Copyright Law in a Nutshell
Author:
LaFrance, Mary
Edition:
4th
Copyright Date:
2022
21 chapters
have results for Copyright Law in a Nutshell
Chapter 1. Introduction 5 results
- The most recent comprehensive revision of the federal copyright laws culminated in the Copyright Act of 1976 (the “1976 Act”), which took effect on January 1, 1978, and which is codified, with amendments, in Title 17 of the United States Code. Perhaps the most significant change introduced by the 1976 Act was the elimination of common law copyright protection for fixed works of authorship. Under the Copyright Act of 1909 (the “1909 Act”) and earlier federal statutes, unpublished works of authorship enjoyed perpetual common law copyright protection, a doctrine carried over from English law. For most works, federal copyright law did not apply until publication. In contrast, under the 1976 Act, federal copyright attached to an original work of authorship from the moment it was fixed in a tangible medium of expression. Thus, as of January 1, 1978, common law copyright was virtually eliminated for such works. Moreover, any attempt by a state to provide its own equivalent of copyright
- Because copyright in works created or published prior to January 1, 1978, is governed in many respects by the 1909 Copyright Act, a copyright lawyer must be familiar with both the 1976 Act and the 1909 Act in order to accurately assess the current copyright status and ownership of these pre-1978 works. For that reason, although this text focuses on the 1976 Act, it also addresses those provisions of the 1909 Act that are essential to modern copyright practice. Except where otherwise indicated, all statutory references in this text refer to Title 17.
- Essential to federal (as opposed to common law) copyright is the concept of the limited term, which is required by the “limited Times” language of the Patent and Copyright Clause. Any copyrightable work published in the United States before 1926 has now entered the public domain due to expiration of its term of protection. The last copyrightable works published under the 1909 Act (that is, in the year 1977) will not enter the public domain until 2073.
- As this book goes to press in 2021, Congress is studying proposals for another revision of the copyright statutes, with a likely focus on issues involving Internet transmissions. It is too soon to predict when this project will come to fruition.
- The Patent and Copyright Clause of the United States Constitution grants Congress the power “to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.”
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Chapter 13. Preemption 41 results (showing 5 best matches)
- Federal copyright law preempts enforcement of state statutes or common law in a number of situations. There are two types of copyright preemption: (1)
- Even before enactment of statutory copyright preemption in 1976, it was well settled that, under the Supremacy Clause of the Constitution, states could not enact laws which interfered with the purposes of federal copyright or patent laws. Such interference may occur, for example, where a state extends protection to a work that Congress intended to place in the public domain (as in
- If a work fits within one of the general copyrightable subject matter categories under § 102 and § 103, but is unprotected by federal copyright because it is unoriginal, then § 301 will preempt any state law that provides copyright-like protection to the work. For example, if a poem is ineligible for federal copyright because it was copied in its entirety, § 301 preemption will apply. Section 301 also
- The origins of statutory preemption under § 301 lie in the 1976 Copyright Act, under which, for the first time, federal copyright protection was extended to all works of authorship beginning at the moment of tangible fixation, regardless of whether the work was published. The 1909 Act, in contrast, denied federal copyright protection to most unpublished works, relegating them to the protection of common law copyright under state law. When unpublished works were brought within the scope of federal copyright
- A shrinkwrap license is a non-negotiated agreement that accompanies the purchase of a copy of a copyrighted work—typically, computer software. The copyright owner purports to license (rather than sell) to the purchaser the copyrighted content embodied in the tangible good, and imposes a series of conditions and restrictions on the use of the copy and/or the copyrighted content. These conditions and restrictions typically purport to limit or negate the rights which copyright law ordinarily grants to the
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Chapter 4. Formalities 50 results (showing 5 best matches)
- Under the 1909 Act, federal copyright ordinarily did not attach to any work until that work was publicly distributed with copyright notice affixed. However, unpublished works enjoyed perpetual protection under common law copyright. Once a work was published with a proper copyright notice, common law protection ended, and federal copyright
- Three types of formalities are associated with federal copyright law: notice, deposit, and registration. For newly created works, none of these formalities is currently a prerequisite to owning a copyright. However, deposit and registration affect the copyright owner’s ability to enforce a copyright and to enjoy certain remedies against infringers. Even though copyright notice is no longer required for works first published on or after March 1, 1989, copyright notice still offers some practical benefits. Because many people still equate the absence of a copyright notice with a lack of copyright protection, a prominent copyright notice can deter potential infringers. Also, by identifying the copyright owner, the notice facilitates a potential user’s efforts to locate the copyright owner in order to secure the appropriate permissions. When infringement occurs, a defendant that had access to a copy or phonorecord
- The notice requirement was significantly modified in the 1976 Act. Effective January 1, 1978, common law copyright was abolished for all fixed works. Instead, federal copyright attached from the moment an original work of authorship was fixed in tangible form. Thus, publication with notice no longer served as the dividing line between common law and federal copyright protection. However, copyright notice was still mandatory for all published works, and public distribution without notice could still cause a work to enter the public domain. Technically, this occurred through a
- Because the question whether a work was publicly distributed with or without copyright notice was of crucial importance prior to March 1, 1989, courts were often asked to determine whether a particular distribution was private or public. Where the distributed copies bore a proper copyright notice, the copyright owner typically sought a ruling that the distribution was public, thus causing statutory
- The role of formalities in federal copyright law has significantly decreased under the 1976 Act. In most cases, compliance with formalities is no longer essential to owning the copyright in a work. However, certain formalities are still essential to pursuing infringement claims, and others can enhance the remedies available to a successful infringement plaintiff. In addition, certain formalities that are no longer required for newly created works continue to play a significant role in determining the copyright status of works that were first published as late as February, 1989.
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Chapter 2. Copyrightable Subject Matter 169 results (showing 5 best matches)
- Under current law, compliance with formalities is not a prerequisite to copyright protection. Thus, a work that satisfies § 102 enjoys federal copyright protection from the moment it is fixed in a tangible medium of expression (
- For example, in 1973 Dolly Parton wrote the music and lyrics for the song “I Will Always Love You.” She is therefore the author of the musical work, and she either owns the copyright or has assigned it to a music publisher. She made the first sound recording of that song in 1973, and a second one in 1982. The copyright in each of these recordings is owned by the record company that produced it. Several other artists have made their own recordings of the song as well. The best known of these “cover” versions is Whitney Houston’s 1992 recording. Each of these sound recordings enjoys a separate copyright. Thus, in this example, there is just one copyrighted musical work, but many copyrighted sound recordings of that work. Each of these copyrights has a separate owner
- Because the list of categories is illustrative rather than comprehensive, a work that satisfies the general definition in section 102(a) will be copyrightable even if does not appear to fit into one
- In the case of musical recordings, it is important to distinguish the copyright in the sound recording from the copyright in the underlying musical work. A sound recording captures a specific performance of a musical work. Typically, the copyright in the musical work and the copyright in a sound recording of that work are owned by separate persons. The copyright in a sound recording is normally owned by the record company that produced the recording. The copyright in the underlying musical composition may be owned by the author(s) of the music and lyrics, or by an assignee of the author(s)—typically a music publisher. A single copyrighted musical work may be recorded many times, resulting in many copyrighted sound recordings.
- As a result of the fixation requirement, an unscripted live event, such as a football game, is ordinarily not eligible for copyright protection. In contrast, a recording of that event is copyrightable. This means that federal copyright law would not prevent a spectator from recording a football game as it happened, but if the football team authorized someone to record the event, then the recording itself would be copyrighted.
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Chapter 6. Assignments and Licenses 78 results (showing 5 best matches)
- A written instrument was also required for assignments of statutory copyrights under § 28 of the 1909 Act, although here, too, some courts allowed subsequent written ratifications of oral assignments. Unlike current law, however, § 28 did not require exclusive licenses of statutory copyrights to be in writing, nor did it require an assignment or exclusive
- A copyright transfer may also occur by operation of law. Thus, for example, an interest in a copyright may be transferred in a bankruptcy proceeding. Outside of the bankruptcy context, however, § 201(e) precludes the government from seizing or transferring any interest in an individual author’s copyright until it has been voluntarily transferred by the author.
- In
- Although copyright law provides the default rules governing copyright assignments and licenses (such as the § 204 writing requirement for transfers of exclusive rights), the interpretation of assignment and licensing agreements is generally a matter of state law. However, if the application of state law would lead to a result that conflicts with federal copyright policy, the state law will be preempted. (See Chapter 13.)
- Under § 201(d) of the 1976 Act, copyright is infinitely divisible. In other words, copyright is considered a “bundle of rights,” and any portion of that bundle may be assigned through a conveyance or by operation of law, inherited under a will or through intestate succession, or licensed on an exclusive or non-exclusive basis. In the case of a literary work, for example, one party may own or hold a license for the print publication rights, another may own or license the film adaptation rights, and yet another may own or license the electronic publication rights. Both owners and exclusive licensees (but not non-exclusive licensees) may register their interests in a copyright, and both have standing to sue infringers.
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Chapter 11. Remedies 95 results (showing 5 best matches)
- the counterfeit or illicit label is used in connection with a phonorecord of a copyrighted sound recording or copyrighted
- Under § 602(b), importation of infringing items is prohibited. This provision is enforced by the U.S. Customs and Border Protection agency (formerly called the U.S. Customs Service). A copyright owner may obtain a remedy under § 602(b) against copies that were made unlawfully under the laws of another country, as well as copies that were lawfully made in
- Although a copyright owner may not bring an action under federal copyright law for acts of
- Where a defendant’s actions have infringed the plaintiff’s rights under both copyright and trademark law, the plaintiff may recover both copyright and trademark damages.
- also provides penalties for certain actions not involving infringement. A fine of up to $2,500 applies to: (1) any person who fraudulently places a false copyright notice on any article or who publicly distributes, or imports for public distribution, any such article, (2) any person who fraudulently alters or removes a notice of copyright, and (3) any person who knowingly makes a false representation of material fact in an application for copyright registration or in any written statement filed in connection therewith.
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Chapter 7. Exclusive Rights 148 results (showing 5 best matches)
- The exclusive rights are not affirmative rights to engage in the activities described in § 106. Rather, each of the exclusive rights is a right to
- The six exclusive rights of a copyright owner are set forth in § 106. Three of these exclusive rights apply to
- Under § 602, certain import and export activities can also constitute public distributions under § 106(3). § 602 addresses copies and phonorecords that are lawfully made as well as those which are “pirated”—that is, not lawfully made. Under § 602(a), an infringing public distribution under § 106(3) occurs when copies or phonorecords of a copyrighted work that were acquired overseas are imported into the United States without the consent of the U.S. copyright owner (subject to the first sale rule, see § 8.2 below). Although the language of § 602(a) suggests that the import restriction applies even if the copies or phonorecords were lawfully made in their country of manufacture (
- The reproduction right of § 106(1) gives the copyright owner the exclusive right to reproduce the work in copies or phonorecords, and to authorize such reproductions. Reproduction, in this context, means copying, whether the copying is conscious or unconscious. Reproduction does not include parallel independent creation, in which a new work resembles a pre-existing work but was not copied from it either consciously or unconsciously. Instead, reproduction means producing a second copy of a work through conscious or unconscious imitation. Thus, if two artists paint the same landscape independently, neither of them imitating the other’s work, then even if the two works are virtually identical, neither artist has reproduced the other’s work within the meaning of § 106(1). In contrast, if one artist has been exposed to another artist’s landscape painting, and consciously or unconsciously imitates the other’s
- Despite the uncertainty in the courts, many authorities take the position that federal copyright law already incorporates the making available right. Congress has ratified two 1996 copyright treaties—the WIPO Copyright Treaty and the WIPO
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Chapter 3. Authorship 83 results (showing 5 best matches)
- Section 202 provides that ownership of the copyright in a work is separate from ownership of a physical embodiment of a work. Thus, when an art collector purchases a painting, the collector owns the physical object but, absent a separate conveyance of the copyright, acquires no interest in the copyright. Conversely, a party may own the copyright in a work,
- The author of a work initially owns the entire copyright in the work. The simplest scenario is where an individual acts alone in creating a work, and the work is not a work made for hire. As the sole author and copyright owner, the creator is free to license or assign any or all of the copyright, or retain full ownership.
- The concept of a work made for hire is unique in copyright law, in three respects. First, it represents the only situation in which a work may have an author that is not a natural person; many works made for hire are authored by corporations. Second, it is the only situation in which the authorship of a work (as opposed to the ownership of the copyright) may be determined by contract. Third, it is the only situation in which a party that has made no creative contribution to a work may be recognized as the author of that work. As discussed below, the concept of a work made for hire is extremely useful in fixing the authorship of works which result from collaborative activities such as filmmaking, and eliminates many of the complexities that arise under joint authorship arrangements.
- According to the legislative history, the authors of a joint work are tenants in common. This rule applies even if the authors’ creative contributions were not equal. According to the case law, when a joint work is created, each author owns an equal and undivided share of the copyright in that work, unless
- Copyright ownership arises initially through authorship, after which it may be transferred by assignment, inheritance, or any other means by which property may be conveyed. Copyright interests may also be licensed, on either an exclusive or non-exclusive basis. Thus, copyright ownership issues involve matters of authorship, assignments, and licensing. Ownership issues may also involve determining the respective rights of persons who own copyrights in collective or derivative works, on the one hand, and the persons who own copyrights in the underlying works that are included in those collective or derivative works.
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Chapter 8. Limitations on Exclusive Rights 177 results (showing 5 best matches)
- Section 113(b) provides that ownership of copyright in a work that depicts a useful article does not give the copyright owner any rights with respect to the useful article so depicted, except to the extent that such rights would have been recognized under pre-1978 law. Thus, the owner of the copyright in a technical drawing of a machine cannot prevent others from constructing the machine from the drawing.
- Unlike the owner of a copyright in a musical work, the owner of the copyright in a sound recording does not enjoy an exclusive public performance right under § 106(4). When a copyrighted sound recording is publicly performed—for example, in a club or on the radio—the record company that owns the copyright in that sound recording is not entitled to collect any public performance royalties. In contrast, the owners of copyright in any of the musical compositions embodied in that sound recording will receive performance royalties collected by their representative organizations (ASCAP, BMI, SESAC, or Global Music Rights). The only public performance right available for sound recordings is the digital
- A person seeking to duplicate a copyrighted sound recording (rather than independently re-creating the sounds of the recording) may use a compulsory license to reproduce and distribute the copyrighted musical compositions included in that recording only if (1) the existing sound recording was fixed lawfully, and (2) the duplication of the sound recording is authorized by its copyright owner or, if the sound recording was fixed before February 15, 1972 (the date on which sound recordings first became eligible for federal copyright protection), by a person who made that recording either under an express license from the owner of the copyright in the musical work or pursuant to a compulsory license to record that composition.
- In the absence of negotiated agreements between copyright owners and transmitting organizations, the royalty rates and terms for the statutory license
- Where an activity qualifies under § 118, the copyright owners of the works being performed or displayed are entitled to a royalty, the rates and terms of which are determined by the Copyright Royalty Judges. If any copyright owners enter into voluntarily negotiated licensing agreements with public broadcasting entities, and copies of those agreements are submitted in compliance with § 118(b)(2), then the negotiated licenses will be given effect in lieu of any determinations by the Copyright Royalty Judges.
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Chapter 5. Copyright Duration 48 results (showing 5 best matches)
- Once copyright is restored to a work, § 104A(b) provides that the copyright vests initially in the author or initial rightholder of the work as determined by the law of the source country. Subject to a statutory exception for certain “reliance parties,” the copyright owner is thereafter entitled to the full array of infringement remedies with respect to acts of infringement that commence on or after the date of restoration, until the remaining copyright term has expired.
- Yet another set of rules governs works created prior to January 1, 1978 which were neither in the public domain nor protected by federal copyright as of that date. Most, though not all, of the works in this category would have been unpublished works. Under the 1909 Act, unpublished works were protected by common law copyright, which was perpetual until publication, at which point the work either entered the public domain or began its limited term of statutory copyright, depending on whether it was published with notice. (For details and exceptions, see §§ 4.1–4.2 above.) Under § 102 and § 301 of the 1976 Act, however, common law copyright in fixed works was abolished, and all fixed works became subject to the limited term of statutory copyright under § 302. Accordingly, works created but uncopyrighted (and not in the public domain) as of January 1, 1978 lost their perpetual copyright on that date. Under § 303(a), their perpetual copyright was replaced by statutory copyright, which...
- In response to this concern, the Copyright Office has recommended legislation that would permit the use of a work whose copyright owner cannot be identified or located, subject to an obligation to pay a reasonable license fee to the copyright owner if and when that person comes forward. In addition, the copyright owner would be foreclosed from obtaining injunctive relief against the continued use of a derivative work which the user created after being unable to identify or locate the copyright owner of the underlying work. These limitations on remedies would be available only if the user performed a reasonably diligent search for the copyright owner,
- If a work qualifies as a restored work under § 104A, then its federal copyright has been restored. In other words, even though that work was previously in the public domain in the United States, it regained its copyright for whatever remained of its federal copyright term. The date on which the copyright was restored depends on the date on which the source country became an eligible country. Copyright was restored as of January 1, 1996, with respect to any work whose source country already
- If the restored work is a sound recording that was fixed prior to February 15, 1972, there is some uncertainty as to the duration of its federal protection. At the time the current version of § 104A was enacted (1994), the remaining term of copyright protection for a pre-1972 work was based on its publication date. For example, if the sound recording were published in 1950, the maximum federal copyright term available as of 1994 would have been 75 years, later (in 1998) extended to 95 years. Thus, the restored copyright in the 1950 sound recording would expire in 2045. As discussed in § 5.8 above, however, § 1401 (created by the Music Modernization Act of 2018) grants sound recordings fixed prior to February 15, 1972 a type of sui generis federal protection similar to copyright but with several differences, including the term of protection. For a recording published in 1950, protection under § 1401 endures for 110 years. Thus, a foreign-sourced sound recording published in 1950...
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Copyright Page 6 results (showing 5 best matches)
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © West, a Thomson business, 2008
- © 2017 LEG, Inc. d/b/a West Academic
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Chapter 10. Defenses 101 results (showing 5 best matches)
- A narrow defense of innocent intent is recognized under § 406(a). The defense applies only with respect to copies or phonorecords that were publicly distributed by or under the authority of the copyright owner
- Because federal courts have exclusive jurisdiction over federal copyright claims (although not over common law copyright claims), the Eleventh Amendment effectively precludes a claim for damages arising from federal copyright infringement if the infringer is a state, a state agency, or a state actor, unless the state expressly and unequivocally waives its immunity. Arguments based on “implied
- Under § 507, a civil action for copyright infringement, or for unauthorized use of a pre-1972 sound recording in violation of § 1401, must be commenced within three years from the date on which the claim
- When an infringement claim is based on a dispute over copyright ownership, most circuits have held that the separate accrual rule does not apply, and the
- A different type of estoppel, sometimes called
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Preface 4 results
- Because federal copyright law is a creature of statute, every aspect of copyright law addressed in the book is accompanied by references to the pertinent statutes and, where appropriate, their legislative histories. The most important aspects of each statute are discussed in the text, so that the reader can derive a good understanding of the material from the text alone. However, all of the relevant statutory citations are included in the text for those who wish to develop their understanding further.
- Copyright law has grown increasingly complex over the years. Also, there are many misconceptions that are surprisingly persistent, and new misconceptions arise all the time. A better understanding of copyright law will prevent costly mistakes, avoid unnecessary litigation, encourage consumers to take an active interest in legislative proposals, and enable authors and artists to focus on their creative work without the distraction of legal entanglements.
- This book is for anyone who needs a concise but thorough introduction to copyright law. It is aimed at lawyers, students, artists, authors, and businesspersons, as well as intelligent consumers who just want to know more about the copyright issues reported by the media. It has been thoroughly updated through mid-2021.
- The book assumes that the reader has no prior knowledge of copyright law, but it does not shy away from addressing aspects of the law which are ambiguous, in a state of flux, or the subject of conflicting opinions from courts and commentators. Where the law is still evolving, the text identifies the areas of uncertainty and the most recent authorities that have attempted a resolution. The text also notes areas where further legislation is needed or is currently under consideration.
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Chapter 12. Digital Millennium Copyright Act 145 results (showing 5 best matches)
- might be used to limit the rights which copyright law
- The Digital Millennium Copyright Act of 1998 (“DMCA”) revised the 1976 Act by adding three sets of complex rules, accompanied by civil remedies and criminal penalties, designed to address concerns of copyright owners and Internet service providers arising from the growth of the Internet and the resulting increase in unauthorized copying and distribution of copyrighted works. The rules codified in § 512 define a set of safe harbors which enable Internet service providers (ISPs) to limit their liability for the infringing activities of their users. The rules codified at § 1201 prohibit the circumvention of technological devices that copyright owners use to protect their digitized works from unauthorized access and copying. The rules codified at § 1202 prohibit the falsifying or unauthorized alteration or removal of certain copyright information attached to or accompanying a copyrighted work.
- the name of, and other identifying information about, the work’s copyright owner, including the information contained in a notice of copyright;
- § 1201(a)(1)(A)
- . Here, the plaintiff failed to make the necessary showing under elements (4) and (5), because its sale of garage door openers carried with it an implied license permitting its customers to use the openers, and because copyright law did not give the plaintiff a right to prevent its customers from using their openers in conjunction with competing products.
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Chapter 9. Infringement 83 results (showing 5 best matches)
- A second exception applies to works of foreign origin. Under § 411, the registration prerequisite to infringement actions applies only to a “United States work.” That term is defined in § 101 to
- As a less costly and
- Generally speaking, the more creative a work is, the more likely it is that its copyright owner will succeed in an infringement claim based on nonliteral similarity. If a work is only minimally creative—such as a database—the plaintiff will typically need to demonstrate near-verbatim copying (also called “bodily appropriation”) in order to establish improper appropriation. This is one consequence of the difference between a strong copyright and a “thin” copyright.
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- Actions under § 106A(a) are one exception to the general rule of § 411 that a work must be registered as a prerequisite to an infringement action. An author seeking to bring suit for violation of his or her right of attribution or integrity in a work of visual art need not register the copyright in that work in order to enforce these rights, because authors may enforce these rights even if they no longer own an interest in the copyright.
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Title Page 4 results
Center Title 2 results
Table of Cases 10 results (showing 5 best matches)
Index 36 results (showing 5 best matches)
Outline 45 results (showing 5 best matches)
WEST ACADEMIC PUBLISHING’S EMERITUS ADVISORY BOARD 16 results (showing 5 best matches)
- Joanne and Larry Doherty Chair in Legal Ethics & Professor of Law, University of Houston Law Center
- John Deaver Drinko/Baker & Hostetler Chair in LawMichael E. Moritz College of Law, The Ohio State University
- Dean and Joseph L. Rauh, Jr. Chair of Public Interest LawUniversity of the District of Columbia David A. Clarke School of Law
- Robert A. Sullivan Emeritus Professor of Law
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
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- Publication Date: October 27th, 2021
- ISBN: 9781647082499
- Subject: Intellectual Property
- Series: Nutshells
- Type: Overviews
- Description: This product offers a compact yet comprehensive and up-to-date overview of U.S. copyright law in an uncluttered and readable format. Coverage ranges from the fundamental concepts of originality, authorship, and infringement to the highly technical rules governing digital phonorecord deliveries and digital public performance rights in sound recordings, the safe harbor provisions that limit the liability of Internet service providers, and the anti-circumvention and copyright management information provisions of the Digital Millennium Copyright Act. This updated edition includes detailed analysis of the changes introduced by the Music Modernization Act of 2018, as well as the creation of the Copyright Claims Board. The evolving doctrines of fair use and contributory liability are also given thorough attention.
