This article is written by Shreya Patra. This article covers what the subject-matter of protection of copyright is, recent news related to the subject-matter of protection of copyright in the United States, copyright under the Constitution of the United States, copyright under the Copyright Act of 1976, copyright under treaties, agreements, and conventions, works included in copyright (like dramatic works, musical works, sound recordings, etc.), and works excluded from copyright (like works by the Federal government, works that are unified, intangible expressions like ideas, processes, etc.).

It has been published by Rachit Garg.

Introduction

Copyright bargain: A balance between the protection for the artist and rights of the consumers. 

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– Robin Gross

It is universally accepted that copyrights provide the creators of works with exclusive rights to control the reproduction and distribution of their works. The United States Constitution grants the federal government the power to protect copyrights and patents. This power was granted to the United States Congress in order to promote science and the useful arts. The Copyright Act of the United States, which has been in effect since 1976, further defines the scope of copyright protection and the rights of copyright holders. Additionally, the United States is a signatory to several international copyright treaties and agreements. These treaties and agreements serve to extend the scope of copyright protection beyond the boundaries of the United States.

Artificial intelligence has become an important part of our lives. We use artificial intelligence for our daily tasks, like opening our phones using face identification, using navigation systems for travel, and discovering new places around us. One cannot help but wonder if the work done by such artificial intelligence is copyrightable or not. The most recent ruling by the United States District Court for the District of Columbia suggests that it is not. This was held in the case of Thaler v. Perlmutter (D.D.C. 2022). In this case, a piece of artwork created by artificial intelligence was in question. It was decided by the Court that no protection of copyright would be granted to any work created by artificial intelligence, setting a standard for what would be subject to protection as a copyright. 

In another similar instance, a comic book named Zarya of the Dawn was completely illustrated using artificial intelligence, and it was written by the author, Kristina. The United States Copyright Office canceled the copyright registration for the very reason that images were created by artificial intelligence, are not human authorship, and thus cannot be granted any protection under copyright law. However, they can seek protection of the words and arrangements as they are under human authorship.

Copyright protection in the United States grants individuals the right to restrict the production, distribution, performance, and reproduction of the works that have been copyrighted unless and until they are granted a license by the copyright holder to do so. Thus, copyright helps to protect such works and allows their use on a case to case basis. 

A copyright is not granted indefinitely to the copyright holder. Instead, it is granted for a set number of years, after which it enters the public domain. When it enters the public domain, it is free to be sued by anyone. Everyone has unrestricted access to it. This is done to ensure that the protection does not infringe on the free flow of creation and expression by allowing individuals to hold the copyright for their lifetime. 

Copyright protection in the US extends to a variety of works of authorship, including literary, dramatic, musical, architectural, and artistic works, as well as compilations and databases. Some works, however, are excluded from copyright protection. This article will discuss the categories of works that are eligible for copyright protection as well as those that are excluded from copyright protection.

Categories of protected works

Constitutional grant of power

The United States Constitution grants the federal government the power to protect copyrights and patents for the purpose of promoting science and the useful arts. This power is granted in Article 1, Section 8, of the US Constitution. Article 1 Section 8 Clause 8 of the Constitution of the United States reads that the Constitution empowers the Congress to make legal provisions to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. 

In the case of Golan v. Holder (2012), the plaintiff, Golan, who was a musician, along with a group of others who were artists as well, used some works while they were in public. They filed a suit against the Federal Court of Colorado, which, according to them, infringed on their First Amendment rights by restoring the copyright. Two essential questions were raised, which are:

  1. Is there any prohibition on Congress from removing works that exist in public?
  2. Can the First Amendment in the Constitution of the United States and Section 514 of the Uruguay Round Agreements exist without violating one another?

As far as the first question is concerned, it was held by the Court that Congress may take steps to ensure that works in the public are granted copyright protection in order to promote Article 1 Section 8 Clause 8 of the Constitution of the United States. The works that exist in the public domain are not completely untouchable. 

As far as the second question is concerned, the Court held that there existed no power in the hands of the Congress to enact the Uruguay Round Agreement, which enabled the restoration of the copyright protection of the works of foreign authors that entered the public domain. 

The purpose of the article is to promote any creative art to grow, flourish, and contribute to the nation’s diverse culture by allowing it to exist in an ecosystem that allows for its protection while also allowing it to be used in a free and fair manner in certain instances, which will be discussed in detail below. 

The weighing scale does not tip to one side, and a balance is created in consideration of the exclusive rights available to copyright owners and exercise of such copyrighted work. Copyright law does not act as a restrictive measure that allows copyright users to use and access their work as a monopoly; rather, it works as a measure to protect its usage by unlicensed and unauthorized third-party individuals. The first step that the Congress took towards its mission to protect copyrights was to enact the Copyright Act of 1790, which was the first legal provision related to copyright. It was subsequently altered and changed in the coming years to give rise to Title 17 of the Copyright Act of 1976. The Copyright Act of 1976 has taken steps to protect the use of copyright and also allow for its use in certain circumstances, like documents in the public domain, fair use doctrine, etc.

Title 17, the Copyright Act of 1976

The Copyright Act of the United States, which has been in effect since 1976, further defines the scope of copyright protection and the rights of copyright holders. The Copyright Act of 1976 has gone through several years of changes and amendments in order to become the Act it is today’s date. The key point of origin of the Copyright Act began with the Licensing Act of 1662. 

There were a growing number of printing presses that could potentially harm and lead to the mass production of such books, so it became important to protect them from such mass production. This Act aimed to provide the printing press an exclusive monopoly over certain publications. This Act allowed the authority, known as the Stationers’ Company, to maintain a record of the books that are licensed and grant these licenses to the respective printing press for production and further publication.

Treaties, International agreements and conventions

Additionally, the United States is a signatory to several international copyright treaties and agreements. These treaties and agreements serve to extend the scope of copyright protection beyond the boundaries of the United States. These treaties and agreements also act as a medium to ensure that works across nations get the same protection as if they were made in that nation itself.  

The categories of works that are eligible for copyright protection under United States law are wide-ranging. These include literary works such as books and software, musical works, dramatic works, choreographic works, pictorial, graphic, sculptural, and architectural works, and sound recordings. Additionally, compilations and databases are eligible for copyright protection as long as they are unique, creative, and original.

The United States Copyright Office also provides protection for works of authorship that are not explicitly covered by the Copyright Act. These works of authorship receive protection under the “sweat of the brow” doctrine, which holds that authors and other creators of works are entitled to the fruits of their labor and that the protection of the works should be commensurate with the effort expended.

Berne Convention (1886)

The Berne Convention of 1886 was held in Berne, Switzerland. It dealt with the authors, the protection of their works, and their rights to them. It established three basic principles that would provide assistance to developing countries to determine the minimum standard of protection that is to be provided. The three basic principles are as follows:

  1. Any work that is granted copyright protection by the contracting state (the first state in which it is published) must be granted the same protection as other subsequent contracting states later on. This concept falls under the principle of national treatment. According to the Principle of National Treatment under Copyright, different nations have to treat intellectual property just like they treat it as their own. This prevents any biased approach and ensures that there is a fair comparison and neither side has an advantage over the other.
  2. Under the Principle of Automatic Protection, automatic protection is granted from the moment of its creation to ordinary artistic and literary works. This overlooks factors like formalities and registration, or even legal fees that are required to be deposited.
  3. Under the Principle of Independence of Protection, even if the country of origin of the work does not have protectionary measures of copyright in place, the foreign country must ensure copyright measures are in place and protect it. Foreign and domestic work must be given the same amount of protection.

Given the limitations, restrictions, and other exceptions, the following rights are generally recognized, and they are as follows:

  1. The right to translate the work
  2. The right to produce adaptations of the work and arrangements of the work
  3. The right to read out the literary work to the public
  4. The right to communicate to the public the performance of such works 
  5. The right to broadcast such works
  6. The right to make copies and reproduce such work
  7. The right to use this work as a blueprint for an audiovisual work

Thus, the Berne Convention does an important job of being a point of reference for countries to follow, even if they do not have any legal provisions in place for copyright. It covers all the aspects related to the rights of the copyright holder, the exceptions and limitations available to them, along with the principles applicable. 

International Copyright Act (1891)

The International Copyright Act of 1891, also known as the Chace Act, was one of the very first copyright acts. It was signed by the then president, Mr. Benjamin Harrison, and came into effect the very same year. This Act acted as a medium of exchange between foreign and United States authors. According to this Act, the United States protected the works of foreign nationals subject to certain constraints, and in return, the works of the United States were protected under foreign laws. 

But it became evident after a while that the United States was not cooperating in handing over protection to foreign literary work. Due to this dispute, the concept of national treatment developed and eventually became an important part of the copyrights that are now being awarded across nations. Thus, after this concept began gaining popularity, especially being developed by Europe in retaliation for United States behavior, the Act underwent major changes.

Trade related aspects of intellectual property rights (TRIPs) agreements 

Trade-related aspects of intellectual property are agreements signed on the international level that are related to intellectual property. It is also known as the TRIPs agreement. The main aim of the agreement is to set some standards of protection for all of the intellectual property in the world in order to prevent it from being taken advantage of. It mainly covers the subject matters that are to be dealt with and that require protection and intellectual property, and it assigns a duration for such protection. 

The agreement also provides the procedures and remedies that are available to the holders of intellectual property that they use to enforce their rights effectively. TRIPs also provides settlement procedures under the World Trade Organization to settle any disputes that arise relating to the TRIPs commitments. It was as a result of the TRIPs that the World Trade Organization (WTO) was established.

World intellectual property organization (WIPO)

The World Intellectual Property Organization, also known as WIPO, was created in 1967 by the United Nations and aims to be an outlet for the protection of ever-flowing creative works and protect such intellectual properties. It aims to act as a medium to strike a balance between the intellectual properties across the various nations. The United States joined WIPO in 1970. Before WIPO, there was the United International Bureaux for the Protection of Intellectual Property (BIRPI).

The functions of WIPO can be summed up as follows:

  1. To ensure the protection of such intellectual properties
  2. To enforce the necessary measures and remedies that allow for such protection
  3. To sign any agreements on an international level that are regarding intellectual property’s protection
  4. To enforce whatever was part of the discussions in the Paris and Berne Conventions
  5. To provide any legal and technical assistance related to intellectual property 
  6. To publish information regarding intellectual property

The limitations, restrictions, and exceptions that WIPO provides are as follows:

  1. Impose limitations and restrictions on copyrights and other protected works.
  2. Impose penalties for not adhering to the policies and rules.
  3. Provide a detailed list of instances in which protected works may be used even though no compensation has been made for them.
  4. Provide copyright to certain categories of work that gain copyright from the moment they are created.

Thus, WIPO exists as an important institution that protects all rights related to intellectual property while not interrupting the creative flow related to such intellectual property. 

Protection of Broadcasting and Broadcasting Organization Treaty

The Protection of Broadcasting and Broadcasting Organization Treaty is a proposed treaty that aims to determine control over broadcasts in a manner similar to that of copyright. While it is still in discussion, it is important to note that broadcasting has become an important medium for giving out information. And therefore, all the content circulated in such a manner should also be subject to protection and expectations similar to those of copyright. If it is adopted, then it would allow broadcasters to have exclusive control over the content that is circulated in their broadcasts. 

Similar to copyrights, such broadcasts can be licensed to other interested third parties. It would also grant broadcasters protection against unauthorized third parties making use of their signal. Similar to that of copyright, certain exceptions would be granted to those works that are for any personal use, for the library, for educational needs, parodies, etc.

Anti-counterfeiting trade agreement (ACTA)

The Anti-Counterfeiting Trade Agreement is also known as the ACTA. This agreement was signed in 2011, and it aims to prevent counterfeiting and piracy at the commercial and international levels by providing a legal safeguard. This agreement also aims to increase cooperation and coordination across nations and to strengthen intellectual property rights on the online medium by enforcing proper practices through their policies and regulations applicable to them. 

ACTA addresses the process by which checks and balances can be placed in order to protect such intellectual properties and also discusses the process that has to be followed for it. It also discusses the provisions that would amount to restrictions and limitations on the internet and provides leeway for certain exceptions while protecting such intellectual properties. It also exists as an institute of enforcement at an international level that incorporates several committees that overlook this process.

Beijing treaty on audiovisual performances (BTAP)

The Beijing Treaty on Audiovisual Performances was created in 2012 and finally adopted to be enforced in 2020. It is also known as BTAP for short. It aims to protect the economic rights and the moral rights of the actors and performers in those audiovisual performances, which are inclusive of films, videos, and television programs. This treaty aims to establish a new genre of protection that is granted to audiovisual performances. 

The purpose of the treaty is to act as a legal framework and to prevent the bypassing of the encryption that exists to protect the rights of the performers. It also prevents the alteration or removal of information that is necessary for the distribution of intellectual property, which includes licensing and royalty distribution. 

The Beijing Treaty is not only limited to the audiovisual works of the nation it is made of but is applicable to all audiovisual works across nations. All audiovisual works under this treaty are provided protection at the same level as if they had been created by the nation that is granting them or its own nation. It also provides other economic rights and exclusive rights for unfixed work and addresses the conflicts related to the transfer and who would be eligible for it.

Marrakesh Treaty

The Marrakesh Treaty was created by the WIPO, and it aims to protect a unique set of works. The Marrakesh Treaty allows the free production and distribution of the books that have been designed for those with visual impairments or blindness. This is done on the humanitarian grounds of the WIPO, which believes there should be no restriction or obstacle to providing people with blindness or visual impairments with such books. Such books are exempt from the ordinary rules under copyright that exist traditionally. 

Under Section 121 of the Copyright Act, also known as the Chafee Amendment, there exists an exception to copyright, that is, any work that is reproduced for the blind or any other disability. That is, works that have specifically been made for the use of blind people and people with other disabilities are free from the traditional restrictions that are levied under the Copyright Act ordinarily. The Marrakesh Treaty expanded the types of works to include literary works as well. It also introduced the legal provisions related to the export and import of such related works.

Categories of included works 

Title 17 that is the Copyright Act of 1976, contains all the subject matters that are to be included in the scope of copyright protection under Section 102 Clause (a). As a general rule, the duration of the copyright is for the life of the author plus an extra 70 years added to that. Works subject to copyright protection are as follows:

Dramatic works

Dramatic works are those works that have a verse or any prose that showcases a story to the audience in the form of a performance, which might be an opera, a moment, a drama, a play, etc. Under the copyright laws in the United States, dramatic works fall under the category of included works that are granted protection under copyright. Dramatic works are protected under Title 17, Section 102(a)(3). Dramatic works are those that act out as an outlet for the expression of creativity and are either performed in front of people or viewed by people. They are granted such protection in order to promote its creation and prevent third parties from any unauthorized usage. The creative works created by the following people would fall under the category of dramatic works:

  1. Composers
  2. Authors
  3. Poets
  4. Dramatists
  5. Choreographers
  6. Script writer
  7. Play writer
  8. Dialogue writer
  9. Action sequence writer 
  10. Mime
  11. Screenplay
  12. Opera
  13.  Ballet, etc.

The elements of the dramatic works include plot, plan of events, or sequence of the dramatic work; characters; dialogue or monologue; directions for the stage; and performance directions, which are not individually registrable as copyright. There are certain exceptions to dramatic work copyright. They are as follows:

  1. Title of program(s)
  2. An idea or concept related to the program
  3. Copyright registration for future scripts
  4. Copyright registration of script material that is not copyrightable

Dramatic work that is copyrighted is the act that is performed before the audience and/or viewed by the audience. But it does not allow for the copyright of but does not include the idea or concept of the performance but rather includes the performance itself. The duration of the dramatic work is a period of 70 years from the death of the author of such work, that is, the life term of the author plus an additional 70 years. This duration is only for those works that were created after 1st January 1978.

The following protections are granted to dramatic work, and they are as follows:

  1. Reproduction of copies of copyrighted work or recordings of copyrighted work 
  2. Copyrighted works that are used to make derivative works
  3. Copies of copyrighted work or recordings of copyrighted work being distributed to the public
  4. Public performance of work
  5. Public performance of copyrighted work through a digital medium

In the case of Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975), a fast food chicken joint was owned and operated by the plaintiff carrying the same surname, that is, Aiken. They had installed speakers all over the store so that customers could listen to them. One day, while the music was being broadcast as usual, two particular songs that were licensed to the plaintiff, Twentieth Corp., were played loudly as per usual. 

The issue was that Aiken’s store did not carry the necessary license to play them, but the radio station did. And thus, Aiken faced a suit for copyright infringement. The Supreme Court in this matter ruled that there was no sort of infringement by Aiken over the copyright work under the ownership of Twentieth Corp. This is so because Aiken does have the right to play the songs publicly. And playing it publicly did not constitute any sort of performance that would require them to seek prior authorization. 

Musical works

A musical work is often created by the writer of the song or the composer of the song. It is contained under Section 102(a)(2) of Title 17, includes the words that accompany such musical work, and is often in the form of some fixed pattern. It is pertinent to note that when a song is being recorded, two different works might be created simultaneously, that is, a musical work and a sound recording. It is the master recording that is granted protection under copyright laws. Under copyright law for musical works, the lyrics, words, etc. are granted protection, but in the case of the sound recording, only the recording is covered.

Even though both of these works are being created at the same time, they hold separate licenses but may have common owners. The grant of copyright for such works is from its inception, that is, when it has been recorded as an audio file, or has been written on a music sheet, or stored digitally in the form of a file.

The elements of a musical work that can be subject to copyright are as follows:

  1. Melody
  2. Rhythm
  3. Harmony
  4. Song lyrics

The following rights are made available to the person who owns the copyright to any musical work:

  1. The owner of the copyright can make copies of the musical work.
  2. The owner of the copyright can distribute copies of the musical work.
  3. The owner of the copyright can sell copies of the musical work.    
  4. The owner of the copyright of the musical work can make its derivatives, which include remixes, videos, and interpolations.
  5. The owner of the copyright can perform the musical work in public.
  6. The owner of the copyright can display the musical work in public.

In the case of Star Athletica, LLC, v. Varsity Brands, Inc. (2017), the defendant, here Varsity Brands, was involved in marketing the uniforms made for cheerleading. The plaintiff, here Star Athletica, noticed this and filed a suit citing copyright infringement. The defendant put forth their arguments and took the stand that the design is not separable from the uniform itself, and therefore they did not infringe any copyright as per what was cited by the plaintiff. And thus, their use was rightful, with no infringement of any sort. The trial court was of the view that both the design of the uniform and the uniform itself are one, and they cannot be separated from one another. The Supreme Court used this case to set a precedent and frame the test of separability. Through which it identified other elements such as lines and other patterns that are separable. And thus, the test of separability is an important test. It draws a distinction between the existence of the copyright and the elements that make up the copyright and grants copyright accordingly. The artistic elements of a copyright are to be separated from the utility elements of the copyright. 

In the case of UMG Recording Inc. v. MP3.com Inc. (S.D.N.Y. 2000), the plaintiff sued the defendant’s website for failing to secure any prior permission for the reproduction of the songs. In the early years of the 2000s, sharing music files through MP3 was common. A site carrying the name of the defendant (that is MP3.com) became a popular medium for obtaining the songs. Through the website, the users used to get songs from the discs that had purchased the music legitimately. 

The website became a popular choice, and soon after, users began storing songs on it and creating a library of songs. The plaintiff (UMG, along with 11 other recording companies) filed a suit against the defendant for failing to obtain prior permission for the copies that are being created and circulated on the website. The defendant took the plea that this would constitute fair use as it is being repackaged and distributed in another mode. The defendant also took the plea that the work is transformative since it is of lower quality. 

The Court in this case held that while the claim of fair use is indefensible, the claim of MP3 being transformative work is not valid as it is not any different from the compact disc from which it is being ripped off. Thus, they do not qualify as transformative works as defined under copyright law. 

If there are any such works, the creator can register them with the United States Copyright Office. By registering, you are able to create a public record of all the owners of such works. The creator, upon successful registration, gets ownership of the copyright and is known as the copyright owner. The copyright owner is granted several benefits and is provided legal recourse through the courts in a case of any infringement that takes place. 

Musical works have the same duration of protection as that of any literary work or any artistic work. It can be summed up as follows:

Sound recordings

Under Title 17, Section 101, a sound recording is defined to include musical, spoken, or any other sounds (that is, not any sound on any motion picture or any audiovisual work) that are in the form of a fixed series and can be contained in the form of compact disks, tapes, etc. Sound recordings are eligible for copyright protection in the United States. This includes both analog and digital recordings of music, as well as spoken-word recordings. 

Thus, several rights are made available to the copyright holder. It can be encapsulated as follows:

  1. The right to reproduce the sound recording
  2. The right to distribute the sound recording
  3. The right to publicly perform the sound recording
  4. The right to create derivative works of the sound recording
  5. The right to license the sound recording
  6. The right to assign the sound recording
  7. The right to reassign the sound recording

The copyright in a sound recording does not extend to the underlying musical work. The copyright to the musical work is held by the composer, lyricist, and publisher of the work. The copyright in the sound recording and the copyright in the underlying musical work are two separate copyrights, and they must both be accounted for when using a sound recording. This is so because the copyright for the sound recording covers the recording itself and not anything else; that is, it does not cover the elements of copyright under the music work, like the music, lyrics, words, etc.  

The following are the ways in which an individual(s) can hold the copyright to the sound recordings:

  1. Joint authorship

The sound recordings that are created may have been made through the contributions of several individuals. When several such individuals have made the sound recording, they might hold joint authorship over it. In case the work is done in collaboration with others, it becomes necessary to name all the authors involved.

  1. Individual authors who are not a group

The person applying for the copyright must list out in a detailed manner all the individuals who were involved in the creation of the sound recording. Since the individuals do not form any group, they have to be listed separately to ensure a proper record is maintained in public. In case the individual is part of another group and they wish to indulge the group name, they have to provide consent for it and inform the Copyright Office. The registered legal name of the individual is mentioned until and unless it is a work for hire, a pseudonymous work, or an anonymous work.

  1. Work for hire

In the case of work for hire as defined under the definitions listed under Title 17 Section 101, the hirer holds the copyright to the sound recording. However, if the work for hire is created but does not fall under the specified set of definitions as listed, then, in that case, the same is communicated to the applicant for determining under whom the registration is to be made.

  1. Executive producer

The executive producer is generally the one who owns the financial responsibility for the production of the sound recording. However, there are cases where the executive producer also contributes towards the creation of the sound recording. Then, in that case, the executive producer is also provided with the copyright and listed under it.

  1. The producer, the record label, or the studio

Generally, the producer, the record label, or the studio are the entities that contribute towards the creation of the sound recording. Thus, they are generally the first ones to be listed as the holders of the copyright to such sound recordings. 

The duration of the sound recordings is as follows:

  • If a sound recording is published before 1923, the copyright duration ends in 2021.
  • If a sound recording is published from 1923 to 1946, the copyright duration is for 100 years from the date of the first such recording.
  • If a sound recording is published from 1947 to 1956, the copyright duration is for 110 years from the date of the first such recording.
  • If a sound recording is published after 15th February 1972,  the copyright duration is for 120 years from the date of the first such recording.

Additionally, one may note that in the case of any sound recording, copyright is granted the moment it is fixed. The Copyright Act of 1972 is applicable to all those works that were created after 1st January 1978, automatically. There was no federal protection for those works before 1978. The copyright duration in the United States is only 95 years from the date it was first published.

Visual arts works or artistic works

It is contained in and defined under Section 102(a)(5) as those works that are pictorial, graphic, or sculptural. Title 17, Section 101, further goes on to define what constitutes pictorial, graphic, or sculptural. Such pictorial, graphic, and sculptural works include, but are not limited to, the following categories:

  1. Applied art
  2. Prints
  3. Maps
  4. Globes
  5. Charts 
  6. Prints 
  7. Diagrams
  8. Models
  9. Works of artistic craftsmanship
  10. Art reproduction
  11. Technical drawings

And the works of a visual or artistic nature have to be expressed in a form that is fixed (as defined under Title 17 Section 101) and must be a tangible medium of expression (as defined under Title 17 Section 102(a)) to seek any protection under copyright. It includes the following works:

  1. Collages
  2. Stone
  3. Prints
  4. Canvas
  5. Metal
  6. Soft sculptures
  7. Digital Files
  8. Clay
  9. Edible material
  10. Holograms
  11. Photographic films

It excludes any common geometric shapes, familiar symbols and designs, colors, coloring and coloration, typeface, kettering, calligraphy, typography ornamentation, spatial format, layout design, blank forms, naturally existing and discovered materials, mechanical processes, measuring devices, computing devices, etc.

The copyright duration in case of audio visual arts, any such works that are created from 1978 onwards have a copyright duration of 95 years for work on the basis of hire and 70 years from the last co-author that is alive, if there are multiple authors. We can better understand the division the term period as follows:

  • For works released before 1923,  the copyright duration has already expired. 
  • Works created on or before 1976 but from 1923 onwards, a copyright duration of author’s life plus 28 years plus an extra 28 years on renewal. 
  • Works created after 1976, a term period of 75 years from the date of the first such publication was provided, and after that, a term period of 95 years from the date of the first such publication was provided.

Cinematograph films

Cinematograph films fall under Title 17, Section 102(a)(6). It can be in the form of tapes, floppy disks, video disks, cassettes, or any other media. This does not apply to any live performances and releases, anything else that is unfixed, or a set of pictures shown one after the other but do not depict any message as such. 

In the United States, all such works created after the year 1978 are eligible to seek protection of copyright for a period that extends till the end of the life of the author; it might be extended further for 70 years, 95 years from the date of publication, or 120 years from the date when such work was created. In the case that the work was created before the year 1978, the Act of 1909 is applicable, which grants copyright protection for a period of 28 years, and this protection can be further extended. In case there is no extension for this work, then it is put out in public for anyone to use.

Computer software as a literary work

Computer software is considered to be a literary work and is therefore eligible for copyright protection in the US. This applies to computer programs as well as to accompanying documentation, user manuals, and other written materials that are related to the software. The copyright in computer software is generally held by the author of the software or by the company that owns the software. 

A computer program is an exception to works that are single and integrated and thus have to be registered together. The copyright for computer software follows the general rule of thumb, that is, for a period of the life of the software creator plus an additional period of 70 years. If the software was created on the basis of work for hire, then it would last for 95 years from the first such publication or 120 years, whichever is shorter of the two.

The copyright in computer software grants the copyright holder the exclusive right to reproduce, distribute, display, perform, and create derivative works from the software. In the year 1990, the Copyright Act was amended in order to prevent the commercialization of computer software. Additionally, the copyright holder has the exclusive right to authorize others to do the same.

In the case of Apple Computer v. Franklin Computer Corp. (3d Cir. 1983), in the year 1982, the defendant, here Franklin Computer, introduced a computer that was a clone of the plaintiff’s computer, here Apple Computer. The plaintiff, making note of most of its parts being copies of them, filed a lawsuit in the United States District Court for the Eastern District of Pennsylvania. 

The defendant admitted that they did copy parts of software made by Apple. They stated that it would not be practical for them to prepare their own parts of the software. They stated that software was not in any form of print, and therefore it was not protected under copyright.

While this suit was ongoing, there was no protection available for copyright software. As a result, it could be copied by anyone. It was granted protection much later, when the Federal Copyright Act (Title 17) came into the picture. The Court, after taking into consideration the arguments of the plaintiff and defendant, ruled in favor of the defendant, Franklin Computer. 

Apple filed for a separate case through an appeal. It was held that the lower court’s decision was to be overturned. It held that the program created can exist in two different forms, i.e., in a written form that might be incomprehensible to humans and in the form of it being embedded in read-only memory, which would be protected under copyright. After the decision by the United States Court of Appeals of the Third Circuit, all the copies made by Franklin Computer were brought off the shelves as it was required to withdraw them. 

Protection of the Code itself

The copyright in computer software does not extend to the code itself. The code is considered to be an expression of an idea and, as such, is not eligible for copyright protection. However, the code can be protected under patent law. Patents provide the holder with the exclusive right to make, use, and sell the invention that is described by the patent.

The protection of the code under patent law is not absolute, however. The Code must meet certain criteria in order to be eligible for patent protection. The code must be novel, non-obvious, and useful in order to be eligible for patent protection. Additionally, the Code must be described in sufficient detail in the patent application in order to be eligible for patent protection.

In the case of Stern Electronics, Inc. v. Kaufman (E.D.N.Y. 1981), Konami began creating arcade games, and one of its arcade games was Scramble, which required players to complete a total of six levels as the spaceship flew past obstacles and cleared them without running out of fuel. It was subsequently distributed after being sold in several districts across America after the plaintiff, Stern Electronics, obtained the license for it. 

Scramble later went on to gain huge popularity, and several people played the game. Omni took advantage of Scramble’s growing popularity and started to sell a game very similar in visual style and title to that of Scramble. As a result, the plaintiff sued Omni for violating the trademark and copyright associated with the arcade game they held the license for, Scramble. 

It is pertinent to note that during this suit, there was no federal law or copyright Act in the United States that included “computer software” as a subject matter that is copyrightable. Thus, in order to ensure protection, the code was brought under and treated as a “literary work”. Stren had overlooked the possibility of the work being infringed as a literary work and had registered it as a copyright under audiovisual work. 

When Omni infringed on such a right and was accused of infringement, it stated that audiovisual elements differ and Stern Electronics is only eligible to claim infringement of the code itself. The United States Court for the Eastern District of New York, after hearing both sides, rejected the arguments laid down by the defendant as it found prima facie, their mala fide intention on part of the defendant making the first use of the game, Scramble, and it is to be treated as a counterfeit. It issued a preliminary injunction to protect Stern Electronics. 

An appeal was filed. But the outcome was in favor of Stern Electronics, and the same decision was held. In order to protect Stern from losses, a preliminary injunction was issued to stop such counterfeit production and distribution. Thus, this case sets the precedent that a computer program is inclusive of its sounds as well as its code

Compilations and databases

Compilations and databases are eligible for copyright protection in the United States. Compilations are works that are created by selecting, arranging, or organizing pre-existing materials into a new work. A compilation can only be copyrighted if it is unique, creative, and original, and only such aspects are granted protection. The general rule of thumb is followed, which is the life of the author plus an additional term of 70 years, which determines the total duration of the copyright as this is a literary work. 

Databases are protected under the Copyright Act as “compilations” or “collective works.” The copyright in a compilation or database protects the selection, arrangement, and organization of the data but does not extend to the data itself. Since this is a literary work, the general rule is followed, which is the life of the author plus an additional term of 70 years, which determines the total duration of the copyright.

The copyright in a compilation or database grants the copyright holder the exclusive right to reproduce, distribute, display, perform, and create derivative works from the compilation or database. Additionally, the copyright holder has the exclusive right to authorize others to do the same.

Historical and factual material

Historical and factual material is not eligible for copyright protection in the US. This includes facts, ideas, concepts, and systems. However, the expression of these facts, ideas, concepts, and systems may be eligible for copyright protection. For example, a description of a system may be protected under copyright law, while the system itself is not eligible for copyright protection. 

One might also take notice of those historical events, and they are already out in the open for the public, and thus they are not protected under copyright law. Even the facts that are already known to the public would not be eligible for any copyright protection. Anything related to the facts, like the arrangement, section, or compilation, would be eligible for copyright protection in so far as it is original, but the facts in themselves would be eligible. 

It also does not extend to the events on the news or the facts that helped in the creation of the report for the news, but such a report in itself would be eligible for copyright protection. Also, in the case of biographical works, the person on whom the biography is made is entitled to seek copyright protection as long as the work is original and is an expression of themselves.

Additionally, the US Copyright Office will not register works of authorship that consist mainly of historical or factual material. This includes works such as biographies, historical treatises, and compilations of data. However, the US Copyright Office may register works that contain some protected elements, such as original illustrations or unique arrangements of facts or data.

Utilitarian works and industrial design

Utilitarian works and industrial designs are not eligible for copyright protection in the United States. This includes items such as machines, articles of manufacture, and industrial designs. Protection for these works is available under patent law. Patents provide the holder with the exclusive right to make, use, and sell the invention that is described by the patent.

The protection of utilitarian works and industrial designs under patent law is not absolute, however. The invention must meet certain criteria in order to be eligible for patent protection. The invention must be novel, non-obvious, and useful in order to be eligible for patent protection. Additionally, the invention must be described in sufficient detail in the patent application in order to be eligible for patent protection.

For example, the commonly used symbol on food packets to signify vegetarian is green, and non-vegetarian is red. This cannot be copyrighted as it is commonly used and people are already very familiar with such symbols. Similarly, the symbol of the cross (†) for Christianity is a commonly used symbol, and there is no original or creative expression involved in it. This extends to other symbols, may they be warning symbols or hazardous symbols.

Other common symbols include music symbols, equations in mathematical formulas and derivations, patterns, common moldings in industrial design, etc., which can be found here.

Architectural works

Architectural works are eligible for copyright protection in the US. This includes both the plans and drawings of a building as well as the actual structure itself. The US Copyright Office defines an architectural work as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings.” 

The copyright granted to an architectural work is for a period of lifetime of the author plus 70 more years. The architectural work designer or owner is the one who is going to hold the copyright to that work. The copyright in an architectural work grants the copyright holder the exclusive right to reproduce, distribute, display, perform, and create derivative works from the work. Additionally, the copyright holder has the exclusive right to authorize others to do the same.

Fictional characters

Fictional characters have long been part of the industry in the United States, may it be mascots of games, characters that appear on television, characters in a book, etc. Thus, as characters became more and more popular, creators sought the protection of the character rather than the work in which it made an appearance. From Geronimo Stilton to Thanos, Frodo Baggins, and Harry Potter, the list of fictional characters created is endless.

Fictional characters are eligible for copyright protection in the United States. This includes characters from books, movies, television shows, and video games. The copyright in a fictional character grants the copyright holder the exclusive right to reproduce, distribute, display, perform, and create derivative works from the character. Additionally, the copyright holder has the exclusive right to authorize others to do the same.

The copyright of a fictional character does not extend to the underlying work in which the character appears. The copyright in the underlying work is held by the author or authors of the work. The copyright in the fictional character and the copyright in the underlying work are two separate copyrights, and they must both be accounted for when using a fictional character.

In the case of fictional characters, the general rule of copyright is followed. A period of life of the author along with an additional 70 years is the total term for which such fictional characters would be protected under copyright. The copyright that is assigned is for the character in itself and not for the part of the work it is in, that is, the story of the character or any other intangible aspects related to the character.

Categories of excluded works 

Intangible expression

Copyright law does not protect all categories of work. Intangible expression is one of those works that is not granted copyright protection. Intangible expression includes ideas, concepts, processes, discoveries, procedures, methods of operation, etc. There are no exemptions under copyright law to protect such categories, and the same can be found under Section 102 of Title 17 of the United States Code, also known as the Copyright Act. 

Here it becomes important to draw the difference between the general concepts behind copyright and patent in order to better understand them. Copyright is the protection granted to any individual(s) or entity of any work for any activities related to it, whereas ideas are specifically reserved to be dealt with as patents. 

If copyright would be allowed to ideas or even any procedures or devices, then, in that case, the sphere of copyright would interfere with the sphere of patent. This would result in chaos as individuals would bypass the stringent laws placed on patents and instead obtain a copyright for the protection of their work. By allowing copyright to extend to patent law, the uniqueness of an invention, idea, or process is lost, and as a result, it is not a patent anymore as far as intellectual property is concerned.

Works created by the United States government

Additionally, works created by the United States government are not eligible for copyright protection. The works of the United States government are generally in the public domain. The works in the public domain can be used freely, and thus no copyright protection is available or granted to them. These works, which are in the public, are available to anyone to make use of freely without being subject to any fees for copyright or any prior permission. Once it is copyrighted, it can be distributed, changed, adapted, or even republished. 

But there are certain works that are not made available to the public. Such works can be copyrighted by the United States government to ensure their protection. The works by the United States Government that are in the public and open for free use by all in the United States are as follows:

  1. Documents
  2. Reports
  3. Pamphlets
  4. Maps
  5. Federal Statutes
  6. Studies
  7. Instructional videos 
  8. Images

It is pertinent to note the fact that not all works can be classified as government works. Only those works created by an employee of the federal government or an officer of the federal government who have done so in discharge of their official duties would be considered government works. This can be done in any written form or on any film, software, or photo. 

The cases where the works created by the officers or employees of the federal government could be subject to copyright protection are:

  1. The work is created outside the discharge of their duties as an employee or officer of the federal government or 
  2. That individual owns the copyright to that work.

Works in the public domain without any author

The Copyright Act also excludes some works of authorship that are otherwise eligible for copyright protection. These include works that are considered to be in the public domain, such as works that have been published without a copyright notice or works that have been published more than 75 years ago. Once such works become public, without any renewal by the previous owner, they become public and anyone is free to use them. The ownership exists with the public, and thus no copyright fee is to be paid or prior permission is to be acquired. A work generally enters the public domain after the expiration of its copyright. A copyright is not granted indefinitely in order to create a balance between protecting the author and making the work more accessible to the public. 

If one were to calculate the duration of the expiration of the copyright, one would find most of the works granted the copyright in the year 1924 have lost their copyright in the year 2019. In the case of Mickey Mouse, whose copyright was held by Disney, as it was close to its term of expiry, it faced a ray of hope when the legislation underwent major changes. 

One of the major changes that had a positive impact on it was the fact that the term period of the copyright was extended. The increase was for a period of 75 years for works that are of a corporate nature. And for works that have an author, the term period was increased to the life of the author plus an additional renewal for up to 50 years.

Unfixed works

Additionally, works that are not original or that are not fixed in a tangible form are not eligible for copyright protection. The Copyright Act does not provide any protection for such works. For example, a choreographer improvised a choreography performance. That cannot be copyrighted as such due to its intangible nature. Similarity also applies to any improvisations made during a speech or any performances, like jams. 

It becomes important to understand here that when a copyright is awarded, it is given to a specific subject matter or for a particular way in which the subject matter was performed, and thus it becomes necessary for the work to be done in any fixed manner to be even considered for the copyright. Whether or not a copyright is awarded is a different matter altogether. 

If we were to talk about improvised music performances, street performances, and jams, no copyright would be available for them. In the case of concerts, people recorded the concerts and released copies, also known as bootleg copies. There was no protection available at concerts, and there was rampant production of bootleg copies. The Congress took note of the concerts going unrecorded and changed the law through the Uruguay Round Table Conference in 1994.

As per the changed law, the creation of bootleg copies, that is, recordings of the musical performances at the concerts, was prohibited even in the absence of a fixation on that work. Specific provisions were created to address the distribution of the bootleg copies and the transmission of the bootleg copies. This new law creates something that is similar to the concept of copyright but cannot exactly be classified as copyright. 

Conclusion

Copyright is an intellectual property that aims to protect its owners from their work being distributed, copied, performed, adapted, or displayed. This protection is granted by allowing the authors to have ownership of their works, and they may extend their ownership to others in the form of licensing, assignment, etc. A copyright is awarded for a limited number of years only; after the expiration of this term period, the work enters the domain of the public. Here, anyone is free to use it without the requirement to obtain prior permission or pay any fees for such use.

Copyright covers several categories of work. All these categories are known as the subject matter of copyright. These categories widely cover what would qualify as a work to be copyrightable under the law. Works like dramatic works, musical works, sound recordings, visual arts works, cinematograph films, computer software, architectural works, fictional characters, etc. are included in this category. There are exemptions as per law, and they include works that are unfixed, works by the government, works without an author in the public domain, intangible expressions like ideas, etc.

Therefore, one should always seek the protection of the copyright of their original and unique works. By being granted such protection, you are able to limit the ability of others to reproduce, perform, distribute, and make copies of their work. They are also able to limit who has access to do the above-mentioned activities to their work by licensing the copyright to their parties and earning money from such licensing agreements.  

Frequently Asked Questions (FAQs)

What is a copyright?

Copyright is basically the right given to the authors or entities that protects it from others distributing, performing, adapting, displaying, or reproducing it. It is given for a specific period of time and is a kind of intellectual property. The United States Copyright Office deals with such matters, including registration and record maintenance. 

What is the subject matter of copyright?

The subject matter of copyright is basically the categories of works that are eligible for copyright. These are basically the categorizations of the works that are eligible for copyright and include categories like sound recordings, visual arts, computer software, musical works, architectural work, etc. 

Does copyright exist for a lifetime?

No, a copyright does not exist for a lifetime. A copyright is awarded for a specific set of years, may it be 70 years or 120 years. After the expiration of the lifetime of the author and the additional years, the copyright for that work ends. The work then enters the public domain, where everyone is free to use it without the requirement of any prior permission or payment of any separate copyright fees. 

Who handles copyright in the United States?

The United States Copyright Office handles copyrights in the United States and maintains records of all the copyrights; it allows you to search through such copyrights, register your work with them, and pay the required fees to enable the copyright process. 

References

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