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Rights granted by copyright in the US

June 24, 2024

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This article has been written by Anubha Tewari. This article broadly covers the exclusive rights granted under copyright protection to the owners for their creation and evolution of such copyright protection in the United States. This article also covers aspects relating to the applicability, exceptions, infringement, and evolving perspective of such exclusive rights in the United States.

Table of Contents

Introduction

In today’s world of creative expression and innovation, copyright plays a substantial role in providing protection under law to the originator of such creative work to safeguard their invaluable creation against any unauthorized use and also to gain financially from the sale, licensing, or usage of their invention for other forms of commercial activities. In other words, those individuals or entities who have independently originated a work and expressed such work in its physical form are eligible to be protected under the copyright laws of the country.

For the purpose of providing protection to copyright owners, exclusive rights are granted under the Copyright Act, 1976 (hereinafter referred to as “the Act”), which is the primary basis for copyright laws in the United States. It is the latest Act applicable for granting basic rights to copyright holders in the US.

In this article, we shall discuss in detail and analyze the various kinds of exclusive rights granted to the owner of the original work for protection under copyright laws. We shall also try to understand the importance of these exclusive rights and the concept of the Fair Use Doctrine, which acts as an exception to such exclusive rights.

Copyright protection : overview

Meaning of copyright protection

Copyright is one of the intellectual properties that gives protection to the creators of the original work. Any work is said to have a tangible form of expression when it can be perceived, communicated, or reproduced to make it accessible to others. Some examples of different types of copyrightable works are literary works, musical works, dramatic works, architectural works, visual or artistic works, sound recordings, etc.

Subject matter of copyright protection

The different categories of work for which the statutes provide copyright protection are considered as the subject matter of the copyright and are provided in detail under Section 102 of the Act. Further, the laws under copyright do not provide protection to any work involving an intangible form of expression, which includes any form of ideas, facts, processes, concepts, methods, etc. These types of ideas, processes, and concepts are protected and fall under the domain of patents. Further, the copyright also does not protect any kind of logo, brand name, or symbol in a product, and such intellectual rights are protected by trademarks.

In the case of Feist Publications, Inc. v. Rural Telephone Service, Co.(1991), the Rural Telephone Service was a company providing services to compile and distribute the white pages from a phone directory to all its users for free in a small town. The Feist Publications used to compile telephone directories from a larger geographical area and copied 4000 entries from Rural Telephone Company, even though they had refused to license such information. The Rural Company sued Feist Publication for copyright infringement. The Hon’ble Supreme Court of the United States held that “providing information alone without a minimal amount of original creativity cannot be considered as a work protected by copyright laws.”

Copyright protection to work-made-for-hire

Generally, the copyright is available to the originator of the work, which can be more than one, and the contribution of each originator shall be different and separate from the ownership of the copyright in the combined work. One of the exceptions to this general rule is “work made for hire,” in which the individual or entity that hired the person to create a work is considered as the originator of the work rather than the person who actually created the work.

The work falls under the category of “work made for hire” when either the work is created by the employee of the company as part of their daily duties or the hiring person enters into an agreement with the hired person to create the work and transfer all the intellectual rights associated with the work to the hiring person. The definition for work made for hire has been detailed under Section 101 of the Act which states that work made for hire also consists of work particularly used as a contribution in collective work or used as a supplementary work, translation, compilation, etc. if the parties agreed to such an arrangement through written agreement.

The owner of any copyrightable work can also transfer their exclusive ownership to another individual or an entity through an agreement that can be further terminated after thirty-five years by providing a timely notice of termination to the individual or entity to whom the ownership was granted. This provision relating to termination of transfers and licenses granted by the owner of the work has been provided under Section 203 of the Act.

Copyright protection to work created by government

The work created by the government includes federal government statutes, federal government judicial decisions, federal government press releases, speeches of federal government officials, federal government reports, etc. Therefore, the work created by the government can be defined as the work prepared by the officials of the federal government as part of their execution of duties. This is known as the Doctrine of Edicts of Government, where such works of federal government are not copyrightable on grounds of public policy and are made accessible in the public domain.

Moreover, Section 105 of the Act states that any work created by the government is not subject to copyright protection in the United States. Further, this provision states that the federal government is not restricted from receiving copyrights transferred to them by assignment, bequest, license, etc.

Time period provided for copyright protection

The protection under the copyright laws is provided to the originator of the work for a limited period of time, i.e., the lifetime of the owner of the work plus seventy years after the originator’s death. If there is more than one owner of the work, the duration of the copyright is seventy years after the last surviving originator. The United States laws for copyright provide such duration of copyright for the work created on and after January 1, 1978. Such a time period for protection of copyright work is briefly specified under Section 302 of the Act.

Registration of work for copyright protection

The registration of work with the Copyright Office is not mandatory in the US; however, it becomes necessary in order to claim exclusive ownership under copyright as it creates prima facie evidence to prove the validity of the copyright in court. Further, it helps the copyright owner to claim damages and litigation costs against any copyright infringement. The copyrightable work can be registered anytime during the term of the copyright, and there is no requirement to re-register the work if it has been done before the publication of such work. In addition, copyrightable work in the US is subject to a mandatory deposit for registering such work, in which two best copies of the copyrightable work must be sent to the Copyright Office within three months of its publication. The provision for the procedure of registration of copyrightable work has been briefly specified under Section 408 of the Act.

Evolution of copyright laws in USA

The American copyright laws first originated through the introduction of printing presses in England during the late fifteenth century. With the growth in the number of presses, the authorities controlled the publication of books by granting printers a monopoly over their publication. The Licensing Act of 1662 was enacted to grant monopolies in the form of licenses and establish a register of licensed books administered by those printers. The Act of 1662 was further amended, and in 1710, a Statute of Anne was enacted to establish the ownership of work for British booksellers and authors and to fix a term for providing protection for their publications.

This statute further prevented monopolies on the part of these booksellers or printers and created a public domain for accessing their work, providing protection during such access of work in the public domain for a limited period of time. The British Statute of Anne did not apply in the United States, and further, copyright laws were not a priority in America during that time. The copyright laws in the US have evolved through the following enactments:

United States Constitution

In the year 1790, the Constitution of the United States for the first time recognized the copyright laws of an author of a work. It recognized the importance of the copyright and stated that the creator of the work must reap the fruits of this labor and should be granted copyright for a limited period of time. Such provision of copyright protection was initially included in Article 1, Section 8 of the United States Constitution. Therefore, this led to an initial inclusion of copyright clauses in the Constitution of the US, which granted power to Congress to enact copyright laws.

Copyright Act of 1790

The US Congress first exercised its power to grant copyright protection by enacting the Copyright Act of 1790. The purpose of the enactment of this Act was to encourage learning through securing the literary work of authors by granting them the exclusive right of copyright protection. This right included the printing, reprinting, publishing, and vending of copies of the author’s maps, charts, and books. The copyright protection for such rights was initially provided for fourteen years. This Act also provided the owners of the copyright with an additional renewal right for a term of 14 years to protect their work. This Act was inspired by the Statute of Anne, 1710. The law was enacted to encourage authors to create original works by providing them with monopolies, and it also limited the said monopolies in order to stimulate creativity by accessing such works in the public domain. Further, major revisions of the Copyright Act were implemented in 1831, 1870, 1909, and 1976.

Berne Convention, 1886

In the year 1886, the Berne Convention for Protection of Literary and Artistic Works was enacted, which granted protection to the owners of the work under copyright. The owners of the copyright that were protected by this Act were authors, musicians, poets, etc. Such owners of the copyright were given the right to control the usage of their work by deciding who can have access to their work and on what terms such access shall be granted to an individual or an entity. The Berne Convention is based on three basic principles for the protection of copyright, which are as follows:

The protection for copyright under this convention shall be granted to the countries that are signatories to Berne Convention;
The protection shall be immediate for the contracting parties of the Berne Convention and there shall be no need for further formalities on behalf of contracting parties for grant of such protection of copyright under this Convention; and
The copyright protection granted under the Berne Convention shall be in addition to and independent of the protection granted in the country of origin of work of the contracting parties.

The Berlin Act was revised multiple times, and the duration for the copyright protection under the Act in the year 1908 was set to fifty years in addition to the life of the author of the work, which further expanded the scope of copyright protection to include newer technologies and prohibited any prerequisites for formalities to access such rights.

Further, in 1928, the Rome Act recognized the moral rights of the authors for the first time, which provided them with the right to object to any destruction or modification of their work. This right helps to protect the author of the work against harming their reputation from such destruction of their work. The United States joined the Berlin Convention in 1988 and was eligible to be granted protection under the said Act.

International Copyright Act, 1891

This Act is also commonly referred to as the ‘Chace Act’. It was enacted to provide limited copyright protection to foreign copywriters from a few selected nations. Therefore, it was the first time when the US Congress enacted an Act to provide copyright protection to people in nations other than the US. This Act acted as an important medium for copyright exchange between the creators of the United States and other nations. It was the first step that the US government took towards international copyright treaties and conventions.

US Copyright Act, 1909

The Copyright Act, 1909 was a landmark statute for the copyright laws in the United States. This Act broadened the scope for subject matter of copyright protection, in which all the work of a creator shall be included and protected against any misuse. Further, this Act extended the duration for copyright protection to twenty-eight years, with a further renewal of twenty-eight years.

It amended the Copyright Right Act of 1870, as the provision for copyright was inconsistent and lacked proper definitions. Further, the methods of reproducing and duplicating the work were increasing, and a copyright revision was required to make provisions for providing protection to modern reproducing processes in copyright.

US Copyright Act, 1976

Before the enactment of the Act, the United States was following dual-structure laws for copyright, in which the federal copyright laws were governed by statutory copyright and state copyright laws were governed by the Common Law Copyright. The US Congress abolished the federal and state copyright systems and replaced them with a single federal system for copyright through the enactment of this Act. The provision for such replacement is provided under Section 301(a) of the Act. Therefore, the work that falls under the subject matter of the copyright should be qualified for protection under federal laws, and state laws cannot provide protection for such work if it does not qualify for protection under federal copyright laws. Further, it also applies to the enforcement of copyright and any person accused of infringement of copyright shall not be prosecuted under the courts of the state.

The Act replaced the Copyright Right Act of 1909 for two main reasons, which include:

Due to technological developments, copyright protection was required to be given to new processes involved in the work of the copyright holder.
To bring United Nations copyright laws in consistency with international copyright laws, practices, and policies.

The enactment of the Act broadened the scope of copyright in terms of duration, subject matter, copyright notices, copyright registration, copyright infringement, fair use of copyright, and First Sale doctrine, which was codified for the first time. Therefore, this Act which is still in force, is the most important statute for regulating copyright laws in the United States.

World Intellectual Property Organization

The World Intellectual Property Organization (WIPO) was created to promote and protect intellectual property across the nations of the world. The organization was established by the United Nations in 1967 and was headquartered at Geneva. The primary aim of WIPO was as follows:

Establishing promotion of protection of intellectual property through international cooperation; and
Supervising the administrative cooperation between Paris, Berlin, and other international treaties regarding the regulation of intellectual property laws.

Further, WIPO signed the World Trade Organization in the mid-1990s due to which the role of WIPO was increased in granting protection to intellectual properties. There are more than 180 countries that are members of WIPO.

Right to reproduce the work

What is reproduction right in copyright

The right to reproduce the copyrighted work is the most essential right granted under the copyright laws, as it provides the owner of the copyright with an exclusive right to produce any reproduction of their work. These rights of reproduction are available only to the copyright owner or to any individual or entity authorized by the copyright owner to reproduce such work. Any work is said to be created when it is fixed either in a copy or a phonorecord, as defined under Section 101 of the Act. The copyright owner has the exclusive right to reproduce such work either in copies or phonorecord, which has been granted to the copyright owner under Section 106(1) of the Act.

For instance, the most common example related to the right of reproduction can be uploading a movie or a TV show on a digital platform, scanning text or images of a printed book into a digital file, etc. All these activities required permission from the copyright owner for uploading and reproducing such work of the creator.

There are certain exceptions related to the right to reproduce where the scope of such a right is limited under certain areas of work. In those areas of work, reproduction of work is allowed without the permission of the copyright holder, and no infringement takes place for not obtaining such permission. The provisions for such an area of work are as follows:

Section 108 of the Act states that there shall be no infringement to the right of reproduction in the form of copies or phonorecord for a library or archives or their employees acting under the extent of their employment.
Section 109 of the Act states that the owner of the copyrighted work in the form of copies or phonorecords or any person legally authorized by such owner is entitled to sell or dispose of possession of such copies or phonorecords without the permission of such owner.

Types of reproduced work covered under copyright laws

The owner of the copyright has the right to control the reproduction of their work, which means such copyright holder has the right to permit such reproduction of their work and gain financially by such permission. Further, such copyright owners can stop any person from making any unauthorized use of their work through reproduction. The reproduction of work can be done either through copies or phonorecords, as specified under Section 106 of the Act, and is detailed as follows:

Reproduction in copies

The term ‘copies’ is defined under Section 101 of the Act. It means any material object other than phonorecords that is fixed by any method through which it can be perceived, communicated, and reproduced by any individual or entity. Any copies made from the work of the original creator must be further used with the permission of such creator; otherwise, it will lead to infringement on the right of reproduction of such creator.

For instance, James is a magazine publisher. Michael is the owner of a website, and he scanned the copyrighted images from the magazine of James into his website for a blog. He has uploaded those images on his website without James’ permission. Here, Michael has committed copyright infringement in the right of reproduction of James, and James can sue Michael in court for such infringement, claim an injunction to further stop Michael from committing such acts, and also claim damages for any loss due to such infringement.

In the case of Pasha Publications, Inc. v. Enmark Gas Corp., Inc. (1992), the application of the word ‘copy’ under Section 106(1) of the Act, has been made for new technologies and further said that copies generated through the use of fax machines will result in copyright infringement.

In the case of Arnstein v. Porter (1946), the US Court of Appeals for the Second Circuit laid down the following essential elements for proving copyright infringement relating to the right of reproduction of copies:

It should be prima-facie visible that the defendant copies from the plaintiff’s copyrighted work;
The act of copying by the defendant from the plaintiff’s copyrighted work should clearly result in improper appropriation.

Reproduction in phonorecords

The term ‘phonorecords’ has been defined under Section 101 of the Act. It states that phonorecords are material objects in which sounds other than those in motion pictures or other audio-visual works are fixed by any method through which such sound can be perceived, communicated, and reproduced by any individual or entity. The copyright owner has the right to protect the reproduction of their work fixed in phonorecords as per Section 106 of the Act. The reproduction of work fixed in phonorecords can be further classified as follows:

Reproduction of music in phonorecords

Any work consisting of musical compositions fixed in phonorecords is eligible to be protected under copyright laws from reproduction of such copyrightable musical work without the permission of the copyright holder. For instance, a YouTube video providing access to copyrighted music without the permission of the creator of that music will lead to infringement of such a right of reproduction involving musical works.

This is the general rule included in the exclusive right of reproduction under Section 106 of the Act. The exception to such a rule relating to work involving musical composition is provided under Section 115(1)(a) of the Act, which states that an individual or an entity can obtain a compulsory license from the copyright owner for making and distributing phonorecords of such non-dramatic musical works.

In the case of White-Smith Music Publishing Company v. Apollo Company (1908), a composer of music challenged the technology of the piano roll of the defendant. The plaintiff claimed that the defendant is infringing their copyright by reproducing their musical work through such musical rolls. The Hon’ble Supreme Court of the US held that musical rolls produced by the defendant are not a copy of the plaintiff’s musical composition but rather the component parts of the piano machine.

Such judgment was overruled by the enactment of the Copyright Act, 1909, which expanded the right to reproduction in musical works. The copyright holders of such musical works were granted control over the mechanical reproduction of their work. Such a rule was specified under Ch. 320,§1(b) of the Copyright Act, 1909.

Reproduction of sound recording in phonorecords

The right of reproduction in the form of phonorecords also applies to sound recording, as per Section 106(1) of the Act. The word ‘sound recordings’ is defined in Section 101 of the Act. This provision states that sound recordings refer to a series of music compositions or sounds but do not include any sounds of motion pictures or audio-visual work. Such a series of music sounds can be fixed to tapes, disks, or phonorecords.

In the case of Newton v. Diamond (2003), the US Court of Appeal, Ninth Circuit, observed that sound recordings are copyrightable works that are distinct from the musical or literary work that is performed on recordings. For example: There can be a copyrightable sound recording that is accessible to the public domain which consists of classical musical composition. Therefore, sound recording is different from musical composition, and both have independent copyrights.

Section 114 of the Act, provides the conditions under which an exclusive right of reproduction in sound recording work can be exempted. It states that copyright in a sound recording is infringed only in the circumstances where the person infringing such right has duplicated such a sound recording in the form of a phonorecord that directly or indirectly recaptures the actual sound of the sound recording. Therefore, the copyright in a sound recording is not infringed under those circumstances where there is independent fixation of other sounds, even though such sounds imitate those in copyrighted sound recordings, as provided under Section 114(b) of the Act.

Case laws relating to right to reproduce

Buck v. Jewell-LaSalle Realty Co., (1931)

Facts

In this case, the defendant was the hotel operator who had wired the radio set and installed the loudspeakers in each of the private rooms and public areas of the hotel. The customers of that hotel were able to listen to the radio by switching on the loudspeakers in their rooms. The copyrighted song of the plaintiff was repeatedly broadcast on the radio and made available to the customers of the hotel. The defendant and the owner of the radio, whose signals were received by the hotel customers, did not receive any permission from the plaintiff to broadcast his song on the radio. The plaintiff sued the defendant for copyright infringement.

Issue

Whether the defendant is guilty of copyright infringement of the right to reproduction due to broadcasting the plaintiff’s song on a radio set?

Judgment

The United States Supreme Court observed that transmitting musical compositions by a commercial broadcasting station is a public performance for profit. The court held that the reproduction of radio waves into audible sound waves through the usage of loudspeakers by the defendant for providing entertainment services to their customers resulted in the performance of the plaintiff’s song, further infringing the reproduction right of the plaintiff.

Warner Bros. Records, Inc. v. Walker (2010)

Facts

In this case, the plaintiff is the recording company that owns or controls exclusive rights over the sound recordings. The plaintiff employed a third-party service in order to protect their copyrighted works from being illegally downloaded or distributed across the internet and detect copyright violations of their work. The third-party service detected that the defendant was violating the copyright of the plaintiff’s work, for which the plaintiff filed a suit against the defendant for such copyright infringement. The defendant argued that his friend had installed the program, and he has rarely used such a program on his computer.

Issue

Whether the installation and usage of a program by the defendant on their computer that gives access to the sound recordings of the plaintiff amount to copyright infringement?

Judgment

The US District Court for Pennsylvania observed that to claim a copyright infringement of the right of reproduction in sound recording work, the copyright owners must establish that they own a valid copyright in their sound recording work and that the defendant engaged in the illegal copying and distribution of their sound recording. The court further observed that innocent intent is not generally a defense to copyright infringement. Therefore, the defendant is liable for copyright infringement even if they had innocent or accidental intent while doing such acts.

Right to prepare derivative works, Right to Distribute

The right of derivative works

The term ‘derivative work’ is defined under Section 101 of the Act, as the work based on one or more than one pre-existing works, such as translation, motion version picture, art reproduction, musical arrangement, etc., in which such pre-existing work is recast or transformed. Further, the annotations, editorial revisions, elaborations, and other such modifications to the work of an author are also included in the derivative works. Therefore, the derivative works become the second work, which is separate and independent from the original work. It can be created with the permission of the copyright owner or works from the public domain.

The subject matter of the derivative works is provided under Section 103(b) of the Act which states that the copyright in derivative works only extends to the content contributed by the author in such work, which is independent and separate from the content contributed in pre-existing works. Further, the copyright of such derivative work does not affect the scope, ownership, duration, or any other copyright protection of the pre-existing work.

The copyright owner of a derivative work has the exclusive right to prepare the derivative work based on the copyrighted work, as provided under Section 106(2) of the Act. The copyright owner of the original work also owns the right to derivative work. Therefore, the copyright owner of the original work can sue someone who has prepared the derivative work from their creation without their permission. Some of the common examples of derivative works include: creating a movie based on a novel; translating an English novel into French; recording a sound with an already pre-existing song; creating a painting based on a photograph, etc.

In the case of Stewart v. Abend (1990), the author of an original work assigned the rights of his renewal copyright term to the copyright owner of the derivative work, but the owner of the original work died before the commencement of the renewal period. The issue was whether the copyright owner of the derivative work infringed the right of the successor owner of the origination by continued distribution of derivative work during the renewal period of the original work.

The Hon’ble Supreme Court of the United States held that the original owner wanted to assign the copyright in the original work to the copyright owner of the derivative work but died before the commencement of the renewal period, and the statutory successor of the original work does not assign the copyrights to the owner of the derivative work. Therefore, the owner of the derivative work has infringed on the copyright of the statutory successor of the original work.

Case laws relating to right of derivative works

Gilliam v. American Broadcasting Companies, Inc. (1976)

Facts

In this case, the plaintiffs were a group of British writers and performers who entered into an agreement with the BBC to write and deliver scripts for use in television series, in which the plaintiff retains all the rights to the script. Under this agreement, it was agreed that the BBC may license the transmission of the recordings in any overseas territory, and the BBC broadcast the series in the United States through the American Broadcasting Company. The defendant broadcast edited versions of the plaintiff’s show, which was offensive and damaged the artistic reputation of the plaintiff, for which the plaintiff filed a suit against the defendant for copyright infringement.

Issue

Whether the derivative work made by the defendant from the original work of the plaintiff led to a violation of copyright and damage to the artistic reputation of the plaintiff?

Judgment

The United States Court of Appeals for the Second Circuit held that irreparable damage had been caused to the reputation of the plaintiff by editing the versions of the script and making them offensive, which is indeed against the integrity of the plaintiff. The Court found that the plaintiff had copyright over the script, which also gave them copyright over the sound recordings, which were the derivative works of their original work. The Court also observed Section 43(a) of the Lanham Act and found that this provision covers the situation where the distorted version of the plaintiff’s work amounts to copyright infringement of the plaintiff’s creation.

Mills Music, Inc. v. Snyder (1985)

Facts

In this case, the defendant was the creator of a musical composition, and he assigned the copyright of such musical composition to the plaintiff. Further, the parties entered into an agreement in which the plaintiff acquired the renewal right by exchanging certain royalties with the defendant. The plaintiff further issued 400 licenses to various companies authorizing the use of the song in the sound recording. These companies prepared the derivative works and obligated the plaintiff to remit royalties, due to which the plaintiff had to remit a portion of the royalties of the defendant. The defendant died, and his wife and son succeeded him in this arrangement with the plaintiff. The successors of the defendant served the plaintiff with a notice of termination and demanded all the royalties on the derivative works be remitted to them from the plaintiff.

Issue

Whether the agreement for grant can be terminated between the parties by the heirs after the death of the defendant? Whether the grant in the agreement for derivative works made by the plaintiff shall also be terminated?

Judgment

The US Supreme Court observed Section 304(c)(2) of the Act, and stated that the heirs of the defendant can terminate the author’s grant to the plaintiff in the renewal of copyright. The Court further observed that the termination of the grant caused all the rights covered by such a grant to revert back to the defendant except the derivative work prepared under the grant, which shall continue to be utilized under the term of the grant even after the termination of the grant as per Section 304(c)(6)(A) of the Act.

The right of public distribution

Section 106(3) of the Act recognizes the exclusive right of public distribution in copyright as the right to distribute copies or phonorecords of the copyrighted work to the public through sale, lease, or by other transfer of ownership. For instance, Charles owns a copyright in a novel, and Alexander prints unauthorized copies of the novel and supplies them to Henry, who further sells them to the public. Here, both Alexander and Henry are liable for copyright infringement of the right of public distribution of Charles’ novel.

In the case of Columbia Pictures Indus, Inc. v. Garcia (1998), the plaintiff was one of the leading production companies and distribution studios in the world, and the defendant was the owner of the torrent website. The defendant uploaded the copyrighted material of the plaintiff on the torrent without the permission of the plaintiff, making it accessible to the users of their website. The plaintiff sued the defendant for copyright infringement on public distribution. The defendant argued that it has not developed the software or device on which the plaintiff’s copyright is infringed.

The US Court of Appeal, Ninth Circuit, held the following elements for the inducement rule that were required to prove the liability of the defendant for copyright infringement:

The copyright gives protection to the work involving any kind of expression and it does not matter whether the device due to which copyright is infringed is developed by the defendant or not but the distribution of copyrighted material of the plaintiff’s work on such device amounts to a violation of the copyright of plaintiff’s work;
There was an actual infringement of the plaintiff’s copyrighted work by the user’s of the defendant’s service;
The devices or services was distributed with the object of promoting its use on the defendant’s website to infringe on the copyright of the plaintiff; and
There must be some causation relating to the infringement of the plaintiff’s distribution rights.

Doctrine of first sale

The doctrine of first sale is a rule that limits the rights of the owner of the copyright to have control over the resale of their copyrighted work. This doctrine enables the copyright holder to have control over the distribution of their copyright work in the public domain. Therefore, the first sale doctrine creates a basic exception to the distribution right of the copyright owner as provided under Section 109(a) of the Act which states that once the work is lawfully sold or transferred, the interest of the copyright owner will be exhausted.

For instance, Samuel, an author, has published his book, which is available for sale to the general public. Liam bought the book of Samuel and further sold it to Mark. Therefore, the copyright of Samuel over the book was exhausted. Once Samuel has sold his book in the public domain, any person who buys it can re-sale it further without Samuel’s permission.

In the case of Bobbs-Merrill Co. v. Straus (1908), the US Supreme Court for the first time recognized the doctrine of first-sale in the distribution rights of the copyright owner. It was the first case in which the question was raised whether the owner of the copyright who has sold his work in the public domain has the right to control the purchaser’s subsequent sale of copyrighted work. The Court held that the copyright laws protect the owner’s right to sell and multiply the copyrighted work on their own terms, but such a right does not create a right to limit the resale of the copyrighted work of the original owner.

Case laws relating to right of public distribution

Religious Technology Center v. Netcom Online Communications Services, Inc. (1995)

Facts

In this case, the defendant was the minister for the Church of Scientology, who began criticizing the church publicly. The plaintiff claimed that the defendant is infringing the copyright of their work by posting excerpts of their work online. The plaintiff contacted the owner of the internet portal to take down the post of the defendant, who further requested that the plaintiff prove their copyright interest, which the plaintiff refused to prove. The plaintiff sued the defendant, including the owner of the internet server, for copyright infringement.

Issue

Whether the defendant and the internet access provider have infringed the right to distribute the plaintiff’s work?

Judgment

The US Northern District Court of California observed and held the following points:

The Court held that all the messages sent by the subscribers of the internet service provider should not be seen as the distribution of the plaintiff’s work since there was no causation for uniquely distributing the messages of the defendant to the public. The Court held that the internet service provider is not responsible for copyright infringement.
The Court also held that the internet service provider could have taken steps to control the distribution of defendant’s messages in public and stopped further damage to the plaintiff, but there were no steps taken by the internet service provider even after being informed by the plaintiff. Therefore, the Court held that internet service provider had substantial participation in distributing the messages of defendant to the public and was hence liable for contributory infringement;
The Court further held that the internet service did not receive any financial benefit directly from the plaintiff for distribution of such messages and there was no evidence to show that the defendant messages had enhanced the users of the internet service provider. Therefore, the internet service provider was not liable for vicarious infringement of plaintiff’s copyright.

Quality King Distributors v. L’Anza Research International, Inc. (1998)

Facts

In this case, L’Anza Research made and sold their copyrighted products in the United States and restricted the resale of the product to certain distributors. L’Anza sold their product to a foreign distributor, and an unknown person imported the goods back to the US, where they were resold to unauthorized retailers by Quality King Distributors. L’Anza sued Quality for infringement of the plaintiff’s distribution rights.

Issue

Whether the Quality King has infringed the distribution right of the plaintiff’s product?
Whether the first-sale limitation under Section 109(a) of the Act apply to imported goods?

Judgment

The Supreme Court of the United States observed that Section 602(a) of the Act is a species of distribution right under Section 103(b) of the Act and the copyright owner exercises such a right subject to the first-sale doctrine. The Court held that L’Anza has no right to control the re-sale of their product, and their rights are exhausted after selling their product in their market, which also applies to imported goods. Therefore, the defendant is not liable for copyright infringement of the distribution rights of the plaintiff’s product for re-selling such product, and such rule is known as the First Sale Doctrine.

The Public Performance Right

What is meant by public performance right

The term ‘perform’ means the performance of any activity, which includes acting, dancing, singing, or reciting as given under Section 101 of the Act. Such performance may be made either directly or by indirect means in which any device or process is involved. The United States law relating to the right of public performance is recognized under Section 106 (4) of the Act which grants the copyright owner a right on the performance of their work publicly. This provision also extends the right to perform publicly to literary, chorographical, dramatic, audio-visual, motion picture, or sound recording works. Further, the scope of the exclusive right to perform publicly, particularly relating to sound recording works, has been briefly described under Section 114 of the Act.

Public place clause

Further, the term ‘public’ has not been defined in the Act, but in the case of American Broadcasting Inc. v. Aereo, Inc. (2014), the Hon’ble Supreme Court of the US specifies that an individual or an entity performs publicly when it performs at any place consisting of a large group of people who are unrelated to that individual or an entity.

For instance, a dancer performs when such a person dances on a stage; a broadcasting network performs when it broadcasts such a person’s performance; and a television system performs when it re-transmits the broadcasts to its users. Therefore, any private individual or entity broadcasting a song shall not be liable for infringement of performance rights as such performance is not made accessible to the public.

Transmit clause

The definition of transmit in Section 101 of the Act makes it clear that a transmitted performance is a public performance even though the person having access to such performance is in a private setting. Therefore, transmission of a performance means communicating such performance by device or any process where images and sounds of such performance are received by the public.

For instance, a YouTuber performing live on his channel, a radio jockey communicating with the public and playing songs for them, watching a cricket match live on TV and seeing the performance of the cricketers live, playing recordings of digital home subscription services akin to cable television systems, etc.

In China Central Television v. Create New Technology (HK) Limited, 2015, the US Central District Court for California held that the claim for infringement of the public performance right of the plaintiff is allowed on the evidence that the plaintiff and their investigators observed and recorded portions of copyrighted television episodes streamed through the defendant’s system.

Case laws relating to right of public performance

Cartoon Network, LP v. CSC Holding, Inc. (2008)

Facts

In this case, the defendant’s DVR allowed its users to pause, record, replay, and rewind previously recorded content. Upon announcing the new service of the defendant, many television and movie copyright holders sued the defendant for direct copyright infringement. The defendant argued that they had made fair use of the plaintiff’s content through the DVR.

Issue

Whether the buffer copies of programs for DVR services directly infringe on the public performance right of the plaintiff?

Judgment

The US Court of Appeal, Second Circuit, observed the time duration of the defendant’s videos and found that the defendant’s videos existed for about 1.2 seconds. The Court further determined who created the buffer copies of programs for DVR and found that the defendant had some involvement in the process of creating such copies through managing the technology that enabled such copies. The Court held that the defendant’s involvement in creating such a copy is not found sufficiently proximate to constitute the claim of direct copyright infringement of the plaintiff’s content.

American Broadcasting Cos. v. Aereo, Inc. (2014)

Facts

In this case, the cable companies in 1992 were required to pay the broadcasters a fee for the right to carry their signals. The broadcasters argued that the defendant was a threat to their business model. The defendant provides a service that allows its users to watch programs that air on network television or, in the future, over the net. The defendant did not have any license from the copyright owners of the programs to record and transmit their programs on television. The plaintiff claimed that transmission of the program infringed on their right to publicly perform their copyrighted work.

Issue

Whether a company is said to publicly perform copyrighted work when they transmit such a program to paid users over the internet?

Judgment

The US Southern District for New York held that the defendant is a broadcaster, as the defendant shows images in sequence with audio to the public, and those images are received beyond the place from a large group of unrelated people. The defendant is not said to perform the plaintiff’s content, as the defendant does not play any role in the selection of content, and it is upon their users to select what kind of content they want to see. Therefore, the defendant is not liable for infringing the performance rights of the plaintiff through such broadcasting.

The Public Display Right

Understanding the right of public display

The United States laws relating to the right to public display have been recognized under Section 106(5) of the Act, which provides the owner of the copyrighted work with an exclusive right to display the said work publicly. The term ‘display’ has been defined under Section 101 of the Act, which states that displaying a work means showing a copy of the said work either directly or through any other means like television image, film, slides, etc. Therefore, the display of copies can be either direct or indirect.

For instance, the direct display of copies can be photographs, original paintings on a wall, graphic designs, single image from a television show or motion pictures, displaying a literary work on a webpage, etc., whereas the indirect display of copies may include any cartoon stored in the CD-ROM, using a projector to display an image, etc.

Further, the term “publicly” involves a display that can be accessed by the public and also establishes the method of transmission through which the creator of any work can make their work accessible to the public at any time in any place. Additionally, the definition of publicly as per Section 101 of the Act includes the following:

A person is said to display their work publicly when they display such a copy of their work in a public or semi-public place;
A person is also said to display their work publicly when they transmit a copy of their work whether the members of the public are capable of receiving such work in the same place or time or at different places or time.

For example, broadcasting any image over television is a public display of that image. Further, transmitting a text of a book on a computer through the internet so that multiple people have access to such text over their computer screen, even if such people read the book at different places and times, would be a public display of that book. Therefore, the definition of publicly includes transmissions of text and image in the right of public display.

Exemptions related to right of public display

The public display right is subject to certain limitations under copyright laws. The most crucial limitation restricting the scope of the right to public display is provided under Section 109(c) of the Act which states that any person lawfully entitled or made entitled by the owner of a work is allowed to publicly display such work without any permission from the original owner of the copyrighted work.

For example, William, a painter, has sold his painting to John. Now, William cannot restrict John’s right to display such a painting publicly on a projector, television, galleries, etc. John became the lawful owner of the painting after it had been sold to him by William, and he can put this painting on public display without the consent of William.

Therefore, Section 109(c) of the Act allows the owner of the copyright to display that copy of work publicly, mostly through direct means, i.e., in-person as opposed to transmitting the public display of copyrighted work to avoid further countless instances of copyright infringement. For instance, any person just wearing a shoe of a particular brand publicly displays the copyrighted design merely by walking in public. Such a public display can be categorized under the fair use doctrine, or there is an implied license given by the copyright owner.

In the case of Oddo v. Ries (1984), the United States Court of Appeal in the Ninth Circuit held that Ries, a publisher, was impliedly granted a limited, non-exclusive license from Oddo, who was the author of a series of articles, namely, How to Restore Ford F-100 Pickup Trucks. Such a license was granted to Ries for using the articles of the plaintiff in his book on the same topic. Therefore, Oddo and Ries formed a partnership for the creation and publication of a book, in which Oddo wrote the articles and Ries provided the capital for such a process.

Case laws relating to right of public display

Playboy Enter, Inc. v. Webbworld, Inc. (1997)

Facts

In this case, the plaintiff is a publisher of a magazine that owns valid copyright for images in their magazine and also holds a valid trademark and service mark for the rabbit head design on their magazine. The defendant is the owner of a subscription-based online bulletin board service. The defendant scans the copyrighted images from the plaintiff’s magazines and uploads them to their portal without permission from the plaintiff. The plaintiff sued the defendant for copyright infringement of display rights. The defendant argued that their subscribers had uploaded copyrighted pictures of the plaintiff’s magazine, and they removed such copyrighted pictures after receiving summons from the plaintiff.

Issue

Whether the defendant is liable for copyright infringement of the display rights of the plaintiff?

Judgment

The United States District Court for Florida observed that the subscribers of the defendant portal made unauthorized copies of the copyrighted images by downloading and sharing them further on the internet. The Court held that the defendant is liable for contributory infringement on the public display right of the plaintiff, as the defendant himself produced the original scanned copies from the copyrighted images of the plaintiff.

Perfect 10, Inc. v. Amazon.com, Inc. (2007)

Facts

In this case, the plaintiff markets and sells the copyrighted images of a magazine. There were a number of third-party websites that used to violate the terms of service and infringe the copyright of the plaintiff’s company by placing images from the plaintiff’s website, for which subscriptions were required by the users to get access to those images. Google provided low-resolution thumbnails that it had indexed from these third-party websites, and when the users clicked on those thumbnails, they got full access to those images, displaying that they got access through a Google webpage even though it was located on a different server. This is known as inline linking. The plaintiff sent Google notifications for copyright infringement continuously for four years, which Google was unable to fulfill, due to which the plaintiff sued Google and Amazon for similar activities.

Issue

Whether providing low-resolution thumbnails to the users and also framing inline linking images from third-party websites amount to infringement of the plaintiff’s right to public display?

Judgment

The United States Court of Appeal for the Ninth Circuit held the following points:

The Court applied the server test, in which Google shall infringe the display rights of the plaintiff only if it physically transmits and hosts the content of the plaintiff itself. The Court concluded that Google did not infringe the display rights of the plaintiff by applying server test, as it only provided instructions to the users for accessing the infringing pages over which Google did not have any control.
The Court observed that creating thumbnail images from the plaintiff’s content does not fall under the exception of fair use of copyright, due to which the Court granted injunctive relief to the plaintiff for the use of thumbnail images by Google.
The Court further held that Google had gained financially from infringement of plaintiff’s copyright, but Google had no power to stop such an infringement as the control was with the third-party websites and not with Google. Therefore, the Court denied the claim of vicarious infringement against the defendant.

Capitol Records, LLC v. Vimeo, LLC (2013)

Facts

In this case, the defendant operated an online video platform on which they permitted users to upload their videos. The plaintiff was a record and music publishing company, which found that 199 videos on the defendant’s platform contained their music and sued the defendant for music copyright infringement. The defendant argued that they are entitled to the safe harbor defense under the Digital Millennium Copyright Act, 1998, as provided under 17 U.S.C. § 512(c). The safe harbor defense grants protection from the liability of copyright infringement if an online service provider takes all the steps necessary to inform the users of their policy and terminate accounts that continuously infringe on their copyright policy.

Issue

Whether the defendant is entitled to the defense of safe harbor against the claim of copyright infringement?

Judgment

The US District Court for New York observed the following points while deciding whether the defendant is entitled to a safe harbor defense:

The Court observed that sites that provide more than primary data storage in a file for users are considered as service providers and held that the defendant falls under the category of an online service provider.
The Court observed that the defendant has clearly informed their users to not violate copyright laws; otherwise, their account will be terminated, and for the registration of Vimeo’s account, the users had to agree to the condition that such users shall not infringe on the copyright laws.
The Court also observed the terms of use of the company and emails in which employees of the company have terminated the accounts of their users due to infringement. This led to the conclusion by the Court that the company has repeatedly adopted the infringement policy for their users.
The Court further observed that the defendant has only blocked the email accounts of the users who have infringed on copyright laws and not blocked their IP addresses. The Court finds that the defendant’s implementation of policy was not perfect but reasonable.

On the basis of these observations, the court concluded that the defendant is entitled to protection under the Safe Harbor Defense under the Digital Millennium Copyright Act, 1998.

Moral Right

What are Moral Rights

The word “moral rights” is derived from a French term, namely “Droit Moral”. It refers to the personal rights of the creator of the work, which aim to protect the integrity of the artist. Initially, the moral rights were recognized by France and Germany before their inclusion in the Berne Convention for the Protection of Literary and Artistic Works in 1928. For instance, the photographer has the moral right to protect their work against any distortion or mutilation and further prevent any person from incorporating any changes in the work of the photographer that would affect the honor or reputation of the photographer due to such distortion of their work.

The Doctrine of Moral Rights recognizes and provides protection for the personal relationships of an author with their work under copyright. The definition of moral rights has been provided under Article 6bis (1) of the Berne Convention for the Protection of Literary and Artistic Works and includes the following elements:

A right that is independent of author’s economic or pecuniary interest;
A right which is claimed for authorship of work;
A right which is claimed to object to any distortion, mutilation, modification, or any derogatory action relating to the said work; and
A right to protect any action detrimental to the “honor or reputation” of such an author.

Recognition of Moral Rights in United States

In the United States, moral rights were not recognized earlier until they agreed to join the international treaty, initially through the Berne Convention Implementation Act of 1988, which further allowed the United States to join the Berlin Convention for the Protection of Literary and Artistic Work. This led to the enactment of the Visual Artist Rights Act of 1990 (VARA), which recognizes the moral rights of the copyright owner to a limited extent of work involving visual arts. The visual arts in VARA include paintings, drawings, sculptures, prints, photographs, etc. Some of the arts not protected by the VARA include maps, posters, globes, motion pictures, applied art, electronic publications, etc.

The VARA grants the artist the two basic rights specified under Section 106A of the Act, which are as follows:

The Right of Attribution states that the creator of the work shall have the right to prevent misuse of their work as well as misuse of their name as a creator in the work of visual art. The right of attribution allows the creator of work to prevent any misattribution of their work by any individual or entity. Therefore, such right of attribution includes the right to claim authorship for their work and disclaim the authorship of the work which is not their own or that is distorted or mutilated by someone else; and
The Right of Integrity states that a creator may prevent or claim damages for any intentional distortion, mutilation, or other modification of their work that would harm their reputation. Such right of integrity further includes the right to prevent any intentional or grossly negligent destruction of their work.

The provision for moral rights further states that the moral rights of a copyright owner are not transferable, and such rights end only after the life of the owner of the work. Such copyright owners have the right to waive their moral rights, and such waiver of rights is required to be in writing. The moral right of a copyright owner is independent of the exclusive rights provided under Section 106 of the Act, which includes: right to reproduction, the right to derivative works, public distribution rights, public performance rights, and public display rights. Further, the moral rights of a copyright owner are subject to the doctrine of fair use as provided under Section 107 of the Act.

Case laws relating to moral rights

Shostakovich v. Twentieth Century-Fox Film Corp. (1948)

Facts

In this case, the defendant produced a motion picture in the USA named “The Iron Curtain.” The plaintiff’s copyrighted music was played throughout the movie as an incidental background. The defendant had given credit to the plaintiff in both the films and promotional material. The plaintiff sued the defendant for infringement of his moral rights, as he found the film offensive and objectionable.

Issue

Whether the defendant, through his film, infringed on the moral rights of the plaintiff?

Judgment

The New York Supreme Court held that there was insufficient legal precedent to determine whether moral rights existed under the work of the plaintiff in relation to the interaction with the public through the defendant’s film. Therefore, in this case, the Court failed to create a standard for evaluating the moral rights of the creator and was not able to recognize the moral rights of the plaintiff in the misappropriation of their work to support a political view on which the plaintiff disagreed.

Carter v. Helmsley-Spear, Inc. (1994)

Facts

In this case, the plaintiffs were the professional sculptors who worked together and were known as ‘Jx3’. The plaintiff entered into a contract with SIG Management Company (who was the managing agent of an office building) to create sculptures within the building. In 1994, the defendant took over the management of the property and informed the plaintiff regarding the termination of the contract. They could no longer install the artwork in the building and had to vacate the building. Further, the defendant intended to remove the artwork of the plaintiff already in the building. The plaintiff sued the defendant for seeking action to remove their artwork from the building.

Issue

Whether an artist can protect their previously done work when the ownership of such work has been passed to someone else?

Judgment

The US District Court of New York held that the artwork or sculpture created by the plaintiff falls under the category of work-made for hire. Such work-made for hire is not protected under the Visual Artist Rights Act of 1990 (VARA). Therefore, the plaintiff was not entitled to prevent the defendant from uninstalling their piece of artwork from the building on the basis of infringement of the plaintiff’s moral rights.

Fair Use Doctrine in Copyright

The Doctrine of Fair Use permits any person or entity to make a limited use of copyrighted material without taking any permission or license from the copyright holder. It is generally used as a defense in claims of copyright infringement. Such a doctrine has been recognized under Section 107 of the Act. The following factors have been provided in this provision to determine whether, in a particular case, fair use of the copyrighted work has been made:

To determine the purpose of use and to know whether such use of copyright work is for commercial nature or for non-profit educational purposes;
To determine the nature of the copyrighted work;
To determine the amount of portion used from the copyrighted work as a whole; and
To determine the effect of such use of copyright work on the potential market.

These factors also apply to unpublished works where the fair use of such works is permitted.

For instance, copyrighted work can be considered fair use when such work is reproduced in copy or phonorecords for the purpose of criticism, comments, teaching, news reporting, research, scholarship, etc. The use of copyrighted material for such purposes shall not amount to copyright infringement of the rights of the copyright holder.

In the case of Sony Corp. of America v. Universal City Studios (1984), the Hon’ble Supreme Court of the US held that reproducing copies of television shows for the purpose of time shifting, which means making the show available after it was broadcast live, does not amount to copyright infringement. The Court held that reproducing such copies of television shows amounts to fair use of copyrighted material by the defendant.

In the latest case of Google v. Oracle (2021), the Hon’ble Supreme Court of the US made a decision relating to the nature of computer programs and copyrighted work. The conflict was regarding the use of parts of the application programming interface by Google that were owned by Oracle. The Court held that copying parts of the Java application programming interface by Google in its creation for the Android programming platform comes within fair use under the copyright because it tried to determine the nature of the copyrighted work, which is one of the elements of the doctrine of fair use as provided under Section 107 of the Act.

Conclusion

The Act is the current and primary law for copyright in the United States that provides basic rights to the creators for their creative expression. The copyright protection is not given to the idea of the creator but rather to any creative expression of the creator. Therefore, the work should involve some kind of creative expression in order to receive copyright protection under the statutes. The act also provides the duration of copyright protection and exceptions relating to those basic rights, which generally fall under the category of fair use.

The copyright protection on a certain creative work is granted for a fixed term, and after the expiry of that term, the work shall be in the public domain if the copyright holder does not renew the term of the copyright protection. The subject matter of the copyright includes certain categories of work that are granted protection under the statutes. These kinds of works consist of literary, dramatic, architectural, musical, sound recordings, pictorial work, computer software, etc.

Generally, copyright protection broadly includes six types of exclusive rights that are granted to the copyright owner to provide credit and benefits for the work they have created. Such exclusive rights of the copyright owners can be limited by the doctrine of fair use, in which no permission is required by the copyright owner for limited usage of their work. This doctrine acts as a defense in the claim for copyright infringement by the copyright holders. Further, the copyright owners can transfer their rights to their work to any other individual or entity by granting a license to such an individual or entity for limited usage of such work.

Frequently Asked Questions (FAQs)

What is copyright protection?

Copyright is a kind of intellectual property that provides protection to the creators of the work from their work being copied, distributed, performed, or displayed. This right can be further transferred by the owner of the copyright by providing a license to any other person for the use of the creative work of the creator.

What is the subject matter of the copyright?

The subject matter of the copyright refers to the categories of work that are protected under the laws of copyright. These kinds of work may include any literary, dramatic, visual, computer software, musical work, sound recordings, architectural, motion picture, audio-visual work, etc.

What are the exclusive rights in the copyright?

The United States, under the Act, provides the copyright owner with six exclusive rights to their work, which include:

Right to control reproduction of their original work;
Right to control derivatives of their original work;
Right to control public distribution of their original work;
Right to control public performance of their original work;
Right to control display of their original work; and
Right to have control of moral rights of their original work.

References

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