Protecting your interests

Copyright Law Basics

July 12th, 2011 by Jacob

Don't let your copyright get out of reach

Copyright Law: Introduction

Copyright is a federal law that is based on Section 8, Clause 8 of the Constitution.
“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;”

Copyright law is found in Title 17 of the U.S. Code. Section 102 states copyright protects “original works of authorship fixed in any tangible medium of expression.” For works created since 1978 Copyright protection applies as soon as it is ‘fixed’. Copyright law is actually a basket of rights that are divisible. Some rights can be sold while others are retained by the author, for example. The 1976 Act (effective 1978) was a major revision to the old 1909 act but the old act often must still be consulted. Finally, the Uruguay GATT round made special provisions for international works in the U.S. and the Digital Millennium Copyright Act of 1998 (‘DMCA’) made special provisions for internet service providers.

What does copyright law protect?

Copyright law is limited to 8 categories.
Title 17- Section 102 Subject Matter of Copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(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.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method or operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The eight categories are not mutually exclusive. You can have a work with multiple types of works. Likewise you can have multiple authors of one work (joint works), individual works can be combined into a new work (collective works) or a derivative work (derivative works) that builds on a prior work. A future post will discuss these issues in detail.

The 1976 Act interpreted the Constitution’s use of ‘writing’ and ‘authors’ broadly to include works beyond the literal- literally. Under the old 1909 Copyright Act there was a small crisis for each new technology such as the photograph or phonograph. The act was intended to be interpreted broadly and now even software code can be protected as a literary work. However there is a limit to what copyright law protects. There is a long tradition that ideas and processes are not concepts that can be owned. There is also a strong public policy for certain concepts to be free for all as necessary for the progress. Einstein never had any rights to E=mc2 (the issue of whether we truly need intellectual property law to ‘motivate’ creativity is a post(s) for another time). This is why the negative clause of 102(b) is included to set a clear boundary where copyright protection is not available. (Pamela Samuelson wrote an interesting article on the history and meaning of 102(b))

Copyright, what does it give me

Section 106 of the 1976 Copyright Act gives the owner of the copyright the exclusive right, and to permit others, to do the following:

- reproduce the works in copies or phonorecords

This is an exact copy, not a reconstruction or duplication from scratch. Also the term phonorecord refers to a tangible fixation of sounds not just the tradition vinyl record. Therefore, mp3 copies are considered ‘phonorecords’ for copyright purposes. Also, a copy need not be an exact duplicate or even in the same medium. The copy only need be ‘substantially similar’. Therefore someone who make minor changes or reproducing the work in another medium can still violate the right of reproduction.
Sound recording, under copyright law section 114, are limited to exact duplicates such as copying a music cd or mp3. A new performance of the same work would not infringe because of section 114.

- prepare derivative works

A derivative work is defined in Section 101 as follows:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
The case-law of derivative works are sometime hard to reconcile. Courts have been inconsistent in how they determine what is a derivative work and whether a derivative work can be given copyright protection. Furthermore, a derivative work does not have to be ‘fixed’ to infringe on this right. There is no bright line rule to determine when a work is “recast, transform or adapted” nor when the changes result in a new “original work of authorship”. Consider a book adapted for a play or movie that is changed for the performance or film. At what point do the changes amount to a new derivative work?
Sound records here also a treated more broadly also. Section 114(b) limited right to derivative works for sound recordings to when “actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.” A cover version by another band would not be infringing but actually reusing the original piece (sampling) would infringe.

- distribute copies or phonorecords of the work by sale or otherwise

The right to distribute is not necessary connected with the right to copying. One could make liable for making unauthorized copies without distributing anything and one could distribute without making any copies or even having knowledge that the copies are unauthorized. The first sale rule Sec. 109(a) permits the owner of a legitimate copy to sell the copy.
Importation of infringing copies may also violate the distribution right of a copyright holder under Sec. 602. The law is more ambiguous for electronic distribution via the internet and peer-to-peer networking, although the courts seem to treat this as a distribution.

- perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works

Note that this right is limited to the listed categories of copyrightable works. This was based on the idea that it is only these types of works that are performed. It is also applies to public performances. Sec. 101 defines “to perform the work publicly” as follows:
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.
The performance rights for sound recordings are not covered by this section but rather fall under section 106(6).

The right to display a work “publicly by transmission to the public can be violated be the retransmission of the work. For example the broadcast or a pay-per-view boxing match or other sporting match to a large audience may violate this right of the copyright holder. These rights are especially important for performing artist and is why several large organizations such as ASCAP and BMI acting as clearance houses for the licensing and enforcement of licensing rights.

- display the 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

Sec. 101 defines ‘display’ as
To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images non-sequentially.
Similar to the public performance right, the display must be public with the same “publicly” definition and also has several major exceptions. This right is often violated now on the internet where copyrighted images are frequently displayed without the consent of the copyright owner.

- perform the work publicly (in the case of sound recordings*) by means of digital audio transmission

This right was only recently added in 1995 in response to the music industry’s worries that internet broadcasting would further erode record sales. Indeed there are several sites in other countries that do this successfully but in the U.S. copyright restrictions have made it difficult for sites such as Turntable.fm grow. This right is actually a very narrow subject to exceptions stated under section 114(d)-(j)

An author may also have rights of attribution under sec. 106A of the Copyright Act which was added to the copyright statute by the Visual Artists Rights Act (VARA) of 1990 (effective 1991). The act arose from the concept of ‘moral rights’ followed by many other countries and adopted in the Berne Convention of which the U.S. is a signatory country. Essentially, moral rights give an author the right of attribution and integrity to their work separate and apart from the other statutory rights. It was widely debated whether U.S. intellectual property laws already provided these right, but eventually Congress passed VARA.

VARA provides the rights of attribution and integrity only for works of visual art. A work of ‘visual art’ is defined as
A “work of visual art” is — 
(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A ‘work of visual art’ is much narrower than ‘pictorial, graphic, and sculptural works’ of section 102(5) designed for something closer to museum quality artwork. VARA right stay with the author regardless of any transfers of the statutory rights listed in section 106.

VARA grants the author the right of attribution and integrity stated as follows:
(a) Rights of Attribution and Integrity. — Subject to sec. 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art — 
(1) shall have the right — 
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right — 
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

Fair Use: Limitation on Copyright Protection

Copyrights have several limitations that allow the public to use otherwise protected works. The most important limitation is the “fair use” exception found in Copyright Act sec. 107. The concept of fair use evolved out of case-law prior to the 1976 Copyright Act. The concept permits the use of a work in limited (fair) circumstances. The statute explains that fair use is permitted “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research”. The Copyright Act lists the following factors to determine what is fair use.
(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

These factors are weighed to determine if the use for a qualifying purpose is a “fair use”. This can be a highly subjective assessment, although a commercial use of a copy or substantially similar work is less likely to be a “fair use” compared to a noncommercial use. A future post will discuss fair use in great detail.

Further Resources
U.S. Copyright Office
Standford copyright and fair use website
Creative Commons
Chilling Effects
Electronic Frontier Foundation Intellectual Property Page