Ernie the Attorney

Copyright law is governed by federal statute (17 U.S.C. §§101 - 1332), and applies to "original works" that are "fixed in a tangible medium of expression." Copyright is more than a single right; it is a "bundle of rights," including the rights of copying, distribution, performance, and to create derivative works.

The two requirements of originality and fixing. 17 U.S.C. §102.

Originality is a fairly easy test to meet. Purely factual compilations are not copyrightable because there is no creative function involved at all. Feist Publications 499 U.S. 340 (1991).

Requirement of "fixing" simply means that the work has to be recorded somehow.

Works of authorship protected by copyright law include:

literary works, musical works, dramatic works, choreographic works, graphic or sculptural works, motion pictures or audiovisual works, sound recordings, and architectural works. 17 U.S.C. §102.

History of Copyright

James Madison, who introduced the copyright and patent clause to the Constitutional Convention, advocated in The Federalist Papers, that copyright was a government act where the "public good fully coincides with the claims of individuals." Madison viewed copyright in terms of "progress" and "learning."

1787 US Constitution - art. I, sec 8, clause 8 grants Congress the power to pass laws 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." See Background History.

1790 Act - the first copyright act. Granted rights to authors of "maps, charts, and books" for a period of 28 years (14 years, renewable for another 14 year term). Recognized rights or "copying" and "distribution."

Similar to the English Statute of Anne, which required depository registration. Initially, this was with the Secretary of State (at the time Thomas Jefferson)

1802 Amendment - provided protection for engravings and prints.

1819 - recognized right of courts to enforce copyrights through injunctions.

1831 Act - included music, which meant only "published" or sheet music. Did not apply to performances. Created remedy against infringer of "costs of the lawsuit." ALso extended term of copyright from 28 years to 42 (one 28 year term, with a 14 year renewal period)

1856 Amendment - applied protection to "translations." Recognized the right of "public performance" in dramatic works (but not musical works)

1865 Act - created protection for "photographs and the negatives thereof."

Initially, there was some question about if photographs would meet the "originality" requirement of copyright law. See 1884 Sarony case, decided by U.S. Supreme Court.

1870 Act - added dramatic works, including pantomimes. Also added "paintings," which included drawings and sculptures. Recognized the right to make "derivative works."

Interestingly, dramatic works are among the oldest forms of creative expression. One reason this Act was passed was Uncle Tom's Cabin, the famous book by Harriet Beecher Stowe (which was written in 1851). Despite the fact that the book was widely dramatized, Ms. Stowe did not receive any compensation for the dramatic performances.

1891 Amendment - increased protection for foreign authors, with effect of increasing the protection given to American authors in other countries.

1897 Amendment recognized the right of "public performance" for musical works. Also made copyright infringement a crime (misdemenor).

1909 Act - Created right of recovery of "lost profits" against an infringer. Also provided for attorney's fees. Extended term of copyright to 56 years (28 year term, and 28 year renewal term).

1912 Amendment - added movies.

1964 - when Copyright office began accepting computer programs for registration

1976 Act - clarified that Computer Programs are copyrightable. Also recognized the right of "public display." Extended copyright term to "life of the author" plus 50 years.

1990 Amendment - added architectural works to list of copyrightable things.

1992 - Audio Home Recording Act - created a "home use" exception for taping in exchange for certain other rights given to music industry (basically proceeds to a tax on recording devices and recording media).

1998 Amendment - added boat hull designs. Also, extended the term of copyright to "life of the author" plus 70 years (the so-called "Sonny Bono copyright Term Extension Act").

1998 - Digital Millenium Copyright Act - makes it illegal to attempt to circumvent a digital copyright protection system.

Fair Use Defense

Making copies is permissible for things like critique, comment, news reporting, teaching, scholarship, or research. To determine if use is a "fair use" courts will examine four factors:

1) the purpose and character of the use, especially if the use is for commercial purposes (as opposed to a non-profit educational use)

2) the nature of the copyrighted work

3) the amount of use as compared to the whole work from which the copy is taken; and

4) the effect of the use upon the potential market for the copyrighted work.

Parody is subject to strong protection, though it is not specifically mentioned in the above four factors.

2 Live Crew case

Betamax case

Ownership of Copyrights

Joint Authorship

Government Works

US Government works do not qualify for copyright protection, and are part of the public domain

Laws are not copyrightable, but there are some things that look like law that are copyrightable

ALI - Restatement of Laws

NCCUSL - Uniform State Laws

Veeck decision

Work for Hire Doctrine

if employee creates a work as part of their job then the copyright belongs to the employer. So a staff photographer for a newspaper would not have a copyright in the photographs taken as part of his job. However, a studio photographer does have a copyright in the photographs that they take of you when you go have your photo taken.

Eldred v. Ashcroft - pending before US Supreme Court

The case will be argued on October 9, 2002

Berkman Center

Public Knowledge

Corante - Copyfight

Copyrights and Copywrongs

Taking the Copy out of Copyright

click here - it's a large file (8 mgs) (speech with slides)

GNU General Public License - Official Website