Conditions for protection under Copyright Law in the US

Rachit Garg

3 months ago

This article has been written by Cheyanne Pereira. The aim of this article is to provide a guide to the important aspects of copyright laws in the USA. It explores several essential aspects, like the duration of copyright protection, the procedures to apply for copyright registration, the rights available to a copyright owner, and the penalties and defenses for infringement. There are also several examples and case laws mentioned to help readers gain a proper understanding of the basics of copyright law in the USA.

‍Introduction

The US Copyright Law is a set of rules and regulations that protect creative works from being copied, reproduced, or distributed without the consent of the creator. This law provides protection to authors, composers, artists, and other creators of intellectual property for the duration of their lives plus an additional seventy years. It is important for authors, composers, artists, and other creators of intellectual property to understand the conditions of copyright protection and how they can protect their works from infringement.

The Copyright Act of 1976 is a federal statute that governs copyright protection in the United States. It is codified in Title 17 of the US. Code, subject to limited exceptions. The Copyright Act elaborately defines the rights that are protected, the types of works that are protected, the duration, and the limitation of protection, such as “fair use”. Federal causes of action remedies for copyright infringement have also been provided. The U.S. Copyright Office administers this Act while also providing comprehensive background information and procedural guidance on its website. Copyright protection is granted by the US Copyright Office, an agency within the US Department of Commerce. The US Copyright Law provides protection to authors, composers, artists, and other creators of intellectual property for the duration of their lives plus an additional seventy years. This protection is automatic and does not require any action on the part of the creator. In order for copyright protection to be enforced, however, there are certain formal and substantive requirements that must be met.

Meaning of copyright

A copyright is a form of intellectual property. It allows the original creator to enjoy complete legal rights to recreate, distribute, sell, or publish their content in the manner that they wish to. The aim of copyright protection is to ensure that the legal rights of the original creator are protected and to motivate artists and writers to carry on the production of their work without worrying about its legal protection. It is very important for you to be aware of what can and cannot be protected under the copyright laws of your country. Adherence to these laws is essential to nurturing the talents of the creators of such property and fostering its growth.

A brief timeline of copyright law in the USA

The inception of copyright laws began with the introduction of the printing press in England. From a legal point of view, it originated as a result of the monopoly of the printers in the 18th century.
Charles ll of England passed the Licensing of the Press Act in 1662 to curb the unchecked duplication of books. As per the Act, a register would have to be maintained to keep a record of licensed books, and a copy of the same would have to be kept with the stationer’s company. Most copyright acts around the world can be traced back to the Licensing of the Press Act.
The Act eventually lapsed, and that led to the enactment of the Statute of Anne in 1710. It gave the publishers and their books 14 years of legal protection. If at the end of the 14-year term, the author was still alive, the protection would be renewed for another period of 14 years. Although authors were granted the copyright to their books, they did not benefit from this as much as they would have to grant it to a publisher in order to earn money.
In 1790, the First Congress introduced provisions for copyright protection by passing the Copyright Act of 1790. The time period for protection was the same as the Statute of Anne, however, this time the benefits lay with the original creator. The act saw several amendments in the years 1831, 1870, 1909, and 1976.
The Berne Convention, held in 1886, was an international conference where several European nations agreed upon a uniform set of laws to be followed for copyright protection in different countries. The United States signed the Agreement in 1988.
After a series of extensive negotiations between copyright owners and users, guidelines for educational purposes and classrooms were set up. In 1976, the publishers, along with thirty-eight educational institutes, signed an agreement called “Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals”.
In 1976, Congress appointed the National Commission on New Technological Uses for Copyrighted Works, or CONTU, to frame guidelines for the “minimum standards of educational fair use”.
In 1990, Section 511 was included in the copyright laws. As per its provisions, the states, its employees, and its instrumentalities are not protected by the Eleventh Amendment from being sued for infringement of copyright.
In December 1994, President Clinton signed the Uruguay Round Agreements Act (URAA), which put into effect the Trade-Related Aspects of Intellectual Property, or TRIPs.
In 1988 President Clinton signed into law the Digital Millennium Copyright Act for the purpose of implementing the WIPO treaties (Copyright Treaty and Performance and Phonograms Treaty).
The Sonny Bono Copyright Term Extension Act was passed in 1998, which extended the duration of the copyright protection to the author’s lifetime and an additional 70 years after the author’s passing.
The Technology, Education, and Copyright Harmonization Act (TEACH) came into effect in November 2002. It allowed nonprofit educational institutes to use copyrighted works for distance learning courses.
In 2005, the Artist’s Rights and Theft Preservation Act was enacted by Congress. It allowed for works that were in the process of being prepared for commercial distribution to be preregistered. It was part of the Family Entertainment and Copyright Act.
Another part of the Family Entertainment and Copyright Act was the Family Home Movie Act of 2005, which allowed movie and DVD players to filter out offensive content.
President George W. Bush signed the Prioritizing Resources and Organization for Intellectual Property Act in October 2008, which was introduced with the purpose of implementing more stringent penalties for infringement of intellectual property rights. It established that registration was not a necessary precondition for a copyright infringement suit.
In 2008, the US Copyright Office made registration through their website available to the public.

Types of copyright in the USA

There are several items that fall within the scope of copyright protection in the United States of America. These are covered under Title 17 U.S. Code §102, which talks about the subject matter of copyright protection. As per this title, any works of authorship that are original and can be recreated, viewed, or communicated directly or by using a machine or device to do so are protected by copyright law. The different types of authorship are:

Literary works which include short stories, plays, newspapers, articles, blogs, and so on.
Musical works with accompanying works and compositions
Works of architecture
Films and audiovisual works
Choreography and pantomimes
Artworks such as sculptures, paintings, pictures, and so on.
Computer software and hardware

What cannot be copyrighted in the USA

There are several works that can be eligible for copyright protection if they meet the requirement, however, there are some things that cannot be protected by copyright laws. These are:

Expired copyrighted works
Laws of nature
Principles of science
Works lacking original authorship
Works of the United States Government
Grammar and punctuation rules
Ideas
Facts
Systems
Methods of operation

All the categories mentioned above cannot be protected from infringement under copyright law. This is because these categories are considered to belong to the public domain, and no single individual can monopolize or claim a concept or work falling under one of the categories above to be his brainchild. To gain a better insight into this, we must first understand what the term “public domain” means.

Public Domain in Copyright Law

Public Domain refers to all works that cannot be protected from infringement by copyright laws. It allows people to make use of those works freely and legally, as no one is really considered to be the owner of the author. It refers to those works that are open to the public at large. Works that are within the public domain can be quoted widely and can be used as the building blocks for original works of authorship. Copies of these works can be made and disseminated among students in classrooms or online forums without asking for prior permission or paying any royalty fees.

Ways in which a work can enter the public domain

There are several ways in which a work can be considered to be part of the public domain. They are:

If a copyright owner does not adhere to the rules or requirements to renew their ownership

Works that were published before 1964 in the United States are within the public domain if the original owner of the work did not renew his copyright as per the guidelines of the Copyright Office. This renewal must have been done in his 28th year after the publication of his work, and failure to do the same will lead to the loss of his rights. For other works that were published between the years 1925 and 1964, you will have to check the status of the same with the Copyright Office in order to find out if the work has reached the public domain or not. You may also refer to this guide provided by the Stanford University Library.

The owner of the copyright has placed the work in the public domain himself

A copyright owner may sometimes feel like releasing their works to the public domain themselves. They may do this by stating that the work has been dedicated for the purpose of being used by the public or by applying for a Creative Commons license. The person who is submitting the work to the public domain has to be the owner of that work and must have the copyright of the same.

The work does not fall under the protection of copyright law

There are several works that are not eligible for copyright protection. As mentioned earlier, these works are ideas, facts, concepts, grammar rules, laws of nature, and so on. Therefore, since these works cannot be protected by copyright law, they will naturally be included in the public domain.

Lack of proper copyright notice

Any works that were published in the United States before 1978 require a proper copyright notice, or else they immediately fall into the public domain. This notice usually consisted of the owner’s name, the date of the publication, the copyright symbol (the letter C within a circle) to denote the word copyright, and so on. However, if the work was published in the United States between the years 1979 and 1989, these works would fall within the public domain if they were registered with the copyright office within the first 5 years of their first publication.

If the term of copyright protection for that work has expired

If the term of copyright protection has expired for a work and there has been no renewal of the copyright, the work then enters the public domain. Copyright protection has expired for any works that were published prior to 1st January 1926. These works are now in the public domain. If the works were published after the year 1977, then the copyright protection is valid for a period of 70 years after the death of the last author.

Therefore, all of the above are ways in which a work may enter the public domain. So if you want to refer to or make use of a work belonging to the public domain, as per the rules laid down by the Supreme Court of the United States in 2003, you do not have to obtain permission or give the original author credit. However, it would be advisable to mention every source you are using if you wish to avoid committing plagiarism.

Criteria for copyright eligibility in the USA

Copyright protection for a work kicks in as soon as the work has been created and is in a fixed and tangible form. Protection for that work is available at any stage of its creation, be it the rough draft or the final draft of the completed work. It extends to unpublished and published works as well. In order for a work to be eligible for protection from copyright infringement, it must adhere to the following set of criteria:

Original work

Originality is a very important element in copyright law. It can be set apart from other works because it is an original expression of someone’s work and is not a result of plagiarism. The element of originality in an author’s or creator’s work is what makes it different from other derivative or copied works. Originality as a concept is a requirement as per the constitution and this was later specifically introduced as a requirement in the Copyright Act of 1976.

Derivative works, which have been defined under Section 101 of Title 17, are works that have been based on the original work. For example, a newer edition of a book. If you are the owner of the copyright of an original work, you are also the owner of the derivative works based on the original. If someone creates a derivative work based on your original creation without obtaining your permission, you can sue them for copyright infringement. If you have created a derivative work, it must have something original or new in its content to be eligible for copyright protection.

Minimal creativity

Along with the element of originality, a work must contain minimal creativity. There must be something unique and creative for the work to be eligible for copyright protection. A creator cannot simply copy another creator’s work and pass it off as his own without adding any imagination or creativity of the mind. He may refer to or base his work on the original creation, but he must ensure that there is something new or innovative if he wants to avoid plagiarism and be eligible for copyright protection. The work need not be completely new, but it should have something that makes it different from the original work. There should be a very minimal amount of creativity for it to be considered an entirely new piece of work. As per the Supreme Court of the USA, databases containing a compiled list of information should have some creativity involved to make them protected by copyright law. A mere listing of directions, ingredients, and contents on the back of a box may not be eligible for copyright protection as they do not contain even a small amount of creativity. This requirement ensures that works in the public domain are protected from people who try to copy the work and pass it off as their own creations to claim copyright protection. Simply making one or two changes does not make the work eligible either. There must be some amount of effort involved in its creation.

Fixed or tangible form

According to the “fixation” requirement, a work must have a tangible existence in order to be eligible for copyright protection. The work therefore has to be recorded or documented in a form that can be easily viewed by itself or through a device or tool. The work does not have to be fixed in its complete form either. Even if the work is just in the initial stages of its creation, if it is in tangible form, then it will be protected by copyright law. Sculpting, sketching, writing, recording or simply making notes or rough drafts all fall under the category of fixation. Works that have not been recorded or saved in any form, such as speeches, skits, or documents written but not saved on a computer, do not adhere to the fixation requirement.

The registration process for copyright protection in the USA

Earlier, as per the law prevalent in the USA, protection under copyright laws could only be obtained by publication along with a copyright notice. This is no longer the case, and a work can now be protected by copyright law without a notice or publication of the work. Registration with the copyright office is also not a necessity anymore. If a work adheres to the criteria mentioned above (originality, minimal creativity, and fixation/tangibility) it is eligible for copyright protection. However, registration and publication may help in tracking of the copyright status of old works. Registration for copyright grants several benefits and should therefore be considered if you want to avail of these advantages.

Benefits of copyright registration

Enforcement of copyright protection by filing a suit for infringement

Being able to sue someone for copyright infringement is the most valuable advantage of copyright registration. This is due to the fact that a copyright owner cannot sue for infringement or claim protection for their rights until the US copyright office approves the registration of their work. After a person files for copyright with the US copyright office, they will then have to wait around 7 months from the date of filing for the copyright to be processed. The copyright office may take longer to process it in complex cases. An individual may be able to submit a request for his or her filing process to be expedited, but that process may be costly.

Eligibility for statutory damages and attorney’s fees

The registrant can be eligible to claim statutory damages in situations where the infringement of copyright has taken place after registration or within three months of publication. Statutory damages can be awarded to a person without the need for proof or evidence of harm caused. The sum awarded can range from anywhere between 750 to 30,000 dollars. In cases of willful infringement, it can go up to 150,000 dollars. The plaintiff is always going to be entitled to, and if his damages are proven, he is also entitled to the profits of the person who committed the infringement.

Prevention of the importation of copyrighted works

A person who is a copyright owner is eligible to be a part of the U.S. Customs and Border Protection Program. As per the rules of this programme, Customs and Border Protection, or CBP, in the USA is able to intercept and detain imported goods that infringe on someone’s intellectual property in the United States. If you are a registered copyright owner, you can participate in this program. Although it is not compulsory to participate in the CBP, it definitely provides you with several advantages if you do so.

Registration serves as proof of validity

If your registration application is submitted to the copyright office within the first 5 years of the first publication of your work, you will be granted a certificate of registration by the office. This certificate of registration will serve as firsthand evidence of the facts mentioned in the registration certificate and also of the validity of the copyright registration. This could help you in the long run with any possible future disputes regarding copyright infringement of your work.

Creation of a public record of your work

When you register for copyright for your work, you are essentially notifying the public at large of your copyright claim. This helps people who want to license your work or find you to find out the current status of your work. Furthermore, any person who is trying to challenge your ownership of the copyright in court will have to disprove the validity of your public record, which would be a difficult task to accomplish, and therefore having a registered copyright is highly beneficial for this reason as well.

Procedure to be followed for registration of copyright

The following are the steps that should be followed if you want to obtain copyright registration for your work and avail of the benefits that come with this registration:

Work must adhere to the criteria needed to obtain copyright protection

This can be done by ensuring that your work meets the following requirements

Originality
Minimal Creativity
Fixed/tangible form

Filing an application for copyright registration

The next step in the registration process is to fill out a simple application. This application must be submitted to the U.S. Copyright Office. You may submit this application by mail or electronically via the website, which is usually the preferred method for most people. Online registration is simpler, and this system is called the electronic copyright office. This method is preferred because:

The time for the process is much shorter
The application fee is lower if you file electronically as compared to filing an application on paper
Your application status can easily be tracked online on the website of the copyright office
You can pay via credit or debit, electronic checks, or through a deposit account made through the copyright office
Copyright applicants can maintain different categories of deposits on the website, which can be divided into electronic files, instead of having to mail these deposits to the copyright office.

Now your copyright application form must consist of the following:

An application form – This form must be filled out with all the necessary details and can either be submitted online or via mail. Usually, one application is used for the registration of one work, but group registration is also an option. Once all your details have been filled in correctly, they have to be submitted to the copyright office.
Fee for filing of copyright– A fee has to be submitted for the filing of your copyright application. Keep in mind that this fee cannot be refunded once it has been submitted with your application. The amount of the fee is different from one situation to another and is dependent on several factors (whether the application is a single registration, group registration, online form, or offline form). The fee is usually always below 100 dollars but can range from anywhere between 25 to 140 dollars, depending on the situation.
Depositing copies of your work– The submission of a copy of your original work for which you are filing a copyright application is known as a “deposit”. These copies have to be submitted to the copyright office. All deposits are kept by the copyright office of the Library of Congress and will not be returned to the creator of the work once it has been submitted. The contents and requirements of a deposit differ based on the nature of the work, and more information is available on the website of the Copyright Office.

Registration of copyright application through online mode

The registration of copyrights that can be done online is basic in nature. You may register your work electronically even if you are sending in your application by mail (in paper form). Apart from the usual works of literature, visual arts, sound recordings, and so on, there are other works that can be submitted online. They are:

Works that can only be published electronically
Works that have not yet been published
Works that require the applicant to deposit photos or pictures of the work with the copyright office.

All these works have to be sent by electronic means to the office. All works apart from these must be sent via mail to the office despite the completion of the online registration process.

Checking the status of your application for registration

If a person sends their application via mail, they will not receive a response upon its receipt by the copyright office. However, if an applicant has submitted an application online, he will receive a response or acknowledgment of the same from the copyright office via email. Here are some of the responses that you may expect during the process of your registration:

An email, letter, or phone call from the copyright office if there is any doubt or concern regarding your application.
If due to some unfortunate reason your application for registration has been rejected, you will receive a letter in the mail explaining the reasons for the rejection.
It takes around 3 to 9 months for your application to be processed and for the issuance of the registration certificate. Once your application has been approved and your copyright has been registered, the copyright office will send you your certificate of registration by mail.

Domestic Manufacture

The fifth and final formal requirement for copyright protection is domestic manufacture. This means that the work must be made in the United States or the work must have been published in the United States. This is important to note since only works made or published in the United States are eligible for copyright protection.

Section 601 – Manufacture, Importation, and Public Distribution of certain copies

Before July 1, 1986, and except as provided by subsection (b),
the importation or public distribution in the United States of work that predominantly consisted of non-dramatic literary material in the English language would be protected under Chapter 6 of the Copyright Law unless portions of such material have been manufactured in the U.S.A. or Canada.

Section 601 of the Copyright Act now stands repealed under the U.S. Copyright Act of 1976

Section 602 – Talks about the Infringing importation of copies or phonorecords

Any importation in the USA without the authority of the owner of the copyright that has been acquired outside the United States would be subject to copyright infringement. It is an infringement of the exclusive rights to distribute copies or phonorecords under Section 106 of the Copyrights Act, which is actionable under Section 501. This subsection would not be applicable to –

The import of copies or phonorecords under the authority for the use of the U.S. Government any State or its subdivisions, copies or phonorecords for use in schools, or audiovisual works would not be included, except for archival use.
For the private use of an importer and not for distribution. One person can send no more than one copy of a phonorecord at a time, or by any person outside the USA who carries such work as a part of his baggage.
Import by any organization for only scholarly, educational, and religious purposes. Only one copy of an audiovisual work would be allowed and only for archival purposes, and not more than five phonograph copies of any work for archival purposes or lending to a library.

(b) If the import of the phonorecords or the work would have constituted an infringement of copyright if this title had been applicable, then their import would be prohibited.

Section 603 – Import Prohibitions: Enforcement and Disposition of Excluded Articles

The Secretary of the Treasury and the United States Postal Service would separately or jointly make regulations for enforcing the provisions of this title that prohibit importation.
These regulations could require for the exclusion of Articles under Section 602 –

That the person who seeks an exclusion obtains a court order enjoining the importation of Articles
The person seeks exclusive proof of a specific nature and in accordance with the prescribed procedures that the person claiming an interest in the copyright is valid and that the import would violate the prohibition in Section 602. He might have to post a surety bond for any injury that might result if the detention of such articles is unjustified.

(c) Articles that have been imported and violate the import provisions are subject to seizure and forfeiture in the same manner as property imported in violation of the customs revenue law. These Articles shall be destroyed by the Secretary or Treasury of the Court.

Differences between trademark and copyright

Meaning

Trademark

A trademark is a type of intellectual property that makes it easy for customers to differentiate between brands by protecting the identity of the company. Its main purpose is to serve as protection for the brand’s reputation and to facilitate the customers in understanding and distinguishing between their beloved brands.

Copyright

A copyright is a right that protects an individual’s creative works from infringement by others. It allows its owners to recreate, distribute, and display the work in the way that they so desire. It facilitates the preservation of a person’s creative expression.

Registration process

Trademark

Trademark registration has to be done in order to protect it from infringement. Trademark registrations are taken care of at the United States Patent and Trademark Office.

Copyright

In the case of copyright protection, the protection kicks in automatically as soon as the work has been created. This is not the case for trademarks. Registration for copyrights is taken care of at the United States Copyright Office.

Time period of protection

The time period for the protection of trademarks and copyrights is different.

Trademark

A trademark is protected as long as it is continuously renewed as per the proper procedures.

The renewal period is every ten years. In order to renew the protection, a fee must be paid, and the use of the trademark must be proven.

Copyright

The period of protection for a copyright lasts for the author’s whole life and an additional 75 years after his death. Any work that does not have an author is protected for 95 years or 120 years from the date of its publishing, whichever comes first.

Public domain

Trademark

Trademark protection lasts as long as it is renewed in the proper manner. It will not fall into the public domain.

Copyright

Difference in symbol

Trademark

Registered trademarks are indicated using a ® symbol and its use without registering is illegal. Unregistered trademarks or a trademark waiting approval on the other hand is marked with a ™ sign.

Copyright

A copyright is indicated by a circle with the alphabet c within it (©). The copyright does not have to be a registered one for the use of this symbol. It is not necessary for the symbol to be used for a work to be protected under copyright law. As soon as the work is created, copyright protection kicks in.

Scope of protection

Trademark

Trademark law protects the following:

Words
Phrases
Symbols

In addition to the above, they also protect four separate categories that are as follows:

Descriptive marks
Suggestive marks
Generic marks
Fanciful/Arbitrary marks

Copyright

Literary works which include short stories, plays, newspapers, articles, blogs, and so on.
Musical works with accompanying works and compositions
Works of architecture
Films and audiovisual works
Choreography and pantomimes
Artworks such as sculptures, paintings, pictures, and so on.
Computer software and hardware

Differences between patent and copyright

Meaning

Patent

A patent provides protection for ideas and inventions. It prevents a person from importing, selling, or using your software in any way, even if they have already plagiarized some part of your software. Congress, through the power vested in them by the U.S. Patent Act, has the ability to grant patents. It is used by software developers and other companies to safeguard their intellectual property against theft.

Copyright

A copyright is a right that protects an individual’s creative works from infringement by others. It allows its owners to recreate, distribute, and display the work in the way that they so desire and helps to preserve a person’s artistic expression.

Duration of protection

Patent

The protection period of a patent is dependent on when the patent has been filed. It must be filed within a year since the invention was made or since it was announced to the public at large. It lasts for twenty years after it is filed.

Copyright

Rights provided by ownership of a patent or copyright

Patent

Ownership of a patent does not give the owner the right to use, sell, or import the invention, as there may be some legal barriers to be dealt with. They can, however, prevent others from using, selling, or importing the invention. It essentially provides the owner with the right to exclude others.

Copyright

A copyright owner can:

Make duplicates of the work
Sell his work
Perform or display his work
Make derivative works

Difference in symbol

Patent

There is no symbol to identify a patent. The owner usually marks the invention with “patent” or “patent pending” or abbreviations of the same to inform the public of the status of the patent.

Copyright

A copyright does indeed have a symbol which is indicated by a circle with the alphabet c within it (©). The copyright does not have to be registered for the use of this symbol. It is not necessary for the symbol to be used for a work to be protected under copyright law. As soon as the work is created, copyright protection kicks in.

Types

Patent

There are three types of patents. They are:

Plant patents
Utility patents
Design patents

Copyright

Literary works, which include short stories, plays, newspapers, articles, blogs, and so on.
Musical works with accompanying works and compositions
Works of architecture
Films and audiovisual works
Choreography and pantomimes
Artworks such as sculptures, paintings, pictures, and so on
Computer software and hardware

Rights of a Copyright holder in the USA

The rights available to a copyright holder are:

To duplicate the work in the form of audio or recordings
To create derivative works based on the original work of authorship
To disseminate copies or recordings of the work to the public by selling, renting, lending, or transferring ownership rights
In the case of pantomimes, musicals, literary and dramatic works, and choreographies, they are allowed to present or put up a performance of the work on a public platform or stage
Put up public displays or exhibitions of the work, including sculptures, literary works, pantomimes, and so on.
In the case of sound and music recordings, they may be able to perform the same in public.

Limitations of copyright protection in the USA

However, along with these rights, copyright protection in the USA is limited in the following ways:

Copyright protection does not allow copying, but it does allow independent development. Therefore, if two authors write a play that is similar to one another, if they have written it independently and have not engaged in copying from the other person’s work, they both enjoy the rights to the script of their play regardless of the fact of who came first.
Words or short phrases cannot be protected by copyright law.
Copyright law, as mentioned earlier in the article, does not protect ideas but rather the expression of the same. Therefore a person cannot claim to have copyright of the idea of the “Harry Potter series” without having expressed the idea in any way.
If the way of expressing a certain idea is limited in nature, then the idea is said to be merged with the expression of it and cannot be protected by copyright law. This is known as the merger doctrine and its main purpose is to protect universal ideas from being monopolised.
As per the first sale doctrine, a person is allowed to sell or get rid of a copyrighted work if they have purchased that work legally and if they sold it for their own benefit. For example, if A buys a novel, he has the right to let his friend borrow it as per the first sale doctrine. However, the rights provided by the first sale doctrine are not unlimited by any means. It can be applied to a specific copy. No rights relating to the original work can be granted. The owner of the purchased work is not allowed to duplicate or reproduce the author’s work without the author’s consent. He is allowed to sell or lend it. For example, if a person owns a book of poetry, he cannot detach excerpts from the book and sell them as his own work. The first sale doctrine is also free from geographic limitations. Companies that are importing or producing goods that consist of copyrighted works are less likely to face the risk of being held liable. According to the Supreme Court of the USA, items such as mobile devices, computers, cars, and other vehicles and tablets that have been produced abroad are goods that contain copyrighted software.
As per the rules of the DMCA or the Digital Millennium Copyright Act 1998, there is a procedure known as notice and takedown. As per this procedure, a copyright owner has to notify an online service that they have infringed on copyrighted work, and they can be given some time to look into or remove the work to avoid liability. However, if a service provider is complying with all the rules under the DMCA of 1998, then he can be protected from liability under the Copyright Act even if he has published a copyrighted work. Duplicate files or cache files on a computer or a network are required for the proper functioning of the internet and are therefore allowed as per the DMCA of 1998, even though this copying would probably be prohibited under copyright law in other cases.
The fair use doctrine is a defense that is most commonly used in cases of copyright infringement. As per this defense, a person can use an original work that is copyrighted for the purposes of fair use. These include teaching, commentary, criticism, news reporting, research purposes, and so on. They can use this copyrighted work without obtaining assent from the owner. No set guidelines have been established to determine what constitutes fair use. It depends and differs from one situation to another. There are, however, four points that have been highlighted under copyright law that should be kept in mind when we are trying to determine if the defense of fair use fits the situation. These four points are:
- The intention behind the use and the nature of the use has to be ascertained. It must be understood if the use is for nonprofit purposes or if it is being used for any kind of commercial purpose.
- The type of work that is being copied or used
- The size and importance of the portion being used with respect to the entire copyrighted work
- The impact and effect of the use of this work on the value of the copyrighted work

A fair use defense may be raised on a number of grounds, such as:

Analysis or commentaries– a person may have created something that may attract criticism, praise, or comments. In order to criticize or comment on a person’s work, some part of that work may have to be used, and so long as the use is only for the purpose of the comments or criticism and does not in any way exploit the rights of the creator, it can be deemed as fair use of the work.
Parodies– A parody is a commentary of a copyrighted work. Satire, on the other hand, is the use of copyrighted work to put forward a social statement that is not in any way related to the work. Parodies and satires may often be confused with one another. However, parodies are deemed to be fair use of copyrighted work by the court more frequently than satires are. Satires are generally not accepted by the court to be fair use of a copyrighted work.

Warhol v. Goldsmith (2023)

The recently decided verdict by the Supreme Court of the USA is a landmark judgment where the defense of fair use had been taken up.
In this case, the artist Warhol had created 15 silkscreen illustrations based on photographer Lynn Goldsmith’s photo of the musician, Prince.
Goldsmith had licensed her picture of Prince to Vanity Fair and they commissioned Warhol to create an illustration. However, Warhol created 15 illustrations based on that same picture without notifying Goldsmith.
The defense of fair use was taken up by the Warhol Foundation to justify the use of Goldsmith’s photo. However, the Supreme Court ruled that Warhol’s use of the photo did not meet the requirements of fair use and the purpose behind its use was commercial in nature.

Ownership and transfer

The first right of ownership goes to the creator of the original work. The creator is the author of the work or an employee working on behalf of his employer. Even if someone has paid for or been commissioned for a work, the consultant hired by them to create the work is the owner of the copyright. There are very few exceptions to this rule, which is defined under Part 2 of the “work made for hire” definition under Title 17 U.S.C § 101.
The ownership of a copyright can be shared amongst two or more people if they have contributed some of the elements or parts of the work. For example, in the case of music, when the lyrics and the composition are done in parts by several people. The same may be the case for the software of a computer program. Unless they decide on an alternate agreement, every joint owner of the original work can use the work for their own purpose and enjoy every right attached to it. They may also allow third parties to use it by way of licensing. The only restriction in this case is that they must share the profits gained from this venture with one another.
The transfer of copyright can only be done through a formal written expression of the same.

Important copyright case laws

Works of literature

Suntrust Bank v. Houghton Mifflin and Co. (2001)

In this case, Houghton Mifflin and Co. published a parody version of the famous book “Gone with the Wind” published in 1936. This parody version was named “The Wind Done Gone”.
The original book was set in the time of the Civil War, and the parody version criticized its romanticization of slavery. The Wind One Gone was a parody that criticized the characters, the scenes, and some of the plot twists in the original book.
Suntruts Bank, being the trustee of the author of the original book as well as the owner of the copyrights to the book, brought a case of copyright infringement against Houghton Mifflin and Co.
The Eleventh Circuit ruled that although the parody version was written for commercial purposes, the book’s use of the content from “Gone With the Wind” was acceptable as per the standards of the fair use defense.
The court looked into the content of the parody version and stated that the original book had to be analyzed and in order to criticize the story, the content of the original had to be used.

Kirtseang v. John Wiley and Sons (2013)

In this case, John Wiley and Sons brought a suit against Kirtseang, who had been purchasing their textbooks from Thailand and reselling them in the United States. Kirtseang sold the textbooks at lower prices than they were being sold in the United States.
The textbooks purchased by Kirtseang had only received authorization from their publisher to be sold in Asia, Africa, the Middle East, and Europe. Its sale had not been authorized in the United States.
The Second Circuit had decided that the first sale exception was not applicable to this case, so the defendant appealed to the Supreme Court. The Supreme Court decided that the selling of the textbooks was legal and that the first sale exception did indeed apply to the case
Despite being manufactured in a different country and not in the United States, the book was published and sold legally in Thailand, where Kirtseang purchased it from. Therefore, the first sale exception was applicable, and Kirtseang had not infringed on the publisher’s rights to distribute their work by selling the books at a lower price.
This judgment was important for the expansion of the scope of the first sale exception beyond geographical boundaries.

Hachette v. Internet Archive (2023)

In this case, the Supreme Court ruled against Internet Archive. The Internet Archive is a website that allows people to access several digital versions of copyrighted books without paying a fee without obtaining a license or authorization to do so.
In 2020, the four biggest publishing companies (Harper Collins, Wiley, Hachette, and Penguin Random House) brought a suit of copyright infringement against the Internet Archive for putting several books published by these publishing houses on their website.
The Internet Archive tried to take up the defense of fair use by stating that they made the books available to the public, but they did so only for a period of two weeks.
The court stated that the Internet Archive could not take up the defense of fair use and that by making ebooks and allowing the public to access them for free, the Internet Archive was directly affecting the sales of the four publishing houses.
By affecting sales and using the works published in an unlawful manner, the Internet Archive could definitely not qualify for the exception of fair use.

Copyright case laws for musical works

Williams v. Gaye (2018)

In this case, musical artists Robin Thicke and Pharrell Williams collaborated and released a song called “Blurred Lines” which the estate of the late singer Marvin Gaye discovered was similar to the late artist’s song “Got to Give It Up”. A suit of copyright infringement was then filed by the Gaye estate in 2014.
Though there is no copying of lyrics or sheet music, it was claimed by the Gaye estate that the overall vibe and instrumentation of the original had been copied.
The judgment delivered was in favor of the Gaye estate, and the defendants were asked to pay an amount of 5.3 million dollars and half of the future profits earned from royalties.
The judgment was appealed and the final verdict was delivered in favor of the Gaye estate again in 2018, where the amount to be paid was 4.9 million dollars and fifty percent of future royalties.

Big Seven Music Corp. v John Lennon (1973)

In this case, it was claimed that the Beatles song by John Lennon called “Come Together” which was released in the year 1969 was plagiarized from Chuck Berry’s song “You Can’t Catch Me”.
Chuck Berry filed a case against John Lennon for copyright infringement.
The parties had decided to settle this outside court for a certain amount (undisclosed) as well as an agreement that John Lennon would record three songs from Chuck Berry’s catalog.
John Lennon breached the agreement by only recording two songs and was therefore fined for this.

Fogerty v. Fantasy Inc (1994)

This case was quite a peculiar one, as Fantasy Inc. brought a suit against singer John Fogerty for allegedly plagiarising himself.
John Fogerty, before embarking on his solo career, was a member and composer for the band Creedence Clearwater Revival, or CCR.
During the course of his solo career, he released a song titled “The Old Man Down the Road”. He was sued by Fantasy Inc. for copying a song by Creedence Clearwater Revival, which was written by Fogerty himself.
The court ruled in favor of Fogerty stating that an individual could not plagiarize himself.
The suit was dismissed, and then Fogerty retaliated by suing Fantasy Records for the damages incurred by him.
The case was decided by the Supreme Court and Fogerty emerged victorious.

Copyright case laws for movies

Dean v. Cameron (2014)

This case is about a lawsuit revolving around the blockbuster hit movie Avatar. Though the movie was so popular and had a story unlike any other, there were several infringement accusations.
Dean Rogers was one of the people to file a suit of copyright infringement against Avatar director James Cameron. He alleged that the director had copied his art to make the sets for the landscape of Avatar.
It was found by the court that all of Roger’s efforts to prove infringement were in vain and that Cameron had not committed any infringement.
Dean Rogers was seeking a settlement of 50 million dollars, but the case was dismissed as he was unable to prove his allegations against Cameron.

Thomas v. Walt Disney Co.(2008)

This case involves the beloved children’s movie “Finding Nemo”. Ms. Thomas the plaintiff in the case claimed that she had sent Disney her literary work, “Squisher the Fisher”.
She sent it in with the intention of having it turned into a movie, book, game, or series of some kind. She claimed that Disney had rejected her ideas. She then stated that Disney copied her work and that the hit movie, “Finding Nemo” was based on her work.
The trial court immediately dismissed the lawsuit as per Disney’s request because the plaintiff was unable to prove the similarities between her work and the movie.
Although both works were about fish being captured by humans and their adventures in the ocean, there were no similarities to prove that the work had been plagiarized in any way.
Therefore, the suit was dismissed.

Copyright case law for toys

Mattel v. MGA Entertainment (2012)

In this case, the plaintiff Mattel, which is the manufacturer of the world-famous Barbie dolls had previously employed the creator of the Bratz dolls, Carter Bryant.
While still being employed by Mattel, Carter Bryant had come up with the idea of the Bratz dolls.
He later sold this idea to MGA Entertainment which was Mattel’s largest competitor in the field.
The Bratz dolls were introduced in 2001 and went on to become the biggest competitor of the Barbie toys in the market.
In 2008 Mattel brought a suit against Carter Bryant and MGA Entertainment saying that both of the parties had stolen the Bratz idea which was the intellectual property of Mattel.
Mattel went as far as accusing MGA Entertainment of corporate espionage.
Initially, the verdict had been in favor of MGA Entertainment but Mattel filed for an appeal which resulted in both parties leaving without any payment for their losses.

Copyright case law for infringement of software

Google LLC. v. Oracle America(2021)

Google LLC. was sued by Oracle America for copyright infringement because the former used Oracle America’s JAVA API in its software development.
The question here was whether Oracle’s Java API could be protected by copyright law. The Federal Circuit ruled that it was indeed subject to copyright protection.
The matter was heard again, and this time Google LLC. took up the defense of fair use.
The back and forth between both parties carried on until Google LLC filed a petition with the Supreme Court.
The court held that Google LLC.’s use of Oracle’s Java API qualified for the defense of fair use.

Copyright infringement: penalties and defenses

Copyright infringement is when a third party makes use of one of the copyright owners exclusive rights without prior permission of any of the owners. There is no set rule for how much of the work can be copied before it is too much. However, copying usually becomes an actionable offense when the defendant had access to the original work in some way and if after setting aside the elements that are not protected by law (ideas, facts, grammar rules, etc.), the remaining content is very similar to the original work of the author. In the case of copying where both works are virtually identical or where there has been bodily appropriation of the work by the infringer, it will not be presumed to be an infringement for works having thin copyright protection( like sculptures or images that represent real or lifelike creatures).

A person can be held liable for infringement of third parties under three different doctrines:

A person can be held liable for contributory infringement if they have knowingly contributed to infringement in a significant manner.
A person can be held liable for vicarious infringement if they have

directly received financial benefits from this infringing activity and,
had the power and authority to take control of this infringing activity

Lastly, a person can be held liable of inducement of copyright infringement if it can be proved that they have

distributed a device or technology of any kind
they had the intention to encourage the use of an original work to violate the copyright of an original work, and this intention can be proved by explicit expression or other actions affirming steps to encourage the infringement of the work.

Penalties for copyright infringement

There are both civil as well as criminal penalties for copyright infringers. A person committing civil copyright infringement would have to pay either statutory damages or actual damages.

Statutory damages– Statutory damages are determined by a judge or a jury. It can cost a person anywhere between 750 and 30,000 dollars per infringed work. If the person had committed the infringement unknowingly and without any intention to copy, then the penalty could go down to 200 dollars per work.
Actual damages– Actual damages are the loss caused to the owner of the copyright as a result of the infringement of his work. Sales, revenue, profits, and any kind of monetary harm fall under the category of actual damages. Apart from the amount of actual damage caused to him, the owner can also seek the profits that the infringer earned by using his work. However, it is more difficult to prove and obtain actual damages as compared to statutory damages, and so the authors usually try to seek the latter in case of infringement.
The federal court may grant a permanent or temporary injunction to stop an ongoing infringement or as a safeguard against potential infringements of the work in the future.
The federal court also has the discretion to award attorney fees and court costs.

In case of criminal copyright infringement, the infringement is wilful, which means it has been done knowingly and for the purpose of earning a profit or commercial advantage. In case of wilful infringement, a person may be imprisoned for a period of up to five years and may be liable to pay a fine of around 250,000 dollars per infringed work.

Defenses against copyright infringement claims

The various defenses available against claims of copyright infringement are:

Evidence that the work has been created independently and has not been duplicated from anywhere
Proof of abandonment of rights by the owner
Proof that the copyright owner is misusing the copyright
There was a license for the use of the work, which provided the licenser the rights to reproduce, sell, or distribute the work
The plaintiff is not the owner of the copyrighted work
Expiration of the statute of limitations, which is three years
The defense of fair use of the work
Proof that there is no resemblance between the original work and the work that was alleged to be copied.

Conclusion

In order to foster the growth and artistic expression of creators, it is highly essential that their rights are safeguarded. If they feel protected, they can allow their creativity to flow without any obstructions. Everything that we have discussed in this article is critical to understand if we want to be aware of our rights as creators as well as our responsibilities towards those who create. It is therefore our duty to understand the laws and operate within the framework provided to us. A clear comprehension of the consequences of copyright infringement and the defenses available is necessary as well. Be it an artist, author, musician, entrepreneur, or just an interested reader, copyright law is complex but important to protect the integrity and essence of the work and its creator. For additional information, you can refer to the FAQs down below.

Frequently Asked Questions (FAQs)

How can I distinguish between fair use and copyright infringement?

Fair use and infringement form two essential concepts within the U.S. Copyright Law. Infringement is defined as the unauthorized usage of a copyrighted work that encroaches on one or more of the exclusive rights that are reserved for the copyright holder. Fair use on the other hand is that kind of unauthorized use that despite encroaching upon the copyrighted holder’s right would not be viewed as infringement under the Law. Fair use furthers the purposes of copyright while an infringed work doesn’t. A work of fair use is outweighed by public interest in its free dissemination. A work of fair use does not harm the market or the potential market of that of the original work. However, the same cannot be said for a copyrighted work.

Who is the owner of the rights to works that have been created by artificial intelligence?

The U.S. Copyright Office on March 15, 2023, announced that works that have been created with the assistance of Artificial Intelligence can be copyrightable, provided that the work has sufficient human authorship involved. Works that have been created by Artificial Intelligence without human intervention or involvement cannot be copyrighted since they fail to meet the requirement of human authorship. A work that contains AI-generated material may be copyrightable when it contains human involvement for example when the human selects or arranges the AI-generated material in a creative way or the human modifies the material that has been created by the AI. Copyright applicants have to disclose when their work contains AI-Generated material. Previous applicants who have not disclosed so have to correct this by disclosing the AI-generated material.

How can I have my work registered with the US copyright office?

To register a work with the U.S. Copyright Office, a person has to submit a completed application form, and a non-returnable copy or copies of the work that have been registered. The Copyright Office also provides the access to online registration. A person can also chose any title to identify the work that they are registering. A person should not provide generic titles such as“No title Yet”, “Untitled”, etc., because the work that have been registered with generic titles are difficult to find in the public record.

How are architectural works protected by copyright laws?

It is important to understand that certain standard features of an architectural work are not protected by the Copyright Law. These include functional rights requirements that are based on building codes, zoning requirements, functional demands as well as available technology. The standard features also include those elements that are common if not indispensible, in a genre. Example: A kitchen being close to a dining room, the bedrooms being clumped near a bathroom, etc. The architect remains the owner of the copyright, and the owner obtains an exclusive license to use the plans for that specific project only. The copyright protection to architectural works is restricted to two significant aspects. Firstly, the owner of the copyright in a building cannot prevent people from taking, displaying, and distributing photos of that building in a public place. The owner of the building is free to make alterations to or destroy the building without the consent of the copyright owner. Copyright protection starts from the moment the architectural work is created.

How does copyright law protect performance rights?

With the introduction of the American Music Fairness Act, artists and music creators were ensured a pay when their songs were played on the Radio. The Music Modernization Act played a big role in determining how digital services would pay royalties to the artists. Therefore, if a person is a recording artist or songwriter, then they are entitled to public royalties of their work performed publicly. Examples of this could be a song played on Spotify or Apple Music. Thus the U.S. Copyright law protects performance rights.

What are neighboring rights, and is it protected by copyright law?

Neighboring rights are a concept parallel to copyright. They are known to represent a copyright-like property that primarily safeguards the auxiliaries of a creation. Related rights focus on the rights of performers such as musicians, singers, and actors. The recognition of neighboring rights by the United States is not as historic as its copyright laws since 1976, however, they have become integral to copyright protection. The United States has seen a strong push for striking a balance between safeguarding interests and the promotion of information sharing. The Digital Millennium Copyright Act, (1998) governs this protection.

Does copyright law protect moral rights?

Moral rights under the U.S. Copyright Law, benefit the authors or creators of selected copyright materials, for instance, certain works of visual art. The purpose of moral rights is attributing the author of a work and to protect their reputation. In the USA, moral rights expire on the death of the author. The U.S.A. takes a narrower interpretation of moral rights. Arguably, various state and federal laws protect moral rights in addition to explicit protection through an amendment to the U.S. Copyrights Act by the The Visual Artists Rights Act, (1990). States such as California, and New York have moral rights protection for visual artists.

Are the works produced by the government of the USA protected by copyright law?

The U.S. Copyright Act of 1976 has clearly mentioned that any federal works of the government is not protected by the copyright law. This has been explicitly stated under Section 105 of the Act. This is because the works of the US Government are in the public domain. A person has the privilege to freely use them without obtaining any permission or without paying a copyright fee. He/she can even edit, adapt, and republish the material of the government without permission. Public domain works by the government include pamphlets, maps, documents, federal statutes, reports, studies, etc. The creation of a U.S. Government work has to be done by that of a U.S. Government employee. This has to be part of their official duties. This would exclude the works that have been created by freelancers, contractors, and specific people who work with the U.S. Government but are not considered government employees for the purposes of copyright. However, it has to be noted that some government work of the U.S. Government is not in the public domain. The U.S. Government does own copyright over these works. A person in such cases has to obtain permission and pay fees, prior to using them

What are the different types of copyright applications?

A copyright application has three parts: an application form, a non-refundable filing fee, and a non-returnable deposit of the works copy. Normally the copyright owner has to submit a separate application for each work. The following exceptions would apply for registering multiple works in one application collective works that is a number of separate and independent contributions that have been assembled into a whole, group registrations which might consist of multiple unpolished works such as as serials, newspapers, newsletters contributions to periodicals, database updates, photographs that meet registration requirements in one application, unit of publication that contains multiple works packaged together, and mutual ownership when the copyright claimant for a sound recording and the literary, or dramatic work embodied in the recording is the same individual organization,

Do you have to be a U.S. Citizen to register works with the U.S. Copyright Office?

No, this is not a requisite. Foreign authors can get their work registered with the U.S. Copyright Office. This is so that they can obtain statutory benefits of registration in the United States. If the work had first been published in the United States then the applicant would have to submit two copies of the best edition of the work, along with the application as well as the fee. If the work has first been published outside the United States, then only one copy is required for deposit. For registering an unpublished foreign work the applicant must submit only one copy of the work that contains all the authorship claimed on the application. For more information on this please refer to: Compendium(Third).