Copyright law, which promotes and protects creative expression by rewarding authors and artists for their efforts with exclusive legal rights to control the use of their work, has played an important role in the development of the media, publishing, and entertainment industries.
Copyright is a form of legal protection for authors and creators of original expressive works. Under law, the types of works protected by copyright are literary, musical, dramatic, artistic, choreographic, architectural, and audiovisual works, as well as sound recordings. In no case, however, does copyright protection extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is explained or illustrated. Rather, copyright protection applies only to an original expression of an idea or concept. For instance, the idea of two people falling in love cannot by copyrighted, but a particular expression of that idea in the form of an original short story, painting, or song can be copyrighted.
The origin of American copyright law extends back to England. The history of copyright has been closely tied to the development of technology and business involving entertainment and information goods. When the printing press was invented and introduced in England in 1476, it became possible to reproduce works for mass circulation. Quite naturally, the interests of printers and authors in those works came to the forefront. More specifically, in 1556, the Stationers’ Company was created by royal decree to control the
English copyright law was later exported to the American colonies. After independence, all of the states except Delaware passed copyright laws modeled on the Statute of Anne. These laws were limited because they applied only within each state and authors had to register their works in each state and comply with a variety of state laws that often contained conflicting requirements. By the time that the drafters of the Constitution met, they recognized the importance of creating a uniform, national body of copyright law for the United States. Article I, Section 8, clause 8, of the U.S. Constitution empowers Congress to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to their respective Writings. . . .”
Based on this constitutional grant of power, the first Congress enacted the first federal copyright statute in 1790. This law granted copyright protection to the authors of maps, books, and charts for fourteen years. Authors were required to register the work with the government, publish notice of the registration, and deposit a copy of the work with the secretary of state within six months of publication. In addition, authors were also allowed to renew their copyright for another fourteen years.
As the American economy expanded throughout the nineteenth century, the scope of copyright protection was gradually broadened as well. In 1802, prints became protected by copyright, and in 1831, musical compositions were included. Dramatic compositions and the right publicly to perform them, were added in 1856. The extension of copyright protection also paralleled the invention of new technologies and media. For instance, Congress extended copyright to photographs in 1865. By 1870, paintings, drawings, sculptures, and models and designs in fine arts were protected. Other amendments during this period extended the initial copyright term to twenty-eight years, with a possible renewal for an additional fourteen years, and invested the Library of Congress with the administration of the copyright registration system and made it the repository of copyright deposits.
By 1909, Congress decided to pass a new and comprehensive copyright statute that incorporated all of its earlier amendments to the 1790 copyright statute and eliminate the inconsistencies in its provisions. The
Once again, technological developments and the growth of the U.S. economy in new directions during the twentieth century began to push the limits of copyright law. Inventions such as motion pictures, phonographs, radio, and television, along with the emergence of new media forms and the entertainment industry, made the 1909 statute increasingly obsolete. Almost immediately after its enactment, for instance, the 1909 statute was amended to include motion pictures. A later amendment extended copyright protection to sound recordings. Moreover, the advent of international markets for American authors and creators made it imperative that U.S. law conform to the standards set out in various international copyright treaties. In 1976, therefore, the Copyright Act of 1909 was repealed and replaced by the current statute.
The second principal requirement for copyright protection is that the work be original, meaning that it must have been independently and directly created by the author or artist. Moreover, the work must reveal some minimal level of creativity. The standard for originality is not particularly high, and it is not necessary that the work be novel, unique, or aesthetically pleasing. In fact, a work may be considered original even if it closely resembles another work or several different works. Instead, it must be apparent that the author or artist made some minimally creative choices in crafting or composing the work.
Under the Copyright Act of 1976, ownership of a copyright in a work vests initially in its actual creator, who owns all of the exclusive rights afforded by copyright protection. In some cases, a work is created by more than one author or artist. When a work is created by two or more authors who intend that their separate contributions be merged together into a single, complete work, the copyright is shared by the co-owners of the joint work. Each co-owner is entitled to exercise all of the exclusive rights, or to license other persons to exercise those rights.
Although the actual creator of the work is usually also the author or artist, there two situations when he or she is not the owner of the copyright in the work. If an employee (rather than an independent contractor) prepares a work that can be copyrighted within the scope of his or her employment, then the employer is the owner of the resulting copyright. Usually, an employee who creates a work as part of his or job, at the direction of the employer, for work-related purposes, has created the work within the scope of employment. A second type of work made for hire results when the work has been specially commissioned and the parties have agreed in writing and signed that the work is made for hire. Only certain types of works made for hire may be specially commissioned, including contributions to collections; parts of movies or audiovisual works; translations; supplementary works such as prefaces and illustrations; compilations; and instructional texts and tests.
Initially, the 1976 statute provided for a term of copyright protection consisting of the author’s life plus 50 years beyond death, but the term was extended by 20 years as a result of an amendment in 1998. The term of copyright became the remainder of the author’s life, plus 70 years after the date of death. This allows the author or artist’s family to benefit from his or her creative efforts. In a work made for hire, the copyright lasts for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.
Ownership of a valid copyright provides the copyright owner with five exclusive rights, which are set out in the Copyright Act. Those rights are known as the reproduction right, adaptation right, public distribution right, public performance right, and public display right. Accordingly, copyright owners have the exclusive right to reproduce their works by making copies or phonorecords of them. Copyright also affords the author or artist the exclusive right to make adaptations or derivatives of his or her preexisting work. A derivative work, therefore, is one that is based on or derived from another work due to reformatting, transforming, or revision of the earlier work. Examples of derivative works include a translation of a poem from one language to another, a rearrangement of a sonata, the production of a movie based on a novel, or a digitization of print photograph.
Copyright owners also have the exclusive right to distribute copies of their works to the public through sales, rentals, leases, or lending. The distribution right often goes hand in hand with the reproduction right, and in many cases, unauthorized reproductions only become known to the copyright owner once there are multiple copies that have been distributed publicly. In addition, the public display and performance rights give copyright owners the exclusive right to show their work to members of the public. The Copyright Act defines “publicly” broadly to include places open to the public or where a large number of persons outside of the normal circle of a family and its social acquaintances are gathered. This would include film screenings in a theater, music performances at a concert hall, museum exhibitions, and public transmissions such as television broadcasting or video streaming over the Internet to a public location.
The Copyright Act of 1976 made a critical change as to when copyright protection begins. The 1909 statute had required publication of the work with a copyright notice affixed before copyright vested. Under the 1976 statute, copyright ownership vests as soon as an original work of authorship is fixed. The term of protection begins automatically and immediately upon creation of the work. Although registration of the work is not required to secure copyright ownership, it is nevertheless advisable. In addition, a registered copyright is required before a copyright owner may bring suit for infringement in federal court. Publication of the work is no longer required, nor is affixing a copyright notice to the work. Finally, the 1976 statute explicitly codified the fair use defense to infringement suits. One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations, including that of “fair use.” The Copyright Act contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research.
The new technologies and media forms that emerged during the late twentieth century have had an enormous effect on copyright law. The widespread adoption and use of personal computers and photocopiers were quickly followed by the proliferation of software tools, digital audiovisual recording media, satellite communications, and the Internet. Around each of these technologies have emerged new consumer markets and business models. At the same time, the limits of copyright law have been tested and Congress has responded by enacting numerous amendments to the Copyright Act. In 1980, for instance, the Copyright Act was extended to protect computer programs. In 1995, Congress added provisions governing the licensing of digital audio transmissions and, in 1998, prohibited circumvention of technological devices used to protect copyrighted digital works. In large part, such amendments reflect the growing influence and economic importance of information technology and the entertainment industries that have spurred these changes. Whether the 1976 statute will remain durable as the pace of technological development accelerates or will need to be replaced by a comprehensive new copyright law remains an open question at this time.
Alpern, Andrew. 101 Questions About Copyright Law. Mineola, N.Y.: Dover, 1999. A complete guide to copyright law written for nonlawyers using a question-and-answer format and containing practical advice about registering and protecting copyrights. Leaffer, Marshall A. Understanding Copyright Law. 4th ed. Newark, N.J.: LexisNexis, 2005. This book contains a comprehensive summary and explanation of U.S. copyright law, written in concise, understandable language. Nimmer, Melville B., and David Nimmer. Nimmer on Copyright. New York: Matthew Bender, 2003. A multivolume treatise on the law of copyrights, with detailed explanation of all aspects of copyright law and practice, including forms and text of relevant statutes. Patry, William F. Patry on Copyright. St. Paul, Minn.: Thomson West, 2007. This treatise provided a thorough and understandable treatment of all aspects of copyright protection and enforcement. Warda, Mark. How to Register Your Own Copyright. 3d ed. Naperville, Ill.: Sphinx, 2004. Written for nonlawyers, this book is a step-by-step guide to registering creative works with the U.S. Copyright Office, including sample forms and instructions.
American Society of Composers, Authors, and Publishers
Digital recording technology