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United States copyright law

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United States copyright law governs the legally enforceable rights of creative and artistic works in the United States.

Contents

Basis

Copyright law in the United States is part of Federal law, and is authorized by the US Constitution. The power to enact copyright law is granted in Article I, Section 8, Clause 8, also known as the Copyright Clause, which states:

The 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.
This clause forms the basis for US Copyright Law ("Science", "Authors", "Writings") and Patent Law ("useful Arts", "Inventors", "Discoveries"), and includes the limited terms (or durations) allowed for copyrights and patents ("limited Times"), as well as the items they may protect ("exclusive Right to their respective Writings and Discoveries").

Other governing regulations

Key laws regulating U.S. copyrights include:

Statutory provisions relating to copyright currently in effect are codified in Title 17 of the United States Code.

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

Copyrights are currently slated to last for seventy years after the death of an author, or seventy-five to ninety-five years in the case of works of corporate authorship and works first published before January 1, 1978. All works published in the United States before 1923 are in the public domain; however, works created before 1978 but not published until recently may be protected until 2047. [Sec. 303]. Some material from as recently as 1963 has entered the public domain but some as old as 1923 remains copyrighted if renewals were filed. Previously, a copyright 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 in 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 public domain. No additional material is currently set to enter the public domain until at least 2019 due to changes in the applicable laws.

Deposit requirement

The United States Copyright Office requires that applicants seeking the benefits of copyright 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 copyright. Second, this requirement assists the Library of Congress in building its collection of works.

The deposit requirement varies based on whether the work has been published in the United States or not. For an unpublished work, one copy must be deposited, while the deposit for a published work must comprise “two complete copies of the best edition.” However, this has been construed to mean that the owner of a published work must deposit a copy of the best edition available at the time, and does not require the author to deposit additional copies when new editions are printed.

The Copyright Office will not return the copies that have been deposited.

History and details

The U.S. Congress first exercised its power to enact copyright legislation with the Copyright Act of 1790. The Act secured an author the exclusive right to publish and vend "maps, charts and books" for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The 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 13,000 titles published in the United States, only 556 were registered.

Copyright law has been modified many times since to encompass new technologies such as music recording, to extend the duration of protection, and to make other changes. U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use laws and decisions. Certain attempts by copyright owners to restrict uses beyond the rights provided for by copyright law may also subject them to the copyright misuse doctrine, preventing enforcement against infringers.

The distinction between "idea" and "expression" is a fundamental part of U.S. law, but it is not always clear. A paper describing an industrial process is copyrightable; it may not be reproduced by anyone else without the author's permission. But the process itself (which is an idea rather than a specific expression) is not copyrightable, though it may be patentable. Another author is free to describe the same process in his own words without violating copyright law (though he might not be able to use the process if it is patented; the articles on Fractal transform and LZW are examples of this situation). Courts disagree on how much of the story and characters of a copyrighted novel or film should be considered copyrightable expression. From the 1976 Copyright Act (17 U.S.C. [§ 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.
Facts are considered synonymous to "ideas" or "discoveries" under this law and are not copyrightable. However, section [§ 103] of the Copyright Act allows for the protection of "compilations," where the "creative" or "original" act involves the selection (deciding which things to include or exclude), and arrangement (how they are shown and in what order). The protection is limited only to the selection and arrangement, not to the facts themselves, which may be freely copied. The Supreme Court decision in Feist v. Rural further made clear the requirements that a compilation be original in its composition, in denying protection to telephone "white pages". The Feist court rejected what was known as the "sweat of the brow" doctrine, in ruling that no matter how much work was necessary to create a compilation, a non-selective collection of facts ordered in a non-creative way is not subject to copyright protection.

Sometimes the identification of a work's "author" is unclear, and there are many court rulings applying to those situations as well. For example, by [§ 201], work done "for hire", that is, specifically at the direction of an employer who pays for the work, is, by default, the property of the employer. In other words, if a company hires a writer to write something specific, the company, not the writer, is considered the "author" of that work and owns the copyrights. Any other work done by that writer on his own without compensation and without using company resources usually is still owned by the writer (though employers often try to claim ownership of such work).

Copyrights may be sold, given, or licensed. For example, an author might license the right to publish a translation of a book (considered a derivative work) to a foreign publisher, charging a fee for the license. However, U.S. copyright allows an author (or certain heirs defined by law) to terminate a copyright transfer during the period from 35 to 40 years after the transfer (for transfers made 1978 or later) or 56 to 61 years after the onset of copyright (for transfers made prior to 1978). An agreement made by the author to contract away his right to terminate the transfer is not enforceable, and neither is an attempt by an author to do so on behalf of his heirs.

U.S. Government works

  1. redirect
In the U.S., copyright law is administered by the United States Copyright Office, a part of the Library of Congress. More complete details of U.S. copyright law can be retrieved from the [Library of Congress].

17 U.S.C. [§ 105] provides that:

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 17 U.S.C. [§ 101] as work prepared by an officer or employee of the United States Government as part of that person's official duties. Contractors are not employees.

Relief available for infringement

The owner of a copyright is entitled to relief from unauthorized copying, displaying, or distribution of the copyrighted work. The relief available to a copyright owner for infringement begins in time with the owner notifying the infringing party that a copyright has been violated. Next, the copyright owner can obtain several types of injunctive relief from a court of law. Finally, the copyright owner can recover damages and further injunctive relief by way of final judgment on a lawsuit.

Prior to filing a lawsuit, a copyright owner has two methods of relief available. Industry practice encourages a copyright owner to first send a communication that asks the infringer to “cease and desist” the actions constituting the infringement when the owner becomes aware of an infringement on the copyrighted work. If the infringing party does not abide by this request, the second method available to the owner is a temporary restraining order. A temporary restraining order is issued by a court of law and enjoins the infringer from continuing the copyright infringement for a period not longer than ten days. This ten day period protects a copyright owner from further damage and provides the owner the opportunity to file and obtain a preliminary injunction.

A preliminary injunction, like a temporary restraining order, enjoins the infringing party from continuing the copyright infringement. This type of injunction lasts throughout the period of trial until a decision is issued on the case by a court of law. In order to obtain a preliminary injunction, a copyright owner must show each of the following- (1) the plaintiff has a likelihood of success on the merits of its claim, (2) the plaintiff will suffer irreparable harm without the injunction, (3) the harm is greater than the injury the defendant will suffer if the injunction is granted, and (4) the injunction will not harm the public interest. Though in practice, if a copyright owner (plaintiff) succeeds in proving the first requirement above, most courts will grant the injunction without much consideration given to the remaining requirements. Even with a relaxing of these requirements a copyright owner cannot be lax in seeking a preliminary injunction. Undue delay in seeking the injunction can negate the necessary proof of irreparable harm and may act as a bar to the issuance of the preliminary injunction, thus leaving the copyright owner without relief until after trial.

If a copyright owner succeeds at trial in establishing copyright infringement, the owner is entitled to recoup monetary damages and to the issuance of a permanent injunction against the infringer. The monetary damages that a successful plaintiff-owner is entitled to include the owner’s actual damages, additional profits realized by the infringer, statutory damages, and attorneys’ fees. A permanent injunction has been held to be appropriate when monetary damages are insufficient to compensate the copyright owner. Courts of law consider the magnitude of the past infringement and whether there is the threat of future infringement when granting a permanent injunction. An injunction, permanent or otherwise, is enforceable against the defendant in every state regardless of where it was issued. Of note is that permanent injunctions are not available in lawsuits against the United States government and brought in the Court of Federal Claims.

One final remedy for a copyright owner works in conjunction with a permanent injunction to offer protection against future infringement. As part of a final judgment in a lawsuit for copyright infringement, a court may order the destruction or disposition of the articles used to violate a copyright owner’s exclusive rights. Articles available for destruction or disposition include any reproductions of the copyrighted work and any equipment used to make the reproductions.

The United States government as a defendant in infringement actions

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.1 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.

Treaties

The United States became a Berne Convention signatory in 1988, and the treaty entered into force with respect to the U.S. 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, protections were extended to architecture (where previously only building plans were protected from copying, not buildings), and certain moral rights of visual artists. Some legal scholars question whether the U.S. is fully in compliance with TRIPS or Berne requirements, particularly given the far reach of the fair use defense.

See also

Notes

Note 1: 28 U.S.C. § 1498(b)-(c).

External links

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