the Copyright Act. 17 U.S.C. § 502.
2. Actual damages are available under the Copyright Act, including lost profits and profits gained by the infringer to the extent not counted in the copyright owner’s lost profits. 17 U.S.C. § 504(b). See Fournier v. McCann Erickson, 242 F. Supp. 2d 318 (S.D.N.Y. 2003) (holding that a plaintiff seeking damages in a copyright infringement action must provide proof of the defendant’s “gross revenue reasonably related to the infringement,” and the defendant, in turn, must provide evidence of deductible expenses and those profits attributable to factors other than the alleged infringement); see also Los Angeles News Serv. v. Reuters TV Int’l, 340 F.3d 926 (9th Cir. 2003) (finding that the general rule against extraterritorial application of the Copyright Act allows only a narrow exception for recovery of actual damages based on copyright infringement occurring outside the U.S.).
3. If the work is registered, statutory damages of up to $30,000, or up to $150,000 if the infringement is willful, are available. 17 U.S.C. § 504(c).
4. Attorney’s fees are available if a copyright in the work was registered before the act of infringement. 17 U.S.C. § 505; see also 17 U.S.C. §§ 411, 412.