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What Legal Instrument Protects Writings Music and Art Forms

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Aspect of The states constabulary

The Copyright Law of the United states grants monopoly protection for "original works of authorship".[i] [ii] With the stated purpose to promote art and civilisation, copyright law assigns a set of sectional rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These sectional rights are subject area to a time limit, and generally expire 70 years afterward the author's expiry or 95 years subsequently publication. In the United States, works published before January 1, 1927, are in the public domain.

U.s. copyright law was last mostly revised by the Copyright Deed of 1976, codified in Title 17 of the United States Code. The United states Constitution explicitly grants Congress the power to create copyright law under Article one, Department viii, Clause 8, known as the Copyright Clause.[3] Nether the Copyright Clause, Congress has the 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."[4]

The United States Copyright Part handles copyright registration, recording of copyright transfers, and other administrative aspects of copyright law.[five]

History [edit]

United States copyright law traces its lineage dorsum to the British Statute of Anne, which influenced the first U.S. federal copyright constabulary, the Copyright Act of 1790. The length of copyright established by the Founding Fathers was short, 14 years, plus the power to renew information technology one time, for fourteen more than. 40 years subsequently, the initial term was inverse to 28 years.

Information technology was not until a total 180 years later on its institution that it was significantly extended across that, Copyright Act of 1976 to "Either 75 years or the life of the writer plus 50 years" and the Sonny Bono Copyright Term Extension Act of 1998 (also called the "Mickey Mouse Protection Act", considering it prevented the copyright from expiring on the get-go commercial success of the Disney cartoon character Mickey Mouse), which increased information technology even more, to 120 years, or the life of the writer plus 70 years.

Purpose of copyright [edit]

The Congress shall have Power [...] to promote the Progress of Science and useful Arts, past securing for limited Times to Authors and Inventors the sectional Right to their respective Writings and Discoveries.

The goal of copyright law, as prepare forth in the Copyright Clause of the US Constitution, is "to promote the Progress of Science and useful Arts, by securing for express Times to Authors and Inventors the sectional Correct to their corresponding Writings and Discoveries."[6] This includes incentivizing the creation of art, literature, architecture, music, and other works of authorship. As with many legal doctrines, the effectiveness of copyright police in achieving its stated purpose is a matter of debate.[7]

Works bailiwick to copyright police [edit]

The United States copyright constabulary protects "original works of authorship," fixed in a tangible medium[8] including literary, dramatic, musical, artistic, and other intellectual works. This protection is available to both published and unpublished works. Copyright law includes the following types of works:

  • Literary
  • Musical
  • Dramatic
  • Pantomimes and choreographic works
  • Pictorial, graphic, and sculptural works
  • Audio-visual works
  • Sound recordings
  • Derivative works
  • Compilations
  • Architectural works[nine]

Idea–expression dichotomy [edit]

Copyright law protects the "expression" of an idea, simply copyright does not protect the "thought" itself. This distinction is called the idea–expression dichotomy.[10] The distinction betwixt "thought" and "expression" is fundamental to copyright constabulary. From the Copyright Deed of 1976 (17 UsaC. § 102):

In no instance does copyright protection for an original work of authorship extend to whatsoever idea, procedure, procedure, system, method of operation, concept, principle, or discovery, regardless of the grade in which information technology is described, explained, illustrated, or embodied in such work.

For instance, a paper describing a political theory is copyrightable. The paper is the expression of the author's ideas well-nigh the political theory. The theory itself is just an thought, and is not copyrightable. Another author is complimentary to describe the same theory in their own words without infringing on the original author's copyright.[11]

Although cardinal, the thought–expression dichotomy is oft difficult to put into do. Reasonable people can disagree well-nigh where the unprotectable "idea" ends and the protectable "expression" begins. As Judge Learned Hand put it, "Obviously, no principle tin can be stated equally to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably exist ad hoc."[12]

Compilations of facts and the sweat of the forehead doctrine [edit]

Mere facts are not copyrightable. However, compilations of facts are treated differently, and may be copyrightable material. The Copyright Deed, § 103, allows copyright protection for "compilations", as long as there is some "creative" or "original" deed involved in developing the compilation, such every bit in the choice (deciding which facts to include or exclude) and arrangement (how facts are displayed and in what order). Copyright protection in compilations is limited to the selection and arrangement of facts, not to the facts themselves.

The Supreme Courtroom conclusion in Feist Publications, Inc., v. Rural Phone Service Co. antiseptic the requirements for copyright in compilations. The Feist example denied copyright protection to a "white pages" phone book (a compilation of telephone numbers, listed alphabetically). In making this ruling, the Supreme Courtroom rejected the "sweat of the forehead" doctrine. That is, copyright protection requires creativity, and no corporeality of hard work ("sweat of the forehead") can transform a non-creative list (similar an alphabetical list of phone numbers) into copyrightable subject matter. A mechanical, non-selective drove of facts (e.grand., alphabetized phone numbers) cannot be protected past copyright.[13]

Useful manufactures [edit]

Copyright protects artistic expression. Copyright does not protect useful articles, or objects with some useful functionality. The Copyright Deed states:

A "useful commodity" is an article having an intrinsic commonsensical part that is not only to portray the appearance of the commodity or to convey information. An article that is normally a part of a useful article is considered a "useful commodity".

"the design of a useful commodity, as divers in this section, shall be considered a pictorial, graphic, or sculptural work but if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."[14]

However, many industrial designers create works that are both artistic and functional. Under these circumstances, copyright law just protects the artistic expression of such a work, and only to the extent that the artistic expression can be separated from its commonsensical function.[fifteen]

In 2017, the U.s.a. Supreme Court granted certiorari in the case Star Athletica, L. L. C. v. Varsity Brands, Inc. to make up one's mind when a "pictorial, graphic, or sculptural feature" incorporated into a useful article is eligible for copyright protection,[xvi] holding that such features are eligible for copyright protection "merely if the feature (ane) can exist perceived as a two- or iii-dimensional piece of work of fine art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural piece of work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful commodity into which information technology is incorporated."[17] Star Athletica began every bit a suit by Varsity Brands confronting Star Athletica for infringing the copyright of five cheerleader uniform designs.[18] Applying its new test to the cheerleader uniform designs, the courtroom said:

Start, i can identify the decorations as features having pictorial, graphic, or sculptural qualities. 2d, if the arrangement of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the compatible and applied in some other medium—for example, on a painter'south canvass—they would qualify as "ii-dimensional ... works of ... art". And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents have practical the designs in this case to other media of expression—different types of wearable—without replicating the uniform. The decorations are therefore separable from the uniforms and eligible for copyright protection.[19]

This produces a relatively low threshold for pictorial, graphic, or sculptural features on useful manufactures to be eligible for copyright protection, which one commentator clearly highlighted: the Star Athletica decision "actually has ensured that all but the subtlest graphic designs volition exist able to proceeds copyright protection...one time we determine that the designs 'hav[e] … graphic … qualities … [and could be] applied … on a painter's canvass,' the examination for copyrightability is met."[20]

Works by the federal authorities [edit]

Works created past the federal government are not copyrightable. 17 U.South.C. § 105. This restriction on copyright applies to publications produced by the United states of america Regime, and its agents or employees within the scope of their employment. The specific language is as follows:

Copyright protection under this title is not bachelor for whatever piece of work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it past consignment, bequest, or otherwise.

A "work of the United States Authorities" is defined in 17 U.S.C. § 101 as "a work prepared by an officer or employee of the United States Regime equally office of that person'south official duties". Note that government contractors are more often than not not considered employees, and their works may be discipline to copyright. Likewise, the US government tin purchase and concur the copyright to works created by 3rd parties.

The government may restrict admission to works it has produced through other mechanisms. For instance, confidential or undercover materials are non protected past copyright, but are restricted by other applicable laws. However, fifty-fifty in case of non-undercover materials there are specific prohibitions confronting automatic access to work otherwise covered nether 17 U.S.C. § 105 for commercial purposes.[21]

Federal and state laws are non protected by copyright [edit]

Federal, state, and local statutes and courtroom decisions are in the public domain and are ineligible for copyright, a concept known as the government edicts doctrine. It is not difficult to see the motivations behind this:

The citizens are the authors of the police force, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the autonomous process.[22]

Three key Supreme Courtroom cases established this government edicts doctrine: Wheaton 5. Peters (1834), Banks v. Manchester (1888), and Callaghan 5. Myers (1888).[23] The doctrine was codefied into the United States Code at 17 UsaC. § 105 via the Copyright Act of 1976. The Copyright Function upholds this doctrine inside its own regulations:

As a matter of longstanding public policy, the U.S. Copyright Office will non register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or like types of official legal materials. Too, the Office will non register a government edict issued by whatever foreign government or whatever translation prepared by a government employee acting within the grade of his or her official duties.[24]

The Supreme Court has besides ruled that annotated versions of statutes or court decisions at the federal, country, and local level, when such annotations are done past members of the government every bit function of their duties, are ineligible for copyright in Georgia 5. Public.Resource.Org, Inc. (2020).[25]

Exclusive rights [edit]

There are half-dozen basic rights protected past copyright.[26] The owner of copyright has the exclusive right to exercise and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To fix derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To publicly perform the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and move pictures and other audiovisual works;
  • To publicly display the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a movement moving-picture show or other audiovisual work.
  • To digitally transmit sound recordings by ways of digital audio transmission.[27]

A violation of any of the exclusive rights of the copyright holder is a copyright infringement, unless off-white use (or a like affirmative defense) applies.[28]

[edit]

The initial owner of the copyright to a piece of work is the author, unless that work is a "work made for hire".

  • Works for rent. If a work is made "for hire" within the meaning of the Copyright Human action, then the employer or commissioning party, is accounted to exist the author and volition ain the copyright as though it were the true author.[29] These circumstances under which a work may be found to be a work for hire are:
    • Piece of work prepared by an employee within the scope of their employment. In Customs for Artistic Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held that the term "employee" in this context should be interpreted according to common law bureau principles. If the person doing the piece of work is an "employee" within the significant of the common police, and the work was done within the telescopic of their employment (whether the piece of work is the kind they were employed to prepare; whether the preparation takes identify primarily inside the employer's time and place specifications; and whether the piece of work was activated, at to the lowest degree in role, by a purpose to serve the employer), then the work is a work for hire and the employer is the initial possessor of the copyright.[thirty]
    • Specially ordered or commissioned works. Works created past independent contractors (rather than employees) can be deemed works for hire only if ii conditions are satisfied. First, the work must fit into one of these categories: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a exam, or an atlas. 2nd, the parties must expressly hold in a written, signed instrument that the work will exist considered a work made for hire.[31]

If a work is not a work for rent, then the author volition be the initial copyright possessor. The writer generally is the person who conceives of the copyrightable expression and "fixes" information technology in a "tangible medium of expression." Special rules utilize when multiple authors are involved:

  • Joint authorship: The US copyright law recognizes joint authorship in Section 101.[29] The authors of a joint work are co-owners of a single copyright in the work. A joint work is "a piece of work prepared by two or more authors with the intention that their contributions exist merged into inseparable or independent parts of a unitary whole."[29] [32]
  • Collective works: A collective work is a collection of independent, separately copyrightable works of authorship, such as a newspaper, magazine, or encyclopedia.[29] In the absence of an express consignment of copyright, the writer of each private piece of work in the collection retains copyright in that work.[33] The compiler, or writer of the collection, owns copyright in the expression he or she contributed, which is primarily the pick and arrangement of the dissever contributions, but may include such things as a preface, advertisements, etc., that the collective author created.[29]

Transfers and licenses [edit]

3 types of transfers exist for copyrighted works.

  • Assignment
  • Exclusive license
  • Not-exclusive license

The outset two, assignment and sectional licenses, require the transfer to be in writing. Nonexclusive licenses demand not be in writing and they may exist unsaid by the circumstances. Transfers of copyright always involve one or more of the sectional rights of copyright. For instance, a license may provide a right to perform a work, merely not to reproduce information technology or to ready a derivative work (adaptation right).[34]

The terms of the license is governed by the applicable contract law, withal there is substantial academic contend most to what extent the Copyright Deed preempts state contract law principles.[35]

An author, afterward transferring a copyright, tin terminate the transfer under certain circumstances. This right to finish the transfer is accented and cannot be waived.[36]

For works published since 1978, copyrights may revert to the original author after 35 years. Title 17, United States Code, Section 203 states that the author must write a alphabetic character requesting a termination of the original copyright grant at least ii years before the constructive termination date.[37]

Limitations on exclusive rights [edit]

Championship 17, U.s.a. Code, Section 108 places limitations on exclusive copyrights for the purposes of certain limited reproduction by a public library or an archive.[38] [39] Championship 17, United states of america Lawmaking, Section 107 also places statutory limits on copyright which are commonly referred to every bit the fair use exception.[40] [41]

Registration procedure [edit]

Late 19th-century newspaper advertisement for copyright registration services. The text reads "United States and Foreign Copyright. Patents and Trade-Marks A Copyright will protect you from Pirates. And make you a fortune. If you have a play, sketch, photo, act, song or book that is worth anything, you should copyright it. Don't take chances when you can secure our services at small cost. Send for our special offer to inventors before applying for a patent, it will pay you. Handbook on patents sent free. We advise if patentable or not. Free. We incorporate stock companies. Small fees. Consult us. Wormelle & Van Mater, Managers, Columbia Copyright & Patent Co. Inc, Washington, D.C."

Late 19th-century paper advertisement for copyright registration services

Copyright is automatically granted to the author of an original work (that otherwise meets the basic copyright requirements, discussed above). Registration is not necessary. However, registration amplifies a copyright holder'southward rights in a number of ways. Registration is required before a lawsuit can be filed, and registration creates the possibility for enhanced "statutory" damages.

A copyright can be registered online at the US Copyright Office's website. The Copyright Office reviews applications for obvious errors or lack of copyrightable subject thing and so problems a certificate of registration. The Copyright Office does not compare the author's new work against a collection of existing works or otherwise cheque for infringement.

Eolith requirement [edit]

The Us Copyright Office requires a deposit re-create of the work for which copyright registration is sought. Deposits can exist made through the Copyright Function'due south eCO System. This deposit requirement serves two purposes. Showtime, if a copyright infringement lawsuit arises, the possessor may testify that the material that is infringed is exactly the same material for which the owner has secured a registration. Second, this requirement helps the Library of Congress build its drove of works.[ citation needed ]

Failure to comply with the deposit requirement, as modified by Copyright Office regulations, is punishable past fine, but does not result in forfeiture of copyright.

Copyright notices [edit]

The use of copyright notices is optional. The Berne Convention, alteration Usa copyright law in 1989, makes copyright automated.[42] However, the lack of discover of copyright using these marks may accept consequences in terms of reduced damages in an infringement lawsuit—using notices of this form may reduce the likelihood of a defense of "innocent infringement" being successful.[43]

Duration of copyright [edit]

Expansion of U.S. copyright term (assuming authors create their works at historic period 35 and live for 70 years)

Copyright protection generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright persists for 120 years after creation or 95 years later publication, whichever is shorter. For works created before 1978, the copyright duration rules are complicated. However, works published before January 1, 1927 (other than sound recordings), have made their mode into the public domain.

Works created before 1978 [edit]

For works published or registered before 1978, the maximum copyright duration is 95 years from the date of publication, if copyright was renewed during the 28th yr post-obit publication.[44] Copyright renewal has been automatic since the Copyright Renewal Act of 1992.

For works created earlier 1978, simply not published or registered before 1978, the standard §302 copyright elapsing of 70 years from the author's expiry also applies.[45] Prior to 1978, works had to be published or registered to receive copyright protection. Upon the constructive date of the 1976 Copyright Act (which was January one, 1978) this requirement was removed and these unpublished, unregistered works received protection. However, Congress intended to provide an incentive for these authors to publish their unpublished works. To provide that incentive, these works, if published before 2003, would non have their protection expire before 2048.[46]

All copyrightable works published in the United States before 1927 are in the public domain;[46] works created but not published or copyrighted before January i, 1978, may be protected until 2047.[47] For works that received their copyright earlier 1978, a renewal had to be filed in the work's 28th year with the Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 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 in the public domain.

Before 1972, sound recordings were non subject to federal copyright, but copying was nonetheless regulated under various state torts and statutes, some of which had no elapsing limit. The Sound Recording Amendment of 1971 extended federal copyright to recordings fixed on or after February 15, 1972, and declared that recordings fixed before that engagement would remain subject to land or common police force copyright. Subsequent amendments had extended this latter provision until 2067.[48] As a outcome, older sound recordings were not subject field to the expiration rules that applied to contemporary visual works. Although these could accept entered the public domain as a result of government authorship or formal grant by the possessor, the practical consequence has been to render public domain audio well-nigh nonexistent.[49]

This situation changed with the 2018 enactment of the Music Modernization Human activity, which extended federal copyright protection to all audio recordings, regardless of their engagement of cosmos, and preempted state copyright laws on those works. Under the Act, the first sound recordings to enter the public domain were those stock-still before 1923, which entered the public domain on January 1, 2022. Recordings fixed betwixt 1923 and February 14, 1972, will exist phased into the public domain in the following decades.[50] [51] Specifically, works fixed 1923–1946 are public later 100 years and works fixed 1947–1956 after 110 years of fixation. Works fixed one January 1957 – xiv February 1972 will all become public on 15 February 2067.[46]

In May 2016, Judge Percy Anderson ruled in a lawsuit between ABS Entertainment and CBS Radio that "remastered" versions of pre-1972 recordings can receive a federal copyright as a distinct work due to the amount of artistic endeavour expressed in the process.[52] The Ninth Circuit appeals court reversed the decision in favor of ABS Entertainment.[53]

Copyright limitations, exceptions, and defenses [edit]

United States copyright law includes numerous defenses, exceptions, and limitations. Some of the most of import include:

  • Copyright applies only to certain copyrightable subject thing, codified within 17 U.S.C. § 102. Works that are non "original works of authorship fixed in any tangible medium of expression" are not field of study to copyright. 17 U.Due south.C. § 102(b) codifies that copyright protection does non extend to ideas, procedures, processes, systems, etc. Facts may not be copyrighted. "Useful articles" may not be copyrighted. Useful articles includes typeface designs (Eltra Corp. v. Ringer), fashion designs, blank forms, titles, names, short phrases, slogans, lists of ingredients and contents, domain names and band names.[54]

As animate being-made art, this monkey selfie is ineligible for copyright in the U.s..

  • The first sale doctrine , 17 U.S.C. § 109, limits the rights of copyright holders to command the further distribution and display of copies of their works after the first sale by the copyright owner. The owner of a detail copy is entitled to "sell or otherwise dispose of the possession of that copy" and to "display the re-create publicly ... to viewers nowadays at the place where the copy is located."
  • The "good faith" defense (Department 504(c)(2)) reduces the statutory damages where the infringer was an educational establishment, library, archive, or public broadcaster and reasonably believed that the infringing use was "fair use."
  • The Copyright Human activity includes specific exemptions for types of works and particular entities, such as libraries (§ 108), public broadcasters (§ 110 and § 118), braille (§ 121), software backup copies (§ 117), "cover license" permitting sound recording covers (§ 115), and jukebox compulsory licenses (§ 116).
  • Provisions for the Bullheaded and Disabled. The Copyright Act, in 17 USC 121 and 17 USC 110(8), includes specific statutory exceptions for reproduction of material for the bullheaded or other persons with disabilities. Section 121 (the "Chafee Amendment") permits the reproduction of copyright works in Braille, audio, electronic, Web-Braille, or other necessary formats. For case, the National Library Service for the Bullheaded and Physically Handicapped (NLS) administers a programme under Department 121, and the HathiTrust Digital Library also relies on Department 121 in providing access to disabled users.[55]
  • Online Service Provider "Rubber Harbor." Section 512 ("OCILLA", passed as part of the DMCA in 1998) provides a contingent "safe harbor" for online service providers from secondary liability for their users' copy infringements.
  • US copyright law does not allow works created past animals to be copyrighted.[56] [57] [58]

Fair use [edit]

Fair apply is the use of limited amounts of copyrighted material in such a manner as to non exist an infringement. Information technology is codified at 17 U.Southward.C. § 107, and states that "the fair use of a copyrighted work ... is not an infringement of copyright." The section lists four factors that must exist assessed to decide whether a particular use is off-white. In that location are no bright-line rules regarding off-white use and each determination is fabricated on an individualized case-by-case ground.[59]

  1. Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Nonprofit educational and noncommercial uses are more than likely to be fair utilize. This does not mean that all nonprofit didactics and noncommercial uses are fair use or that all commercial uses are non off-white. Instead, courts will balance the purpose and character of the use confronting the other factors below. Additionally, "transformative" uses are more than likely to be considered fair. Transformative uses are those that add something new, with a farther purpose or dissimilar graphic symbol, and practise not substitute for the original use of the work.
  2. Nature of the copyrighted piece of work: Using a more creative or imaginative work (such as a novel, film, or vocal) is less probable to back up fair utilize than using a factual work (such as a technical article or news item). In add-on, employ of an unpublished piece of work is less likely to be considered fair.
  3. Amount and substantiality of the portion used in relation to the copyrighted work every bit a whole: Courts look at both the quantity and quality of the copyrighted material that was used. Using a large portion of the copyrighted work is less likely to exist fair use. Nevertheless, courts have occasionally found utilise of an entire work to be fair use, and in other contexts, using even a small corporeality of a copyrighted piece of work was determined not to be fair use because the option was an of import role—or the "heart"—of the work.
  4. Effect of the utilise upon the potential market place for or value of the copyrighted piece of work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or time to come market for the copyright possessor'south original work. In assessing this factor, courts consider whether the employ is pain the current market for the original work (for case, by displacing sales of the original) and/or whether the use could crusade substantial impairment if it were to become widespread.

In improver to these 4 factors, the statute also allows courts to consider any other factors that may be relevant to the fair use analysis. Courts evaluate fair use claims on a instance-past-case basis, and the event of any given instance depends on the specific facts of that instance. There is no formula to ensure that a predetermined per centum or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.[sixty]

The justification of the fair employ doctrine turns primarily on whether, and to what extent, the challenged use is transformative. "The use must be productive and must employ the quoted matter in a dissimilar fashion or for a different purpose from the original. A quotation of copyrighted cloth that merely repackages or republishes the original is unlikely to pass the test.... If, on the other mitt, the secondary use adds value to the original—if the quoted matter is used equally raw material, transformed in the creation of new data, new aesthetics, new insights and understandings—this is the very type of activity that the fair employ doctrine intends to protect for the enrichment of guild."[61]

The Copyright Part provides a searchable list of off-white use example law.[62]

Parodies [edit]

Although a parody tin can be considered a derivative piece of work, and thus within the exclusive rights of the copyright owner, information technology may authorize as "fair employ." Parodies are not automatically fair use. The Supreme Court of the Usa stated that parody (transformative) "is the apply of some elements of a prior author's composition to create a new one that, at to the lowest degree in part, comments on that writer'south works." That commentary part provides some justification for use of the older piece of work; in contrast, a satire (exaggerated) (which is not targeted at the piece of work borrowed from) does not require use of the original work to make its signal. (See Campbell 5. Acuff-Rose Music, Inc.).[13]

Infringement [edit]

Copyright infringement occurs when someone violates one of the exclusive rights listed in 17 USC 106. Commonly, this involves someone creating or distributing a "copy" of a protected piece of work that is "substantially similar" to the original version.

Infringement requires copying. If two people happen to write exactly the same story, without cognition of the other, there is no infringement.

Copyright infringement litigation [edit]

A copyright owner may bring a copyright infringement lawsuit in federal courtroom. Federal courts take exclusive subject-affair jurisdiction over copyright infringement cases.[63] That is, an infringement instance may not be brought in land courts. (With an exception for works not protected nether Federal police force, only are protected nether country law, e.g. state laws prohibiting copying of sound recordings made before February 15, 1972.) Notation that the Copyright Office handles copyright registrations, merely it does not adjudicate copyright infringement disputes.

Ownership of valid copyright [edit]

To bring a copyright infringement lawsuit, a copyright holder must establish buying of a valid copyright and the copying of constituent elements of the piece of work that are original.[64] The copyright owner must too establish both (a) actual copying and (b) improper appropriation of the work. The copyright owner, as plaintiff, bears the burden of establishing these three elements of the prima facie case for infringement.

A plaintiff establishes ownership by authorship (by the plaintiff itself or by someone who assigned rights to the plaintiff) of (1) an original work of authorship that is (2) stock-still in a tangible medium (e.g. a book, musical recording, etc.).

Registration is not required to plant copyright protection, only registration is necessary earlier bringing a lawsuit. Registration is also useful considering it creates a presumption of a valid copyright, it allows the plaintiff to collect enhanced "statutory amercement", and to be eligible for an award of attorney fees.

A plaintiff establishes "bodily copying" with direct or indirect bear witness. Directly bear witness is satisfied either past a defendant'due south admission to copying or the testimony of witnesses who observed the accused in the act. More usually, a plaintiff relies on circumstantial or indirect evidence. A court volition infer copying by a showing of a "striking similarity" between the copyrighted work and the alleged copy, along with a showing of both access and use of that access.[65] A plaintiff may establish "admission" by proof of distribution over a large geographical area, or by bystander testimony that the defendant endemic a copy of the protected work. Access lone is not sufficient to plant infringement. The plaintiff must prove a similarity between the two works, and the degree of similarity will touch the probability that illicit copying in fact occurred in the courtroom'due south eyes.[66] Even so, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the Usa Supreme Courtroom has held that not all copying constitutes infringement and a showing of misappropriation is necessary.[67]

Misappropriation [edit]

A copyrighted piece of work may incorporate elements which are not copyrightable, such equally facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must first demonstrate that what the accused appropriated from the copyrighted work was protectible. Second, a plaintiff must evidence that the intended audition will recognize substantial similarities between the two works. The intended audience may be the full general public, or a specialized field. The degree of similarity necessary for a courtroom to discover misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague."[68]

Two methods are used to make up one's mind if unlawful appropriation has occurred: the "subtractive method" and the "totality method".

The subtractive method, too known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not.[69] The unprotected elements are subtracted and the fact finder and so determines whether substantial similarities exist in the protectible expression which remains. For case, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparison it to the allegedly infringing work because Romeo and Juliet exists in the public domain.

The totality method, likewise known equally the "full concept and feel" approach takes the piece of work as a whole with all elements included when determining if a substantial similarity exists. This was first formulated in Roth Greeting Cards v. United Card Co. (1970).[70] The individual elements of the alleged infringing work may past themselves be essentially dissimilar from their corresponding office in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable textile.[71]

Modern courts may sometimes utilise both methods in its analysis of misappropriation.[72] In other instances, 1 method may find misappropriation while the other would non, making misappropriation a contentious topic in infringement litigation.[73]

Ceremonious remedies [edit]

A successful copyright infringement plaintiff may seek both "injunctive relief" and monetary damages. As of 2019, the The states Supreme Court has held that a copyright holder must register his copyright with the U.S. copyright function before he may seek any judicial remedies for infringement.[74]

Injunctions: Copyright Act § 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement. There are also provisions for impounding allegedly infringing copies and other materials used to borrow, and for their destruction.

Damages and/or Profits: Copyright Act § 504 gives the copyright owner a choice of recovering: (i) their actual damages and any boosted profits of the defendant; or (2) statutory damages.

Yet, Championship 17 United States Code §411(a) states that a civil action to enforce a copyright claim in a Us work cannot be made until the work has been registered with the U.S. Copyright Office, with a narrow exception if the merits was filed and rejected by the Copyright Role.[75] [76] In 2019, the U.S. Supreme Court decided that §411(a) requires that a lawsuit cannot be initiated until the Copyright Office has processed, not only received, the application.[76] [77]

Equitable relief [edit]

Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright.[78] An "injunction" is a court order directing the defendant to stop doing something (e.g., stop selling infringing copies). Ane grade of equitable relief that is available in copyright cases is a seizure guild. At any fourth dimension during the lawsuit, the courtroom may order the impoundment of any and all copies of the infringing products. The seizure order may include materials used to produce such copies, such as master tapes, film negatives, printing plates, etc. Items that are impounded during the course of the lawsuit can, if the plaintiff wins, be ordered destroyed as function of the concluding decree.

Monetary amercement [edit]

A copyright holder can too seek budgetary damages. Injunctions and damages are not mutually exclusive. One can take injunctions and no damages, or damages and no injunctions, or both injunctions and damages. In that location are two types of damages: bodily damages and profits, or statutory damages.[79]

The copyright owner may recover the profits he or she would take earned absent-minded the infringement (actual amercement) and any profits the infringer might have made as a event of the infringement but that are not already considered in computing bodily damages.[79] To recover actual damages, the plaintiff must prove to the court that, in the absence of the infringement, the plaintiff would have been able to brand additional sales, or peradventure been able to charge higher prices, and that this would have resulted in profits given the owner's cost structure.[80] In some cases, the profits earned by the infringer exploiting the copyrighted material may exceed those earned past or potentially available to the owner. In these circumstances, the copyright owner can recover the infringer's profits if he or she can demonstrate a nexus betwixt the profits and the infringing utilize.[81]

Statutory damages are available as an alternative to actual damages and profits.[82] If the copyright was registered either (a) within three months of publication or (b) before the infringement, then the plaintiff is eligible to seek statutory damages.[82] Statutory damages can be awarded by the courtroom within the range of $750 to $xxx,000, but this tin be lowered if the infringement is deemed inadvertent, or increased significantly if the infringement is willful.[83]

Statutory damages are sometimes preferable for the plaintiff if bodily damages and profits are either as well pocket-sized, or too difficult to prove, or both. There are, nonetheless, situations where statutory damages are not bachelor. 17 U.S.C. § 412 provides:

  • Statutory amercement are not available if the work is unpublished and the infringement began before the effective date of its registration.
  • Statutory damages are non available if the work is published merely the infringement commenced afterward the first publication and before the constructive engagement of its registration, unless registration is made within three months later the first publication.

Statutory damages are calculated per work infringed.[82] According to clause (ane) of Championship 17, U.S.C. Section 504(c), statutory amercement range from $750 per piece of work to $30,000 per work, with two principal exceptions:

  • In case of "innocent infringement", the amount may be reduced to a sum "not less than $200" for an effective range of $200 to $30,000 per work. "Innocent" is a technical term. In particular, if the work carries a copyright notice, the infringer cannot claim innocence.[84]
  • In case of "willful infringement" (again, "willful" is a technical term), statutory damages can be no more than $150,000 for an effective range of $750 to $150,000 per piece of work.[82]

Damages in copyright cases can be very high. In Lowry's Reports, Inc. v. Legg Mason Inc.,[85] a 2003 lawsuit between a publisher of stock analysis newsletters against a visitor that buys ane copy of the newsletters and makes multiple copies for employ in-house, the jury awarded amercement – bodily damages for some newsletters and statutory damages for other newsletters – totaling $20 one thousand thousand.

Attorney's fees [edit]

Cost and chaser fees: Copyright Act § 505 permits courts, in their discretion, to award costs against either political party and to award reasonable attorney fees to the prevailing party. The court may (only is non required to) honour to the "prevailing party" reasonable attorney's fees.[86] This applies to both a winning plaintiff (copyright owner) and a winning defendant (accused infringer).[87] However, chaser's fees award is not available against the government. Like statutory amercement, attorney'south fees are non available if the piece of work infringed is not registered at the time of infringement.

Criminal penalties [edit]

In addition to the civil remedies, the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. At that place are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright notice, and false representations in applications for copyright registration. The Digital Millennium Copyright Deed imposes criminal sanctions for certain acts of circumvention and interference with copyright management data. At that place are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art.

Criminal penalties for copyright infringement include:

  • A fine of non more $500,000 or imprisonment for not more than v years, or both, for the outset offense.
  • A fine of not more than $1 million or imprisonment for not more than than 10 years, or both, for repeated offenses.

Nonprofit libraries, athenaeum, education institutions and public broadcasting entities are exempt from criminal prosecution.

Felony penalties for first offenses brainstorm at 7 copies for audiovisual works, and ane hundred copies for sound recordings.[88]

Government infringement [edit]

The Us regime, its agencies and officials, and corporations endemic or controlled by it, are subject area to suit for copyright infringement. All infringement claims against the U.S. that did not arise in a foreign state must be filed with the United States Court of Federal Claims within three years of the infringing action.[89] Claims filed in the wrong court are dismissed for lack of subject-matter jurisdiction. The government and its agencies are as well authorized to settle the infringement claims out of court.

United states take sovereign immunity provided by the Eleventh Amendment to the United states of america Constitution, which bars most forms of lawsuits confronting states in federal courts, just tin can be abrogated in certain circumstances by Congress.[xc] [91] [92] The Copyright Remedy and Clarification Human activity of 1990 (CRCA) states in office that states are liable to copyright infringement "in the aforementioned manner and to the same extent as whatever nongovernmental entity"[93] and also that states and state entities and officials "shall not be immune, under the Eleventh Amendment to the Constitution of the Us or under any other doctrine of sovereign immunity, from suit in Federal Courtroom past whatever person"[94] alleging copyright infringement.[95] : 1 The CRCA has been alleged unconstitutional by several federal courts.,[95] : iv and this was upheld by the United states of america Supreme Courtroom on March 23, 2020.[96]

Public domain [edit]

Works in the public domain are gratuitous for anyone to copy and use. Strictly speaking, the term "public domain" means that the work is not covered by any intellectual property rights at all (copyright, trademark, patent, or otherwise).[97] Withal, this article discusses public domain with respect to copyright only.

A work may enter the public domain in a number of different ways. For instance, (a) the copyright protecting the work may have expired, or (b) the owner may have explicitly donated the work to the public, or (c) the piece of work is non the type of work that copyright tin can protect.

Orphan works [edit]

The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in whatsoever tangible medium of expression"[98] fall into copyright status. The emptying of registration also eliminated a central recording location to track and place copyright-holders. Consequently, potential users of copyrighted works, e.one thousand., filmmakers or biographers, must presume that many works they might utilize are copyrighted. Where the planned use would non be otherwise permitted past law (for instance, past off-white use), they must themselves individually investigate the copyright status of each work they plan to employ. With no central database of copyright-holders, identifying and contacting copyright-holders can sometimes exist hard; those works that fall into this category may exist considered "orphaned".

Run across as well [edit]

  • Bilateral copyright agreements of the U.s.
  • Copyright Catalog
  • Copyright status of works by subnational governments of the U.s.
  • Copyright status of works by the federal government of the United States
  • Fair Employ Project
  • No Electronic Theft Human activity
  • TEACH Human action
  • United states copyright law in the performing arts
  • United states trademark law
  • Uruguay Round Agreements Deed
  • Visual Artists Rights Deed

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Further reading [edit]

  • Copyright Law of the U.s. (United states of america Copyright Function, 2011).
  • Copyright Law, Second Edition, Prof. Robert Gorman (Federal Judicial Center, 2006).
  • Intellectual Property: Law & the Information Lodge. Cases & Materials Archived March thirteen, 2016, at the Wayback Motorcar (First Edition, 2014) James Boyle and Jennifer Jenkin.
  • Toward a Off-white Utilise Standard. Pierre N. Leval (103 Harvard Police force Review 1105 (1990)).

External links [edit]

  • United States Copyright Office
    • Copyright Office—Searchable Fair Utilise Alphabetize
    • United States Copyright Office list of circulars
    • Copyright Constabulary of the United States
  • Cornell Academy: Copyright Term and the Public Domain in the United States
  • Digital copyright slider to determine copyright condition of a piece of work
  • "How Tin I Tell Whether a Copyright Was Renewed?". The Online Books Folio. University of Pennsylvania.
  • Copyright Timeline: A History of Copyright in the U.Southward.
  • Text of every version of U.Due south. Copyright Act for 1909 to the present

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Source: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States

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