COPYRIGHT LAW

Copyright law gives the owner of a creative work of authorship the right to keep others from using the work without the owner’s permission. The purpose of copyright law is similar to that of patent law: to encourage creativity. Specifically, copyright law seeks to encourage creation of works of art, literature, music, and other “works of authorship.”

 We find the same type of fundamental policy tension in copyright law as in patent law. On the one hand, the law wants to encourage creativity by giving creators exclusive rights in their works through copyright protection. On the other hand, the law wants to foster a competitive marketplace by giving the public the freest possible access to works of authorship and the ideas they express. Copyright law balances these two interests by limiting the author’s property rights to the author’s particular method of expressing an idea or information. The author can copyright only the expression of an idea and not the idea itself, facts, or information. This is a key distinction between copyright and patent. 

Patent law gives the inventor an exclusive monopoly in an invention. In return for that monopoly, patent law imposes very strict substantive standards in the form of rigorous application procedures and standards. Copyright law, on the other hand, gives the author a monopoly in one way of expressing an idea—and even that monopoly is limited, because copyright law does not prohibit independently created works, as does patent law. As a result, the requirements for obtaining a copyright are much less stringent than those for obtaining a patent. Sources of Copyright Law Like patent law, the foundation of copyright law is the U.S. Constitution. 

The first copyright statute was passed in 1790 and underwent several major revisions. The current statute was adopted in 1976 but has been amended numerous times since then. Many of the most recent amendments resulted from the United States joining the Berne Convention16 in 1988 and as a result of the Trade-Related Aspects of Intellectual Property Rights (TRIPS)17 agreement of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT), which was completed in December 1993. 

The Berne Convention is an 1886 international treaty that standardizes basic copyright protection among its 160-plus member countries. Prior to the Copyright Act of 1976, the United States had a dual system of copyright. Unpublished works were protected under state common law copyright. Once the works were published, state protection ceased and federal copyright law applied, provided that proper copyright notice was affixed to the works.

In the 1976 Copyright Act, Congress provided that federal copyright protection attaches automatically as soon as a work is fixed in tangible form. Thus, federal law now covers unpublished as well as published works. Today, very little, if any, state copyright law survives. Generally, copyrighted works today are covered by one of three laws, depending upon when the work was copyrighted and the issues involved: (1) the Copyright Act of 1909; (2) the Copyright Act of 1976, as originally enacted; or (3) the Copyright Act of 1976, as amended. Our discussion focuses on the latter category as it is applicable to the most recently copyrighted works. 

The U.S. Copyright Office18 registers copyrights, issues certificates of registration, keeps records of assignments and licenses, and regulates deposit of copyrighted material. It does not engage in the extensive, comprehensive review that the PTO undertakes in a patent application, however. Rather, the Copyright Office looks merely to see if the submitted work falls within a copyrightable subject matter area and whether the formal registration requirements have been met. As we will see below, works do not need to be registered in order to be protected by copyright. 

Rather, copyright arises automatically once the work is created and fixed in a tangible form. Registration merely provides additional rights to the copyright owner. Subject Matter of Copyrights The Copyright Act provides for a long list of works that may be copyrighted, including literary works (which include computer programs, flowcharts, and advertising items such as catalogues, product labels, and directories); musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. 

This is not an exclusive list, and the courts can extend copyright protection to new forms of work if the legislative history of the Copyright Act suggests that Congress would have intended to cover those works had it known of them at the time it passed the Act. Thus, the Copyright Act adjusts quite well to advances and changes in technology. Section 102 of the Copyright Act defines copyrightable subject matter. It states that copyright exists in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. 

Thus Section 102 contains two important requirements: the work must be: (1) “original” and (2) “fixed” in a tangible medium. Originality Originality simply means that the author must have created the work herself (as opposed to merely copying from someone else). Copyright law, unlike patent law, does not protect against independent creation. If a second person independently creates an identical form of work, the second person is entitled to a copyright as well as the first (provided there truly is no copying going on). Originality also requires that the work contain some minimal amount of creativity, although the work does not have to be unique, novel, or of high quality. Thus, even product descriptions or labeling directions can qualify for copyright protection. 

There must be some level of creativity involved, however. For example, a person could not copyright the word “the” because there is no creativity on the part of the purported author. Moreover, granting such a copyright would remove an important word from common usage and make it difficult, if not impossible, for others to engage in normal expression. According to a rule issued by the Copyright Office, words and short phrases (such as names, titles, and slogans), listings of ingredients or contents, and familiar symbols or designs are not copyrightable. Some of these things may be protected by trademark law.

The U.S. Supreme Court addressed the originality requirement in Feist Publications, Inc. v. Rural Telephone Service Co. 19 (see Case Illustration 2.1). The Court’s decision that a phone company’s compilation of names, addresses, and telephone numbers in its white pages was not entitled to copyright protection caused a great deal of consternation in the business world. Databases are a multibillion-dollar industry in the United States. Feist is viewed as leaving the industry with little, if any, protection for these valuable assets. Data itself may not be protected by copyright. Rather, only the selection and

arrangement of data may be so protected and only then if that selection and arrangement contain sufficient creativity. Congress has several times considered legislation that would close the gap on the protection of databases caused by Feist but no legislation has been enacted.

The European Union, by contrast, passed a Database Directive in 1996 that provides for a 15-year protection period for databases created “through substantial investment.” 20 Fixation The fixation requirement prevents works that are not put into a tangible form—such as oral statements or unrecorded, unwritten musical improvisations—from receiving copyright protection. For example, if you hear jazz improvisation, those works are neither copyrighted nor copyrightable unless and until they are written down or recorded. The Copyright Act permits works to be fixed in a wide variety of tangible media, including paper, floppy disks, fabrics, records, tapes, and compact discs. 

Rights Provided by Copyright The Copyright Act sets forth several exclusive economic rights that are granted to the copyright owner. Section 106 provides that the author, or the person to whom the author has transferred the copyright, has the exclusive right to do or authorize the following: 1. reproduce the copyrighted work;21 2. prepare derivative works based upon the copyrighted work; 3. distribute copies or phonorecords of the copyrighted work to the public; 4. publicly perform certain types of copyrighted works; 5. publicly display certain types of copyrighted works; and, 6. in the case of sound recordings, perform the copyrighted work publicly by means of a digital audio transmission. In addition to these economic rights, Congress amended the Copyright Act in 1990 to provide for protection of moral rights. Many nations, especially civil law nations, view a work of authorship as an extension of the author’s personality. 

These nations grant the author: (1) the right of attribution (i.e., the right to prevent others from claiming authorship in the work, the right to be known as the author, and the right to avoid having others’ works falsely attributed to an individual); and (2) the right of integrity (i.e., the right to prevent others from distorting, mutilating, or misrepresenting the author’s work). The United States traditionally did not recognize the moral rights of attribution and integrity. The Berne Convention requires member countries to provide protection for such rights, however, so the United States amended the Copyright Act so that it would be in compliance with its treaty obligations. Section 106A of the Copyright Act now provides that, in the case of works of visual art (which are narrowly defined as works of fine art but not objects of utility or mass production), the artist (not the copyright owner, who may be a different individual or entity) has the moral rights of attribution and integrity. Specifically, the artist has the right to: 1. claim authorship in the work; 2. prevent the use of her name as the author of any work she did not create;

3. prevent the use of her name as the author of the work if the work has been distorted, mutilated, or otherwise modified such that the work would be prejudicial to her honor or reputation; 4. prevent any additional distortion, mutilation, or other modification of her work that would be prejudicial to her honor or reputation; and 5. prevent any intentional or grossly negligent destruction of her work, if the work is of recognized stature. Ownership of the Copyright Initially, the copyright is owned by the author of the work. If there are two or more authors, they are considered joint owners of a single copyright in the work. Unless the authors have agreed otherwise, each has an equal ownership share. The author can transfer some or all of the economic rights in the copyright to others. Transfers of exclusive rights must be made in writing and signed by the author. Transfers of nonexclusive rights may be made through oral agreements. (As a practical matter, however, oral agreements are seldom a wise business practice.) The exception to the rule that the author is the owner of the copyright involves two categories of works known as works for hire. First, when a work is prepared by an employee within the scope of his employment, the employer owns the copyright. Second, when a work is created by an independent contractor, the copyright belongs to the hiring party, provided that: (1) the parties expressly agree in a written, signed agreement that the work will be considered a work for hire, and (2) the work fits within one of nine broad categories listed in Section 101 of the Copyright Act. It can often be difficult to determine whether an individual is an employee or an independent contractor. The Supreme Court addressed this issue in Community for Creative Non-Violence v. Reid, 22 in which it set forth the types of factors a court should consider in making this critical determination.