Copyright Law Generally

shutterstock_122524279Copyright law provides authors rights for their works. The authority that gives Congress authors exclusive rights to their work comes from the Constitution. Article I, Section 8, Clause 8, known as the “copyright clause” empowers the United States Congress 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.” Although the copyright clause uses the words “writings,” this clause of the Constitution has been found to protect much more than literary work and encompasses almost all forms of expression. Protection for copyrighted material usually expires seventy years after the author’s death.

The Copyright Act of 1976 is the primary basis for copyright law. It has been amended pursuant to the Berne Convention Implementation Act of 1988 and other amendments.

Section 102(a) of the Copyright Act provides the definition of what is protected by copyright. It states specifically,

Copyright protection subsits, in accordance with this title, and 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.

In 1884, the Supreme Court held that a photograph of Oscar Wilde was worthy of copyright protection as a “writing” because it included original expressions by the author even though it was a photograph. In essence, the court held that the author’s expression through the photograph was an original contribution. Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884).

The Work Must Be “Original”

Section 102 requires that a work be “original.” Usually, satisfying the originality requirement is a low threshold. The work cannot be a mere reproduction of a previous work and must be more than just a few words or short phrase. If you are trying to copyright a compilation there must be some form of creativity other than just an alphabetic sorting of available works.


Section 101 says that a work is “’fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration….” In other words, in order for something to be protected by copyright law it has to be fixed to something tangible even though copyright law protects the work and not necessarily the medium on which it is displayed. It is viewed that the Constitution requires “fixation” because it protects “writings” and writings are presumably in fixed form. But, fixation can manifest itself in a number of ways such as being reduced to words, numbers, notes, sounds, shapes, or other symbols and to be on any medium.

Works of Authorship

Section 102(a) states that “works of authorship” include the following categories:

(1) literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works to my:

(7) sound recording; and

(8) architectural works.

This list is not intended to be all-inclusive and if a works of authorship does not fit into one of these categories it does not necessarily mean that the material is not able to be copyrighted. But, it is noted in the legislative history of the Copyright Act that the omission of typeface designs in “works of authorship” was deliberate. Therefore, the copyright office does not register copyright for typeface, nor does the copyright office provide protection for immoral or obscene works.

Pictorial, graphic, and sculptural works include “two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.” Copyright Act § 101. This includes technical drawings and maps. Maps can be protected by copyright law because although a map is essentially factual, there can be originality in the mapmakers arrangement of elements. Courts are split on whether a mapmaker must have had some sort of direct observation or investigation of the train as opposed to creating a map from pre-existing documents.

Sound recordings are defined as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as discs, tapes, or other phonorecords, which they are embodied.” Copyright Act § 101. There is no federal copyright for any domestic sound recordings before 1972.

Derivative works are protected under Section 103 of the copyright act. The derivative work is defined as “work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” With regards to compilation, there is protection only for the derivative author’s original material.

An Author’s Rights Under Copyright Law

Copyright law provides illicit economic rights of the copyright, moral rights in works of visual art, and ownership of rights.

Economic Rights: Section 106 of the Copyright Act states that the copyright owner is authorized to the following

  • Reproduce the copyrighted work;
  • Prepare derivative works based upon the copyrighted work;
  • Distribute copies or phonorecords of the copyrighted work to the public;
  • Publicly perform the work;
  • Publicly display the work; and
  • In the case of sound recordings, perform the copyrighted work publicly by means of a digital audio transmission.

Visual Right Moral Work: the author of works of visual arts enjoys “moral rights.” This includes rights,

  • To claim authorship in the work;
  • To prevent use of his or her name as the author of any work he or she did not create;
  • To prevent the use of his or her name as the author o
  • f his or her work if the work has been distorted, mutilated, or otherwise modified, so that the use would be prejudicial to his or her honor reputation; and
  • To prevent any intentional or grossly negligent destruction of the work, the work is a recognized stature.

In 1975, the Monty Python comedy troupe claims violation of their “moral rights” against ABC for airing a re-edited version of Monty Python’s Flying Circus. Monty Python alleged that by drastically editing several of their shows it constituted “mutilation” of the copyrighted work. The District Court found in favor of Monty Python in that the editing by ABC had impacted the integrity of the work, but the judge refused to enjoin ABC from a subsequent broadcast. Monty Python appealed. The Court of Appeals for the Second Circuit reversed and stated that Monty Python was the owners of the copyright to the script because the ABC show was derivative and again found that ABC had impaired the integrity of the work through its edits.

Ownership Rights: there can be a number of “owners” of copyrighted beyond the author of the work. If an exclusive right, such as the economic rate, is transferred the transferee is then an owner of the copyright. Owners of copyrights can bring a suit in their own capacity to enforce those rights.

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