Module 4_Week 4_ Copyrights_Intellectual Property Law

Module 4

Copyrights

A. Foundations of Copyright Law

the U.S. Constitution. Copyright protects the works of authors and artists to ensure their

products are not unlawfully reproduced, distributed, performed, or displayed, acts that

would deprive them of revenue and discourage further creative work. As new

technologies have developed, copyright law has evolved to keep pace, thereby affording

protection to works not originally contemplated by the framers of the Constitution, such

as computer programs and websites. The present act governing copyrights in the United

States is the Copyright Act of 1976, which provides protection upon creation of a work in

a fixed form rather than requiring publication of a work as a prerequisite to protection as

did the previous Copyright Act of 1909. Rights arise automatically upon creation of a

work, and no publication or registration with the Copyright Office is required to secure

Just as medieval merchants in guilds in England used trademarks on their wares to

indicate the source of those products, mercantile interests in England prompted the first

insistence upon protection for publication of books. When the invention of the printing

press in about 1440 resulted in the ability to produce books by machine rather than by

hand, bookbinders and printers demanded protection from copying of books. Authors

also began to demand protection from unauthorized copying and demanded to share in

the financial rewards the publishers were winning. Finally, in 1710, Parliament enacted

the first copyright statute, the Statute of Anne, which limited the formerly perpetual

rights publishers enjoyed to a period of 14 years. Under the statute, damages for

infringement were set at one penny for every sheet found in the infringer’s custody, one-

half to go to the author and one-half to go to the Crown. Authors were thus granted the

right to control copying of their books. This grant of rights was called a copyright.

Just as trademark law protects the investment by merchants in the marks under

which their goods are sold, copyright law protects the creators of books, music, and art by

providing them with the exclusive right to reproduce their works and derive income from

them. Protecting these rights fosters creative effort—there would be little to be gained

from investing and pouring effort into composing a song or writing a novel if others

could reproduce the song or book at will without compensating its creator. Not only is

impact in the United States as well. According to the International Intellectual Property

Alliance, approximately 11 percent of the gross domestic product in the United States

derives from copyright industries, including software, films, music, and television shows.

Additionally, copyright piracy costs U.S. businesses an estimated $25 billion each year in

lost revenues. Copyright law in the United States stems from the Patent and Copyright

Clause of the Constitution, which provides that Congress shall have the power “to

promote the progress of science and useful arts, by securing for limited times to authors

and inventors the exclusive rights to their respective writings and discoveries.” U.S.

Const. art. I, § 8. Under this clause, Congress has the power to enact legislation to

provide copyright protection for authors for limited periods.

Over time, the wording in the clause has been liberally interpreted to incorporate

new technologies and protect new forms of expression such as films and video games as

varieties of “writings.” Congress enacted the first copyright act in 1790, and the first

federal copyright registration was issued that same year to author John Barry for The

Philadelphia Spelling Book. Since 1790, the act has been subject to major revision on

four occasions: in 1831, 1870, 1909, and 1976. The 1790 act provided copyright

protection to maps, charts, and books, and set damages for infringement of published

works in the sum of 50 cents for every sheet found in the infringer’s possession, one-half

of the damages to go to the copyright owner and one-half to the federal government.

Subsequent revisions to the 1790 act reflect a gradual expansion of the categories of

works or “writings” that are entitled to protection. Thus, musical compositions, dramatic

compositions, photographs, paintings, and sculptures were eventually included within the

definition of copyrightable material. The present act provides protection to nearly

anything that can be expressed in tangible form, including sound recordings, videotape,

and computer software.

301, the federal government has preempted all rights relating to copyright. Thus, the

individual states cannot grant copyright, and there is no such thing as a state copyright

registration. The federal government regulates copyright in two ways: by providing a

method of registration of copyright and by allowing access to the federal courts for

All cases alleging copyright infringement must be brought in federal court. On the

other hand, for example, an allegation that a contract by which one party licensed a

interpretation and would be governed by state law because copyright issues themselves

would not be involved in such a case. Copyright law strives to balance two competing

interests: the interests of authors in protecting their works from unauthorized copying and

the interest of the public in having the greatest possible access to works of authorship.

U.S. copyright law is intended to stimulate the creation of new works of art, literature,

music, sculpture, and other tangible forms of expression.

B. Common Law Rights and Rights Under The 1976 Copyright Act

Until January 1, 1978 (the effective date of the 1976 Copyright Act), the United

States had a dual system of copyright protection in that a distinction was drawn between

unpublished works and those that were published. Until 1978, authors had a perpetual

common law right to their unpublished works. Thus, the author of an unpublished

manuscript could exclude others from copying the material forever. Once the work was

published with a proper copyright notice, however, the common law perpetual copyright

was extinguished and protection was afforded by virtue of the 1909 act, which then

provided a period of protection up to 56 years.

Publication is the distribution of copies or phonorecords of a work to the public

for sale or other transfer of ownership, by rental, lease, or lending. Because this dual

nature of copyright protection was complex, and the point at which works became

published often led to controversy, the 1976 act eliminated the distinction between

unpublished and published works and provides simply that a work is protected from its

creation, that is, as soon as it is created or fixed in some tangible form. Thus, even an

unpublished manuscript is governed by the 1976 act inasmuch as it is created when the

author sets the words down onto paper or types them into a computer.

The copyright registration process is far simpler than either the trademark or

patent registration process. The application fee is only $35 (for an online application),

and the process takes about three months for applications that are filed electronically and

about 11 months for applications that are filed on paper. Copyright protection generally

lasts until 70 years from the death of the author. The 1976 Copyright Act is found at 17

U.S.C. §§ 101–1101. The 1976 Copyright Act has been amended several times. In 1980,

specific protection was afforded to computer programs as works entitled to copyright

protection. In 1989, the United States joined the Berne Union, an organization now

comprising more than 160 nations, by entering into an international treaty called the

Berne Convention for the Protection of Literary and Artistic Works. Just as the Paris

Convention requires member nations to treat citizens of member nations as they do their

own citizens with regard to trademarks, the Berne Convention requires member nations

to treat citizens of member nations as they do their own citizens with regard to

copyrights.

To satisfy our obligations under the Berne treaty, Congress once again amended

the 1976 Copyright Act by eliminating any requirement for a copyright notice (©) to be

used with a work (although use of the notice is recommended) and by requiring copyright

applicants to submit two copies of a published work in which copyright is claimed when

they apply for copyright registration. In 1990, the Copyright Act was again amended to

bring U.S. copyright law more into conformity with that of other Berne Union members,

particularly with respect to rights of attribution and integrity for certain works of visual

arts (see Chapter 11). The most recent significant amendment to the 1976 Copyright Act

was enacted in late 1998, pursuant to the Sonny Bono Copyright Term Extension Act,

when Congress extended the duration of copyright to 70 years from an author’s death

rather than 50 years from death as was previously the case.

Another significant 1998 amendment to copyright law is the Digital Millennium

forbidding individuals from circumventing copyright protection systems and limiting the

liability of Internet service providers (such as AOL) for copyright infringement. A

number of experts believe that the Digital Millennium Copyright Act of 1998 is the most

comprehensive updating of copyright law in a generation. The Act is discussed in detail

in Chapters 15 and 16. References in this text to the Copyright Act are references to the

1976 act (with its later amendments).

C. The U.S Copyright Office

The U.S. Copyright Office is a division of the Library of Congress and is located

in Washington, DC. Its address and telephone number are as follows: Register of

Copyrights, Copyright Office, Library of Congress, 101 Independence Avenue SE,

Washington, DC 20559-6000 (202/707-3000 or toll-free at 877/476- 0778). Its chief

officer is the Register of Copyrights, and its powers and procedures are established in the

1976 Copyright Act. The primary function of the Copyright Office is to issue copyright

registrations and serve as a depository for materials in which copyright is claimed. The

matters such as disputes over the ownership of a copyright, suits against possible

infringers, or other matters related to copyrights. It does, however, provide, free of

charge, a variety of information, publications, circulars (information packets), and forms

related to copyright.

Alternatively, you may call the Copyright Office’s Forms and Publications

Hotline at (202) 707-9100 (24 hours a day). Orders are recorded automatically, and

materials will be mailed to you as quickly as possible, usually within two weeks.

Frequently requested Copyright Office circulars and fact sheets, announcements,

application forms, and the most recent proposed and final regulations are also available

for free through the Copyright Office’s website. This website gives you access to

information created by the Copyright Office and links to a wide variety of other copyright

resources. Finally, the Copyright Office provides a free electronic newsletter,

“NewsNet,” that issues periodic e-mail messages on copyright issues. These messages

alert subscribers to hearings, deadlines for comments related to copyright rules and

regulations, new and proposed rules and regulations, and other copyrightrelated matters.

D. The Subject Matter of Copyright

To be eligible for copyright protection, matter must be original, it must be fixed in

some tangible form, and it must qualify as a “work of authorship.” The requirement of

originality does not mean the work must be new or novel; it must merely be created

independently by its author. The most common subjects of copyright protection are

literary works; musical works; dramatic works; choreographic works; pictorial, graphic,

and sculptural works; motion pictures and other audiovisual works; sound recordings;

and architectural works. Not all printed or communicable matter can be the subject of

U.S. government cannot be copyrighted. In some instances, however, material that itself

is not copyrightable (such as facts) may be subject to protection if it is arranged or

compiled in such a way that shows creativity, for example, an arrangement of facts into a

book of lists.

To be eligible for copyright protection, material must be original, meaning that it

must have been independently created and must possess a modicum of creativity. The

requirement of originality should not be confused with novelty, worthiness, or aesthetic

appeal. The requirement is rather that the material must be an independent product of the

author and not merely some copy or minimal variation of an existing work. A work can

be original even if it is strikingly similar or identical to that of another. The Copyright

Act only requires originality, meaning independent creation by the author. Thus, if two

photographers each take photographs of the Washington Memorial, each will have

authors independently write novels that are strikingly similar, each will have copyright

protection (again, assuming there was no copying).

In regard to the level of creativity required for copyright protection, the threshold

is quite low. Even a slight amount of “creative spark” will suffice. In order to be

protected by copyright, however, a work must contain at least a certain minimum amount

of original expression. Thus, copyright does not extend to blank forms, column headings,

names, titles, or lists of ingredients. In Feist, the Supreme Court held that telephone white

page listings did not satisfy the originality requirement inasmuch as they lacked minimal

creativity. The Court held that the names, towns, and telephone numbers were all merely

facts arranged in alphabetical order, an age-old practice, and thus were uncopyrightable.

Although facts are not copyrightable, an author’s original selection and arrangement of

those facts may be copyrightable as a compilation.

E. Fixation of Material

The Copyright Act protects works of authorship that are “fixed in any tangible

medium of expression.” A work is “fixed” when it is embodied in a copy or phonorecord

and is sufficiently permanent or stable to permit it to be perceived, reproduced, or

communicated for a period of more than transitory duration. 17 U.S.C. § 101. There are

thus two categories of tangible expression in which works can be fixed: “copies” and

“phonorecords.” A copy is a material object (other than a phonorecord) from which a

work can be perceived, reproduced, or communicated, either directly by human

perception or with the help of a machine. Thus, according to the Copyright Act, a famous

photograph by Ansel Adams that appears on a book cover, a calendar, a T-shirt, a tie, or a

coffee mug is a “copy” in each case.

The photograph, calendar, and so forth are copies because they are material

objects from which an image can be perceived. The scope of “material object” is broad

enough to encompass writings on paper, images on marble, and even designs on fabric. A

phonorecord is a material object in which sounds (other than those accompanying a

motion picture or other audiovisual work) are fixed and from which the sounds can be

perceived, reproduced, or communicated either directly by human perception or with the

help of a machine. For example, a record, a cassette tape, and a CD recording of a song

by the Rolling Stones are all considered to be “phonorecords.” Thus, for example, a song

(the “work”) can be fixed in sheet music (“copies”) or in a CD (a “phonorecord”), or

both.

Because the definition of fixation requires that a work be embodied in some

sufficiently stable or permanent form to be perceived, an oral presentation, lecture, or live

performance is not fixed (unless it is reduced to writing or placed on film or tape).

However, by virtue of 17 U.S.C. § 101, which defines the word fixed, a live broadcast of

a television or radio show is viewed as fixed if it is recorded or videotaped

simultaneously with its live broadcast transmission. Thus, an impromptu stand-up

comedy routine by Jerry Seinfeld is not fixed; however, a recording and transmission of

the same routine is fixed. Fixation occurs when a work is reduced to words, numbers,

sounds, or shapes and placed on some permanent or stable medium.

Prior to the 1976 act, works were protected only if they were fixed in a form that

was perceptible to the human eye (although special rules existed for sound recordings,

protecting records). One famous case held that the rolls of music for a player piano were

not subject to copyright protection because they could not be read by humans as sheet

music could. White-Smith Music Publ’g Co. v. Apollo Co., 209 U.S. 1 (1908). The 1976

act (17 U.S.C. § 102), however, provides that copyright protection subsists 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, thus allowing protection for works

that are perceived by machines as well as humans, such as CDs, video games, and

videotapes. Works reproduced on hard drives or magnetic tapes also meet the act’s

“fixation” requirement.

F. Works of Authorship

The Copyright Act provides that copyright protection subsists in original works of

authorship fixed in any tangible medium of expression, now known or hereafter

developed, from which they can be perceived, reproduced, or otherwise communicated,

either directly or with the aid of a machine. 17 U.S.C. § 102. Section 102 then lists eight

categories of protectable works. The list is preceded by the phrase that works of

authorship “include” those categories, demonstrating that the listed categories are not the

only types of works that can be protected, but are illustrative only. Thus, it has been held

that fabric designs and toys are copyrightable even though they are not specifically listed

in section 102. Moreover, the provision that copyright protection exists in works “now

known or hereafter developed” indicates congressional intent to protect new forms of

expression that are not yet existent.

A literary work is one expressed in words, numbers, or other verbal or numerical

symbols, regardless of the nature of the material objects, such as books, periodicals,

manuscripts, phonorecords, film, tapes, discs, or cards, in which they are embodied. This

broad category includes works of fiction and nonfiction, poetry, catalogs, reports, written

speeches, pamphlets, and manuscripts. Works such as computer programs, databases, and

websites (if text predominates) are also treated as literary works because they are

expressed in letters and numbers. Literary works can include directories, an employee

handbook, an instruction manual, or an advertisement. The fact that many people would

not regard an advertisement or an instruction manual to be literary in the sense the word

is usually used is of no significance. If the material is original, in fixed form, and can be

expressed in letters or numbers, it is “literary” even though it may be entirely lacking in

artistic merit to most people.

A musical work, together with its accompanying words, is copyrightable. A

musical work or composition may be in the form of a notated copy (such as sheet music)

or in the form of a phonorecord (such as a record, a cassette tape, or a CD). The author of

a musical work is usually the composer, and the lyricist, if any. The lyrics or words to a

musical composition are not protected as a literary work, but rather as a musical work.

Both elements of a composition are separately protected. Thus, if someone writes the

lyrics to “Yesterday” in a novel, without permission, it is a violation of the author’s

“Yesterday” on stage, even without singing of lyrics, is also a copyright violation.

Pantomime or mime is a performance using gestures and expression to

communicate with no accompanying sound. An impromptu street performance of mime

would not be protected (because it is not fixed in some stable or permanent medium of

expression), but a filmed performance of the famous mime Marcel Marceau or a precise

description of the pantomime in text would be protected. The 1976 act was the first

statute to include choreography as a copyrightable work. Choreography is the

composition and arrangement of dance movements and patterns.

Simple dance routines and social dance steps such as the waltz, the fox trot, and

the second position of classical ballet are not copyrightable in and of themselves;

however, once these steps are incorporated into an otherwise choreographic work, they

are protected, much like words are protected once they are incorporated into a work of

fiction or nonfiction. A choreographic work does not need to tell a story in order to be

protected by copyright; however, the work must be fixed in a tangible medium of

expression from which the work can be performed, such as a recorded or notated

choreographic work or a precise description of the choreographed work in text or in a

dance notation system.

Pictorial, graphic, and sculptural works include two-dimensional and three-

dimensional works of fine, graphic, and applied art. This category of copyrighted works

is extremely broad and includes the following: photographs; prints, posters, and art

reproductions; maps; globes; charts; diagrams; artwork applied to clothing; bumper

stickers; cartoons and comic strips; dolls; toys; jewelry designs; mosaics; patterns for

sewing; record jacket artwork; tapestries; quilts; fabric, floor, and wall-covering designs;

games; puzzles; greeting cards, postcards, and stationery; stencils; sculptures (including

carvings, figurines, and molds); models; and technical drawings, including architectural

plans and blueprints. A minimal threshold of creativity is required. Commercial labels

and packages are also copyrightable if the material includes an appreciable amount of

original text or pictorial matter. Thus, a simple shape such as a drawing of a circle or

square may not be protected; however, even a picture of a bowl of chili on the label of a

can is copyrightable as a pictorial work.

intrinsic utilitarian function. Examples of useful articles are clothing (including

costumes), vehicular bodies, furniture, machinery, appliances, dinnerware, and lighting

fixtures. Toys, dolls, and stuffed animals are not useful articles and can be copyrighted,

even if they portray a utilitarian product. Thus, a toy airplane was held not to be a useful

article in Gay Toys, Inc. v. Buddy L. Corp., 703 F.2d 970 (6th Cir. 1983). The intent of

Congress was to exclude from copyright protection industrial products such as cars,

appliances, and electronic products. Many of these useful objects are protected under

patent law. In one case, the court of appeals affirmed that automobile wire-spoke wheel

covers were useful and were not subject to copyright protection. The creator argued that

the wheel covers were ornamental and were intended to beautify and embellish the

wheels, but the court held that the wheel covers were mere utilitarian articles serving to

protect lug nuts, wheels, and axles from damage.

A motion picture is an audiovisual work consisting of a series of related images

that, when shown in succession, impart an impression of motion, together with

accompanying sounds. These works are typically embodied in film, videotape, or

videodisc. Music accompanying a movie (the motion picture soundtrack) is protected as

part of the motion picture. An audiovisual work is a work that consists of a series of

related images that are intended to be shown by the use of machines or devices such as

projectors, viewers, or electronic equipment, together with accompanying sounds. Thus, a

photograph of a mountain is protected as a pictorial work. If the photograph is made into

a slide, it remains a pictorial work; however, when the photograph is made into a slide

that becomes part of a presentation about mountains of the world, the resulting slide show

is an audiovisual work. Music videos are considered audiovisual works rather than sound

recordings.

There is a distinction between a “musical work” and a “sound recording.” A

musical work consists of music, including any accompanying words. The author of a

musical work or composition is generally the composer, and the lyricist, if any. A

musical composition may be in the form of sheet music or a cassette tape, album, or CD.

A sound recording results from the fixation of a series of musical, spoken, or other

sounds. The author of a sound recording is the performer whose performance is fixed, or

the record producer who processes the sounds and fixes them in the final recording, or

both. For example, the song “You Are the Sunshine of My Life” by Stevie Wonder is

frequently recorded by other artists. The original music and lyrics are copyrighted by

Stevie Wonder as a musical work.

If Celine Dion performs the song “You Are the Sunshine of My Life,” she cannot

claim copyright in the lyrics and music because she did not create them. However, her

particular and unique arrangement of the lyrics and song is copyrightable as a sound

recording by her and her record producer. If a later artist wishes to perform “You Are the

Sunshine of My Life,” permission must be sought from Stevie Wonder (or the present

Permission need not be sought from Celine Dion or her record company because the new

artist will not be copying Celine Dion’s particular arrangement (unless the new artist

wishes to extract or “sample” some of the Celine Dion arrangement into the new version,

in which case permission must be sought from Celine Dion and/or the record company

for the part sampled).

An architectural work is the design of a building as embodied in any tangible

medium of expression, including a building, architectural plans, or drawings. The work

includes the overall form and arrangement and composition of spaces, but not individual

standard features such as windows, doors, and other standard components of buildings,

which cannot be registered. The term building includes not only permanent and stationary

structures for human occupancy (such as houses and office buildings) but also gazebos,

churches, and garden pavilions. Structures other than buildings (such as bridges, tents,

and mobile homes) are not eligible for protection.

Before 1990 and the United States’s adherence to the Berne Convention,

architectural plans and models were protected only as graphic and sculptural works.

Because buildings were useful articles, they could not be protected. Protection was

allowed only for nonuseful portions, such as decorative moldings, murals, friezes, and so

forth. In 1990, however, Congress passed the Architectural Works Copyright Protection

Act and expressly amended the 1976 Copyright Act to provide copyright protection to

“architectural works.” A claim to copyright in an architectural work is distinct from a

claim in technical drawings of the work. If registration is sought for both an architectural

work (such as a building) and technical drawings of the work, separate applications must

be submitted to the Copyright Office.

G. Exclusions From Copyright Protection

Not all works are protected by copyright. In addition to articles that are purely

useful and that cannot be copyrighted, a number of other works are not protected under

public domain, facts, and computing devices. Section 102 of the Copyright Act not only

lists eight categories of works that are protected by copyright, but also states that the

following are specifically excluded from copyright protection: ideas, procedures,

processes, systems, methods of operation, concepts, principles, and discoveries,

regardless of the form in which they are described, explained, or illustrated. This

statutory prohibition sets out in long form a well-established copyright principle:

The rule that copyright protection extends only to the expression of ideas, and not

to ideas themselves, derives from a famous Supreme Court case, Baker v. Selden, 101

U.S. 99 (1879). In that case, Selden published a book explaining a bookkeeping system

that included blank forms with ruled lines and columns for using the new system. Baker

later published a book with additional forms for using Selden’s system. Selden sued for

explaining a system does not prevent another party from explaining the same system;

otherwise, the bookkeeping system or method itself would be monopolized by the first to

explain it. The Court held that Baker had copied only Selden’s unprotectable idea and not

any protectable expression of the idea. The discussion by the Court is often referred to as

the ideaexpression dichotomy and results in a well-known copyright principle: Ideas are

not protectable, although the expression of those ideas is subject to copyright protection.

The Court also held that the forms were not writings and were thus unprotectable, thereby

giving rise to the rule that mere blank forms are not copyrightable.

In order to be protected by copyright, a work must contain at least a certain

minimum amount of original literary, pictorial, or musical expression. Copyright does not

extend to names, titles, short phrases, slogans, clauses such as column headings, or

simple checklists. Thus, many books and even movies may share the same title. For

example, there are numerous textbooks that share the title Introduction to Mathematics. If

one person could appropriate a title to the exclusion of others, creativity would be

hindered rather than encouraged. Similarly, neither a title nor a slogan such as “You

deserve a break today” may be copyrighted (although they may qualify for protection as a

trademark or under the law of unfair competition). Mere variations in typeface, familiar

symbols or designs, lettering or coloring, and mere lists of ingredients or contents are not

protected by copyright. Similarly, blank forms (such as forms for bank checks, time

cards, account books, diaries, scorecards, report forms, address books, and order forms)

that are used primarily for recording information rather than conveying information lack

sufficient creativity to be copyrightable. Although mere listings of ingredients or contents

as in recipes, formulas, or prescriptions are not subject to copyright protection, when the

recipe or formula is accompanied by substantial literary expression (such as advice on

wine pairings or table settings) or when there is a combination of recipes (as in a

cookbook), there may be a basis for copyright protection.

H. The Rights Afforded by Copyright Law

Under the Copyright Act, a copyright owner has a “bundle” of rights: the right to

reproduce, adapt, distribute, perform, and display the work to the exclusion of others.

Thus, copyright owners have a full complement of ways to commercially exploit their

works. There are, however, some important limitations on these exclusive rights. For

example, once certain works have been distributed, under the “first sale doctrine,” the

subsequent owner is free to distribute or resell the item without liability for infringement.

Similarly, some activities do not constitute infringement, for example, some uses for

certain educational activities, noncommercial fundraising, or for religious worship.

Rights for sound recordings are considerably more limited than rights for other works,

such as literary or musical works. Authors of fine arts such as paintings and sculptures

may also have “moral rights,” meaning rights personal to themselves, that survive the

sale of their work so that authorship of the work is forever attributed to them and the

work is not mutilated or altered, which would prejudice their reputation as artists and

creators. In fact, the exceptions to copyright owners’ rights can seem so complicated that

they bring to mind Mark Twain’s famous quote, “Only one thing is impossible for God:

to find any sense in any copyright law on the planet.”

Only the owner has the right to reproduce the work. Secretly taping a concert,

taking pictures at a filmed performance, or recording a simultaneously recorded speech

all violate the owner’s right to reproduce the work even if there is no later sale or

distribution of the work. At the suggestion of Congress, in 1978 a group of authors,

publishers, and users established a notfor-profit entity called Copyright Clearance Center

(CCC) to serve as a clearinghouse granting rights to reproduce and distribute books and

periodicals. Authors register their works with the CCC, which then grants licenses to

academic, government, and corporate users to copy and distribute the works. The CCC

grants permission or licenses to use works and then collects royalty fees, which are

distributed to the authors.

Companies that photocopy articles from journals and magazines often enter into

licensing arrangements with the CCC so they can make copies of articles for internal

distribution within the company and remain in compliance with copyright law. The CCC

is located at 222 Rosewood Drive, Danvers, MA 01923. Its telephone number is (978)

750-8400, and its Internet address is http://www .copyright.com. A new trend among

some copyright owners is to expressly grant licenses for others to use their works in

limited ways. Creative Commons, a nonprofit organization, allows musicians and other

authors to grant licenses to others to borrow or adapt their works under a “some rights

reserved” policy.

Section 106(2) of the Copyright Act provides that the owner of a copyright has

the exclusive right to prepare derivative works based upon the copyrighted work. This

right is often referred to as the right to adapt the original work. As discussed in Chapter

10, a derivative work is broadly defined as a work based upon one or more preexisting

works, such as a translation, dramatization, fictionalization, motion picture version,

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 is also a derivative work, if the new material represents original work of

authorship.

Section 106(3) of the Copyright Act provides that the owner of a copyright has

the exclusive right to distribute copies or phonorecords of the work to the public by sale

or other transfer of ownership, or by rental, lease, or lending. A violation of the

distribution right can arise solely from the act of distribution itself even if the distributor

did not make an unlawful copy or know the copy being distributed was unauthorized.

Thus, Redbox video rental kiosks can be liable for violating an owner’s right to distribute

a movie, even if Redbox does not know that the movie was placed on DVD without the

owner’s authority. Authors often grant permission to others to distribute their works,

including granting licenses through entities such as the CCC, discussed earlier. One key

limitation on a copyright owner’s sole right of distribution is found in Section 109 of the

or phonorecord, the new owner of a lawfully made copy can treat the object as his or her

own and can then freely use, sell, lease, or lend the work to another.

Just as in trademark law, where the first sale “exhausts” the trademark owner’s

right to a mark, in copyright law, the copyright owner’s sale of an item exhausts his or

her exclusive right to distribute the work. Thus, purchasing a copy of the book The Help

or purchasing a DVD of the movie The Twilight Saga: New Moon gives the new owner

the right to lend the book or DVD to a friend, resell the work at a garage sale, or even

destroy it. The first sale doctrine does not apply to or limit the author’s exclusive rights to

prepare derivative works or rights of public performance and display, but only to

distribution rights. The first sale doctrine rests on the principle that once the copyright

owner sells the initial physical copy, he or she has received full economic value for the

work and should not be able to restrict future sales. Note, however, that there is no digital

first sale doctrine.

If you purchase an e-book (rather than a conventional print book), you cannot

later transmit it to others, resell it, or give it away (unless the seller or licensor allows you

to do so). See Chapter 15 for additional information on the digital first sale doctrine. The

rights, such as the right to reproduce the work, perform it, adapt it, and prepare derivative

works based on it. Thus, in the previous example, the purchaser of the book The Help

does not have the right to make a movie of the book or to prepare a second updated

version of the book based upon the original. The original owner, the author, retains such

derivative rights, having lost only the right to distribution through the first sale doctrine.

I. Copyright Ownership, Transfers, and Duration

more than one person creates a work, when a derivative work based upon an underlying

work is created, or when existing works are combined into a collection, such as an

anthology. Determining ownership is critical because the exclusive rights of

reproduction, adaptation, performance, display, and so forth belong to the copyright

owner. The person who creates a work is the author; however, if a work qualifies as one

“made for hire,” the employer or commissioning party, not the author, is the creator. A

work qualifies as a work made for hire if the work is created by an employee within the

scope of employment or if the work falls within one of nine enumerated types of works

and the parties agree in writing that the work is one made for hire. In such cases, the

exclusive rights ordinarily granted to the work’s creator will instead be owned by the

employer or commissioning party. Copyright rights may be transferred. A transfer of

exclusive rights must be in writing, while a nonexclusive grant, or license, need not be in

writing. To protect copyright authors, even absolute or exclusive transfers of rights can

be set aside or undone by the author or certain heirs during a five-year period beginning

in the 36th year after a transfer.

or authors of the work. 17 U.S.C. § 201(a). Issues about ownership arise when more than

one person creates a work, when the work has multiple parts (such as a song consisting of

a melody composed by one person and lyrics composed by another), or when work is

created by an employee. Determining ownership is critical because it affects other rights,

such as the ability to transfer or license a work and the duration of the copyright in a

work. Ownership of a physical object is separate and distinct from ownership of the

choreographic notations for a ballet written by Mikhail Baryshnikov acquires only the

written document.

Baryshnikov, as the copyright owner, retains the exclusive rights granted under

Section 106 of the Act, such as rights to perform the work and prepare derivative works

based on it. Similarly, purchasing a manuscript, handwritten lyrics to a song scratched on

an envelope, or letters written by a famous person gives the purchaser ownership only of

those physical objects. As a further example of the principle that ownership of the work

itself is not the same thing as ownership of the copyright in the work, consider that the

U.S. government owns the well-known sculpture “Vietnam Women’s Memorial,” located

on federal property, yet the copyright to the work is retained by the artist, Glenna

Goodacre.

A joint work is a work prepared by two or more authors with the intention that

their contributions be merged into inseparable or interdependent parts of a unitary whole.

17 U.S.C. § 101. Only one copyright exists in the created work. Examples of joint works

are books that are coauthored by individuals; plays that are composed of narrative written

by one party, music by another, and lyrics to the music by a third; songs such as “Don’t

Cry for Me Argentina,” in which the music was written by Andrew Lloyd Webber and

the lyrics by Tim Rice; and books that consist of narrative written by one person and

illustrations by another. It is the intent of the parties at the time a work is created that

determines whether it is a joint work. Thus, if two persons sit at a piano and collaborate

on a melody and lyrics, the resulting song is a joint work. More difficult issues arise

when parts to a work are created at different times, for example, when a melody is

composed by itself and lyrics are added later. The parties’ intent governs. If the first

composer intended the work to be complete at the time he or she composed it, the

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