United States copyright law
Encyclopedia
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

.

Copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

 law in the United States is part of federal law
Federal law
Federal law is the body of law created by the federal government of a country. A federal government is formed when a group of political units, such as states or provinces join together in a federation, surrendering their individual sovereignty and many powers to the central government while...

, and is authorized by the U.S. Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

. The power to enact copyright law is granted in Article I, Section 8, Clause 8, also known as the Copyright Clause
Copyright Clause
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:- Other Terms :This clause is also referred to as:* Copyright and Patent Clause* Patent and Copyright Clause...

, which states:
This clause forms the basis for U.S. copyright law ("Science", "Authors", "Writings") and patent law ("useful Arts", "Inventors", "Discoveries"), and includes the limited terms (or durations) allowed for copyrights and patents ("limited Times"), as well as the items they may protect ("exclusive Right to their respective Writings and Discoveries").

In the U.S., registrations of claims of copyright, recordation of copyright transfers, and other administrative aspects of copyright are the responsibility of the United States Copyright Office
United States Copyright Office
The United States Copyright Office, a part of the Library of Congress, is the official U.S. government body that maintains records of copyright registration in the United States. It is used by copyright title searchers who are attempting to clear a chain of title for copyrighted works.The head of...

, an arm of the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

.

History

The U.S. Congress first exercised its power to enact copyright legislation with the Copyright Act of 1790
Copyright Act of 1790
The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War...

. The Act secured an author the exclusive right to publish and vend "maps, charts and books" for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were never registered — between 1790 and 1799, of approximately 13,000 titles published in the United States, only 556 works were registered.

Copyright law has been modified many times since to encompass new technologies such as music recording, to extend the duration of protection, and to make other changes. U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...

 laws and decisions. Certain attempts by copyright owners to restrict uses beyond the rights provided for by copyright law may also subject them to the copyright misuse
Copyright misuse
Copyright misuse is an equitable defense against copyright infringement in the United States. Under this defense, a copyright infringer may avoid infringement liability if the copyright holder has engaged in abusive or improper conduct in exploiting or enforcing the copyright...

 doctrine, preventing enforcement against infringers.

Key laws regulating U.S. copyrights and their key effects include:
  • Copyright Act of 1790
    Copyright Act of 1790
    The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War...

     - established U.S. copyright with term of 14 years with 14-year renewal
  • Copyright Act of 1831
    Copyright Act of 1831
    The Copyright Act of 1831 was the first general revision to United States copyright law. The bill is largely the result of lobbying efforts by American lexicographer Noah Webster.The key changes in the Act included:...

     - extended the term to 28 years with 14-year renewal
  • Copyright Act of 1909
    Copyright Act of 1909
    The Copyright Act of 1909 was a landmark statute in United States statutory copyright law. It became Public Law number 60-349 on March 4, 1909 by the 60th United States Congress, and it went into effect on July 1, 1909...

     - extended term to 28 years with 28-year renewal
  • Universal Copyright Convention
    Universal Copyright Convention
    The Universal Copyright Convention , adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention....

     - ratified by the U.S. in 1954, and again in 1971, this treaty was developed by UNESCO
    UNESCO
    The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the United Nations...

     as an alternative to the Berne Convention
  • Copyright Act of 1976 - extended term to either 75 years or life of author plus 50 years (prior to this, "[t]he interim renewal acts of 1962 through 1974 ensured that the copyright in any work in its second term as of September 19, 1962, would not expire before Dec. 31, 1976.") ; extended federal copyright to unpublished works; preempted state copyright laws; codified much copyright doctrine that had originated in case law
  • Berne Convention Implementation Act of 1988
    Berne Convention Implementation Act of 1988
    The Berne Convention Implementation Act of 1988 is a copyright act that came into force in the United States on March 1, 1989, making it a party to the Berne Convention for the Protection of Literary and Artistic Works.- Context :...

     - established copyrights of U.S. works in Berne Convention
    Berne Convention for the Protection of Literary and Artistic Works
    The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

     countries
  • Copyright Renewal Act of 1992
    Copyright Renewal Act of 1992
    Copyright Renewal Act of 1992, enacted June 26, is an act of the United States Congress, enacted to reverse the longstanding requirement under US law that a second term of copyright protection is contingent on a renewal registration with the Library of Congress....

     - removed the requirement for renewal
  • Uruguay Round Agreements Act (URAA) of 1994 - restored U.S. copyright for certain foreign works
  • Copyright Term Extension Act
    Copyright Term Extension Act
    The Copyright Term Extension Act of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship...

     of 1998 - extended terms to 95/120 years or life plus 70 years
  • Digital Millennium Copyright Act of 1998
    Digital Millennium Copyright Act
    The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...

     - criminalized
    Criminal law
    Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...

     some cases of copyright infringement

Key international agreements affecting U.S. copyright law include:
  • Berne Convention for the Protection of Literary and Artistic Works
    Berne Convention for the Protection of Literary and Artistic Works
    The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

  • Universal Copyright Convention
    Universal Copyright Convention
    The Universal Copyright Convention , adopted at Geneva in 1952, is one of the two principal international conventions protecting copyright; the other is the Berne Convention....

  • Agreement on Trade-Related Aspects of Intellectual Property Rights
    Agreement on Trade-Related Aspects of Intellectual Property Rights
    The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...



The United States became a Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

 signatory in 1988, and the treaty entered into force with respect to the U.S. on March 1, 1989. The U.S. is also a party to TRIPS, which itself requires compliance with Berne provisions, and is enforceable under the WTO dispute resolution process. To meet the treaty requirements, protections were extended to architecture (where previously only building plans were protected from copying, not buildings, though currently the law makes exception for reproduction of buildings in photographs or paintings if they are ordinarily visible from a public place), and certain moral rights of visual artists.

Early US copyright law

The British Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...

 did not apply to the American colonies, although some scholars have asserted otherwise. The colonies' economy was largely agrarian, hence copyright law was not a priority, resulting in only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. In 1783 several authors' petitions persuaded the Continental Congress
Continental Congress
The Continental Congress was a convention of delegates called together from the Thirteen Colonies that became the governing body of the United States during the American Revolution....

 "that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius and to promote useful discoveries." But under the Articles of Confederation
Articles of Confederation
The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...

, the Continental Congress had no authority to issue copyright, instead it passed a resolution encouraging the States to "secure to the authors or publishers of any new book not hitherto printed... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned,... the copy right of such books for another term of time no less than fourteen years. Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware
Delaware
Delaware is a U.S. state located on the Atlantic Coast in the Mid-Atlantic region of the United States. It is bordered to the south and west by Maryland, and to the north by Pennsylvania...

 passed a copyright statute. Seven of the States followed the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...

 and the Continental Congress' resolution by providing two fourteen year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal.

At the Constitutional Convention 1787 both James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...

 of Virginia and Charles Pinckney
Charles Pinckney
Charles Pinckney may refer to:* Colonel Charles Pinckney , South Carolina politician, loyal to British during Revolutionary War, father of Charles Pinckney, the governor...

 of South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...

 submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause
Copyright Clause
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:- Other Terms :This clause is also referred to as:* Copyright and Patent Clause* Patent and Copyright Clause...

 in the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

, which allows the granting of copyright and patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

s for a limited time to serve a utilitarian function, namely "to promote the progress of science and useful arts". The first federal copyright act, the Copyright Act of 1790
Copyright Act of 1790
The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War...

 granted copyright for a term of "fourteen years from the time of recording the title thereof", with a right of renewal for another fourteen years if the author survived to the end of the first term. The act covered not only books, but also maps and charts. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...

.

At the time works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. If this was not the case the work immediately entered into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

. In 1834 the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 ruled in Wheaton v. Peters
Wheaton v. Peters
Wheaton v. Peters, , was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a common law copyright. This was also Chief Justice John Marshall's last major...

, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.

Copyright did not apply to slaves or Native Americans. Slaves had no legal rights to intellectual property as both the slave and his work were the property of the person who "owned" the slave.

During the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...

, the law of the Confederate States on copyright was broadly the same as that of the existing Copyright Act of 1831
Copyright Act of 1831
The Copyright Act of 1831 was the first general revision to United States copyright law. The bill is largely the result of lobbying efforts by American lexicographer Noah Webster.The key changes in the Act included:...

; twenty-eight years with an extension for fourteen, with mandatory registration. This was passed into law by an act in May 1861, shortly after the outbreak of hostilities. A later amendment, in April 1863, provided that any copyright registered in the United States before secession, and held by a current Confederate citizen or resident, was legally valid within the Confederacy. Confederate copyrights were apparently honoured after the end of the war; when federal copyright records were transferred to the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

 in 1870,

Federal law

Historically, copyright protection was provided by a dual system under both federal and state law
State law
In the United States, state law is the law of each separate U.S. state, as passed by the state legislature and adjudicated by state courts. It exists in parallel, and sometimes in conflict with, United States federal law. These disputes are often resolved by the federal courts.-See also:*List of U.S...

s. Federal law provided what was commonly called "statutory copyright" and the laws of each state would provide what was called "common-law copyright," even though many states have statutes governing copyright as well. Roughly speaking, the old "statutory copyright" protected works that were registered and the old "common-law copyright" protected works that were not.

In 1976 Congress, at the urging of major corporate media interests, abolished most state copyrights through preemption
Federal preemption
Federal preemption refers to the invalidation of US state law when it conflicts with Federal law.-Constitutional basis:According to the Supremacy Clause of the United States Constitution,...

 of state copyright law. The federal preemption provision is codified at , which states, in relevant parts:
The preemption is complete insofar as works fall within the federal copyright statute. A work that falls generally within the subject matter of copyright (such as, a writing) must either qualify to be protected under federal law, or it cannot be protected at all. State law cannot provide protection for a work that federal law does not protect. It covers enforcement too. A person accused of copyright infringement cannot be prosecuted in state courts.

State copyright law is not preempted by non-protected works. For example, those that have "not been fixed in any tangible medium of expression are not covered." "Examples would include choreography that has never been filmed or notated, an extemporaneous speech, original works of authorship communicated solely through conversations or live broadcasts, a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down."

Purpose of copyright

The purpose of copyright law is "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." Current copyright law has expanded coverage to include the idea of stimulating the creation of as many works of art, literature, music, and other works of authorship. The goal is to promote Progress of Science and (as we would say today) engineering and manufacturing as much as possible, per the constitution, as well works of art, literature, music, and other works of authorship, in order to benefit the public. The United States recognizes no absolute, natural right in an author to prevent others from copying or otherwise exploiting his work. The copyright laws give authors limited property rights in their works, but for the ultimate purpose of benefiting the public by encouraging the creation and dissemination of more works. The author's interest is secondary to that of the public.

As is the case with other intellectual property doctrines, copyright law attempts to reach an optimal balance between the potential conflicting public interests of:
  1. Encouraging creativity by giving exclusive property rights in creations
  2. Giving the public the freest possible access to works of authorship and the ideas they encompass.


The balance in copyright is drawn by limiting property rights to the author's particular method of expressing an idea or information. Copyright never gives rights in the idea being expressed, or in facts or other elements of the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

 which an author may incorporate into his work. Others are free to express the same idea as the author did, or use the same facts, as long as they do not copy the author's original way of expressing the ideas or facts. In addition, even those rights granted in the author's expression are limited in duration and are subject to certain exceptions permitting public use under limited circumstances.

Works subject to copyright law

The United States copyright law protects "original works of authorship," including literary, dramatic, musical, artistic, and certain 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
  • Audiovisual works
  • Sound recordings
    Sound recording and reproduction
    Sound recording and reproduction is an electrical or mechanical inscription and re-creation of sound waves, such as spoken voice, singing, instrumental music, or sound effects. The two main classes of sound recording technology are analog recording and digital recording...

  • Derivative work
    Derivative work
    In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...

    s
  • Compilations
  • Architectural works
    Architecture
    Architecture is both the process and product of planning, designing and construction. Architectural works, in the material form of buildings, are often perceived as cultural and political symbols and as works of art...


Idea/expression dichotomy

An important limitation on the scope of copyright protection is the idea/expression dichotomy: While copyright law protects the expression of an idea, it does not protect the idea itself.

The distinction between "idea" and "expression" is a fundamental part of U.S. law, but it is not always clear. From the 1976 Copyright Act
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...

 :
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

A paper describing a political theory, for example, is copyrightable; it may not be reproduced by anyone else without the author's permission. But the theory itself (which is an idea rather than a specific expression) is not copyrightable. Another author is free to describe the same theory in his or her own words without violating copyright law, and in fact need not even give credit to the original author (although failing to do so may be considered plagiarism
Plagiarism
Plagiarism is defined in dictionaries as the "wrongful appropriation," "close imitation," or "purloining and publication" of another author's "language, thoughts, ideas, or expressions," and the representation of them as one's own original work, but the notion remains problematic with nebulous...

, an ethical transgression). Courts disagree on how much of the story and characters of a copyrighted novel or film should be considered copyrightable expression.

Compilations and the sweat of the brow doctrine

Facts are considered synonymous to "ideas" or "discoveries" under this law and are not copyrightable. By extension, a compilation of facts is also unable to be copyrighted. However, of the Copyright Act allows for the protection of "compilations," provided there is a "creative" or "original" act involved in such a compilation, such as in the selection (deciding which things to include or exclude), and arrangement (how they are shown and in what order). The protection is limited only to the selection and arrangement, not to the facts themselves, which may be freely copied.

The Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 decision in Feist v. Rural further made clear the requirements that a compilation be original in its composition, in denying protection to telephone "white pages". The Feist court rejected what was known as the "sweat of the brow
Sweat of the brow
"Sweat of the brow" is an intellectual property law doctrine, chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory...

" doctrine, in ruling that no matter how much work was necessary to create a compilation, a non-selective collection of facts ordered in a non-creative way is not subject to copyright protection.

Useful articles

If a pictorial, graphic or sculptural work is a "useful article", it is copyrighted only if its aesthetic features are separable from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that does not merely portray the appearance of the article or convey information. They must be separable from the functional aspect to be copyrighted.

There are several tests for conceptual separability. The primary use test asks whether an article is primarily used as art or function. The second test, the marketable as art test, asks whether the article can be sold as art, whether functional or not. This test does not have much utility, as almost anything can be sold as art. The third test, the temporal displacement test, questions whether an individual can conceptualize the article as art without conceptualizing functionality at the same time. Finally, the Denicola test inquires whether copyrightability should ultimately depend on the extent to which the work reflects the artistic expression inhibited by functional considerations. If an article came to have a pleasing shape because there were functional considerations, the artistic aspect was constrained by such concern.

Definition of "copy"

Several important rights exist under the United States copyright law only for “copies” of works — material objects in which the work is embodied. Section 106(1) prohibits the reproduction only of copies of works, and section 106(3) prohibits the distribution only of copies of works. Thus, as the Ninth Circuit held in Perfect 10, Inc. v. Amazon.com, Inc.
Perfect 10, Inc. v. Amazon.com, Inc.
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 was a case in the United States Court of Appeals for the Ninth Circuit involving Perfect 10, Inc., Amazon.com, Inc. and Google, Inc...

, a link (even a deep link or inline link) to an image does not involve reproduction of a copy of the image by the person on whose web page the link appears. An instruction to a browser to jump to an URL is not a reproduction or distribution of a copy of what is at the referenced URL.

Furthermore, a three-dimensional counterpart of a two-dimensional drawing is usually not a “copy” of the drawing. Thus, the copyright of a drawing of the approach to the Triboro Bridge is not infringed when the bridge approach is built. On the other hand, because the essence of what is protected in a cartoon is captured by a doll depicting the cartoon figure, courts have repeatedly held unauthorized dolls to infringe the copyright of the underlying cartoons.

Works by the federal government

withholds copyright from most publications produced by the United States Government, and its agents or employees while in their employment. All such work is therefore in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

 in some sense. The specific language is as follows:
The intent of the section is to place in the public domain all work of the United States Government, which is defined in as work prepared by an officer or employee of the United States Government as part of that person's official duties. In most cases, contractors are not employees.

The government may restrict access to works it has produced through other mechanisms. For instance, confidential or secret materials are not protected by copyright, but are restricted by other applicable laws. However, even in case of non-secret materials there are specific prohibitions against automatic access to work otherwise covered under for commercial purposes.

Federal and state laws are not copyrighted

Federal statutes are in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

 and no copyright attaches to them. The same is true of court decisions. It is not difficult to see the motivations behind this:

In the United States the exclusion of legislation from the scope of copyright laws dates to 1834, when the Supreme Court interpreted the first federal copyright laws and held that "no reporter has or can have any copyright in the written opinions delivered by this Court". In the same case it was argued – and accepted by the Court – that "it would be absurd, for a legislature to claim the copyright; and no one else can do it, for they are the authors, and cause them to be published without copyright … Statutes were never copyrighted." Further, "it is the bounden duty of government to promulgate its statutes in print". "[A]ll countries ... subject to the sovereignty of the laws" hold the promulgation of the laws, from whatever source, "as essential as their existence." "If either statutes or decisions could be made private property, it would be in the power of an individual to shut out the light by which we guide our actions." (Wheaton v. Peters
Wheaton v. Peters
Wheaton v. Peters, , was the first United States Supreme Court ruling on copyright. The case upheld the power of Congress to make a grant of copyright protection subject to conditions and rejected the doctrine of a common law copyright. This was also Chief Justice John Marshall's last major...

, 33 US (8 Pet) 591, 668 (1834))

That the public interest is the primary determinant is clear from Banks v Manchester (128 US 244, 9 S Ct 36 (1888)). In this the United States Supreme Court denied a copyright to a court reporter in opinions of the Ohio Supreme Court, on the grounds that "There has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, that no copyright could, under the statutes passed by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or statute."

The law, as thus (widely) defined, is in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

, and therefore not amenable to copyright. In Howell v Miller, (91 F 129 (1898)) Justice Harlan denied an injunction sought for the compiler of Michigan
Michigan
Michigan is a U.S. state located in the Great Lakes Region of the United States of America. The name Michigan is the French form of the Ojibwa word mishigamaa, meaning "large water" or "large lake"....

 statutes, holding that "no one can obtain the exclusive right to publish the laws of the state in a book prepared by him." The question of formal ownership of the text of laws and decisions is perhaps secondary to the question of the dissemination of the law.

Exclusive rights

There are five basic rights protected by copyright, sometimes called the five "pillars" of copyright. The owner of copyright has the exclusive right to do and to authorize others to do the following:
  • To reproduce the work in copies or phonorecords;
  • To prepare 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 motion pictures and other audiovisual works, and sound recordings by means of digital audio transmission;
  • 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 motion picture or other audiovisual work.


A violation of any of the exclusive rights of the copyright holder is said to be a copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...

.

First owner of copyright

The author of a work is the initial owner of the copyright in it, and may exploit the work himself or transfer some or all the rights conferred by the copyright to others. The author generally is the person who conceives of the copyrightable expression and fixes it or causes it to be fixed in a tangible form. Exceptions and special cases in determining the author are:
  • Works for hire. If a work is made "for hire" within the meaning of the Copyright Act, the employer or commissioning party, who paid for the work and took the economic risk of it, is deemed the author for copyright purposes and is the initial owner of the copyright. Any other work done by that writer on his own without compensation and without using company resources usually is owned by the writer (though employers often try to claim ownership of such work). The circumstances under which a work may be found to be a work for hire
    Work for hire
    A work made for hire is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work...

     are:
  • Work prepared by an employee within the scope of his employment. In Community for Creative 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 agency principles. If the person doing the work is an "employee" within the meaning of the common law, and the work was done within the scope of his employment (whether the work is the kind he was employed to prepare; whether the preparation takes place primarily within the employer's time and place specifications; and whether the work was activated, at least in part, by a purpose to serve the employer), then the work is a work for hire and the employer is the initial owner of the copyright, rather than the employee who actually conceived and fixed the expression.
  • Specially ordered or commissioned works. Works created by independent contractors (rather than employees) can be deemed works for hire only if two 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 test, or an atlas. Second, the parties must expressly agree in a written, signed instrument that the work will be considered a work made for hire.
  • Ownership of copyright in a joint work. The authors of a joint work are co-owners of a single copyright in the work. A joint work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole."
  • Ownership of copyright in a collective work: A collective work is a collection of independent, separately copyrightable works of authorship, such as a newspaper, magazine, or encyclopedia. In the absence of an express assignment of copyright, the author of each individual work in the collection retains copyright in that work. The compiler, or author of the collection, owns copyright in the expression he or she contributed, which is primarily the selection and arrangement of the separate contributions, but may include such things as a preface, advertisements, etc., that the collective author created.

Transfers and licenses

Three types of transfers exist for copyrighted works.
  • Assignment
  • Exclusive License
  • Non-exclusive License


The first two, assignment and exclusive licenses, require the transfer to be in writing. Nonexclusive licenses need not be in writing and they may be implied by the circumstances. Transfers of copyright always involve one or more of the exclusive rights of copyright. For instance, a license may provide a right to perform a work, but not to reproduce it or to prepare a derivative work (adaptation right).

The terms of the license is governed by the applicable contract law, however there is substantial academic debate about to what extent the Copyright Act preempts state contract law principles.

An author, after transferring a copyright, can terminate the transfer under certain circumstances. This right to terminate the transfer is absolute and cannot be waived.

Registration of copyright

While copyright in the United States automatically attaches upon the creation of an original work of authorship, registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright. A copyright holder desiring to register his or her copyright should do the following:
  1. Obtain and complete appropriate form.
  2. Prepare clear rendition of material being submitted for copyright
  3. Send both documents to U.S. Copyright Office in Washington, D.C.


Registration of copyright refers to the act of registering the work with the United States Copyright Office, which is an office of the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

. As the United States has joined the Berne Convention, registration is no longer necessary to provide copyright protection. However, registration is still necessary to obtain statutory damages
Statutory damages
Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of...

 in case of infringement.

Copyright Act § 407 provides that the owner of copyright in a published or unpublished work may, at any time during the copyright, register the work with the Copyright Office. The purpose of the registration provisions is to create as comprehensive a record of U.S. copyright claims as is possible. To register, the registrant must complete an application form and send it, along with the filing fee and copies or phonorecords of the work, to the Copyright Office.

The Copyright Office reviews applications for obvious errors or lack of copyrightable subject matter, and then issues a certificate of registration.

Registration as a prerequisite to claim of moral rights violation: it's not necessary for any author to register prior to bringing suit for violation of the rights of attribution or integrity in a work of visual art, pursuant to Copyright Act § 106A.

Deposit requirement

The United States Copyright Office requires that applicants for registration must deposit with that office copies of the work for which protection is sought. This requirement serves two purposes. First, if an action arises from the infringement of the work, the owner may prove that the material that is infringed is exactly the same material for which the owner has secured a registration. Second, this requirement assists the Library of Congress in building its collection of works.

The Copyright Office has authority to make some exceptions to this rule by regulation, and has done so. Failure to comply with the deposit requirement, as modified by Copyright Office regulations, is punishable by fine, but does not result in forfeiture of copyright.

Deposits can be made electronically through the eCO Online System.

Subject matter jurisdiction

The United States district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

s have exclusive subject-matter jurisdiction
Subject-matter jurisdiction
Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases....

 over copyright cases.

Copyright notices

Prior to 1989, use of a copyright notice — consisting of the copyright symbol
Copyright symbol
The copyright symbol, or copyright sign, designated by © , is the symbol used in copyright notices for works other than sound recordings . The use of the symbol is described in United States copyright law, and, internationally, by the Universal Copyright Convention...

 , the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder — was part of United States statutory requirements. Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol
Sound recording copyright symbol
The ' symbol, a circled P, is the copyright symbol used to provide notice of copyright in a sound recording . The use of the symbol originated in United States copyright law and is specified internationally in the Convention for the Protection of Producers of Phonograms Against Unauthorized...

 , which indicates a sound recording copyright. Similarly, the phrase All rights reserved
All rights reserved
"All rights reserved" is a phrase that originated in copyright law as part of copyright notices. It indicates that the copyright holder reserves, or holds for their own use, all the rights provided by copyright law, such as distribution, performance, and creation of derivative works; that is, they...

was once required to assert copyright.

In 1989, the U.S. enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act to conform to most of the provisions of the Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic. However, the lack of notice of copyright using these marks may have 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.

Duration of copyright

Works created in or after 1978 are extended copyright protection for a term defined in . With the passage of the Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.
The § 302 term above also applies to works created before 1978 that were not yet published or registered prior to 1978, with the exception that such copyrights would not expire before 2003. Prior to 1978, works had to be published or registered to receive copyright protection. Upon the effective date of the 1976 Act (January 1, 1978) this requirement was removed and these works received protection despite having not been published or registered. 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, will not have their protection expire before 2048.

Works published or registered before 1978 currently have a maximum copyright duration of 95 years from the date of publication, if copyright was renewed during the 28th year following publication (such renewal was made automatic by the Copyright Renewal Act of 1992
Copyright Renewal Act of 1992
Copyright Renewal Act of 1992, enacted June 26, is an act of the United States Congress, enacted to reverse the longstanding requirement under US law that a second term of copyright protection is contingent on a renewal registration with the Library of Congress....

; prior to this the copyright would expire after 28 years if not renewed). The date of death of the author is not a factor in the copyright term of such works.

All copyrightable works published in the United States before 1923 are in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

; works created before 1978 but not published until recently may be protected until 2047. For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

 Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 1992
Copyright Renewal Act of 1992
Copyright Renewal Act of 1992, enacted June 26, is an act of the United States Congress, enacted to reverse the longstanding requirement under US law that a second term of copyright protection is contingent on a renewal registration with the Library of Congress....

, 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. With rare exception (such as very old works first published after 2002), no additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws.

Before 1972, sound recordings were not subject to federal copyright, but copying was nonetheless regulated under various state tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...

s and statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

s, some of which had no duration limit. The Sound Recording Amendment of 1971 extended federal copyright to recordings fixed on or after February 15, 1972 (the effective date of the act), and declared that recordings fixed before that date would remain subject to state or common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 copyright. The Copyright Act of 1976 maintained this until February 15, 2047, which was subsequently extended by the Sonny Bono Copyright Term Extension Act to the same date in 2067. As a result, no sound recording can reliably be considered in the public domain in the United States before that date, even if the recording was in existence before 1923 and even if it originated in another country where it has entered the public domain.

Limitations on copyright and defenses

US copyright law includes numerous defenses, exceptions, and limitations. These protect both the boundary with the free expression guarantees of the First Amendment and establish carve-outs to address specific situations.

Some of the most important include:
  • Subject matter limitations and the "idea/expression dichotomy". Copyright applies only to certain subject matter, codified within 17 USC 102. Works that are not "original works of authorship fixed in any tangible medium of expression" are not subject to copyright. codifies that copyright protection does not extend to ideas, procedures, processes, systems, etc. Facts may not be copyrighted. This doctrine was explored in some detail in the Feist case discussed above.
  • The "fair use
    Fair use
    Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...

    " exception is codified at , and states that "the fair use of a copyrighted work ... is not an infringement of copyright." The section lists four factors that must be assessed to determine whether a particular use is fair.
  • The first sale doctrine
    First-sale doctrine
    The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 and subsequently codified in the Copyright Act of 1976,...

     is codified at , and limits the rights of copyright holders to control the distribution and display of copies of their works. The owner of a particular copy is entitled to "sell or otherwise dispose of the possession of that copy" and to "display the copy publicly ... to viewers present at the place where the copy is located."
  • The "good faith" defense (Section 504(c)(2)) protects educational institutions, libraries, archives, and public broadcasters, by permitting the court to limit statutory damages to only $200 if they reasonably believed their infringement was a fair use under . and include specific exemptions for types of works and particular entities, such as libraries , public broadcasters ( and ), braille , software backup copies , "cover license" permitting sound recording covers , and jukebox compulsory licenses .
  • Section 512
    Online Copyright Infringement Liability Limitation Act
    The Online Copyright Infringement Liability Limitation Act is United States federal law that creates a conditional safe harbor for online service providers and other Internet intermediaries by shielding them for their own acts of direct copyright infringement as well as...

     ("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.

Parodies

Although a parody
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...

 can be considered a derivative work under United States Copyright Law, and thus within the exclusive rights of the copyright owner, it may qualify for the "fair use" exception to the exclusive rights, which is codified at . Parodic works are not automatically fair use of the material parodied, however. The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work; in contrast, a satire (which is not targeted at the work borrowed from) does not require use of the original work to make its point. (See Campbell v. Acuff-Rose Music, Inc.
Campbell v. Acuff-Rose Music, Inc.
Campbell v. Acuff-Rose Music, 510 U.S. 569 was a United States Supreme Court copyright law case that established that a commercial parody can qualify as fair use...

)

Provisions for the handicapped

There is specific statutory provision for reproduction of material for the blind or other persons with disabilities. Specific legislation permits the reproduction of copyright works in Braille
Braille
The Braille system is a method that is widely used by blind people to read and write, and was the first digital form of writing.Braille was devised in 1825 by Louis Braille, a blind Frenchman. Each Braille character, or cell, is made up of six dot positions, arranged in a rectangle containing two...

, audio, electronic, Web-Braille, or other necessary formats. The program is administered by the National Library Service for the Blind and Physically Handicapped
National Library Service for the Blind and Physically Handicapped
The National Library Service for the Blind and Physically Handicapped is a free library program of braille and audio materials circulated to eligible borrowers in the United States by postage-free mail. The program is a service sponsored by the Library of Congress. People may be eligible for the...

 (NLS).

Infringement

Infringement is defined in . Infringement requires
  • a protected work
  • that the defendant copied the protected work
  • that the defendant's copying of the protected work was an infringement


If a work is not protectable it cannot be infringed upon. For instance, spoken conversations that are unrecorded ("fixed in a tangible medium of expression") are not protectable. Similarly, if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying. Typically this is referred to as the defense of independent creation; however, technically this is not a defense since without copying there is not an infringement to begin with. Even if a defendant copied protected works that act might be permissible under one of the defenses or limitations. Fair use is one such defense. Quoting from a book in a review might be a copying of protected material, however this copying may well be permissible under . The fair use factors are described below.

Government infringement

The U.S. government, its agencies and officials, and corporations owned or controlled by it, are subject to suit for copyright infringement. All infringement claims against the U.S. that did not arise in a foreign country must be filed with the United States Court of Federal Claims
United States Court of Federal Claims
The United States Court of Federal Claims is a United States federal court that hears monetary claims against the U.S. government. The court is established pursuant to Congress's authority under Article One of the United States Constitution...

 within three years of the infringing action. Claims filed in the wrong court are dismissed for lack of subject-matter jurisdiction
Subject-matter jurisdiction
Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases....

. The government and its agencies are also authorized to settle the infringement claims out of court.

Relief available for infringement

A copyright owner whose exclusive rights have been infringed may pursue relief. There is no "copyright police" that enforces copyright without the copyright owner taking action. For example, the FBI investigates cases of criminal infringement (mostly audio and video products), but even then, it does not do so on its own, only on cases where a complaint is received from the copyright holder. The FBI has its own guidelines on which cases to investigate.

Ownership of copyright

US law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original. Assuming the plaintiff proves ownership of a valid copyright, the holder must then establish both actual copying and improper appropriation of the work. The burden lies with the plaintiff to establish these three elements in what is known as the prima facie
Prima facie
Prima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...

case for infringement.Copyright owners are required to actively enforce rights.

A plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

 establishes ownership by authorship (by the plaintiff itself or by one who assigned rights to the plaintiff) of (1) an original work of authorship that is (2) fixed in a tangible medium (e.g. a book or musical recording). Registration is not required for copyright itself, but in most cases is a jurisdictional requirement to bring the suit. Registration is also useful because it gives rise to the presumption of a valid copyright, and eliminates the innocent infringement defense, and (if timely made) it allows the plaintiff to elect statutory damages, and to be eligible for a possible award of attorney fees.

Works that are not sufficiently original, or which constitute facts, a method or process cannot enjoy copy protection. U.S. Courts do not recognize the "sweat of the brow
Sweat of the brow
"Sweat of the brow" is an intellectual property law doctrine, chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory...

" doctrine, which originally allowed protection for those who labored to collect and organize facts. To combat this, business which assemble databases of information have relied on contract law where copyright law offers no protection. For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.

Copyright protects the fixed expression of ideas, but not the ideas themselves. (Ideas are protected by patents). Nevertheless, an expression must exist in a fixed tangible medium. A movie script writer who discusses a plot idea which has not yet been written would not be protected if another heard his idea and wrote a screenplay himself. Whether RAM
Ram
-Animals:*Ram, an uncastrated male sheep*Ram cichlid, a species of freshwater fish endemic to Colombia and Venezuela-Military:*Battering ram*Ramming, a military tactic in which one vehicle runs into another...

 constitutes a "fixed medium" is a contentious issue in copyright litigation because of the transitory nature of RAM.

A plaintiff establishes actual copying with direct or indirect evidence. Direct evidence is satisfied either by a defendant's admission to copying or the testimony of witnesses who observed the defendant in the act. More commonly, a plaintiff relies on circumstantial or indirect evidence. A court will 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. A plaintiff may establish access by proof of distribution over a large geographical area, or by eyewitness testimony that the defendant owned a copy of the protected work. Access alone is not sufficient to establish infringement. The plaintiff must show a similarity between the two works, and the degree of similarity will affect the probability that illicit copying in fact occurred in the court's eyes. Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the US Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary.

Misappropriation

A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

. A plaintiff alleging misappropriation must first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities
Substantial similarity
Substantial similarity is the standard developed and used by United States courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement...

between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague." Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method.

The subtractive method, also known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not. The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story
West Side Story
West Side Story is an American musical with a script by Arthur Laurents, music by Leonard Bernstein, lyrics by Stephen Sondheim, and choreographed by Jerome Robbins...

 alleged infringement, the elements of that musical borrowed from Romeo and Juliet
Romeo and Juliet
Romeo and Juliet is a tragedy written early in the career of playwright William Shakespeare about two young star-crossed lovers whose deaths ultimately unite their feuding families. It was among Shakespeare's most popular archetypal stories of young, teenage lovers.Romeo and Juliet belongs to a...

 would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain.

The totality method, also known as the "total concept and feel" approach takes the work as a whole with all elements included when determining if a substantial similarity exists. The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.

Modern courts may sometimes use both methods in its analysis of misappropriation. In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.

Civil remedies

Barring investigation by law enforcement, therefore, a copyright holder must file a lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...

 in federal court
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...

 to pursue his or her remedies. These remedies fall into two general categories: Injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

s and damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...

.

Injunctions: Copyright Act § 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement and against violations of the author's rights of attribution and integrity in works of visual art. There are also provisions for impounding allegedly infringing copies, phonorecords, and other materials used to infringe, and for their ultimate destruction upon a final judgment of infringement.

Damages and/or profits: Section § 504 of the 1976 Act gives the copyright owner/author a choice of recovering: (1) their actual damages and any additional profits of the defendant; or (2) statutory damages.
Equitable relief

Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright.
Where the infringer is the government, however, injunctions are not available and the copyright holder can only seek monetary damages.

One form of equitable relief that is available in copyright cases is a seizure order. At any time during the lawsuit, the court 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 part of the final decree.
Monetary damages

A copyright holder can also seek monetary damages. Injunctions and damages are not mutually exclusive. One can have injunctions and no damages, or damages and no injunctions, or both injunctions and damages. There are two types of damages: actual damages and profits, or statutory damages
Statutory damages
Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of...

.

United States law permits both equitable (injunction) and monetary damages. The copyright owner may recover the profits he or she would have earned absent the infringement(actual damages) and any profits the infringer might have made as a result of the infringement but that are not already considered in calculating actual damages. In addition, under certain conditions, the infringing goods may be impounded and destroyed, and the copyright owner's costs costs and reasonable attorney's fees may also be part of the remedies awarded by the court. To recover actual damages, the plaintiff or, more often, a suitable expert witness, must prove to the court that, in the absence of the infringement, the copyright owner would have been able to make additional sales, perhaps been able to charge higher prices on all sales of the infringed work, and that this would have resulted in profits given the owner's cost structure. In some cases, the copyright owner may not have commercially exploited the infringed work, but the infringer may have profited from it. In these circumstances, the copyright owner can recover those profits.
Alternatively and at the copyright owner's election, if the work's copyright was registered within three months of publication or before the infringement, an infringer can be liable for statutory damages
Statutory damages
Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in which it is difficult to determine a precise value of...

  Statutory damages can be awarded by the court within the range of $750 to $30,000, but this can be lowered if the infringement is deemed inadvertent, or increased significantly if the infringement is willful.

Statutory damages
Statutory damages for copyright infringement
Statutory damages for copyright infringement are available under some countries' copyright laws.The charges allow copyright holders, who succeed with claims of infringement, to receive an amount of compensation per work...

 are available as an alternative to actual damages and profits. This is sometimes preferable if actual damages and profits are either too small, or too difficult to prove, or both. There are, however, situations where statutory damages are not available. provides:
  • Statutory damages are not available if the work is unpublished and the infringement began before the effective date of its registration
    Copyright registration
    The purpose of copyright registration is to place on record a verifiable account of the date and content of the work in question, so that in the event of a legal claim, or case of infringement or plagiarism, the copyright owner can produce a copy of the work from an official government...

    .
  • Statutory damages are not available if the work is published but the infringement commenced after the first publication and before the effective date of its registration, unless registration is made within three months after the first publication.

Statutory damages are calculated per work infringed. Statutory damages range from a few hundred dollars to hundreds of thousands:
  • Statutory damages range from $750 per work to $150,000 per work
  • In case of “innocent infringement”, the range is $200 to $150,000 per work. "Innocent" is a technical term. In particular, if the work carries a copyright notice, the infringer cannot claim innocence.
  • In case of “willful infringement” (again, “willful” is a technical term), the range is $750 to $300,000 per work.


Damages in copyright cases can be very high. In Lowry’s Reports, Inc. v. Legg Mason Inc., a 2003 lawsuit between a publisher of stock analysis newsletters against a company that buys one copy of the newsletters and makes multiple copies for use in-house, the jury awarded damages - actual damages for some newsletters and statutory damages for other newsletters - totaling $20 million.

During the course of the lawsuit, the copyright holder can ask the court for both, in the alternative. However, at the end of the case, they are mutually exclusive: Only one can be awarded and not the other.
Attorney’s fees

Cost and attorney fees: Copyright Act § 505 permits courts, in their discretion, to award costs against either party and to award reasonable attorney fees to the prevailing party.

The court may (but is not required to) award to the "prevailing party" reasonable attorney’s fees. This applies to both the winning plaintiff (rightsholder) and the winning defendant (accused infringer). However, attorney’s fees award is not available against the government. Like statutory damages, attorney’s fees are not available if the work infringed is not registered at the time of infringement.

Criminal penalties

In addition to the civil remedies, the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. There 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 Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...

 imposes criminal sanctions for certain acts of circumvention and interference with copyright management information. There 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 not more than $500,000 or imprisonment
    Prison
    A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...

     for not more than five years, or both, for the first offense
    Offense (law)
    In law, an offence is a violation of the criminal law .In England and Wales, as well as in Hong Kong the term "offence" means the same thing as, and is interchangeable with, the term "crime"....

    .
  • A fine of not more than $1 million and imprisonment for not more than 10 years, or both, for repeated offenses.

Nonprofit
Non-profit organization
Nonprofit organization is neither a legal nor technical definition but generally refers to an organization that uses surplus revenues to achieve its goals, rather than distributing them as profit or dividends...

 libraries, archives, education institutions
School
A school is an institution designed for the teaching of students under the direction of teachers. Most countries have systems of formal education, which is commonly compulsory. In these systems, students progress through a series of schools...

 and public broadcasting
Public broadcasting
Public broadcasting includes radio, television and other electronic media outlets whose primary mission is public service. Public broadcasters receive funding from diverse sources including license fees, individual contributions, public financing and commercial financing.Public broadcasting may be...

 entities are exempt from criminal prosecution.

Felony penalties for first offenses begin at seven copies for audiovisual works, and one hundred copies for sound recordings.

Public domain

Works are in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

 if they are not covered by intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...

 rights, such as copyright, at all, or if the intellectual property rights to the works has expired. At most, copyright terms end 120 years after creation in the United States, but they may end or have already ended sooner in certain situations. Although it is held under Feist v. Rural
Feist Publications v. Rural Telephone Service
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...

that Congress does not have the power to re-copyright works that have fallen into the public domain, re-copyrighting has happened: "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

, principally by aliens of countries with which we had been at war." Works published with notice of copyright or registered in unpublished form in the years 1964 through 1977 automatically had their copyrights renewed for a second term. Works published with notice of copyright or registered in unpublished form on or after January 1, 1923, and prior to January 1, 1964, had to be renewed during the 28th year of their first term of copyright to maintain copyright for a full 95-year term. With the exception of maps, music, and movies, the vast majority of works published in the United States before 1964 were never renewed for a second copyright term.

Works "prepared by an officer or employee of the U.S. government as part of that person's official duties" are automatically in the public domain by law. Examples include military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...

 journalism
Journalism
Journalism is the practice of investigation and reporting of events, issues and trends to a broad audience in a timely fashion. Though there are many variations of journalism, the ideal is to inform the intended audience. Along with covering organizations and institutions such as government and...

, federal court opinions (but not necessarily state court opinions), congressional committee reports, and census
United States Census
The United States Census is a decennial census mandated by the United States Constitution. The population is enumerated every 10 years and the results are used to allocate Congressional seats , electoral votes, and government program funding. The United States Census Bureau The United States Census...

 data. However, works created by a contractor for the government are still subject to copyright. Even public domain documents may have their availability limited by laws limiting the spread of classified information
Classified information
Classified information is sensitive information to which access is restricted by law or regulation to particular groups of persons. A formal security clearance is required to handle classified documents or access classified data. The clearance process requires a satisfactory background investigation...

.

The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years. For a work made for hire, the copyright in a work created before 1978, but not theretofore in the public domain or registered for copyright, subsists from January 1, 1978, and endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If the work was created before 1978 but first published 1978–2002, the federal copyright will not expire before 2047.

Until the Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

 Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978 and February 28, 1989, this could be prevented by registering the work with the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

 within five years of publication. After March 1, 1989, an author's copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.

Examples

In the United States, the images of Frank Capra
Frank Capra
Frank Russell Capra was a Sicilian-born American film director. He emigrated to the U.S. when he was six, and eventually became a creative force behind major award-winning films during the 1930s and 1940s...

's film It's a Wonderful Life
It's a Wonderful Life
It's a Wonderful Life is a 1946 American Christmas drama film produced and directed by Frank Capra and based on the short story "The Greatest Gift" written by Philip Van Doren Stern....

(1946) entered into the public domain in 1974, because the copyright holder failed to file a renewal application with the Copyright Office during the 28th year after the film's release or publication. However in 1993, Republic Pictures utilized the 1990 United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 ruling in Stewart v. Abend
Stewart v. Abend
Stewart v. Abend, 495 U.S. 207 , was an important United States Supreme Court decision which held that a copyright owner has the exclusive right to permit the creation and exploitation of derivative works, regardless of potentially conflicting agreements by prior copyright holders.-Facts:Cornell...

to enforce its claim of copyright because the film was a derivative work
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...

 of a short story that was under a separate, existing copyright, to which Republic owned the film adaptation rights, effectively regaining control of the work in its complete form.

Charles Chaplin re-edited and scored his 1925 film The Gold Rush
The Gold Rush
The Gold Rush is a 1925 silent film comedy written, produced, directed by, and starring Charlie Chaplin in his Little Tramp role. The film also stars Georgia Hale, Mack Swain, Tom Murray, Henry Bergman, Malcolm Waite....

for reissue in 1942. Subsequently, the 1925 version fell into the public domain when Chaplin's company failed to renew its copyright in 1953, although the 1942 version is still under US copyright.

The distributor of the cult film Night of the Living Dead
Night of the Living Dead
Night of the Living Dead is a 1968 American independent black-and-white zombie film and cult film directed by George A. Romero, starring Duane Jones, Judith O'Dea and Karl Hardman. It premiered on October 1, 1968, and was completed on a USD$114,000 budget. After decades of cinematic re-releases, it...

, after changing the film's title at the last moment before release in 1968, failed to include a proper copyright notice in the new titles, thereby immediately putting the film into the public domain after its release. This provision of US copyright law was revised with the United States Copyright Act of 1976, which allowed such negligence to be remedied within five years of publication.

Orphan works

The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976
Copyright Act of 1976
The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions...

, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression" fall into copyright status. The elimination of registration also eliminated a central recording location to track and identify copyright-holders. Consequently, potential users of copyrighted works, e.g., filmmakers or biographers, must assume that many works they might use are copyrighted. Where the planned use would not be otherwise permitted by law (for example, by fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...

), they must themselves individually investigate the copyright status of each work they plan to use. With no central database of copyright-holders, identifying and contacting copyright-holders can sometimes be difficult; those works that fall into this category may be considered "orphaned".

See also

  • Bilateral copyright agreements of the United States
    Bilateral copyright agreements of the United States
    Bilateral copyright agreements of the United States are agreements between the United States and another country which allow U.S. authors to claim copyright protection in the other country and authors from that country to claim protection under United States copyright law.The agreements can take...

  • Copyright Catalog
    Copyright Catalog
    United States copyright registrations, renewals and other catalog entries since 1978 are published online at the. Entries prior to 1978 are not published in the Online Catalog....

  • Copyright Clearance Center
    Copyright Clearance Center
    Copyright Clearance Center is a not-for-profit U.S. company based in Danvers, Massachusetts, that provides collective copyright licensing services for corporate and academic users of copyrighted materials. CCC procures agreements with rightsholders, primarily text publishers and authors, both for...

  • Digital Millennium Copyright Act
    Digital Millennium Copyright Act
    The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...

  • International Copyright Act
    International Copyright Act
    - Purpose of the Act :The International Copyright Act of 1891 is the first U.S. congressional act that extended limited protection to foreign copyright holders from select nations....

  • Public Domain Enhancement Act
    Public Domain Enhancement Act
    The Public Domain Enhancement Act , ) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their copyright status...

  • Sweat of the brow
    Sweat of the brow
    "Sweat of the brow" is an intellectual property law doctrine, chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory...

  • TEACH Act
    TEACH Act
    The Technology, Education and Copyright Harmonization Act of 2002, known as the TEACH Act, is an Act of the United States Congress. The importance of the TEACH Act stems from the previous copyright laws that allow educators to copy documents or use copyrighted materials in a face-to-face classroom...

     (Technology, Education and Copyright Harmonization Act of 2002)
  • United States copyright law in the performing arts
  • United States No Electronic Theft Act
    NET Act
    The United States No Electronic Theft Act , a federal law passed in 1997, provides for criminal prosecution of individuals who engage in copyright infringement under certain circumstances, even when there is no monetary profit or commercial benefit from the infringement. Maximum penalties can be...

  • United States patent law
    United States patent law
    United States patent law was established "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;" as provided by the United States Constitution. Congress implemented these...

  • United States trademark law
    United States trademark law
    Trademarks were traditionally protected in the United States only under State common law, growing out of the tort of unfair competition. As early as 1791, Thomas Jefferson proposed that the marks of sailcloth makers could be protected under the Commerce Clause, but it was not until 1870 that...

  • Fair Use Project
    Fair Use Project
    The Fair Use Project is part of the Stanford Center for Internet and Society at Stanford Law School. Founded in 2006, it offers legal assistance to "clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom." It is headed by Tony Falzone, lecturer at Stanford Law. It...


Fixation

  • White-Smith Music Publishing Company v. Apollo Company
    White-Smith Music Publishing Company v. Apollo Company
    White-Smith Music Publishing Company v. Apollo Company, 209 U.S. 1 , was a decision by the Supreme Court of the United States which ruled that manufacturers of music rolls for player pianos did not have to pay royalties to the composers...

     (1908)
  • Midway Manufacturing Co. v. Artic International, Inc.
    Midway Manufacturing Co. v. Artic International, Inc.
    Midway Manufacturing Co. v. Artic International, Inc., 547 F. Supp. 999 , is a court case in which the United States District Court for the Northern District of Illinois held that aspects of a video arcade game were copyrightable even though the images that appeared on the screen were transient...

     (1982)

Originality

  • Burrow-Giles Lithographic Co. v. Sarony
    Burrow-Giles Lithographic Co. v. Sarony
    Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 , was a case decided by the Supreme Court of the United States that upheld the power of Congress to extend copyright protection to photography.-Background of the case:...

     (1884)
  • Feist Publications v. Rural Telephone Service
    Feist Publications v. Rural Telephone Service
    Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...

     (1991)
  • Bridgeman Art Library, Ltd. v. Corel Corp. (1999)

Idea/expression dichotomy

  • Baker v. Selden
    Baker v. Selden
    Baker v. Selden, , was a leading Supreme Court of the United States copyright case cited to explain the idea-expression dichotomy.-Facts:...

     (1880)
  • Computer Associates Int. Inc. v. Altai Inc.
    Computer Associates Int. Inc. v. Altai Inc.
    Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process...

    (1992)

External links

United States

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