Issues in American Copyright Law and Practice

Last revised June 6, 2009

This work is issued under

a Creative Commons license

This is my layman’s perspective on American copyright law and practice. I should mention as a disclaimer that I am not a lawyer, nor do I play one on TV. Certainly don’t take this as legal advice of any sort—for that you should talk to a real lawyer.

Congress shall have the Power to Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

This clause gives Congress the power to grant the author or the owner of a creative work a bundle of exclusive rights to use or exploit their work in certain ways. This set of exclusive rights is known as copyright--once a work is copyrighted, no one else can do any of these things without the permission of the copyright owner. This clause is often referred to as the intellectual property clause, since it gives Congress the power to give people the right to profit by the use of their intellect--it covers patents as well as copyrights.

It is very rare that the Constitution actually lists any specific reasons for the powers that are granted to government, but a reason is spelled out here. The Constitution says that the purpose of copyright (as well as patents and intellectual property laws in general) is to advance the progress of science and the useful arts—the 18^th century way of saying that the ultimate purpose of copyright and patent laws is to promote the advancement of knowledge and technology. The purpose of copyright and patent laws is not to provide authors and inventors with an income—the establishment of a legal system that ensures that authors and inventors can get paid for their work is a means, not an end. The Framers imagined that the best way to promote the advancement of technology and knowledge was to ensure that authors and inventors could obtain financial remuneration for their efforts, which would encourage them to produce still more works.

Over the years, Congress has passed numerous laws that have given legal backing to the notion of copyright, including the granting of a set of exclusive rights to copyright holders. Among the rights that Congress has given to the copyright owner are the exclusive right to publish or distribute copies of the work as well as the exclusive right to perform or display the work in public. Also included among the bundle of rights granted by Congress to the copyright holder is the exclusive right to make a copy of their work, as well as the exclusive right to create a derivative work based on the original work. Basically, copyright is a government-mandated monopoly that is granted to the copyright owner, one which if properly exercised is supposed to benefit the public by encouraging artists and authors to create still more works.

Copyright grants the artist an exclusive monopoly on the performance, publication, selling, or distribution of their work, but the Framers were highly suspicious of any sort of monopoly, so they deliberately required that the monopoly had to be a limited one, that it would expire after a certain amount of time, and afterwards the work would be free for anyone to use in whatever manner they liked. The Framers felt that the monopoly that copyright grants must of necessity be limited so as to avoid the danger of any sort of monopolistic stagnation, and always be an effective mechanism by which the storehouse of knowledge would steadily increase and by which democracy would grow and flourish. Copyright was intended to be a delicate balance between the economic interests of authors and publishers and the interests of consumers, readers, and the public at large, one that if properly observed should encourage authors to create still more works.

What can be copyrighted? Just about anything, it turns out. The first copyright law, passed by Congress in 1790, gave protection only to maps, charts, and books, but in succeeding years copyright protection was gradually expanded to cover more and more categories of artistic and intellectual creativity. The current copyright law now says that copyright protection applies to “original works of authorship”, a category so broad that it includes almost anything. Copyright nowadays applies to just about every form of creative expression one can think of: literary works, novels, biographies, academic textbooks, scholarly journal articles, magazines, music and songs (both the words and the tune), poetry, dramatic works (including the accompanying music), pantomimes, choreography, pictures, photographs, cartoons, radio and television broadcasts, graphic works, paintings, sculpture, movies, sound recordings, and architectural works. Also copyrightable are computer software programs, even embroidery patterns. The copyright law purposely uses the broad phrase “works of authorship” to describe the types of works that can be protected by copyright in order to avoid the need for Congress to rewrite the copyright laws every time a new medium is created.

However, there are some restrictions on what types of things can be copyrighted. The copyright law specifically says that for a work to be eligible for copyright protection, it must be original. The work cannot be a mere mechanical reproduction of a previous work. For example, you can’t simply copy the text of Shakespeare’s Othello onto a CD and claim that you own a new copyright on it. You can’t scan and digitize the famous Matthew Brady photograph of Abraham Lincoln and claim that you now own a copyright on the digital version. Even if you change the typeface, correct the spelling errors, or reformat the line spacing in a nineteenth-century Dickens novel, you still have not met the standard of minimal originality required for copyright to apply. However, the amount of originality required is quite small, and just about any work that is created by an author or artist will usually qualify for copyright protection. Quite a bit or even most of the author’s work could actually be copied or even lifted bodily from previous works, but so long as at least some part of it is original, the work usually qualifies for copyright protection.

Court decisions have also decreed that in order for a work of authorship to be eligible for copyright protection, it has to be the result of least some minimal amount of creative effort on the part of its author. This standard is sort of vague—the courts have not tried to specify the exact amount of creativity that is required, although the courts have decided that a mere alphabetical sorting of previously existing information (such as the white pages of the telephone book) does not contain enough creativity to be eligible for copyright protection. However, the actual amount of creativity required is quite small. It does not matter if the author’s creation is of poor quality or is totally lacking in ingenuity or is completely devoid of any artistic merit—so long as there is at least some minimal amount of creativity involved, the work is protected by copyright.

Exclusive Rights

On the copyright notice page of a book, you will often see the phrase All Rights Reserved. What does this mean? It means that a certain bundle of rights are reserved exclusively for the copyright owner, and that anyone else who wants to exercise any of these rights needs the permission of the copyright owner to do so.

The primary monopoly granted by copyright law to the rightsholder is the exclusive right to distribute copies of their work. This distribution of copies can take place in any number of different ways--via sale, by lending, by renting, or even by giving them away for free. Only the copyright owner can distribute copies of their work, and anyone else who wants to distribute copies of the work by any manner whatsoever needs the permission of the copyright owner to do so. Giving the copies away for free is still an infringement of the rightsholder’s exclusive rights, if this is done without obtaining permission. There is no minimum number of copies that need to be distributed in order for the copyright owner’s exclusive monopoly to have been infringed—in principle, all that would be needed is for just one copy to have been distributed.

The right of publication is also reserved exclusively for the copyright owner, and anyone who wants to publish a work needs the permission of the work’s copyright owner to do so. However, for a long time, what was actually meant by publication was not explicitly defined or spelled out under the copyright law, and the outcome of many lawsuits hinged on whether or not publication had actually taken place. This uncertainty was finally resolved in the 1976 copyright law. Publication now formally means the act of making copies of the work available to a general public audience on an unrestricted basis, either by sale, rental, lease, or distribution. The copies don’t even have to be sold in order for publication to be said to have taken place—they could actually be given away for free. There is an additional wrinkle in the formal definition of publication, which says that the copies must be distributed to the general public in order for publication to be said to have taken place. This means that a distribution of copies solely to a restricted set of people such as your friends and family, to a selected group of theatre critics, to just a few newspaper reviewers, or strictly to the employees of a particular business would not formally count as a publication under the copyright law if the recipients of the work don’t have the right to distribute the work to people outside the group. Nevertheless, the distribution of copies even to a restricted audience (such as the employees of your corporation) without the permission of the rightsholder would still be a violation of the copyright owner’s exclusive rights, even though publication would not formally have taken place.

Only the copyright holder can publish the work or distribute copies, and anyone else who wants to do these things must get the permission of the rightsholder to do so. If you have written a novel, a book publisher needs your permission to print copies of your novel and put them on the market. If someone else has already published a best-selling novel, it would be an infringement if you were to print and distribute cheap copies of the novel without the permission of the copyright owner. It would even be an infringement if you made photocopies of a copyrighted book and handed them out for free.

Copyright restrictions also apply to the public performances of copyrighted works. A public performance is formally defined in copyright law as the reciting, rendering, playing, dancing, or acting of a creative work in a place or location that is open to the public, or in any place in which an audience of a substantial number of people beyond one’s immediate friends and family can see or hear the performed work, whether money is charged or not. The formal definition of a “performance” includes not only face-to-face performances but also includes the rendering of a work by any device such as a DVD player, a compact disk, even a radio or television broadcast. If you play a DVD in such a manner that a public audience can see it, this counts as a public performance under copyright law. Under copyright law, a public performance is not formally equivalent to a publication—in order for publication to be said to have legally taken place, it is necessary that copies of the work have been distributed to the general public. Performing a play, giving a lecture, singing a song, displaying a painting, or showing a movie does not count as publication, because no copies are being distributed. However, prior to 1978, if a work of art was displayed to the public in such a manner that people were allowed to copy it freely, publication was considered as having taken place.

Only the copyright owner is allowed to make a public performance of their work. If you want to read a book out loud in such a way that a public audience can hear it, you need the permission of the book’s copyright owner. If you read a copyrighted poem to a public audience, you need the permission of the copyright owner of the poem. If you want to show a motion picture to a public audience, you need the permission of the movie production entity that owns the copyright, whether an admissions fee is charged or not. If your theatre group wants to perform Death of a Salesman, they need the permission of the Arthur Miller estate to do so and probably must pay a royalty fee. If your rock group wants to perform the Eagles song Hotel California at one of their concerts, they need the song publisher’s permission to do so. When a disk jockey plays a music recording on the radio, the station must pay a fee to the owner of the song. Even if you play recorded music in such a way that a public audience can hear it, you need permission to do so and must pay for the privilege.

However, there are some provisions in the copyright laws that exempt from copyright restrictions certain public performances of music and nondramatic works such as speeches, lectures, or poetry when they are done for nonprofit educational or charitable purposes. Instructors or students at a nonprofit educational institution are allowed to perform a copyrighted work in the course of face-to-face teaching activities without obtaining the permission of the copyright owner. The basic idea behind these exemptions is to exclude from copyright restrictions those live performances of copyrighted works in which there is no direct or indirect commercial purpose involved, when the performers are not being paid, or when there is no admission charge, or if there is a admission charge but the proceeds are used exclusively for educational, religious, or charitable purposes and not for private financial gain. This exception also applies to transmissions for the blind or for other handicapped persons, as well as performances held at social functions organized by nonprofit veterans or fraternal organizations, so long as the proceeds are used solely for charitable purposes and not for private financial gain.

Copyright owners are given control over public performances of their works, but not over private performances. You are free to let your spouse and children watch the video you purchased, you can lend the book you just bought to your friend, and you can play a copyrighted recording on your stereo for your friends and neighbors when they visit your house. You can sing a copyrighted song to your kids without getting anyone’s permission or paying any fees. You can let your relatives watch The Sopranos on HBO when they visit you. Any attempt by copyright holders to regulate or restrict private performances of their works would require a totalitarian state, much like that depicted in the novel 1984, under which every human activity was closely observed and monitored by the state authorities.

Copyright restrictions also apply to public displays of copyrighted works. Legally, a “display” of a work involves the showing of a copy of it, either directly or by means of a film, a slide, a television image, even the incorporation of the image onto an Internet website. The display is “public” if the work is shown at a place that is open to the public or at a place when a substantial group of people beyond your immediate friends and family can see the copy of the work. Public displays are treated in copyright law somewhat differently than are public performances. Public performance generally applies to things like music, dramatic works, or movies, whereas public displays refer to paintings, sculptures, or photographs. The showing of a motion picture would be treated as a public performance, but the showing of individual images from the movie would be considered as a public display.

Only the copyright owner has the right to make a public display of their work. If you put a copy of a copyrighted work in any place where the public is able to see it, you could be accused of copyright infringement unless you have the permission of the copyright owner to do so. If you want to mount a copy of a copyrighted photograph on the wall of your business, you need the photograph owner’s permission to do so. Posting something on the Internet is equivalent to making a public display of it—if you scan and digitize a copyrighted photograph from a magazine and post the image on the Internet without permission, you are committing a copyright infringement which could get you into serious trouble. However, a face-to-face display by the owner of a legally-acquired copy of a copyrighted work in a public gathering of viewers present at the place where the copy is located is not considered as an infringement, nor is the use of a projection device to throw an image of the work onto a screen. But if the display of the image is by a closed-circuit TV system, or if the display is via multiple TV screens or via a set of computer monitors, an unauthorized display might be an infringement.

Copyright restrictions also apply to derivative works, which are creative works that are based on or derived from another work. Examples are translations, musical versions, dramatizations, adaptations for film or theatre, abridgements, fictionalizations, edits, condensations, fan fiction, and sequels. The owner of the copyright on a creative work has the exclusive right to create a derivative work based on it. If a motion picture studio wants to make a movie of your best-selling novel, they need your permission to do so. If you want to write a musical version of the M*A*S*H hit TV show, you would need the permission of the show’s copyright owner to do so. If you write words to a musical tune, or set a poem to music, you are creating a derivative work, and you would need the permission of the original work’s copyright owner to do so. If you want to translate a Tom Clancy technothriller into German, you need Tom Clancy’s permission to do so. A sequel also counts as a derivative work--if you want to write a sequel to The DaVinci Code, you need Dan Brown’s permission to do so. The reuse of characters, plots, or situations from previous works is also considered as a creation of a derivative work--you would need Paramount’s permission if you wish to use Captain Kirk or Mister Spock in your work of fiction. Photographs or artworks that have been electronically manipulated or altered also count as derivative works—if you scan someone’s copyrighted photo and then use Adobe Photoshop to copy parts of it into another work, you need the photo owner’s permission to do so.

You are completely free to create a derivative work based on something that is not subject to copyright—for example you could write a musical version of Shakespeare’s Hamlet without having to get permission from anyone. If you want to make a movie out of the novel Wuthering Heights, you don’t need anyone’s permission to do so, since the copyright on the novel expired a long time ago. However, if the original work is under copyright, you definitely need the permission of the copyright owner in order to create a derivative work based on it.

Fan publications or fan websites are especially risky--it is definitely not a good idea to set up a fan website for Boston Legal, with photos and episode summaries, without the permission of the TV show’s owner. Even though you might think that the show would welcome the free advertising, the TV show’s lawyers may take a different view. It often happens that the holders of popular copyrights ignore fan websites or fan publications or even subtly encourage them because it helps them in the promotion of their products, but it is entirely up to the rightsholder whether to do that. The copyright owners of Star Trek, Star Wars, ET, The Simpsons, and Harry Potter have been quite hostile to people who try to do fan creations without their permission. However, there is a special provision for parody, so if you want to do a parody of a Star Trek episode on Saturday Night Live, this is usually OK. But the difference between a parody and a derivative work is often a very subtle one, and sometimes can be decided only in court.

With the passing of the Copyright Act of 1909, the right to make a copy of a copyrighted work was added to the list of exclusive rights granted to the copyright owner. Only the copyright owner can legally make a copy of their protected work, whether the copy is distributed to others or not. The purpose of this change was originally to prevent others from making illicit copies of one-of-a-kind works of fine art such as paintings or sculptures, but nowadays this rule has been expanded to mean a prohibition of making a copy of any sort of copyrighted work of art—a book, a music CD, a photograph, or a movie. Under this law, the making of even one copy of a copyrighted work without the permission of the rightsholder could in principle be an infringement, even if no attempt is made to sell, lend, rent or otherwise distribute that copy to others.

When Congress first passed copyright laws in the late 18^th century, the making and distributing of copies of any creative work were both extremely difficult and expensive propositions, and few people had the resources to do so, which meant that copyright law affected only a tiny minority of the population. However, technology has advanced quite a bit in recent years, with the advent of the tape recorder, the photocopy machine, the videocassette recorder, and finally the computer and the Internet, all of which make the copying of copyrighted material a lot easier and cheaper for people to do. Just about anyone can now copy creative works very easily and with very little cost. And, by use of the Internet, it is very easy and inexpensive to distribute these copies to others, which means that just about anyone with access to a computer, a modem, a tape recorder, or a photocopy machine can be a “publisher” in the strict legal sense of the term. Consequently, copyright restrictions have been extended to the prohibition of the creation of unauthorized copies of protected works, whether actual publication or distribution is intended or not. Copyright practice now applies more to the making of copies of protected works than it does to actual publication. This means that copyright law now affects just about everyone—anyone who creates artistic works or who consumes or uses media needs to pay close attention to the copyright law lest they get themselves into trouble.

An obvious example is that FBI copyright warning that you always see when you view a commercial movie on a DVD disk. This warning is telling you that it is illegal to make a copy of the DVD movie without the permission of the copyright owner. If you make an MP3 copy of a popular song and distribute it to others via peer-to-peer computer networks, you run the risk of being sued. In order to make multiple photocopies of a book or magazine article, and use them for certain purposes, you need the permission of the copyright owner. In order to duplicate a photograph and put it on your website or mount it on the wall of your business, you require the permission of the photo’s owner. If you are writing scholarly papers or textbooks, you need to clear the rights on every photograph or quotation that you use. Computers are especially tricky in copyright law--just about everything that you do with a computer involves making a copy of some sort, which means that copyright law can impose certain restrictions on what you are allowed to do with your computer.

However, in practice these restrictions on copying are not absolute—if you want to make a copy of a protected work strictly for your own personal use, this is usually OK. No one is going to drag you into court for ripping a song from a CD that you legally purchased and copying it onto your iPod, so long as you don’t sell or give the copy to someone else. It is also legal for you to go to the library and make photocopies of short parts of books or magazine articles for your own personal use. It is certainly true that copyright holders are not entirely happy about this sort of personal copying, but if your copying was strictly for your own personal, private use and did not interfere with the copyright owner’s profits, rightsholders have usually not objected and the law typically does not intervene. In America the government cannot and should not try to regulate what you do in the privacy of your own home—what you do there is your own business so long as you do not endanger or adversely affect the rights of others. A certain amount of copying is also considered to be OK if it is done strictly for nonprofit, educational purposes and if the person doing the copying does not somehow earn money by their act. However, if you make and distribute multiple copies in such a manner that you end up competing with the original in the commercial marketplace, or if you somehow end up making money by your copying, you could get into some trouble. But the boundaries between harmless copying and copying which adversely affects the copyright owner’s profits are not clear, which keeps a lot of copyright lawyers in business.

Copyright Myths and Misconceptions

Copyright law is a very arcane subject, and very few people, including some lawyers, actually understand how it really works. In place of a deep understanding of copyright law and practice, there are a lot of myths and misconceptions about copyright out there, some of which are described below.

Some people erroneously think that when they purchase a book, music CD, or DVD they also own the copyright to it. This is entirely wrong. Although you may own a particular copy of a creative work, the original author or creator still owns the copyright on the work itself, and you cannot reproduce, distribute, display, or perform the work without the permission of the copyright owner. Suppose you purchase a book in a bookstore. The book is now yours, and you can do what you please with it--you may sell the book to someone else, lend it out, give it away, let your spouse read it, cut out pages, or even destroy it. However, you did not receive the copyright on the book when you bought it, and you really only own the pieces of paper that the words are printed on, not the words themselves. The content of the book is still the intellectual property of the copyright holder and you may not make and distribute copies of the book, may not write a sequel, may not create an abridgment, may not make a public performance of the book by reading it aloud in public, and may not post it on the Internet, since all of these rights are reserved exclusively for the copyright owner.

Another misconception about copyright law is that copyright is infringed only if you charged admission to a public performance or display that you made of the work, or if you charged money for the copies that you distributed or somehow made money in other ways by your copying. This too is entirely incorrect. Copyright is still violated even if you do not charge for the copies you distributed or the public performance that you gave, only the amount of damages awarded in court is affected, especially if you happen to hurt the commercial value of the original copyrighted work by copying or performing it.

Yet another common misconception is that if the owner of a copyright does not defend against infringements, then they lose the copyright forever. The idea of undefended loss is a concept from trademark law, under which you can lose your trademark if you no longer actively use it in the marketplace, if you go out of business, or if you see infringements and do nothing about them. Copyright holders are not required to sue infringers in order to maintain their exclusive rights--copyright is never lost unless it is explicitly signed over to someone else or if it expires. Unlike the owners of trademarks, copyright owners are not required to actively market their works to the public or even to stay in business in order to maintain their protection.

Yet another misconception about copyright is that works must be registered with the US Copyright Office (a part of the Library of Congress) in order for protection to apply. This was true at one time in the past, but is now no longer true. The Copyright Act of 1976 removed the requirement for registration with the US Copyright Office in order for copyright to apply.

So what do you have to do in order to copyright your work? Not much of anything, it turns out. According to current US copyright law, a creative work is now automatically protected by copyright as soon as it is rendered into any definitive, fixed form or medium that makes it possible for others to access the work. Formally, a work is said to be “fixed” when it is rendered into a form that permits it to be perceived, reproduced, or otherwise communicated to others for a period of more than just transitory duration, either directly or with the aid of a machine or device. So you now don’t have to do anything in order to obtain a copyright—it is automatic once you put your work into a tangible, definitive form, whatever the form might be. Virtually anything will qualify as a tangible medium—words on paper, sounds recorded on a tape recorder, songs written in musical notation, photographs, drawings, paintings, video recorded on magnetic tape or on a DVD, data stored on a computer hard drive or memory disk, even scribbled notes on the back of an envelope.

The requirement for a definitive fixed form means that simply telling your friends about the great novel, screenplay, or song you have in mind is not sufficient to guarantee any rights under copyright law—you have to put it into some sort of tangible form, like writing it down, drawing it on a piece of paper, filming it, or recording it. If all you do is tell someone about your radically new idea for an artistic expression without ever writing it down or drawing it on a piece of paper, it is not protected by copyright since it has not been written down or drawn in any fixed form such that others can read and study it. However, as soon as you type your novel or your poem on your computer’s word processor, it is now fixed in a definitive form and is automatically protected by copyright. As soon as you write down your new song in musical notation on a sheet of paper, it is automatically protected. As soon as you record your new song on tape or on a CD, it is automatically protected. As soon as you process the film in your camera, the photographs you took are automatically protected. As soon as you put something up on your website, it is automatically protected. All that is required is that the work be rendered in some sort of tangible, non-transient form.

Although copyright registration is no longer required for protection to apply, there are still some advantages in doing so. To register a work with the US Copyright Office[1], all you have to do is fill out an application form, deposit a copy of the work, and pay a filing fee of $45. A registration request can be filed with respect to either a published or an unpublished work. Registration may be made at any time during the life of the copyright, although the act of registration does not extend the life of the copyright. The Register of Copyrights can refuse a registration request if the material being deposited is not eligible for copyright protection—perhaps the work lacks originality or creativity, maybe the material itself is uncopyrightable, or the claim is invalid for other reasons. Once a registration request has been approved, it establishes a public record of any copyright claim and could be of help if the validity of the copyright is ever challenged in court. Registration makes it much easier to prove that you actually own the copyright that you are claiming. If registration is made within 5 years after first publication of the work, the certificate issued by the Copyright Office is prima facie evidence of the validity of the copyright. An artist often cannot collect statutory royalties and fees unless their work is registered.

Although registration is no longer required, the owners of works published in the USA are still required to deposit within 3 months of publication two copies of their works for use by the Library of Congress. If the publisher fails to comply with this deposition requirement, there are fines and penalties, but the underlying copyright protection is not lost. However, there are some categories of works that are exempt from mandatory deposition requirements.

Under US copyright law, registration is required before an infringement lawsuit can be filed in federal court. However, this requirement does not apply to works initially published outside the USA, so long as the nation where the work was originally published adheres to the Berne Convention. A copyright holder can of course simply wait to register until they find that they actually need to sue someone for infringement, but if they do wait they can’t recover nearly as much in a suit. Only if a work is formally registered within 90 days of publication is an author entitled to statutory damages and attorneys’ fees upon successful litigation against an infringer. These statutory damage charges allow copyright holders who succeed in court with claims of infringement to receive a set amount of compensation per work, as opposed to compensation for actual financial losses. These statutory damages can greatly exceed the actual financial harm suffered. For example, plaintiffs who can show willful infringement can get damages of up to $150,000 per work infringed, without having to prove any actual monetary harm. The prospect of having to pay astronomical statutory damages is a potent legal threat that copyright owners can use against private individuals—a person willfully infringing a copyright might face statutory damages that are larger than their entire assets.

Some people talk about the so-called “poor man’s copyright” as an alternative to formal copyright registration with the US Copyright Office. This consists of simply mailing an envelope with a copy of the work enclosed to yourself, preferably by certified mail, and then storing the envelope unopened somewhere in a safe when it arrives. It is claimed that this tactic could in principle help to provide proof of creation of the work, and could be important evidence if someone else later falsely claims that they have created the work. However, the protections supposedly offered by the “poor man’s copyright” are little more than an urban legend[2], and the technique has no legal basis, at least in the USA. I am unaware of any case in which an author’s copyright was established and legally defended in a court of law by this method. The postmarked-and-sealed envelope technique is probably too easily circumvented for courts to regard this as reliable evidence. In any case, the US Copyright Office explicitly says on its website that there is no provision in US copyright law for the “poor man’s copyright” and that such a technique is not a substitute for “real” copyright registration, especially if you want to collect statutory royalties or find that you need to sue someone for copyright infringement.

Another misconception is that by making a live performance of your work, you guarantee your copyright on the work. This is not necessarily true. Live performances that have never been fixed in any permanent media have a rather ambiguous copyright status. Simply making a public performance of your work may not necessarily provide you with any copyright protection—if you simply sing your new song in public without ever writing it down or recording it on tape or on a CD, it is not protected by copyright since you have not fixed it in any tangible form. A live television broadcast that is not being simultaneously taped or recorded by the broadcaster is not being fixed in any nontransient medium--once the electromagnetic wave leaves the transmission tower, the program is gone forever and can never be seen again. Nevertheless, even before their work is formally “fixed”, some state laws may grant the author some degree of protection under the state’s statutory or common-law rules. Examples could be an improvised comedy skit or a live interview that might be protected by state laws against secret, unauthorized taping or recording by members of the audience. But just as soon as the comedian or the interviewer writes down the performance or records it themselves, it automatically falls under federal copyright protection.

Still another misconception is that the author must publish their work before it is eligible for copyright protection. This too is completely wrong. Within copyright law, publication has a precise technical meaning--it formally means making copies of the work available on an unrestricted basis to a public audience, either by sale, by rental, by leasing, or by lending. Examples of works that have never been published are private letters that are kept stored in a trunk, private family photographs that have never been taken out of a photo album, or an author’s manuscript that has been locked away and never released to the public. A work is also considered to be unpublished in the copyright law sense even if it is distributed or displayed, but is done so under conditions where there are significant restrictions placed on who can see it, what can be done with the work, or when it can be shown to others. All of these unpublished works are nevertheless protected by copyright because the current copyright law says that all that is necessary for copyright protection to apply is for a work to be rendered or fixed into some sort of definitive, tangible form that makes it possible for others to apprehend or access the work. This means that works by authors that have never been published, such as manuscripts, notes, or private letters, are definitely protected by copyright and the restrictions on their use by others can actually be more stringent than those applicable for published works. This is because it is thought that the author should have first crack at publishing the work.

Another common misconception is that material on the Internet is free for anyone to use without restriction. This also is completely wrong. Materials posted on the Internet are works that have been rendered into a fixed form that can be accessed by others (HTML files, JPEG photos, MPEG movies, MP3 sound files, etc), so copyright does apply there. The posting of something on the Internet (text, pictures, music, video) is equivalent to making a public display of the item, and only the copyright owner of the item can legally do this. Just about everything posted on the Internet is owned by someone, either by the creator of the website or by some other party. If you want to use something posted on the Internet in your own work, make sure you get permission from the owner of the material before you do so, or else you may find yourself in court. Also, be very careful about what you put up on your own website. Make sure what you put up there is really your own work and is not borrowed from someone else. If you do borrow something from someone else, make sure you have permission from the copyright owner to do so. Definitely do not post an image of Mickey Mouse on your website. You do not want a visit from the Disney organization’s lawyers. They have much deeper pockets than you do.

Some people erroneously believe that when you perform someone else’s work in public or when you copy someone else’s work into your own work, you will be shielded against an accusation of copyright infringement if you properly acknowledge the source. This is a confusion of two different concepts—copyright infringement and plagiarism. Plagiarism is using the work of others without proper acknowledgment, whether the work is copyrighted or not, whereas copyright infringement is using someone else’s copyrighted work without permission, whether it is acknowledged or not. Copyright infringement is a legal matter, but plagiarism is a matter of professional and scholarly ethics. When you include someone else’s copyrighted text in your work, quoting the name of the original author may help, but it might not be sufficient to protect you against an accusation of copyright infringement, especially if you copied a lot of stuff and did not ask for permission to do so. Conversely, you could be accused of plagiarism even if you used material from an uncopyrighted work but did not quote its origin. Although plagiarism is in itself not a legal matter, the courts could interpret many aspects of plagiarism as copyright infringement, especially if the stuff you plagiarized was from a copyrighted work and you were seen as profiting economically from your act. In any case, if an author is caught plagiarizing another work, this can often be a career-ender or at least a major public embarrassment.

There are also myths and misconceptions about copyright notices. On the opposite side of the title page of a book, on a website, on a magazine article, or somewhere on just about any sort of artistic work, you will usually see the familiar copyright notice. The presence of this copyright notice means that the copyright owner reserves the rights associated with copyright exclusively for themselves. The accepted format of the copyright notice must include the copyright symbol © (or the word “Copyright” or the abbreviation “Copr”), the year of publication, and the name of the copyright owner. An example is

Sound recordings use the letter P in a circle, the notice appearing somewhere on the CD jewel case or on the disk label itself. .

A major misconception on the part of many is that a creative work must have this copyright notice attached to it in order for copyright to apply, and the absence of such a mark means that the work is not protected by copyright and that anyone can do what they like with the work. Like the requirement for registration, there was actually a requirement for the inclusion of a proper copyright notice at one time in the past—if a work had no copyright mark on it, this meant that you were completely free to use it in any manner whatsoever. In fact, if you carelessly left off the copyright mark when you published your work, you automatically forfeited any copyright protection even if the work had previously been registered.

However, the requirement for the inclusion of a copyright notice was removed when the USA adhered to the Berne Convention, effective March 1, 1989, although it must still be present on works copyrighted before that date. This now means that even if there is no copyright notice anywhere in sight, the work may nevertheless be subject to copyright protection, and the absence of a copyright notice no longer necessarily means that you are free to use the work in any manner you please. You even have to be careful about works published or copyrighted before 1989—even if such a work lacks a proper copyright notice, the copyright law did have provisions under which the owner was able to correct the problem of the missing copyright notice at a later time[3]. You need to carefully investigate to be sure that such a work is truly free of copyright restrictions.

Even though a copyright notice is no longer required, there are some good reasons for attaching one to your copyrighted work[4]. It informs the public that your work is indeed protected by copyright, and the presence of this notice may be an intimidating factor that scares off some potential infringers. It also prevents another party from credibly claiming that they innocently infringed your copyright when they copied your work, thus escaping certain damages under the Copyright Act. The presence of a copyright notice also identifies the copyright owner and the date of first publication, so it makes it easier for someone to reach you and request a license or permission to use the work.

Since neither registration nor a copyright notice is required for copyright to apply, you should usually assume that just about everything you see, hear, or read is copyrighted, even if there is no copyright mark anywhere on it. Someone probably owns every photograph you see printed in a magazine or posted on the Internet. Somebody probably owns every song that you hear on the radio. Everything posted on the Internet is probably someone’s intellectual property and should not be taken or used by you without permission. Before you use anything created by someone else in your own work, make sure you have permission in writing to do so. Sometimes royalties must be paid. If you are in doubt about whether your use of a copyrighted work is legal, ask permission first.

At one time, you had to be very careful about the whole copyright process—it was so complex that you could inadvertently lose your copyright if you screwed up the paperwork, if you omitted an obscure but vital step in the process, or if you missed an important deadline. Copyright was very process-intensive, and you could lose your copyright if you made even the slightest misstep. Authors lost their copyrights if they forgot to renew them in a timely fashion, people lost copyrights if they filled out the paperwork improperly, and publishers even lost their copyrights if they forgot to include the required copyright notice in their published works. If the copyright notice had the wrong format, if the year of publication was incorrect, if the wrong name was placed in the notice, even if the notice was in the wrong location--any of these errors could result in an irretrievable forfeiture of the copyright. However, things are entirely different now—you now no longer even need to register your work for copyright to apply, copyright notices are no longer required, most of the paperwork in the process has been almost entirely eliminated, and authors and rightsholders no longer have to worry very much about formalities in order to maintain their protection.

Works for Hire

“Works for hire” [5]are those for which an employer rather than the employee is considered to be the author of the work and owns the copyright on it. This would, for example, include a work prepared by an employee within the scope of their employment, or a work specially ordered or commissioned as part of another larger work. Most firms require that their employees sign an agreement that stipulates that all the works that they create in the course of their jobs become the intellectual property of the employer. So if I work for the Disney organization, my employer owns the copyright on the creative works that I perform for them, not me. However, if a company employee writes a novel or textbook on a subject that is totally unrelated to their job and they do it at home and in their spare time, they can usually claim the copyright on it, but they should probably go ahead and clear the ownership status with the company management, just to keep themselves out of trouble in case there is a disagreement later on.

Determining who qualifies as an “employee” under the works-for-hire provision of the copyright law can sometimes not be easy—generally the determination of whether or not someone is an “employee” of a given firm is based on the amount of control exerted by the employer over the employee, on the amount of control exerted by the employer over how or where the work is done, whether the company supplies equipment and resources for the employee’s use, and on whether payments of salary and benefits are made and on whether taxes are withheld. So an independent contractor would not be considered as an “employee” under the copyright law, but the work that they do might nevertheless be considered as a “work-for-hire” if it were specially commissioned by the firm and if there is a written agreement between the contractor and the firm that the work is a work made for hire.

Very often, two or more people collaborate in the creation of a work. In such cases, who owns the copyright on the work? The authors of a joint work[6] are considered as being the co-owners of the copyright, unless there is an agreement to the contrary. All of the authors of the work must intend that their contributions be combined into a single work, although is not necessary that the contributions of all the authors be equal in value or effort. One of the authors can use the entire work as they please without getting the permission of the other authors. An example of a joint work might be a popular song written by collaboration between a composer who writes the music and a lyricist who composes the words. One of the best known of these songwriting teams was Richard Rodgers and Lorenz Hart, who worked together on over 30 musicals between 1919 and 1943. In such a case, the composer and the lyricist would be the joint owners of the copyright on the song that they wrote and would share in the profits. However, if a lyricist simply writes words for a previously existing piece of music, this would not be a joint work, since the lyricist would be creating a “derivative work”, for which the permission of the writer of the original music would be required.

Very often, when an author or artist wishes to commercially exploit a work, the creator typically transfers the ownership of the copyright to the company that will get the work to market, such as a book publisher or a record company. This is because few authors or artists except the most famous and celebrated have the resources or channels of distribution to disseminate their creations. This is what happened when I published my two books. However, it is common for the author to place some limitation on the number of exclusive rights transferred to the publisher, for example perhaps the transfer will last for only a limited time, it might only be applicable in certain locations, or it will only be exercised through certain media. All of these details are worked out at the time the initial book or recording contract is signed.

Copyright After Death

When an author dies, his or her copyright does not die with them. It lives on and on, for 70 years or even longer after the death of the author, and the owner’s heirs or estate assume ownership of the copyright and inherit all the rights. An example is the composer George Gershwin, who died in 1937. Despite his death, his music is still protected by copyright. His estate now owns and controls the copyrights on his works, and you need the permission of the Gershwin estate if you want to perform An American in Paris or Rhapsody in Blue, and the estate continues to bring in a significant income from royalties and licenses. The Gershwin copyrights will not begin to expire until sometime between 2019 and 2027 at the earliest.

The ownership of a copyright can be transferred from one party to another via sale, grant or gift, and can be bequeathed by will just like any other sort of personal property. All of the exclusive rights involved in the possession of a copyright also go along with the copyright itself, and the person or persons who receive the copyright also can lay claim to any and all of the exclusive rights involved in the copyright. The transfer of copyright ownership has to be done in writing, and the transfer can be recorded in the Copyright Office.

However, if the author of the work has granted the copyright to another party, the author does have the right to terminate the grant at any time during a period of five years beginning at the end of 35 years from the date of execution of the grant. Upon termination, all rights revert to the author, but derivative works prepared while the grant was in effect may continue to be utilized.

Not Subject to Copyright

Despite the rather draconian tone of what appears above, not everything can be copyrighted. Examples of things that are not subject to copyright are works that have not yet been fixed in a tangible form of expression, such as speeches, songs, jokes, novels, or performances that have not yet been written down or recorded. Simply singing your new song in public is not enough to obtain a copyright on it—you have to record it on some sort of medium such as audio tape or CD or write it down in musical notation on a piece of paper. However, you have to be careful about works that have been fixed in tangible form but have not yet been published—they can still be protected by copyright and there are special restrictions on their use by others.

Publications, photographs, or works of art created by officers or employees of the federal government as part of their official duties are not subject to copyright. Examples are the texts of Supreme Court decisions, reports put out by Congressional committees, transcripts of Senate hearings, speeches by the President and other government officials, Defense Department reports, federally sponsored photographs, poetry, dramatic plays, music, and paintings such as those produced under New Deal governmental sponsorship during the Depression, photographs and films taken by military personnel during combat, as well as NASA photographs of distant planets. The creation of all of these works was financed by the taxpayers, and these works are considered as being the property of the public at large, and anyone can do what they like with them without asking anyone’s permission or paying any royalties.

But the federal government is not precluded from receiving and holding copyrights transferred to it by assignment or bequest. Examples are works created by outside private corporations or individuals under contract to the government, such as military recruitment advertisements or public service announcements about the hazards of illegal drugs or the dangers of drunk driving. The government owns the copyright on these, and you have to be careful about using them in your own work. Also, in some cases works created by state or local governments can be subject to copyright restrictions. You have to be careful about these as well.

There are some ambiguous copyright situations involving works created by quasi-governmental institutions that one might at first might think are federal agencies, but which really aren’t[7]. Examples of such institutions are the Smithsonian Institution, the National Gallery of Art, the Public Broadcasting Corporation, even the US Postal Service. Congress created these institutions as private and independent nonprofit corporations, they are not formally agencies of the federal government, and they can and do claim copyright on their works. Photographs, books, or brochures put out by the Smithsonian Institution, the television and radio programs created by PBS or NPR for the PBC, publications put out by the National Gallery of Art, even the design of the stamps used by the US Postal Service, are all subject to copyright. Although you are generally allowed freely to use these copyrighted works for noncommercial, educational, or nonprofit purposes without obtaining permission or paying any fees, you generally cannot use them for any commercial, profit-making purposes, at least not without getting permission to do so. Also you have to be careful that when you do use their works in your project, you don’t somehow imply either directly or indirectly that the institution from which you borrowed the item is somehow the sponsor or the creator of your project.

Also not subject to copyright are titles, names, short phrases and slogans, familiar symbols or designs, lettering, typefaces, or coloring schemes. You cannot copyright your name, and then start suing anyone who uses it without your permission. Short phrases such as “Make My Day”, “Do You Feel Lucky”, “Beam Me Up”, “Round Up the Usual Suspects”, or “Show Me the Money” were made popular by the movies and television, but they cannot be copyrighted since they are common idioms used in the English language. This is a source of major confusion to many people, since, although these things cannot be copyrighted, they can be trademarked. A trademark is a mechanism used by the owner to identify the source of their goods and services in the marketplace, and is used to distinguish them from those of others. Trademark law is rather different from copyright law, and will be described in more detail later.

Blank forms such as time cards, graph paper, bank checks, checklists, and address books cannot be copyrighted, because they do not contain even a minimum amount of originality. You cannot copyright information that is common property and which contains no original authorship, such as a calendar, a ruler, a height and weight chart, or a list of scientific unit conversions. You could not copyright a table of trigonometric data such as a listing of sines and cosines of angles, since the composition of such a table is a mechanical act, not a creative act. You cannot copyright a mere listing of ingredients in a recipe or a formula, but any commentary, notes, photos, or illustrations accompanying the list could be copyrightable.

You cannot copyright a strictly useful or utilitarian article such as an automobile, airplane, boat, appliance, tool, dish, lamp, or a piece of household furniture. Also you cannot copyright articles of clothing such as dresses or suits, which means that fashion designs cannot be copyrighted. However, you can copyright any of the visual, artistic, or graphic aspects of a useful article that can be identified either physically or conceptually as being separate from its utilitarian aspects. This means that although you can’t copyright a lamp, you could copyright your particular artistic design for the base of the lamp. Consequently, a useful article could have both copyrightable and uncopyrightable aspects. However, the courts and the Copyright Office have generally applied the separability test in such a way that most industrial designs are excluded from copyright protection. The separation between the utilitarian aspect and the artistic aspect is especially difficult for fashion designs, which effectively means that fashion designs cannot be protected by copyright. Although fashion designs cannot be protected by copyright in the USA, they can be protected by copyright in Europe, so you need to be careful.

Mere facts cannot be copyrighted, and anyone is free to quote them without having to obtain anyone’s permission. The statement “John F. Kennedy was the 35th President of the United States” is a fact—it can’t be copyrighted. Facts about scientific, historical, biographical, or newsworthy events cannot be protected by copyright, even if the author spent considerable time and effort discovering things that were previously unknown. The particular words, sounds, or images that an author uses to express these facts can be copyrighted, but not the facts themselves. For example, suppose an author spends a lifetime of research in gathering information about the status and final disposition of military aircraft and publishes the information in a book or posts it on the Internet. Once the material is published, others are free to use the results in their own works without paying the original author anything, provided of course that they express the information in their own words.

Also, you cannot copyright ideas, procedures, methods, systems, processes, concepts, principles, or discoveries. If you discover a new law of physics, you cannot copyright the new law, but you can copyright your particular description or illustration of the law you discovered. You cannot copyright a mere list of ingredients, such as a recipe. If you invent a new algorithm for solving differential equations, you cannot copyright it. If you devise a new business procedure or a new accounting process, you cannot copyright that either. Ideas, methods, procedures, and processes can, however, be patented. When you patent your idea, the patent gives you a monopoly on any commercial application of that idea, but does not enable you to prevent others from discussing or criticizing the idea. A patent can be a much more valuable protector of intellectual property than a copyright, especially if the idea has any sort of commercial application. Patent law works somewhat differently from copyright law, and will be described later.

Copyright can be used to protect the particular expression of an idea, not the idea itself. This is known in copyright law and practice as the idea/expression dichotomy. American copyright law provides protection only for specific expressions of ideas, not the ideas themselves—anyone is allowed to freely use, criticize, or refer to the ideas behind the expression. For example, I can copyright my own book on communication with extra-terrestrial intelligence, but I can’t copyright the general topic of communication with extraterrestrial intelligence and cannot prevent someone else from also writing about the same topic, provided of course that the other author uses his/her own words. This distinction is vital for the maintenance of a free press as well as making it possible for a free and complete discussion of intellectual, political, and religious ideas—it dates all the way back to the Framers, who recognized that granting a complete control over ideas by a government-mandated monopoly would be a powerful medium of censorship and press control. The arena of public discussion and debate would be very silent indeed if authors or large private corporations could claim ownership of ideas and if permission from them was required before others could legally discuss, criticize, or refer to these ideas. However, the distinction between an idea and a specific expression of that idea can be a subtle one, and often can be decided only in court. Is a particular musical chord progression an idea or an expression? Is the notion of a starship engaged in seeking out new life and new civilizations, boldly going where noone has gone before, an idea or an expression?

Databases[8] are a complicated matter in copyright law--they may be subject to copyright protection, but the data in them is not necessarily protected, especially if the individual items in the database are things that are themselves not eligible for copyright such as facts, names, dates, short phrases, or works for which copyright once did exist but has now expired. The copyright law explicitly states that copyright covers only the compilation itself, and not the underlying materials or data that are in the compilation--the underlying data is not automatically granted copyright protection via its inclusion in the database. In order to be eligible for copyright protection, the database must be a collection of preexisting materials or a collection of data that are selected and organized in such a way that the work as a whole can be considered as being an original work of authorship.

An example of a database that could be protected as a compilation would be a listing of Presidential quotations. The individual quotations are not subject to copyright since they are the public utterances of a government official, but the choice by the author of which quotations to include would be considered as an original work of authorship and hence eligible for copyright protection. You would not require permission to use just one presidential quote from the database—you certainly wouldn’t need anyone’s permission to use FDR’s famous quote “The only thing we have to fear is fear itself”--but you would probably have to get the database creator’s permission if you wanted to use the whole list of quotes from it in your own work. So a database of unprotected items is protected only as a compilation.

A cookbook that lists a series of recipes would be copyrightable only as a compilation. The individual recipes would not be subject to copyright since they are merely lists of ingredients, but since there is some degree of creativity and originality in the choice of which recipes to include in the cookbook, the entire cookbook would be copyrightable as a compilation.

However, not all compilations of data can be copyrighted--in order to be eligible for copyright protection, a compilation must have a certain minimal amount of creative originality, certainly more than a mere alphabetic sorting of previously-existing information. The Supreme Court has held in Feist Publications, Inc vs. Rural Telephone Service Company, Inc (1991) [9]that the white pages of the telephone book do not contain enough creativity to be eligible for copyright protection. The fact that the Rural Telephone Service Company had spent considerable time, energy, and money (sometimes called “sweat of the brow”) in constructing the data in the telephone book was found to be irrelevant, since the book that was produced was nothing more than an alphabetic listing of subscribers that the company was already required to compile under existing law and that no creative expression was involved.

Also not subject to copyright are works for which copyright once did exist, but has now expired. The Constitution specifically says that copyrights should last only for limited times. When the copyright term expires, the work is free for anyone to use in any matter they please without obtaining anyone’s permission or paying any fees or royalties. You are free to perform Shakespeare’s Hamlet anytime and anywhere you want, you can do what you like with Mark Twain’s Huckleberry Finn, and you are free to have your orchestra perform Brahms’s First Symphony, since the copyrights on all of these works expired a long time ago. You are free to create derivative works based on the Grimm Brothers fairy tales without getting anyone’s permission, since the copyrights on these works have also expired. However, music can be a bit tricky--even though the music of Brahms’s First Symphony is free of copyright restrictions, a particular audio recording of the music might very well be protected by copyright and may not be copied and distributed without permission.

Copyright Infringement and the Law

Any person or company that violates any of the exclusive rights granted to the copyright owner can be accused of what is known as copyright infringement. Copyright infringement falls mostly under civil law, but there are criminal penalties for some of the more flagrant examples of copyright infringement, such as selling pirated DVDs off the back of a truck. People who willfully and deliberately infringe copyrights for the purpose of monetary gain can be accused of a federal crime and can be sentenced to jail time if convicted. Upon conviction, the court has the discretion of ordering the forfeiture and destruction of all infringing copies as well as the destruction of all devices or equipment used in the creation of the infringing copies. The duration of the prison sentence and the amount of the fine are generally based on the total value of the goods involved in the infringement and the frequency at which the offense was committed.

Recently, the No Electronic Theft act was passed to make it possible for people who reproduce, distribute, or share copies of electronic copyrighted works having a total retail value of more than $1000 to be criminally prosecuted, even if they had no discernable profit motive. The law was designed to close a loophole in the previous law, under which people who intentionally distributed copyrighted software over the Internet did not face criminal penalties if they did not profit by their actions. Maximum penalties are 3 years in prison and a fine of $250,000.

However, criminal prosecutions for copyright infringement are quite rare, since the federal government simply lacks the resources to track down and prosecute every infringer—crimes such as terrorism, counterfeiting, drug dealing, political corruption, kidnapping, financial fraud, and child molestation have a much higher priority with the Department of Justice. Most copyright infringement actions are civil actions, in which the offended party sues the infringer in federal civil court. This means that it is the responsibility of the individual copyright owner to enforce their exclusive rights, not the government. The copyright owner must go through the hassle and expense of hiring a lawyer, filing a lawsuit, gathering evidence, and testifying in court.

Since copyright infringement is usually a civil matter, the constitutional protections provided for defendants in criminal prosecutions do not apply. In order to successfully sue you in court for copyright infringement, the plaintiff does not have to show that you are guilty beyond a reasonable doubt, they only have to show that a preponderance of the evidence shows that you have violated a copyright. The burden of proof is much lower in a civil matter than it is in a criminal case, which means that the plaintiff usually wins in court.

Copyright laws recognize two different types of copyright violations—direct copyright infringment and indirect copyright infringement.

Anyone who violates any of the exclusive rights of the copyright owner (e.g. reproduction, adaptation, distribution, public performance, or display) can be sued in civil court for what is known as direct copyright infringement. In order to prove direct copyright infringement in court, the plaintiff must show that they do indeed own the copyright in question, that the defendant had access to the work, and that the defendant violated one or more of the rightsholder’s exclusive rights. The civil penalties for direct copyright infringement can be very harsh. Courts can award up to $150,000 in damages for each separate act of willful infringement, that is, if you knew you were infringing but went ahead and did it anyway. However, even if you didn’t know you were infringing you are still liable for damages, only the amount of the award will be affected. However there is the “good faith fair use defense”, which is a special provision in the law that allows a court to refuse to award any damages if the person who copied the material reasonably believed that what they did fell under fair use.

People or organizations that are not themselves directly copying or distributing a copyrighted work but are somehow assisting, promoting, or abetting the infringement process can still be dragged into court under what is known as indirect or secondary copyright infringement. The copyright law does not actually mention or recognize indirect infringement as a legal category, but it has evolved over the years through case law, and the concept of indirect or secondary liability is recognized in many areas of law, under which it is thought reasonable to hold an individual liable for the actions of another. The danger of secondary infringement liability is an important concern for many business and corporate entities, since there is no requirement that the company itself actually be engaged in the underlying infringement in order for them to be sued.

The courts recognize two separate and distinct categories of indirect copyright infringement: contributory and vicarious copyright infringement.

Contributory copyright infringement[10] can happen when a person or corporation is fully aware of infringing activity (or should have known about it) and provides a material contribution, an active assistance, or inducement, to the infringing activity, even if they don’t engage in any direct infringing activity themselves. In order to be held liable for contributory infringement, the court must be able to show that the person or organization had actual knowledge of the infringing activity and induced, caused, or materially contributed to the infringement. The person or organization need not necessarily have profited financially from the infringing activity in order to be held liable for contributory copyright infringement—all which is necessary to show in court is that the offending party aided and abetted the infringement and was aware of what was going on.

Examples of things involved in contributory copyright infringement are websites that permit the publication of passwords or access codes for illegal access to software, the creation of a website or service that can be used for the uploading or downloading of copyrighted material, or a website that publishes links or addresses to Internet sites that host infringing material. Companies that produce devices, software, processes, or equipment whose primary purpose is to make it possible for users to subvert copyright can also be held liable for contributory infringement.

Vicarious copyright infringement liability[11] can be found when a company, organization, corporation, or service that has the right and ability to control the activities of its users, customers, agents, contractors, or employees but nevertheless permits or ignores infringing activity on their part and also somehow derives a monetary profit from such activity. Even if the organization or individual is completely unaware of these infringing acts, they can still be found liable. An employer can be held vicariously liable for the infringing acts of their employees, contractors, or even their customers. Consequently, the prospect of vicarious copyright infringement liability is an ever-present nightmare for many companies and organizations, and extreme measures are often taken to prevent or reduce such legal exposure.

However, in order to successfully sue someone for vicarious copyright infringement, the plaintiff needs to be able to show that the offender had the right and ability to control, regulate, or block the alleged infringing activity. The plaintiff must also show that the defendant derived a direct financial benefit from the acts of infringement on the part of its users, customers, contractors, or employees. This financial benefit does not necessarily have to come from the actual sale or rental of copyrighted works, and can include just about any sort of financial income that can be somehow linked even tenuously to the infringing activity, such as the charging of a subscription fee, the collection of advertising revenue or even an exchange of goods and services that are associated in some way with the infringing activity. Even if the availability of infringing material simply acted as a draw for customers, the defendant can still be held liable for vicarious infringement. Even if the defendant charges no money at present but there is a hope or expectation to derive financial income in the future from the presence or support of infringement, there could be a judgment of vicarious infringement.

A chain of department stores where a concessionaire was selling counterfeit recordings was held liable for vicarious copyright infringement[12]. The operator of a swap meet at which pirated records and software were being sold by third party vendors was held liable for vicarious copyright infringement, even though the operator was unaware of what was going on but had the ability to control vendor sales. He derived a monetary benefit from the infringing activity since he charged money for attendance at the swap meet, and his swap meet had increased attendance due to the presence of the infringing vendors[13]. Even operators of entertainment venues such as dance halls have been held liable for infringing performances held by hired bands at their facilities.

International Copyright

Copyright restrictions also apply to works created or published in a foreign country. This protection is a result of international treaty obligations, under which signatory nations have agreed to give citizens of other member countries the same level of copyright protection that they give to their own citizens. For many years, American copyright law had a significant loophole that allowed domestic publishers to freely pirate the works of popular English authors such as Charles Dickens by putting out cheap editions for which the famous author derived no income. By international agreement, this practice is no longer allowed, and Americans are obligated to respect English copyrights, so long as English publishers respect American copyrights. For example, a British author such as J. K. Rowling is given the same degree of copyright protection in the US market as an American author such as Saul Bellow.

The first such international agreement was the Berne Convention for the Protection of Literary and Artistic Works[14]. The Berne Convention was first formulated at the suggestion of the novelist Victor Hugo and was first accepted at Berne, Switzerland in 1886. Since then, it has been revised several times. Each nation that signs the Berne Convention agreement must guarantee to authors of other member countries the same rights of copyright protection that it grants to its own nationals. It also requires that signatory nations must enact copyright laws that adhere to certain uniform standards, particularly in matters concerning copyright durations, the kinds of works that are protected, the moral rights of authors, along with the abandonment of requirements for registrations, deposits, and the affixment of copyright notices.

For many years the United States refused to ratify the Berne Convention, since adherence to the Convention would require major changes in US copyright law. Congress would have to agree to lengthen copyright terms, it would have to abolish requirements for registration and the attachment of a copyright notice, and it would have to provide authors with “moral rights”. Also reluctant to sign on were some developing countries that felt that that the Berne Convention unfairly favored the interests of copyright-exporting nations. Nevertheless, most of these nations, including the USA, still wanted to get involved in some sort of multilateral copyright protection, and a different sort of international agreement, known as the Universal Copyright Convention[15], was developed by the United Nations at Geneva in 1952 as an alternative to the Berne Convention. The UCC was much less stringent in the requirements that it dictated about the copyright laws its member nations must pass. The USA ratified the Universal Copyright Convention in 1972.

However, over the years the USA did gradually change its copyright laws to bring them more into conformity with the requirements dictated in the Berne Convention, and the USA finally agreed to ratify the Berne Convention in 1989. Most nations are members of both Conventions, which means that the UCC is largely irrelevant today. As of 2008, 164 nations had ratified the Berne Convention. The Berne Convention is administered by the World Intellectual Property Organization (WIPO)[16], which is an agency of the United Nations.

The General Agreement on Tariffs and Trade[17] (GATT) was established shortly after World War II to set up rules governing international trade among its members and to try and reduce tariffs, as well as to resolve trade and tariff disputes. GATT never had any formal organizational structure, but its members regularly met in a series of trade negotiations (known as negotiating rounds) to try and straighten out trade disputes. A series of critical issues, including complaints from some member nations that their intellectual property was being widely pirated in many developing nations, led to the establishment of the Uruguay Round, which was held between 1986 and 1994. One of the agreements worked out during the Uruguay Round was incorporated into US law in 1994, which added civil and criminal penalties for people who are caught “bootlegging” sound recordings of live musical performances, and restored the copyrights of those works by foreign authors still under copyright in their home countries but which had lost their copyright in the USA because of failure to conform to certain formalities under American copyright law.

The Uruguay Round culminated in a 1994 treaty that established the World Trade Organization (WTO)[18] as a replacement for GATT. The WTO differs from GATT in having a definite organizational structure, and is based in Geneva, Switzerland. The WTO currently has 146 members, accounting for about 97 percent of all world trade, and has as its goals the fostering of liberalized trade relations among its members. The WTO acts as an overseer of a variety of treaties concerning international trade, and attempts to resolve trade disputes between nations. It is currently hosting new trade negotiations, under the Doha Development Agenda, started in 2001. The WTO is extremely controversial and has been the subject of numerous demonstrations, some of them violent. The WTO is accused of being the tool of the rich and powerful, that it is in the pocket of powerful multinational corporate interests. The WTO is blamed for the destruction of jobs in high-wage nations by facilitating the outsourcing of jobs to low-cost nations, and is accused of facilitating the exploitation of low-wage workers in third world nations. The WTO is also charged with ignoring the concerns of health and the environment.

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was negotiated during the Uruguay round, and brought intellectual property questions into international trade issues for the first time. One of the goals of the WTO is to bring intellectual property under common international rules, as well as to establish minimum levels of protection that each government must give to the intellectual property of fellow WTO members. The TRIPS agreement calls for the WTO to attempt to resolve questions about the application of intellectual property rules in international trade disputes. US representatives to WTO periodically complain about the violation of American intellectual property rights by other nations, particularly China, where bootleg CDs, software, and DVDs are readily bought and sold in the open market.

WTO intellectual property rulings can sometimes be quite controversial. Many observers have been critical of the organization as too heavily tilted towards the interests of large publishing, software, broadcasting, and recording companies, at the expense of ordinary users, viewers, and listeners. On occasions the WTO has found a permitted use under national copyright law to be a violation of international trade treaty commitments—an example being a ruling that a US law which exempted small restaurants from having to pay public performance royalties was a violation of international treaties.

There is yet another international organization dedicated to intellectual property issues, the World Intellectual Property Organization [19](WIPO). WIPO was founded in 1967, and was originally developed out of a Berne Convention-created organization known as the United International Bureau for the Protection of Intellectual Property (best known by its French acronym BIRPI). WIPO formally became a part of the United Nations in 1974. It currently has 184 member states and is headquartered in Geneva, Switzerland. WIPO is dedicated to the establishment of a viable international system to handle copyright, trademark, and patent matters and to the promotion of the protection of intellectual property throughout the world via cooperation among nations and through collaborations with other intellectual organizations. It administers numerous international treaties dealing with various aspects of intellectual property protection, including the Berne Convention

There is some amount of overlap between WIPO and the WTO on intellectual property matters, and in 1996 the two agencies agreed to collaborate and cooperate with each other. Like the WTO, WIPO has been accused of unfairly favoring the interests of large entertainment and publishing conglomerates.

Intellectual Property

Copyright is a subcategory of what is known as intellectual property. Other subcategories are patents, trademarks, and trade secrets. These work somewhat differently than copyrights, and people often confuse the four types of intellectual property with each other.

· Ideas and discoveries cannot be protected by copyrights, but they can be protected by patents[20] [21] [22]. A patent gives you a monopoly on the commercial exploitation of your invention, which means that only you can put the invention on the market. Once you have a valid patent, you can prevent a competitor from marketing or selling your patented product without your permission. Even if someone else independently and legitimately comes up with the same idea that was described in your patent, your patent still takes precedence and the new inventor is prohibited from marketing the product without your permission. A patent owner can exclude others from marketing the invention or idea, even if the owner chooses not to exploit the idea themselves, so you are not required to bring your product to market after you patent it.

But there are limits on what a patent can actually do. The possession of a patent does not actually grant you the right to market your product, since antitrust laws or FDA regulations may restrict the ways in which a patent holder can market their invention. Taking out a patent is no guarantee that your invention will be commercially successful. All that a patent can really do is to prevent someone else from putting your product out in the marketplace without your permission. So the possession of a patent is basically the right to exclude others from the commercial exploitation of your idea.

Having a patent does not mean that you can squelch or prohibit any speech or commentary about your idea or your product. Taking out a patent cannot prevent others from discussing, analyzing, or even criticizing your idea or invention, but it can prevent someone else from putting your product on the commercial market without your consent.

Unlike copyrights, patents definitely need to be registered in order to be valid. A patent is taken out by filling out an application form and submitting it to the US Patent and Trademark Office[23], which is a part of the Department of Commerce. According to the law, a product idea must meet three standards to qualify for patent protection: it must be useful, it must be novel, and it must not be obvious. Also, if the inventor has previously described their invention in a printed publication or has already used the invention publicly, they must submit the patent application before one year has gone by, or else the patent application will be rejected. The clerks in the Patent and Trademark Office then study the application and see if it meets the standards and then either approve or disapprove the application. Patents applications can be rejected if they do not meet the standards. Since the patent approval process can take years, it often happens that the inventor starts marketing their product as soon as the application is submitted and they may legally label it as “patent pending”. However, the label “patent pending” has no legal effect, and the protection afforded by a patent does not start until the actual grant of the patent. The term of a US patent is 20 years from date of initial application (only 14 years for design patents)—much shorter than the duration of copyrights—and cannot be renewed except under very limited circumstances.

Patents are intended to apply to objects, processes, or ideas that have practical, real-world applications, and can cover just about anything that has a potential for being sold as a useful product in the marketplace Patents can be taken out on new products, new processes or new machines. Patents can be taken out on chemical compositions, mixtures of ingredients, or chemical compounds. Patents can also be taken out on new ways of planning or constructing articles of manufacture. Patents can be taken out on chemicals, pharmaceuticals, drugs, even on new varieties of vegetation created through breeding or genetic manipulation. Patents can also be taken out on improvements on already patented processes, machines, or compositions.

The law says that in order for something to be patentable, it must be useful--it must have some sort of practical, real-world application. You can’t patent something that has no practical use. You can’t patent a novel, a poem, a song, or a dramatic production--copyright is used for these. In addition, laws of nature, mental processes, mathematical algorithms, physical phenomena, and abstract ideas cannot be patented. You cannot patent laws of physics--Einstein’s General Theory of Relativity revolutionized the world of physics, but it cannot be owned by anybody, not even by Albert Einstein. You cannot patent a scientific discovery--if you go into the New Guinea jungle and find a new species of plant, you cannot patent the plant that you found. However, if you produce that same new species of plant via genetic manipulation, you could patent that—such a patent is known as a plant patent.

A patent holder can profit from their invention by going into business for themselves, or they can license the use of their invention by another company. Many patents are an improvement of prior inventions that may still be covered by someone else’s patent. If the original patent is still in force, the owner of the new patent cannot bring out the product in the marketplace without the permission of the original patent’s owner, but the new patent owner can exclude the original patent owner from using the improvement without his permission.

The granting of patents encourages the advancement of the sciences and the useful arts in two ways. First, it provides the inventor with a means by which they can profit financially from their ideas, encouraging them to produce still more inventions. Second, since the patent applicant is required to submit a detailed description of the invention and how it works, the patent process helps to disseminate technological and scientific information to other inventors and to the general public at large. The patent process also encourages and motivates large corporations to produce new products—this sort of intellectual property is often a significant part of a company’s assets.

In the United States, only individuals may apply for patents, not corporations or organizations. However, it is common for a corporate employee to be required to assign the ownership rights of their patents to their employer as a condition of their employment.

In order to obtain a patent, you must disclose in the application the details of your invention or discovery, so when you take out a patent on your invention you also reveal to the public the details of how it works. As a result, when your patent expires, competitors will be completely free to copy your invention and put it on the market. Even though you might choose to forego obtaining a patent so that you keep your invention a trade secret, there is still some protection by federal laws that make industrial espionage and the unlawful disclosure of trade secrets a crime. But without a patent there is no legal recourse if some other inventor happens independently to come up with your same idea.

A patent can be a considerably more powerful protector of intellectual property than a copyright, especially if the intellectual property has any sort of commercial application. It would certainly be foolish of you to publish details of your invention without patenting it first. For example, suppose you describe your new invention in a scholarly journal article without taking out a patent on the invention. Your article is certainly protected by copyright, and no one else can copy the text of your article without your permission. But copyright only protects the specific expression of your idea, not the idea itself, and without a patent, you cannot prevent someone else from manufacturing or selling the invention that you described.

Patent infringement is the unauthorized manufacture, sale, marketing, or use of the patented invention. Patents are generally enforced by filing a civil action for infringement in a Federal court, but it is the responsibility of the individual patent holder to go after infringers in court, not the government. Typically, the plaintiff will seek financial compensation for past infringement and will seek an injunction preventing the defendant from further infringements. The history of invention is replete with inventors having to spend a large fraction of their time battling against infringers—the early history of the telephone being a prominent example. Despite its innovative technology, the telephone was actually a fairly simple device that could easily be copied, and Alexander Graham Bell was forced to sue lots of infringers to protect his invention.

Patents can also be taken out on the ornamental appearance of an object rather than on its functionality or its structure. Such a patent is known as a design patent. Design patents can protect the ornamental design, configuration, or shape of an invention, independent of its functionality. A design patent would be appropriate if the basic product already exists, and is not being improved on in its functionality but only in its style. Design patents can protect industrial products like computers, cell phones, furniture, even items of clothing like bunny rabbit slippers. Novel fonts and computer icons can be covered by design patents, if they are displayed on a computer screen and are part of an article of manufacture that has practical utility. The shape of an article of manufacture can even be the subject of a design patent—the unique shape of the Coca-Cola bottle had a design patent taken out on it in 1915. Design patents can be used to prevent competitors from making, using, or selling knock-offs or imitations of the owner’s patented design.

There is some degree of overlap between design patents, copyrights, and trademarks. Although design patents and copyrights both cover aesthetic features, copyright is generally used for non-utilitarian articles (those which exist merely for their looks or appearance rather than for any useful purpose), whereas design patents cover the novel ornamental features of a utilitarian object, such as the base of a lamp. A trademark may be taken out on an object already covered by a design patent if its shape, color, or appearance is used to indicate its origin. The difference between a design patent, a copyright, and a trademark can often be a subtle one.

However, design patents are rather difficult and expensive to obtain, since the applicant for a design patent must still meet the novelty and non-obviousness test. Many original designs of fashion and industrial art fail to meet these standards. In addition, in order for a design to be eligible for a patent, it must be original—a design that is similar in appearance to a well-known or naturally occurring object would not be original and hence not patentable. In order to be eligible for a design patent, the design must have a unique and original feature or group of features that distinguish it from prior designs that are already publicly available. In addition, the design patent process can take several years, which exceeds the life expectancy in the marketplace for many designs, which means that by the time a patent finally gets approved, the market window will probably already have closed. Design patent infringement lawsuits can be difficult to win in the courtroom, since the plaintiff must be able to prove that an “ordinary observer” would be convinced that the offending design is substantially similar to the patented design. For these reasons, design patents are often regarded as not a very useful or effective means of protecting intellectual property such as fashion designs or industrial designs.

Can computer software be patented? This is a subject of some controversy[24], since there have been some rather abusive patent claims of ownership of things like voice over IP, streaming media, online gaming, online test taking, digital music, hyperlinks, pop-up windows, the computer simulation of physical processes, the manipulation of mathematical formulas, even the procedure used by Google to rank websites and the ‘one-click” procedure used by Amazon.com to sell books online. The Supreme Court has repeatedly ruled that abstract concepts and mathematical algorithms are not patentable--is a computer program really nothing more than a mathematical algorithm and hence not protectable by patent? Nevertheless, the Federal Circuit Court[25] has ruled that computer software can indeed be patented, but only under rather restrictive circumstances. A computer program can be patented only if the computer is used to manipulate real-world numbers and quantities (such as money, fuel consumption statistics, or medical data), but not if the program is only a mathematical algorithm such as the conversion of base-10 numbers into hexadecimal form, the determination of prime numbers, or the factoring of a polynomial.

But where should the boundary between patentable and un-patentable software lie? A lot of people think that the granting of software patents discourages innovation by locking basic ideas out of the marketplace. Software developers have to be extremely careful that they do not inadvertently use some idea in their programs that is covered by somebody else’s prior patent. A lot of experts feel that software ideas are being granted patent protections that are so obvious[26] that just about anyone who is computer literate could have come up with them. Another problem is that patent applications require that the inventor reveal how the process works, but most computer source codes remain proprietary and secret, and the general public and other inventors never see how the ideas are implemented and do not benefit by the awarding of the patent. Responding to these criticisms, the Patent and Trademark Office has recently said[27] that it will be very resistant to approving new software patent applications, arguing that process inventions are unpatentable unless they result in the physical transformation of an article or are tied to a particular machine.

Another source of confusion is that software is often covered by copyrights as well as by patents. The possession of a copyright allows the author of a computer program to prevent others from copying the program but does not prevent others from writing their own versions of the basic implementation, whereas a patent prevents others from using any of the ideas behind the software, even if they were independently developed and there was no copying involved. Consequently, a patent can provide quite a bit more protection for a software developer than can a copyright.

· A trademark[28] [29] [30]protects words, names, phrases, slogans, pictures, packaging, symbols or designs that are used by the trademark owner to identify their goods in the marketplace, and is used to distinguish them from the goods of others. If the words or design is used to identify the source of a service rather than a product, it is called a service mark. Trademarks and service marks are sometimes collectively referred to together as simply marks.

The federal government has the power to register marks. This power is derived from the interstate commerce clause of the Constitution, rather than from the intellectual property clause. In the United States, registration is not required in order for a mark to be valid, but many owners do so in order to inform others of their claims. However, registration is required before a trademark or service mark infringement lawsuit can be filed in federal court. Registration can provide evidence that the owner really does own the mark that they are claiming, and registration can make it a lot easier to obtain trademark or service mark registration in foreign countries. However, even if you haven’t registered your mark, you can in certain cases stop others from infringing under state or common law trademark rights.

A mark can be registered with the US Patent and Trademark Office (an agency of the Department of Commerce) by filling out an application and paying a fee. A clerk then examines the application and either accepts or rejects it. The most common reason for rejection is that the mark is confusingly similar to an already-existing mark. The law requires that in order to register a mark, the owner must be actually using it in commerce, or have a bona fide intention to use it in commerce. Once registered, the famous symbol ® can be applied to the design or phrase to indicate to potential infringers that the mark has indeed been registered. The well known ™ symbol (the symbol is ^SM for service marks) is used when exclusive marketing rights are claimed in association with a mark, but the mark has not yet been registered. It is not required that either symbol be used, but these symbols are widely used throughout the world.

Trademarks and service marks are governed by state statutory and/or common law and by the federal Lanham Act of 1946, which is designed to protect consumers from misrepresentations of products and services, by enabling them to rely on well-known marks to identify quality goods or services, and to prohibit businesses from passing off shoddy products and lousy services using the good names of established brands. So a cheap imitation Rolex watch would be a trademark violation.

Like patents, a mark owner has the responsibility to defend against infringements, not the government. This enforcement is usually handled by suing the infringer in federal court. In order to successfully sue for infringement, you have to show that the infringer has improperly used in commerce your logo, words, or other registered marks in connection with the sale, distribution, or advertising of their goods or services. Also you must show that the borrowing has created a likelihood of confusion with your original mark. A successful lawsuit against an infringer usually involves the awarding of financial damages along with the imposition of a cease and desist injunction requiring that the infringer stop the infringing activity.

Trademark or service mark owners can be quite hostile to people who use or copy their marks without permission, especially if there is even the slightest danger of the public being misled into assuming that the mark holder is the owner or sponsor of the product or service on which the mark is used. For example, you cannot market “Harry Potter” toy brooms, because Warner Brothers owns the Harry Potter trademark and the associated franchise, and you would be making money illegitimately by trading on the status and good name of an established brand. In addition, people might be misled into thinking that Warner Brothers actually produced your toy broom. Most Internet Service Providers forbid their subscribers from posting any trademarks or service marks on their personal websites, since people might mistakenly assume that the mark owner is somehow the creator or the sponsor of the website.

Even though the federal government cannot claim copyright on any works created by their employees in the performance of their official duties, the government can claim trademark rights on its designs and logos. You definitely do not want to use the NASA logo in your project without permission, because people might mistakenly assume that NASA is somehow the sponsor or creator of your project. Again, the no-confusion rule applies here.

The ownership of a mark does not necessarily mean that you own the words used in the mark. Ownership of a mark only means that you have the exclusive right to use it in commerce to identify your product line or service, and to distinguish it from competitors who offer a similar line of products or services. Others can use the same words, provided that there is no danger that reasonable people might mistakenly assume that the words being used are referring to your product line or service. It is also permissible to use the same word or words to distinguish different kinds of goods—an example being Apple Computers and Apple Records. Apple Records and Apple Computers can coexist, because noone is going to assume that the record company is making computers, or vice versa. However, owners of very famous marks can often succeed in preventing the use of their marks by others on goods or services that do not compete with or are even similar to their famous product. For example, it is probably not a good idea for you to open up a chain of motels named “Coca-Cola”, because people might assume that the famous soft-drink bottler actually owns or runs your motel chain.

There are some limitations on trademark and service mark rights. You cannot prevent a competitor from mentioning your mark in a commercial, even if the ad is criticizing your product or service or is comparing it unfavorably with theirs. The use of marks is also permitted in news reporting, in criticism, or for literary; purposes, in which the marks are being used solely to identify products or services, and so long as the use is strictly informational and not intended to sell anything. Authors can use a mark in a descriptive sense in both fiction and nonfiction works, so long as they use the mark in such a way that it doesn’t suggest any association with the goods or services that it represents. If no income is solicited or earned by the people who use your mark, or if no goods or services are actually being offered in conjunction with your mark, or if the goods or services that are being offered cannot be confused with those that you offer, then the use of your mark is considered to be non-commercial and is generally allowed. Again, the non-confusion rule applies here—if no reasonable person is going to mistakenly assume that the mark owner is the sponsor or creator of the place or situation where their mark is being used, the use is generally allowed.

Trademark law does not provide any sort of general protection for physical objects such as fashion designs or industrial articles. Trademark law would only provide protection if the configuration of the product somehow served to identify the source of the product, an obvious example being the unique shape of a Coca-Cola bottle. A fashion designer could not take out a trademark on his latest dress, unless the appearance of the new dress somehow served to identify the source. Even if the configuration of the product did qualify for a trademark, the protection would only apply against uses of the design that would be likely to confuse or mislead customers.

There are some things that are protected by both trademark and copyright restrictions—Mickey Mouse being a particulary well-known example. Mickey Mouse is both a copyrighted work of art and a recognizable mark symbol that identifies Disney products and entertainment services. The Disney organization is particularly ruthless in going after people who infringe either the copyright status or the mark status of Mickey Mouse.

Trademark dilution is another form of trademark infringement, one in which someone is using a famous mark for commercial purposes in such a way that it somehow diminishes, blurs, tarnishes, or harms the distinctive value of the mark. Trademark dilution can be charged even if there is no danger that anyone will mistakenly assume that the trademark owner is responsible for producing the work where the mark is used. Examples of famous trademarks are Kodak, Xerox, or Kleenex. Blurring would occur if, for example, someone brought out a line of Xerox bicycles, a line of Kodak hair dyes, or a line of Kleenex radios—each of these uses might diminish the power of the original mark through its identification with dissimilar goods. Tarnishment of a trademark can occur if someone casts an unflattering light on the mark by using it in association with inferior or unseemly products. The Disney organization uses this notion to go after pornographers that are using images of Mickey Mouse or Snow White in their films.

However, free speech rights still exist in the trademark and service mark world, and a mark owner cannot prevent others from discussing, lampooning, parodying, or criticizing their mark, especially if there is no danger of product confusion, no competition with the products or services covered by the mark, nor any possibility that reasonable people could be misled into thinking that the mark owner was the author of the parody or was the source of the discussion or criticism. Mad magazine became famous for producing parody advertisements, using subtle alterations of marks to lampoon famous products and services.

A recent example involved the use of the phrase “Fair and Balanced”[31] by the satirist Al Franken in the subtitle of a book that he wrote lampooning the far right. Fox News, which generally leans toward the right side of the political spectrum in its broadcasts, claims that phrase as a trademark, and they filed a lawsuit claiming that people might be deceived into thinking that the Franken book was a Fox News product. The courts rejected the claim, concluding that the phrase was a common idiom used in everyday life, and that Franken was within his rights in lampooning and criticizing the phrase. Others can use the phrase “Fair and Balanced” without permission, provided that there is no risk of product confusion and no possibility that a reasonable person might imagine that Fox News is the sponsor or owner of the work where the phrase is used.

Unlike copyrights or patents, trademarks and service marks can last indefinitely if the owner wants to continue to use them to identify their products or services, but the owner can lose control of their mark if they go out of business, if they stop using it in the marketplace, or if they see infringements and do nothing about them. Marks can also be lost if they are licensed to a franchisee without adequate supervision or quality control. A mark can also be lost if it has become generic over time—aspirin, cellophane, and thermos being prime examples. These terms now stand for a broad line of products and are thus no longer entitled to trademark or service mark protection.

The owner must periodically renew their trademark or service mark registration, once every ten years. This is fairly simple to do--in the renewal request, all that the owner has to do is allege that they wish to continue the use of their mark in commerce. If the owner does not renew their mark, there is a danger that they might lose control of their mark in the marketplace. However, the renewal can be performed an indefinite number of times, so in principle the mark registration could last forever.

Trademark issues have even entered the world of the Internet. The reason for this is the so-called domain name, which is used by online businesses to direct customers to their websites. Prominent examples are Amazon.com, Google.com, Facebook.com, Twitter.com, and Peapod.com. First, a little technical discussion is in order. When you are surfing the Internet, each computer on the World Wide Web is assigned a unique address known as the IP address[32]. It is a series of four numbers separated by dots, an example being 207.88.144.157. All of the routers, switches, and servers in the system use this address to route the messages to their destinations. Since these numbers are hard to remember, the World Wide Web uses a Domain Name System, which maps these numbers into more easily remembered names. So, when you want to reach Amazon.com to purchase a book or a DVD, your computer automatically first sends a message to a special computer known as a Domain Name Server (DNS), which maintains a directory of these IP address/domain name mappings. The DNS looks up the IP address associated with the name of the site you are looking for, and then returns the number to your machine. When your computer actually tries to reach Amazon.com, it uses the IP address for the routing. All of this is completely transparent to you and you are completely unaware of what is going on.

In the era of Internet commerce, an easily recognizable domain name can be an extremely valuable commodity[33]. Anyone can obtain a domain name by contacting any one of dozens of companies that handle domain name registrations, filling out an application and paying a fee. The Internet Corporation of Assigned Names and Numbers (ICANN)[34] is a not-for-profit public-benefit corporation formed in 1998 to handle the job of managing and coordinating the Domain Name System. It has the job of approving domain name applications, and it accredits and supervises the activities of the dozens of domain name registrars. ICANN ensures that there are no duplications in the names allocated by the registrars that they supervise, and that they all conform to the rules laid down for the allocation of domain names.

Since domain names that actually label the product or service can be quite valuable, Internet businesses will often register their domain names as trademarks with the Patent and Trademark Office to prevent others from misappropriating or misusing their domain names. If you are opening up a new Internet business or are even setting up an new website, when you choose a domain name, you need to make sure that it isn’t identical or even similar to an existing trademark, or you could be sued. You certainly be unwise to try and reserve the name www.cocacola.com for your own website, since reasonable people might assume that the Coca-Cola bottling company is somehow the owner or the sponsor of your website.

Cybersquatting is the act of reserving domain names that are identical or similar to recognized trademarked brand names, in the hope of being able to sell the rights to these names at a later time for an astronomical price, or to profit in bad will from the goodwill of a trademark owned by someone else. The Anticybersquatting Consumer Protection Act enables a trademark owner to sue someone they believe to have taken out a domain name in bad faith that conflicts with their trademarked business name. Alternatively, a trademark owner can take their case to ICANN for arbitration. Courts and arbitrators generally side with the trademark owner against cybersquatters.

Trade secret [35] [36] [37] [38] law is another important part of intellectual property. Trade secret laws provide some level of legal protection for a company’s products and processes that can on some occasions be preferable to the protection that patents can offer. People who steal or disclose trade secrets via corporate espionage, bribery, or larceny can be prosecuted for criminal offenses, whereas someone who infringes a patent can only be sued in civil court. No registration is required to claim a trade secret—all you have to do is declare something a secret and take measures to keep outsiders from discovering the secret. If there is a stated “don’t tell” policy, this can represent sufficient activity to preserve secrecy. Examples of subjects of trade secrets are chemicals, recipes, lists of ingredients, manufacturing processes, lists of customers or clients, computer program source codes, corporate policies, even lists of the company’s employees.

There are two standards for trade secret legal protection—secrecy and competitive advantage. A trade secret is no longer secret if someone independently and legally figures it out for himself or herself, or if it was so obvious that it was easy to ascertain in the first place. If the company fails to realize any economic or competitive benefit from protecting a trade secret, then the revealer or distributor of the secret might not be legally liable.

Trade secret law can be a powerful and effective way of protecting corporate intellectual property. If the company chooses to patent its trade secrets, the company must reveal them in public and the patent protection will last for only 20 years, after which anyone is free to put out the same product. But if the company does not patent the trade secret, it can protect it virtually forever.

The best-known successful use of trade secrets is the recipe for making Coca-Cola[39]. The Coca-Cola Company chose never to patent their recipe, since this would have revealed the formula to the public. Since any patent that the company took out would last only 20 years, competitors would be completely free to market the product after the patent expired. By relying on trade secret laws, Coca-Cola can protect its formula virtually forever. However, Coca-Cola cannot prevent competitors from reverse-engineering its product and putting out similar products, such as Pepsi-Cola.

Under the provisions of the 1976 Copyright act, it is possible for the author of computer software to associate trade secrets in the source code and to assert copyright in the source code (and in the executable code).

Moral Rights

Moral rights[40] are the rights given to authors and creators of copyrighted works that are recognized in civil law jurisdictions rather than explicitly in copyright law. In contrast to the economic rights that are protected under copyright, moral rights are concerned with protecting the personality and reputation of authors, giving them the ability to control the eventual fate of their works. Moral rights are codified in the Berne Convention, which the United States ratified in 1988.

Moral rights of authors and artists are recognized in European copyright law but not very much in the USA, at least not yet. In the USA, an artist’s moral rights are protected primarily by defamation, privacy, or unfair competition laws rather than by copyright law, but visual artists are provided with some special protection through the Visual Artists Rights Act (VARA)[41] of 1990. This law applies strictly to unique, one-of-a-kind, visual works of fine art such as a painting, drawing, print, sculpture, or still photograph, that exist as a single copy or as a limited edition of 200 or fewer copies that are individually signed and numbered by the author. The law does not cover works of graphic design, maps, charts, technical drawings, databases, electronic publications, motion pictures, books, magazines, advertisements, works for trade or commercial purposes, or reproductions. VARA also does not apply to works for hire. The law was designed to protect the post-sale rights of creators of unique pieces of visual fine art--even if the artist has signed over the copyright to someone else or has sold the work, they still retain the moral rights under VARA. However, the author can waive their moral rights under VARA if he or she expressly agrees to such a waiver in writing.

An author of a visual artwork has the right to claim authorship of that work and has the right to prevent the use of their name as the author of any work of visual art that they did not create. Noone can put my name on a visual work of art that I didn’t create, and they can’t take my name off a work that I did create. Moral rights as outlined in VARA allow an author to prevent revision, alteration, or distortion of their work, even if it has been sold to someone else. An author has the right to publish works anonymously or pseudonymously. The author of a visual artwork also has the right to prevent the use of their name as the author of a distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation. If someone draws a moustache on a portrait that I painted, they can’t claim that I did it. It also prevents the destruction, modification, or defacement of an artistic work of recognized stature. Unlike copyright, moral rights under VARA are not transferable, and end with the life of the author. For joint works created by two or more authors, the moral rights endure for a term consisting of the life of the last surviving author.

VARA does not forbid people from distorting or mutilating reproductions, portrayals, depictions, or images of the visual work, such as that which might take place in magazines, newspapers, posters, movies, or advertisements. VARA cannot forbid someone from making a parody of a visual work of art, criticizing it, making fun of it, even ridiculing it. VARA only protects the physical integrity of the visual work itself, not its use in reproductions or images. However, such reproductions may be forbidden under copyright law, since they could be construed as the production of unauthorized “derivative works”.

The Right of Publicity

Somewhat similar in scope to copyright but quite different is the so-called right of publicity[42]. This gives an individual the exclusive right to profit commercially from the use of their name, image, photograph, likeness, and persona. If someone wants to use your name or image in a TV commercial, they need your permission to do so. If someone wants to use your name to endorse a product or service, they need your permission to do so. If someone wants to put your photograph on a T-shirt and sell it to the public, they need your permission to do so. Some laws even protect an individual’s signature, nickname, gestures, and mannerisms—even phrases and pieces of property that are closely associated with the individual. Sometimes impersonations, look-alikes, or impressions can be considered to be unauthorized appropriations of a person’s right of publicity. This means that even if someone does an impersonation of your voice, singing style, or mannerisms in such a manner that they derive a commercial benefit from such an act, this might be a violation of your right of publicity, as well as the misappropriation of your performance or performance style.

There is as yet no federal law dealing with the right of publicity, but several states have enacted such legislation[43]. The state laws vary in their scope—some state laws give a right of publicity only to celebrities or public persons, but others give the right of publicity to any individual. Some states provide protection only if an individual has previously exploited the commercial value of their identity. In some states the right of publicity only exists for individuals and cannot be transferred to someone else, but in others the right can be freely transferred to third parties. In some states, the right of publicity ends with the individual’s death, but in others it can continue for some number of years after the individual has deceased. This means that agents, heirs, and estates can often be in charge of an individual’s right to publicity. In other states, the right of publicity is protected under unfair competition laws that make it a tort if a company falsely claims that you have endorsed their product. However, right of publicity laws protect only the personas of individuals, not the personas of corporations, partnerships, or organizations

The right to publicity has evolved from the right to privacy. The right of privacy is basically the right to be left alone. It protects an individual from the emotional anguish resulting from the publication or dissemination of private facts that are of no concern to the public at large, facts that are embarrassing, intimate, or those facts that portray them in a false light that is highly offensive. The right of publicity is an extension of the right of privacy—it gives an individual a property right in his/her identity, and prevents someone else from deriving a commercial gain from an unauthorized use of this identity. The right of publicity must also be distinguished from defamation in that defamation involves the publication of untruthful information while rights of publicity claims usually result from the publication of truthful information.

Most right of publicity legal actions involve celebrities. Since celebrities have spent a considerable amount of time, money, and talent in the pursuit of becoming famous, they are thought to have the right to make money when they exploit this fame and to prevent others from misappropriating their persona without paying for the privilege. Many celebrities derive much more income from commercial endorsements than they do from doing what made them famous in the first place—singing, dancing, acting, or playing sports.

The first right of publicity legal action (in 1953) involved the unauthorized use of the images of well-known baseball players in bubble-gum cards[44]. The singer Bette Midler won a judgment against the Ford Motor Company when an impersonator imitated her voice in a commercial[45]. A circus performer, whose “human cannonball” act was videotaped and shown on television, sued for the unlawful appropriation of his professional property[46]. Singer Tom Waits sued the potato chip vendor Frito-Lay for misappropriation of his voice in a radio commercial[47]. In 2001, the heirs of the Three Stooges sued an artist who had done a charcoal sketch of the slapstick trio[48]. The late-night talk show host Johnny Carson sued in 1983 when a manufacturer of portable toilets used without authorization the phrase “Here’s Johnny” in the promotion of their product[49]. Even though this was a line used by Ed McMahon to introduce the host, the line was seen being so closely associated with Johnny Carson that its unauthorized use infringed his right of publicity. Woody Allen sued when an advertiser used a look-alike in one of their commercials[50]. A NASCAR driver successfully sued when a cigarette company used in an advertisement an image of a distinctive racecar that could be readily identified as belonging to him[51]. Even non-celebrities can sue for unauthorized use of their right of publicity--a jury in California awarded a resident over 15 million dollars when the Nestlé Corporation used his image in a Taster’s Choice coffee commercial without his consent[52]. In 2007, the socialite and model Paris Hilton sued Hallmark Cards for unauthorized use of her photograph on a greeting card, along with an unauthorized use of her trademarked catch-phrase “That’s Hot” which is used on her line of perfumes and clothes[53].

One of the most prominent cases involving the right of publicity was Vanna White vs Samsung Electronics (1992)[54]. Vanna White is the co-hostess of the popular television show Wheel of Fortune, and is famous for walking back and forth in front of a game board, dressed in an exotic gown and pointing to letters as the contestant guesses them. Samsung produced an advertisement for a VCR starring a robot dressed in a wig, gown, and jewelry reminiscent of Vanna White, posed next to a Wheel-of-Fortune game board. The ad was a humorous attempt to depict a future in which robots did everything. Although her name wasn’t used, Vanna White sued for infringement of her right of publicity, for using her likeness, signature, and voice for commercial purposes without her permission. Although the lower court had ruled against Vanna White, she appealed the decision and the Appeals Court ruled that her right of publicity had indeed been infringed. The defendants had argued that their advertisement was a parody and was thus protected speech, but the Appeals Court ruled that the advertisement’s spoof of Vanna White and Wheel of Fortune was subservient and only tangentially related to the ad’s primary message. The purpose was deemed to be commercial, which make the ad a “knock-off” rather than a parody. This decision seems to make actionable the evocation of a celebrity’s identity in any form--just about anything that you put out there in an advertisement for a commercial product that evokes a celebrity’s identity is probably risky. Any image, voice, or even a phrase that evokes an individual’s identity might be judged to be an infringement of their right of publicity.

Although Elvis Presley died in 1977, his estate (controlled by Elvis Presley Enterprises, Inc) rigidly controls who can sell or use his name, voice, or image[55]. Permission from EPE is required before anyone can use any sort of image of the King, and EPE regularly monitors television shows and movies, looking for any invocation of Elvis’s image, voice, or persona that has not been pre-cleared, that is, one in which the appropriator has not obtained permission and paid for the right to use the image. There are plenty of Elvis impersonators out there, and EPE would be hard put to stop all of them. Nevertheless, EPE has sued some of the more successful ones for making a public performance of Elvis’s persona for commercial purposes without permission. Since 1979, EPE has filed over 100 lawsuits to assert the estate’s exclusive rights to Elvis’s name and likeness[56].

Authors of fictional novels or the producers of movies often have to be careful that they do not inadvertently infringe on someone’s persona in their creative works—they may strictly by accident have included a character that is similar in several respects to a real person. Consequently in order to protect themselves against lawsuits, movie producers often include in their movie credits a standard boilerplate legal disclaimer saying that all persons depicted are purely fictional, and that any similarity to actual persons, living or dead, is purely coincidental.

Historical fiction and historical entertainment that make mention of real persons can be risky, since they are not primarily intended to disseminate real facts to the public—such a use is not really to inform or educate the public, it is primarily for entertainment and hence has a commercial purpose. If you are making any money by using the identity of a real person, you could be asking for a lawsuit.

There is some degree of conflict between the right of publicity and the First Amendment of the US Constitution. Under free speech, certain uses of an individual’s identity are permitted—it is generally true that if the issues surrounding an individual are a matter of public concern or if the individual is somehow newsworthy there is a considerable amount of leeway allowed in the use of their persona. It would be impossible, for example, to write historical works or news articles that refer to real characters if an individual’s right of publicity automatically prohibited such efforts. However, if the individual’s persona is used in entertainment or fiction, or if there is even a hint of a commercial application of the individual’s identity such as in a TV commercial or a product endorsement, there is considerably less latitude.

The line between a protected and an unprotected use of someone’s publicity right is often unclear. Generally, the unauthorized use of someone’s identity for a commercial purpose is likely to be an infringement. However, if the use adds significant creative elements or if it is used to provide social commentary on matters of public concern and interest, the use is usually considered to be permissible. Generally, uses of someone’s identity for purposes of satire, parody, political debate, or social commentary are protected under the First Amendment. For this reason, Saturday Night Live can probably feel perfectly free to satirize and mock celebrities without any fear of legal sanctions. However, it is often not clear exactly which types of publications or presentations are “news” or “satire” and those that are simply “advertising” or “commercial”. The actress Elizabeth Taylor sued NBC to prevent them from using her name or likeness or using another actress to portray her in a TV miniseries, but the courts rejected her argument, maintaining that the right of publicity cannot be used to suppress commentary about the lives of public people, and would be an unconstitutional prior restraint against First Amendment-protected speech[57].

The right of publicity is a new and evolving aspect of the law, and important changes and adaptations can be expected in the future.

Federal Copyright Laws

Since the Constitution gives Congress the power to provide for copyright, Congress has passed several federal laws over the years that define the meaning of copyright more precisely and provide means for copyright enforcement.

· President George Washington signed the first copyright law in 1790[58] [59]. It was based largely on the 1710 Statute of Anne in England. It applied copyright only to books, maps, and charts and set the copyright term to 14 years, renewable just once for another 14 years. The term “book” was interpreted rather broadly--it included virtually all printed media, including sheet music. The law was intended to protect authors of copyrighted works against others printing, reprinting, or publishing their works without their permission. A work did not necessarily have to be published in order for copyright to apply, but the law did require that the work be formally registered in order for it to receive copyright protection, and it required that copies of the work be placed on file. However, copyright protection was limited to American citizens, which made it legal for American printers to flood the market with cheap editions of leading British authors.

· In 1802, the law was amended to give copyright protection to the design, engraving, and etching of prints. The amendment also required that a copyright notice be placed on copies of protected works.

· The first major revision of copyright law took place in 1831. Copyright protection was extended to cover cuts and engravings. The new law also arranged for musical compositions (but not performances) to be covered under separate statutory copyright protection. The copyright term was extended to 28 years, with the possibility of a one-time renewal for another 14 years. The law also allowed an author’s widow or children to file for a copyright renewal.

· In 1856 the rights of public performance of dramatic works was added to those things protected by copyright—one could not make a public performance of a dramatic work such as a play without the consent of the copyright owner. The music that accompanied a stage dramatic production was also given a right of public performance, which meant that the music could not be played in public without the permission of the copyright owner.

· In 1865, photographs and negatives were given copyright protection.

· In the second major copyright law revision, which took place in 1870, copyright functions were centralized within the Library of Congress. Before that time, copyright claims had been recorded by Clerks of the US District Courts In order to obtain a copyright, the applicant had to register the work with the Copyright Office by filling out a form and paying a fee. In addition, a copy of the work had to be deposited with the US Copyright Office. Paintings, drawings, chromolithographs, statues, and other fine arts were also given copyright protection

· In response to complaints from English authors like Charles Dickens, who objected to the flood of cheap American knockoffs of his works for which he received no royalties, Congress passed the International Copyright Act of 1892, which extended copyright protection to foreign works. Foreign authors were provided with copyright protection in the American market, provided that the author’s country provided equal protection to the works of American authors.

· In 1895, the printing of government documents was centralized in the Government Printing Office. In addition, the copyrighting of any government publication was prohibited.

· In 1897, all music (not just the music that accompanied a dramatic production) was protected against unauthorized public performance. You could not sing or play a song in public for profit without the permission of the song’s copyright owner. However, non-profit music performances were specifically exempted from these restrictions.

· In 1897 the US Copyright Office was established as a separate department of the Library of Congress. The position of Register of Copyrights was created.

· The third major revision of copyright law was the Copyright Act of 1909[60], which increased the copyright renewal term to 28 years. The law broadened the subject matter of copyright to include “all the writings of an author”. It also added “copying” to the list of exclusive rights held by the copyright owner (along with printing, reprinting, publishing, and selling). The primary intent was that this new exclusive right to copy should refer to paintings, sculptures, and statues. The new law extended copyright protection to new technologies such as piano rolls and sound recordings.

The act also established a compulsory (or statutory) license system for the mechanical recording of musical compositions. Before this time, piano roll vendors and recording companies were completely free to make and distribute mechanical recordings of copyrighted music without getting permission from anyone or paying any fees. This was changed by the 1909 law—a system was established under which songwriters and music publishers were paid a fee whenever their music was recorded onto a mechanical medium such as a piano roll or a sound recording. A government agency sets the amount of the royalty. A statutory licensing system enables someone to use a copyrighted work without having to go through the hassle and expense of obtaining the explicit permission of the copyright owner, provided that the specified royalties are paid.

The 1909 Act specifically exempted coin-operated music machines (such as the devices that were popular in the penny arcades of the day) from having to make payments for the public performance of copyrighted music, so long as the premises on which they were located did not charge an admissions fee. This later came to be known in copyright law as the “jukebox exemption”.[61]

The 1909 Copyright Act also introduced the concept of a corporate copyright. Before that time, only individual authors could claim copyright on a work, although individual authors could and did license their works to publishers. The 1909 act introduced the concept of “works-for-hire”, under which a corporation such as a newspaper could retain copyrights on news reports and articles that appeared in its pages, even if their employees had produced the actual work

The 1909 Copyright Act also provided that one could now obtain a copyright in two different ways—one being the familiar process of registering the work with the US Copyright Office, and a new process by which copyright was obtained by simply publishing the work with a prescribed copyright notice attached to it. In either case, distributing the work without the copyright notice attached to it automatically forfeited the copyright. Registration was in any event necessary for renewal of a copyright.

One of the features of the 1909 act was the preservation of state copyright protection (known as common-law copyright) for unpublished works. An author of an unpublished work could invoke state common-law copyright protection that prevented others from publishing or distributing the work without their permission. This common-law copyright protection persisted until the work was formally published--once the work was published federal copyright protection was automatically obtained so long as certain formalities were adhered to, such as the attachment of the prescribed copyright notice to the work. Otherwise the copyright on the work was forfeited.

· In 1912, motion pictures were given copyright protection. Before that time, motion pictures had been previously registered as photographs.

· In 1914, the USA formally adhered to the Buenos Aires Copyright Convention of 1910, which established joint copyright protection between the United States and certain Latin American nations.

· In 1947, copyright law was codified into positive law as title 17 of the US Code.

· In 1953, public performances for profit and the recording of nondramatic literary works were added to author’s rights. These would include poetry, novels, and textbooks.

· In 1955, the USA became a member of the Universal Copyright Convention, which had been signed at Geneva in 1952.

· In 1971, the Sound Recording Act extended federal copyright protection to sound recordings. This first became effective on February 15, 1972, and extended limited copyright protection to sound recordings that were fixed and first published on or after this date. Before that time, the only copyright protection available for sound recordings was at the state level (usually involving antipiracy laws or unfair trade practice laws), and this varied from state to state. Recordings created after 1972 are now protected by federal copyright, but those created before 1972 are still protected by state laws

· The fourth major change in the copyright law was the Copyright Act of 1976,[62] which was intended to incorporate the advent of new technologies into copyright law. It spelled out the rights of copyright holders, it formally defined what was meant by “publication”, it codified the idea/expression dichotomy and the doctrines of “fair use” and “first sale” (which had only been a part of common law before that time), and it changed the rules dictating the duration of copyrights. The law went into effect on January 1, 1978. It governs copyright in the United States today, along with several amendments that have been added in later years.

The law added a provision that copyright now applied to “original works of authorship”, which removed the necessity for Congress to rewrite the copyright laws each time a new medium was created. This means that just about any form of creative expression is eligible for copyright protection, no matter what the medium.

For works created after the law went into effect in 1978, the new copyright law removed the requirement for publication or the registration of the work with the Copyright Office in order for copyright to apply. After 1978, the only requirement for copyright to apply is simply that the work be fixed in some sort of medium where others can access it, whether published or unpublished. The concept of state “common-law” copyright was abolished from that date onward, and was replaced by federal copyright--“publication” no longer served as the dividing line between state and federal copyright protection. However, for works created prior to 1978, either formal registration or publication with a copyright notice attached was still required for copyright to apply.

Even though registration is optional, the 1976 Copyright Act required that the copyright owner deposit copies of their work with the Copyright Office within 3 months after publication. Failure to do so could result in a fine, but would not invalidate the copyright. There is no requirement to deposit copies of unpublished works.

The rules about copyright notices were also changed. The copyright notice was still required on works published even after 1978--the federal copyright protection that was initially acquired when the work was fixed could still be lost if the work were later published without a proper copyright notice attached. But there was some protection made available to careless or inadvertent errors on the part of publishers. Under the new law, if a publisher failed to use the notice, the problem could be corrected at a later time without the publisher losing its copyright on the work However, a publisher was given only 5 years to cure any such errors; otherwise the copyright on the work was irretrievably lost.

The law also changed the rules used to determine the durations of copyrights. Under the terms of the new law, for works created on or after 1978, the copyright term was now based on the date of the creator’s death—works now had a copyright duration equal to the life of the author plus 50 years. “Works for hire” now enjoyed protection for 75 years from date of publication or 100 years from date of creation, whichever is shorter

Under the rules in effect prior to 1978, copyrights lasted for a fixed period of time based on the date of initial publication or registration—the duration of a copyright was 28 years with the possibility of a one-time renewal for another 28 years. Those works created before 1978 that were still under copyright when the new law went into effect and which were in their renewal term had the renewal term retroactively extended from 28 years to 47 years, which gave them a total of 75 years of copyright life following the date the initial copyright had been secured. The owners of works still in their initial copyright term in 1978 could also apply for an extension term of 47 years, which gave them access to a total copyright term of 75 years as well.

The new law also added a provision that allowed library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan purposes under certain circumstances.

The law established a compulsory licensing system for cable TV, requiring cable TV operators to pay royalties to television broadcasters when they carried their programming.

Under the new law, non-profit performances were now also required to pay public performance royalties. The law also eliminated the “jukebox exemption”—the operators of coin-operated music players were now required to pay a compulsory license fee to perform the music “publicly”.

· In 1980, copyright protection was provided for computer programs. The Computer Software Act defined computer programs and clarified the extent of protection afforded to computer software.

· Copyright law was amended in 1982 to provide that people who infringe copyrights willfully and for purpose of monetary gain are guilty of a federal crime.

· In 1984, Congress passed the Record Rental Amendment[63], which amended the 1976 Copyright Act to make it illegal to make phonograph records available for commercial leasing or rental without the permission of the copyright owner. However, nonprofit libraries and nonprofit educational institutions were still allowed to rent out phonograph records. This law was passed to address recording industry concerns about illicit copies of the rented phonograph records being made onto magnetic tape. Nevertheless, the rental of videocassettes is still allowed, since another bill that proposed to apply the same restrictions to video rentals was defeated.

· Also affecting copyright in the USA is the Berne Convention, which was an international agreement that was first adopted in Berne, Switzerland back in 1886. It formed a framework for the international protection of intellectual property. It requires the signatories to protect the copyrights on works of authors from other signatory countries. It has been revised and amended several times.

The United States initially did not sign on to the Berne Convention because some of its provisions conflicted with US copyright law as it existed at the time. The US did not become a party to the agreement until Congress formally adhered to the Berne Convention on March 1, 1989.

A major provision of the Berne Convention was the elimination of the requirement for the inclusion of a copyright notice on a published work in order for copyright to apply. The inclusion of a copyright notice for works published after March 1, 1989 is now entirely voluntary, and the failure to include a copyright notice on a published work no longer runs the risk of copyright forfeiture.

The Berne Convention also required that all works except photos and movies shall be protected for at least 50 years after the author’s death, although individual signatories were allowed to set longer terms.

There are some misunderstandings about what is actually required under the Berne Convention. The Berne Convention prevents a signatory nation from imposing registration formalities on foreign works, but does not necessarily prevent that nation from imposing registration requirements on works created by its own citizens. American copyright law actually does impose formalities on domestic copyright holders--for example, American copyright holders are required to register their works in order to be able to sue for copyright infringement, but not foreign rightsholders.

· In 1990, Congress passed the Computer Software Rental Amendments Act[64], which amended the 1976 Copyright Act to prohibit the commercial lending leasing, or renting of computer software without the consent of the copyright owner, but it did allow nonprofit libraries and nonprofit educational institutions to lend software, provided the copy that was lent had a copyright warning attached to it. Behind the amendment was a fear that people would illegally copy rented software programs.

· The Architectural Works Copyright Protection Act of 1990 provided copyright protection for architectural works.

· The Visual Artists Rights Act of 1990 applies some “moral rights” to authors of visual works of art.

· Renewal registration became optional in 1992. A work copyrighted between January 1, 1964 and December 31, 1977 was automatically renewed even if no registration was made.

· The Audio Home Recording Act [65] of 1992 amended the 1976 Copyright Act to require that manufacturers and importers of digital audio recording devices and media pay royalties to music copyright holders, to compensate them for music that is presumably being copied at home. The payments are made to the US Copyright Office, which then distributes the royalties accordingly. Digital audio recording devices must also have the Serial Copy Management System (SCMS) that prevents serial copying (making copies of copies). The law specifically permits consumers to use audio recording devices at home for noncommercial use without fear of being sued. The royalty requirements and the serial copying restrictions do not apply to computers, since their primary purpose is not to act as a digital audio recording device.

· The Uruguay Round Agreements Act[66] of 1994 implemented in US copyright law the agreements resolved at the Uruguay Round of conferences held earlier that decade under the auspices of the General Agreement on Tariffs and Trade (GATT). Representatives of GATT meet periodically to resolve tariff and trade disputes and to handle international disagreements about things like intellectual property.

The URAA prohibited the unauthorized making or distribution of recordings of live music concerts, even when there was no other fixation going on during the concert. This was designed to close a loophole in the copyright law, under which live music concerts that were not being recorded by the performers were unprotected by copyright law because they were not fixed in any tangible form. This caused problems when bootleg tapes or recordings of rock concerts began to appear, since there was no cause for action under the Copyright Act of 1976. The courts have upheld the congressional implementation of this treaty as an exercise of Congress’s power to regulate interstate commerce rather than under the copyright clause of the Constitution.

The Uruguay Round also contains specific provisions that required the USA to restore full recognition to all foreign works that were still under copyright in their home countries but had lost their copyrights in the USA because of noncompliance with certain formalities in American copyright law such as registration or the inclusion of copyright notices. All foreign works that had been exploited in the USA without authorization because of failure to comply with US formalities were restored to full copyright protection, effective January 1, 1996.

· The Digital Performance Right in Sound Recording Act[67] of 1995 made it possible for recording artists and record labels, in addition to songwriters, to collect “public performance” royalties for the digital transmission of their sound recordings, such as that which takes place over satellite radio services and subscription digital cable providers that deliver music. This was a major change, since conventional radio broadcasters need to pay public performance royalties only to the copyright owners of the songs that they play on the air, and not to the recording artists or the record labels. These new public performance royalty requirements were limited to digital audio transmissions and did not include analog audio transmissions such as AM or FM radio.

The act also created a compulsory license mechanism for “noninteractive” digital audio transmissions (those which don’t allow the listener to choose the songs being played), which allowed digital broadcasters to transmit music without needing to seek explicit permission from recording artists or record companies, provided that the license fees are paid. Music copyright owners still retain their preexisting public performance rights, payable through blanket licenses managed by performance rights organizations, but sound recording copyright owners now gain a public performance right for any sound recording performed by means of digital audio transmission.

· The No Electronic Theft (NET)[68] [69] [70] Act of 1997 amended the US Code to permit felony or misdemeanor criminal prosecution of large-scale illegal reproduction of copyrighted works even where the infringers had no discernable profit motive. The law specifically included unauthorized electronic reproduction and distribution of copyrighted material as being subject to criminal penalties. The law was designed to close a loophole in which someone who intentionally distributed copyrighted software over the Internet did not face criminal penalties if they did not profit from their actions, although they could still be sued in civil court. Excluded were reproductions that were not done willfully or that were small-scale non-commercial copying (copyrighted works with a total retail value of less than $1000. Electronic copyright infringement carries a maximum penalty of 5 years in prison and a $250,000 fine.

· The Fairness in Music Licensing Act[71] of 1998 exempts small business establishments from paying public performance royalties.

· In 1998, the Sonny Bono Copyright Term Extension Act[72] [73] added 20 years to the lifetime of all copyrights. The copyright duration was now the life of the author plus 70 years. Works for hire now enjoyed protection for 95 years from date of publication or 120 years from date of creation, whichever is shorter

· In 1998, the Satellite Home Viewer Act[74] established a compulsory license system for satellite dishes, similar to that earlier established for cable TV.

· In 1998, the Digital Millennium Copyright Act [75] [76] (DMCA) was passed. This law made it illegal to circumvent a digital lock that a copyright holder used to protect their work against infringement. The law also had a safe harbor provision in which Internet Service Providers (ISPs) are not themselves liable for copyright infringement on websites created by their subscribers, provided that the ISPs quickly remove or disable the offending websites immediately after receiving a notice from the copyright owner.

· The Technology, Education, and Copyright Harmonization (TEACH)[77] act of 2002 was designed to clarify the role of copyright in online or distance education. It expands the scope of educators’ rights granted in face-to-face classroom teaching into the realm of distance education.

· In 2005, the Family Entertainment and Copyright Act [78] [79] [80] was passed. It makes the use of a camcorder to record a movie in a theatre a federal crime. It also makes it a criminal act to post a copyrighted work before it is released to the commercial market, such as distributing new movies and songs on the Internet before they are released.

The law also makes legal those video players that can be programmed to filter out objectionable scenes in DVD movies, and makes such players immune from copyright or trademark lawsuits. However, the law does not permit someone to create a new hardcopy of a sanitized movie or insert new video or audio material to replace the offensive content. The law also removes an inadvertent limitation on access by libraries and archives to works that are in the last 20 years of their copyright terms and that are not being commercially exploited.

· The Enforcement of Intellectual Property Rights Act[81][82](formerly known as the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act) passed Congress in 2008 and was signed into law by the President in October of that year. The law increases both the civil and the criminal penalties for copyright and trademark infringement. Punishments include not only the seizing of pirated copies but also seizure of the records documenting the manufacture, sale or receipt of pirated items, as well as any device upon which the copies are stored--previously, only the infringing items and things used to make the infringing items could be impounded.

Any computer or piece of network hardware used to facilitate a copyright infringement could be seized by the Justice Department and auctioned off —the owner does not even need to be found guilty of a crime for his property to be seized. The law also says that copyright registration is not required in order for there to be criminal enforcement of a copyright.

The Bush administration, as well as the Department of Justice, had initially opposed the PRO-IP legislation because of the presence of a provision that would have allowed the Department of Justice to conduct civil lawsuits on behalf of private copyright holders and pass along the winnings to the rightsholders. This provision was eventually removed from the bill, and the President signed the bill into law.

The law also creates a new executive branch office, the Office of the White House Intellectual Property Enforcement Coordinator[83][84], this office being modeled on the office of the US Trade Representative. The function of the office will be to coordinate US domestic and international action to stop IP piracy by overseas operators, typically from China.

The bill that was originally proposed called for the creation of a whole new IP enforcement bureaucracy underneath what would have been an “IP Czar” appointed by the President and confirmed by the Senate. The Justice Department had argued that the congressional-mandated creation of such an office might actually be unconstitutional, since it would amount to a congressional usurpation of a presidential prerogative. This provision was eventually removed, and the bill as finally signed by the President simply moves the already existing International Intellectual Property Enforcement Coordinator from the Department of Commerce (US Patent and Trademark Office) to the White House.

Public Domain

Works not subject to copyright are said to be in the public domain[85]. Works in the public domain are free for anyone to use in any manner whatsoever without asking anyone’s permission. They are considered to be owned by the public, not by an individual artist or author or by a corporation. You can do anything you want with a public domain work without getting anyone’s permission or paying any fees—you can publish it, digitize it, translate it, perform it in public, put it on public display, post it on the Internet, copy it, create a sequel, write a screenplay based it, make it into a movie, or use to create a derivative work—anything at all.

Examples of public domain works are federal documents, federally sponsored publications, or works created by federal employees in the course of their official duties. Examples are Congressional reports, military journalism, speeches or statements by federal officials, census data, federal court opinions, footage taken by camerapeople in civilian or military service, or NASA photographs of distant planets. These were paid for by the taxpayers and are free for anyone to use without permission. For example, you are free to use NASA photographs in your own book or article without having to get anyone’s permission or pay any royalties. Exceptions are works done for the government by private contractors such as public service announcements against drunk driving or advertisements for Army recruiters. The government owns the copyright for these. Even though federally created or sponsored publications or photographs are not subject to copyright, copyright may nevertheless apply to some state or local government publications.

Works created by officials of the American federal government are not subject to copyright, but this not necessarily true for foreign governments. A work created or sponsored by a foreign government might very well be subject to copyright under the laws of that particular country, and if that country were a signatory to the Berne Convention you would be guilty of infringement if you copied or performed the work here in America without permission. An example is the United Kingdom, where the speeches by the Prime Minister, the works printed by Parliament, and the publications issued by Her Majesty’s Stationary Office are subject to what is known as Crown Copyright.[86] You generally cannot use these works without obtaining permission, although there are some complex exceptions in which Crown Copyright does not apply to government-issued works. Tf you want to use something published by Her Majesty’s government, you need to be very careful.

The public domain also includes works created or published before 1978 for which the author or publisher attempted to obtain a copyright, but messed up some part of the process such as forgetting to renew the registration, omitting the required copyright notice, or committing some other sort of irregularity which resulted in a forfeiture of the copyright, or the copyright is invalid for some other reason.

The public domain also includes those works for which copyright once did exist, but has now expired. The Constitution explicitly says that copyrights must exist only for limited times and are not intended to last forever. For this reason, you no longer have to ask permission to perform Shakespeare’s plays or Mozart’s music, since the copyrights on them expired a long time ago. Under current copyright law, all works registered or published before 1923 automatically fall into the public domain.

Generally, works written by authors long dead are no longer subject to copyright, but even there you have to be careful. The works of Homer are certainly in the public domain since he has been dead for 2700 years, but copyrights may nevertheless exist on new translations or new formulation of his works. Music is a special problem—the music for Beethoven’s Fifth Symphony is certainly in the public domain, but an individual sound recording of this symphony may not be, and could well be protected by copyright.

Also in the public domain are works published before 1964 but for which the copyright was not renewed in a timely fashion[87]. This renewal must have been made during the 28^th year after the work was first published, which means that a book published in 1938 would have to had its copyright renewed in 1966. If this didn’t happen, the book automatically falls into the public domain and you can do anything you please with it. Fewer than 11 percent of the copyrights initially registered between 1883 and 1964 were actually renewed at the end of their 28-year term, even though the cost of renewal was fairly small. This means that a lot of these older works are actually in the public domain. However, it can be an extremely difficult matter to determine if a given copyright was renewed, especially for older works. There are online databases that you can check for book copyright renewals, and if the renewal occurred after 1977, the Copyright Office has online searchable records. Otherwise, you might have to pay a professional to search the records for you. Only if you are absolutely sure that the copyright of a work published before 1964 was not renewed should you go ahead and use it. Most

It can sometimes be difficult to determine if the copyright of a work published after 1923 had its copyright properly renewed during the 28^th year of its original term. If a work had gotten republished, the copyright notice page will sometimes state explicitly that the copyright was renewed. But more often than not, there will be absolutely no indication anywhere of whether the copyright was renewed. But absence of evidence is not evidence of absence—the copyright might have actually been renewed even if there is nothing in writing anywhere. You will probably actually have to search the US Copyright Office records to see if the copyright of a given work was renewed. This is pretty easy to do for works published between 1950 and 1963, since there is a searchable online database maintained by the US Copyright Office. However, for works published earlier, you must search the records manually. Only if you can be absolutely sure that the copyright was not renewed can you use the work without obtaining permission.

Determining what is in the public domain is not easy, and it can sometimes take a lot of research and legwork to determine whether or not a given work is actually in the public domain and is free to use without restriction. It used to be true that you could instantly tell whether a work was copyrighted or not by the presence or absence of a copyright notice (the familiar © symbol), but nowadays the absence of a copyright notice does not necessarily mean that the work is in the public domain, since there is no longer a requirement for the inclusion of a copyright notice. Generally, anything published before 1923 can be considered as being in the public domain, and numerous works published after 1923 are also in the public domain because their copyrights have expired, because their copyrights were not renewed in a timely fashion under the copyright rules that were in effect at the time, because they left off the copyright notice, or because they make some of other blunder that resulted in the forfeiture of their copyright. But thousands of other works published after 1923 are still under copyright, and you would need permission to use them. Unpublished works created even before 1923 are not necessarily in the public domain—these works are protected for at least the life of the author plus 70 years. If they were created before 1978 but first published before 2002, the works have protection until 2047. The determination of whether or not a given copyright has expired is not a simple and easy task, and usually requires a careful search of the records by experienced (and expensive) intellectual property experts. Cornell University provides a flow chart to assist one in determining if a work is in the public domain.

Happy Birthday to You[88] is perhaps the best-known song in the English language—you might think that this song is almost certainly in the public domain, since it is sung at millions of birthday parties and was even sung to President Kennedy by Marilyn Monroe and has been incorporated into millions of music boxes, greeting cards, and other musical products. But you would be wrong--the song is not in the public domain. Somebody still owns Happy Birthday to You and the work will remain under protection until 2030 at least. Although you are probably still safe if you sing the song at home for your family, in order to sing the song in public, to create a musical product using the song or to incorporate the song into your movie, TV show, or commercial, you need the permission of AOL Time Warner to do so, or a battery of lawyers will soon be at your door. The licensing fees and royalties paid on the use of the song bring in about 2 million dollars per year.

The Frank Capra movie It’s a Wonderful Life (1946)[89] [90] accidentally ended up in the public domain in 1974 because somebody forgot to renew its copyright during the 28th year after the film’s release. Inadvertently, the fact that the film was now in the public domain led to its increased popularity—many TV stations could now air the film free of having to pay royalties, and it soon became a perennial Christmas favorite. However, in 1993 Republic Pictures was able to use the Supreme Court ruling in Stewart vs Abend[91] to enforce its claim of copyright on the film. Although the film itself had entered the public domain, the short story upon which it was based had had its copyright properly renewed in 1971, and the movie was considered as being a derivative work and hence still protected by copyright. As a result, only NBC is now licensed to show the film on network television, the colorized versions have been withdrawn, and Republic now has exclusive video rights. So the movie enjoyed a few years of life under the public domain, but is now back firmly under copyright.

Dedicated Works

Dedicated works[92] are those that are deliberately placed in the public domain by their creators, usually by people who want to make some sort of political or intellectual point. This sort of dedication is rare, and you need to make sure that the owner really has dedicated the work to the public domain before you are free to use it. Also, you need to make sure that the person making the dedication has the right to do so. Only the copyright owner has the right to make such a dedication, and sometimes the creator of the work is not the copyright owner—you need to contact the copyright owner to be sure. For example, I do not own the copyrights on the two books that I wrote—the publisher does—and I would not have the power to dedicate my books to the public domain, even if I wanted to.

Assuming that an author actually wants to dedicate their work to the public domain and to abandon all their rights under copyright to their creative work, how do they actually go about doing this[93]? Actually, the copyright law provides no formal procedure for doing this, and some experts in copyright law think that it isn’t even legally possible to abandon one’s copyright. In response to a query, the Copyright Office told me that although there is no formal procedure for the renunciation of copyright, there is no law requiring that a copyright owner actually enforce their rights, and they could ignore any and all infringements if they choose to do so.

Since copyright is automatic, if an author wants to voluntarily place their work into the public domain, they need to take affirmative steps to do so. One thing that an author might do is to inform the Copyright Office in writing that they intend to relinquish all rights under copyright to their work. However, the Copyright Office has no official form to do this, and since there is no recognized procedure in place for relinquishing copyright, it is not clear what the legal effect of submitting such a relinquishment letter would be, if any. Alternatively, if the author really wants to abandon their exclusive rights under copyright, the Public Domain Sherpa website recommends that the author could attach an unambiguous and unequivocal statement to their work acknowledging their intention to give up all rights under copyright to the work[94]. The statement must not say that the author is giving up just some of their rights under copyright law—it must say that they are giving up all of them. The statement should also say that the author is giving up any right to enforce their copyright by legal means such as the filing of a lawsuit. In addition, the statement should also say that the dedicator relinquishes all present and future rights in perpetuity, which would ensure that the author or his heirs and successors couldn’t change their minds and come back at a later time and reassert their copyright. If you don’t see all of these things stated clearly and unambiguously in the relinquishment statement, be very careful before you go ahead and use the work—contact the author to make certain that you know what their intention really is, or you could find yourself in court.

Could an author who voluntarily placed their work in the public domain change their mind at a later time and put the work back under copyright restrictions? Since copyright is automatic, and since the Copyright Office does not recognize any formal procedure for the renunciation of copyright, I supposed that one could reasonably argue that full copyright protection was always potentially available for the entire period of time that the author had voluntarily put their work into the public domain, and they could decide to enforce their copyright at any time they pleased. However, one might argue that if the author had attached a clear and unambiguous statement of copyright relinquishment to their work, this might be considered as a contract, and that it would difficult to sue someone who copied, performed, or distributed the work under the reasonable assumption that they had the right to do so

The Undead Copyright

Once a work has entered the public domain, will it stay in the public domain forever, or can someone at a later time come along and put it back under copyright? The answer is generally no--someone cannot come along at a later time and reinstate copyright on a public domain work. Once a copyright has expired, it stays expired and cannot be restored. Like a diamond, the public domain is forever. Even if somebody republishes the work, it still remains in the public domain and can be freely used by anyone without getting permission or paying any fees.

However there is an important exception to this rule, involving works created or published in other countries that got cast into the public domain in the USA because they had failed to comply with some of the formalities of American copyright law such as registration or the attachment of copyright notices. The Uruguay Round Agreements Act (URRA) passed by Congress in 1994 codified an agreement reached by the Uruguay Round of the General Agreements on Tariffs and Trade (GATT), under which those foreign works that had lost their copyrights due to noncompliance with US formalities had their copyrights fully restored, being given copyright terms equal to what they would have had if they fully complied with all US formalities. The URRA became effective January 1, 1996. These foreign works that were brought back under copyright are known in legal parlance as restored works[95].

So a lot of foreign works that had been in the public domain in the USA were suddenly thrust back under copyright--it is now very unlikely that any work first published abroad within the last 50 years will be in the US public domain. As of January 1, 1996, anyone who uses a restored work without permission can be sued for copyright infringement. But not all foreign works had their copyrights restored—those foreign works that had already gotten a full term of copyright protection in the US and whose copyrights had already expired were not restored, and those works what were already in the public domain in their source countries were not restored either. So how can you tell if a foreign work has had its copyright restored? Copyright restoration is automatic, no documents have to be filed, and there is no list anywhere of restored works. So it can take quite a bit of legwork to determine whether a work originating from outside the USA is in the public domain.

What about people who had begun using these works before the URAA was enacted, relying on the fact that they were public domain works? Such people are known in legal speak as reliance parties. What they were doing was perfectly legal at the time, and it would certainly be unfair if they could now be sued because of an inability to predict the future. The URAA requires that the owners of these restored copyrights have to inform the reliance particles if they intend to enforce their rights. They can do this in two different ways. They can do this by providing an actual notice to the specific reliance party, or they can file a notice of intent to enforce a restored copyright with the US Copyright Office. The Copyright Office does maintain a list of notice of intent filings, which can be useful in investigating the public domain status of a work first published outside the USA, but one has to remember that restoration is automatic, and that the list includes only those parties who have given notice that they intend to enforce their copyrights.

Who Owns H. P. Lovecraft?

Controversy has arisen over the ownership status[96] of some of the works of the supernatural horror author H. P. Lovecraft, who died in 1937. Lovecraft has gotten more popular with each succeeding year, with his novels and short stories still being valuable commodities that have been republished numerous times. In addition, characters, themes, and situations from Lovecraft’s novels and short stores have found new expression in a variety of media, including television, music, short stories, video games, online websites, and movies, and numerous authors have created pastiches based on his work. The copyright status of the original Lovecraft works is relevant here, since any and all of these activities done without the consent of the copyright holder might be a copyright infringement, which could subject the offender to civil or even criminal penalties. Lovecraft himself was quite generous with his creative works, and he freely invited other authors to write sequels, adaptations, or other sorts of derivative works using situations and characters from his works--the fictional book The Necronomicon, the non-existent school Miskatonic University, the imaginary town of Arkham in Massachusetts, and the so-called Cthulhu Mythos surrounding the Great Old Ones and the gods Cthulhu and Yog-Sothoth, being prime examples. But Lovecraft is dead, and his heirs, his estate, and the people who currently own his copyrights might be not nearly so generous.

But does anyone still own H. P. Lovecraft? Clearly, anything that Lovecraft published before 1923 is now in the public domain, and is completely free for anyone to use in any manner whatsoever. However, many of his works published after 1923 have an ambiguous copyright status. Some of them might actually be in the public domain because they were published without the required copyright notice attached. Others may be in the public domain because their copyrights were not renewed in a timely fashion under the rules in effect at the time. Most of Lovecraft’s stories were published in magazines, and although the magazines renewed their copyrights it is not clear if a magazine renewal also covers the individual articles and stories in the magazine. Dedicated searches of the records have failed to find any valid copyright renewals for these individual stories, and this might mean that they are all now in the public domain.

However, there is a possibility that the Arkham House publishing concern had secured the necessary copyrights from Lovecraft’s magazine publishers and from his heirs, and Arkham House now claims ownership of Lovecraft’s copyrights. August Derleth, one of the original founders of Arkham House, was a friend of Lovecraft and he also contributed to the Cthulhu Mythos by writing pastiches of Lovecraft’s works. Derleth claimed that he had acquired control over Lovecraft’s works, and the Derleth estate claims ownership of Lovecraft’s literary material, including all his unpublished works.

Even if someone can prove that he or she owns Lovecraft, it is still not certain if the copyrights on Lovecraft’s works are still valid. If Lovecraft’s works are now all in the public domain, even someone who still “owns” his creative works cannot prevent others from republishing his stories, from writing sequels or derivative works, or even from creating video games based on the Cthulhu Mythos. All of this controversy has caused numerous suits and countersuits, and the issue still stands unresolved today. Although you will find copies of Lovecraft’s works all over the Internet, the legal status of these copies is unclear.

The I Have A Dream Speech Copyright Hassle

A controversy arose about the copyright status of the famous Martin Luther King “I Have A Dream” speech, delivered on the steps of the Lincoln Memorial on August 28, 1963 and reaching a large audience, both live and televised. About a month after the speech, Dr. King took steps to secure federal copyright protection under the provisions of the law that was in effect at the time (the Copyright Act of 1909), and he later filed suit to prevent the unauthorized sale of recordings of his speech. In 1996, CBS produced a video documentary that used, without authorization, major portions of the speech. CBS argued that by performing his speech in public Dr King had effectively granted it to the public domain, and that Dr. King’s attempt to obtain statutory copyright protection a month later was ineffective because the speech had already been forfeited to the public domain. The King estate disagreed and immediately filed a lawsuit.

The lawsuit hinged on the precise legal meaning of “publication”. The 1909 Copyright Act had not actually formally defined the term “publication”, and it was left to the courts to figure out what it actually meant. Over the years, state and federal courts had devised a number of rules to handle cases involving disputes over when publication had actually taken place. One of the more important rules was a stipulation that an author received state common law protection upon creation of their work—this protection forbade anyone else from publishing the work or publicly distributing it without the author’s consent. This common law protection persisted until the moment of “general publication” by the author. Once general publication takes place, state common law protection is lost and the work is automatically forfeited to the public domain unless the author conforms to federal copyright requirements by either registering the work or attaching the required copyright notice. Over the years, the courts developed a distinction between a general publication and a “limited publication”--a general publication takes place when a work is made available to the public at large without restriction, and a limited publication takes place when the work is communicated to only a select group for a limited purpose and without the right of reproduction, distribution, or sale. Only a general publication without a copyright notice attached resulted in a forfeiture of common law copyright.

The 11^th Circuit Court of the US Court of Appeals[97] ruled that the public performance of the King speech did not in and of itself constitute a “general publication” and by giving this speech in public he did not forfeit his copyright on it. A public performance, no matter how broad the audience, does not count as a general publication. Even Dr. King’s distribution of written copies of his speech (without a copyright notice) to the news media was merely a “limited publication” because it was for the purpose of enabling the reporting of newsworthy event and was not a distribution to the general public. So the King estate can still charge a license fee for redistribution of his speech, whether in a TV program, a history book or in a dramatic re-enactment.

Copyright Expiration and the Sonny Bono Copyright Term Extension Act

The Framers deliberately wanted copyrights to expire after a relatively short time, since they were afraid that eternal copyright terms might result in the publishing trade ending up as a system of hereditary privilege, somewhat like the printers guilds of seventeenth-century England, who tied up the rights to authors long dead and tightly controlled what could or could not be printed. An infinitely long copyright was a powerful tool of censorship and they certainly didn’t want such a system here.

The lifetime of copyright was originally set to 14 years in 1790, extendable by application for another 14 years. Congress has generally increased the copyright expiration time over the years. The 1908 Copyright Act extended the life of copyrights to 28 years, renewable just once for another 28 years. In 1978, the law was changed to provide for protection lasting 50 years after the death of the creator of an individual work. Works for hire had their lifetimes extended to 75 years.

The Sonny Bono Copyright Term Extension Act of 1998 was a law designed to bring US copyright terms in harmony with those of Europe. In 1996, the European Union had extended copyright terms from life plus 50 years to life plus 70 years. Proponents of the law argued that a difference in the length of copyright terms between the USA and Europe would have an adverse effect on the international operations of the entertainment industry—works that are protected by copyright in one country might be in the public domain in others.

The proponents of the law also believed that extending the duration of copyright protection would help American copyright owners protect their works in foreign countries and would provide more incentive for owners to digitize and preserve older works. In addition, the Copyright Clause of the US Constitution was not considered to be an impediment, since even an absurdly long, but nevertheless finite, duration would still meet the letter of the Copyright Clause, so long as Congress was actually setting this new limit in order to promote the progress of the sciences and the useful arts. Since people live longer nowadays, it was argued that an increase in copyright duration might provide an extra incentive for more works to be created.

Several large media corporations also lobbied for the law. Under the copyright expiration terms set by the 1976 Copyright Act, in the late 1990s several large publishers and movie studios were faced with the imminent expiration of some of their copyrights on works that originated back in the 1920s and 1930s. Some of these copyrighted works still remained quite profitable for their owners. Prominent among these was the Disney Corporation, which was faced with the imminent expiration on some of its early copyrights on Mickey Mouse. If this were allowed to happen, Mickey Mouse would gradually move into the public domain and anyone would be free to sell Mickey Mouse T-shirts, mugs, cartoons, books, and other paraphernalia without having to pay the Disney organization a single dime, and the Disney organization would lose access to a revenue stream worth millions of dollars. The Disney organization’s intense lobbying effort for the copyright extension law inspired the derisive nickname The Mickey Mouse Protection Act.

The law’s chief sponsor was Sonny Bono, who was formerly a member of a husband-and-wife singing duet known as Sonny and Cher. The two had a popular TV show back in the 1960s, and were the singers on several Top-40 hit records. After the two split up, Cher went on to become an internationally famous movie star, and Sonny went on to become mayor of Pasadena and in 1995 he became a Republican congressman from California. As a songwriter and filmmaker, he had favored increasing the copyright term even before his entry into politics. Sonny Bono was killed in a skiing accident 9 months before the law was passed, and the law was named in his honor. Mary Bono, Sonny Bono’s widow and successor in his House seat, was an enthusiastic supporter of the act, and noted that Sonny had actually wanted copyright terms to last forever, but was informed by his staff that this would be unconstitutional.

The estate of the late composer George Gershwin also supported the act. Another powerful supporter was Jack Valenti, president of the Motion Picture Association of America, the lobbying arm of the motion picture industry. At the time, the entire country was distracted by the Bill Clinton/Monica Lewinsky matter, and there was little public debate or discussion of the legislation, and the bill was passed by both houses of Congress by a voice vote on October 7, 1998. The President signed the act into law on October 27, 1998.

The Sonny Bono Copyright Term Extension Act of 1998[98] [99] [100] extended copyright protection for another 20 years for all copyrights. The details of the law are fairly complex:

For works created on or after January 1, 1978, the new copyright term is life plus 70 years for individual authors of works. If the work is a joint work, the term is measured by the life of the last surviving author, plus 70 years. “Works for hire” now enjoy protection for 95 years from date of publication or 120 years from date of creation, whichever is shorter

Works that were created before January 1, 1978 but not published or registered for copyright are now automatically protected, and the duration of copyright on these works is the same as it is for works created after 1978—life of the author plus 70 years for individual works or 95/120 year terms for works-for-hire.

For those works published or registered before January 1, 1978 and still under copyright at the time the Sonny Bono law went into effect, the law extended the duration of their copyright terms by 20 more years.

If these copyrighted works happened to be in their renewal terms at the time the Sonny Bono law went into effect, the renewal terms were extended to 67 years, making these works eligible for protection as long as 95 years following the date the copyright was initially secured.

Works published or registered before January 1, 1978 that were still in their original term of copyright when the Sonny Bono law went into effect also had their terms extended to 95 years. There is no longer any need to file any sort of renewal request in order to extend the original term to the full 95 years.

A 1992 amendment to the copyright law made renewals automatic for works published from 1964 through December 31, 1977.

For works that had been published or registered for copyright on or before January 1, 1978, but whose copyrights had already expired under the law in effect at the time, the Sonny Bono law did not revive the copyright for these expired works.

Works published or registered for copyright before 1923 are in the public domain, and the Sonny Bono law does not bring them back under copyright. The law does not restore copyrights for works that are already in the public domain.

So copyright now lasts an obscenely long time, and you should probably assume that just about everything created after 1923 is still under copyright. A summary of the current system for determining copyright durations is displayed in a flow chart on the Cornell University website.

Critics of the law regard the legislation as little more than corporate welfare for powerful interests in the entertainment and content industries. The law did little to protect individual artists, but it did a lot to enrich powerful media companies that hold the rights to their creations. Very few works retain any commercial value after the first few years, and are usually pulled off the market by their owners after that. Extending the copyright terms does little to enhance the value of these works, but for those few works that have retained their commercial value after half a century, extending their copyright terms can have great economic value.

The granting of two successive 20-year copyright extensions (one in 1976 and another in 1998) sets a precedent for the granting of infinite copyright terms “on the installment plan”—sometime in the next 20 years you can bet that the Disney organization’s lobbyists will be back before Congress, asking for yet another extension. This nullifies the spirit if not the letter of the Constitutional requirement for limited copyright terms. In addition, it is difficult to see how a retroactive copyright term extension will inspire any new creativity— George Gershwin certainly isn’t going to be writing any more music, no matter how often his copyright terms get extended. Retroactive copyright extension is more likely to favor the creation of a wealthy parasitic class, living off the proceeds of the original creation, with children, grandchildren and even great-grandchildren still reaping the rewards from the work’s creator, now long since dead.

Eric Eldred[101], a retired computer programmer from New Hampshire, has as a hobby the online posting of works that have recently entered the public domain. He got his start when he put up a website on the Internet for his teenage daughters, on which he posted copies of classic public domain literary texts such as those by Nathaniel Hawthorne, hoping that they would get interested in them. His site eventually became popular for students around the world and he received a commendation for his work from the National Endowment for the Humanities. Robert Frost’s poetry collection New Hampshire was slated to enter the public domain in 1998, and Eldred was anxious to post it on his website. However, the Sonny Bono Copyright Term Extension Act had the effect of extending the copyright on the Frost poetry collection for another 20 years, which meant that it would not become available until 2019 at the earliest.

Eldred decided to fight this law. He first thought about performing an act of civil disobedience, by going ahead and publishing the Frost collection on his website anyway. However, it was pointed out to him that the No Electronic Theft Act of 1998 would have made such an action a federal crime. Since the prospect of doing time in a federal prison was not all that attractive to him, he decided instead to challenge the retroactive copyright extension in court. He claimed that this retroactive extension deprived him of his First Amendment rights and also abandoned the Constitution’s clear intention of allowing only “limited” copyright terms.

Lawrence Lessig, a Stanford University law professor, represented Eldred. Eldred was joined in his action by a group of commercial and nonprofit interests who rely on access to the public domain for their work. Examples were Dover Publications, a publisher of scientific and academic paperback books, most of which have recently entered the public domain, as well as restorers of films from the 1920s and the 1930s, and publishers of orchestral sheet music. Arguing in favor of the law was the US government, represented by the Attorney General, supported by powerful interests in the motion picture and recording industries.

The case was Eldred vs. Ashcroft[102]. The United States District Court for the District of Columbia heard the case. The plaintiffs argued that by retroactively extending copyright terms, Congress had violated the intent of the Copyright Clause in the Constitution, since by allowing any number of retroactive extensions, Congress could in practice guarantee an unlimited period of copyright protection. The plaintiffs also argued that any copyright law must be subject to scrutiny under the First Amendment in order to insure a balance between freedom of speech and the interests of copyright—the law violates the First Amendment by continuing to prevent published material from entering the public domain. In addition, the plaintiffs argued that the doctrine of public trust requires that the government must show that any transfer of public property into private hands benefits the public in some manner.

In response, the government argued that Congress can retroactively extend terms as often as it likes so long as the individual extensions are all for limited times. Also, the original copyright law of 1790 had applied copyright protection to existing works. Furthermore, the government argued that neither the First Amendment nor the doctrine of public trust is applicable to copyright law.

On October 28, 1998, the District Court judge rejected all of the plaintiffs’ arguments. The judge concluded that Congress had the power to extend copyright terms however it liked, so long as the terms themselves were of limited duration. The judge also rejected the notion of any First Amendment scrutiny in copyright cases, based on the Harper and Row vs Nation case, the notion being that copyright law does not attempt to regulate ideas, only the specific expression of ideas. Also, the judge ruled that the public trust doctrine was not applicable to copyright law.

The plaintiffs appealed to the Court of Appeals of the District of Columbia. The plaintiffs extended their argument to note that the Copyright Clause in the Constitution requires that copyright must promote the progress of science and useful arts, and argued that retroactive extensions do not directly serve this purpose. The Appeals Court upheld the district court decision in a 2 to 1 opinion. The court concluded that Congress had used its powers to extend the duration of existing copyrights several times since 1831, and none of the previous extensions had been challenged in court.

The plaintiffs then appealed to the Supreme Court, and the Court agreed to hear the case. Lawrence Lessig was Eldred’s lawyer, and Solicitor General Theodore Olson argued the government’s case. Lessig refocused the case on the limited times aspect of the Copyright Clause, plus the first Amendment argument.

On January 15, 2003, the Supreme Court ruled[103] 7 to 2 that the copyright extension act is constitutional. The majority opinion argued that retroactive extensions had been done in 1790, 1831, 1909, and in 1976, so there was plenty of precedent. The majority opinion was that Congress has the right to determine exactly what the word “limited” means in the copyright clause. The Court also held that the extension of existing and future copyrights does not violate the First Amendment, since copyright can only be used to restrict the particular expression of an idea, not to restrict the idea itself.

Lessig later wrote[104] that he regretted basing his case on rather narrow legal arguments rather than attempting to demonstrate that weakening the public domain would cause economic harm to the country. However, even the majority opinion conceded that an excessively-long copyright did not necessarily serve the interest of science and the useful arts, only that Congress had the right to set the expiration term to anything it desired.

The public has a vital interest in seeing that creative works eventually enter the public domain, with no need to pay royalties or obtain permissions. Contemporary authors then become free to borrow from these older works, which is a creative tradition that dates back to the ancients. In the arts and sciences, there is very little that is truly original—just about every creative work ever written or composed has built on and extended the work of others. In his plays, Shakespeare borrowed extensively from existing stories and legends—Julius Caesar, The Merchant of Venice, Hamlet, and Othello are obvious examples. Shakespeare’s Romeo and Juliet was an adaptation of Ovid’s story of Pyramus and Thisbe, as told in his Metamorphoses[105]. The musical West Side Story recasted the famous story of the star-crossed lovers into a contemporary context of New York City street gangs. Andrew Lloyd Webber’s Phantom of the Opera was a musical adaptation of Gaston Leroux’s novel of the same name. Walt Disney borrowed extensively from the public domain fairy tales of the Grimm Brothers in the creation of many of his classic cartoon films such as Snow White and the 7 Dwarves and Cinderella. In fact, one can argue that much of the success of the Disney organization lies primarily in its ability to borrow extensively from works in the public domain. Even Mickey Mouse was lifted from somewhere else--the first commercially successful Disney Mickey Mouse cartoon, Steamboat Willie, was a parody of the Buster Keaton film Steamboat Bill, Jr. The Mickey Mouse character itself was based on actors and singers who appeared in old-time minstrel shows. The history of music is replete with wholesale borrowing or appropriations of chords and melodies from earlier works. Aaron Copland’s Appalachian Spring ballet uses a tune borrowed from an old Shaker hymn. The 1965 pop hit A Lover’s Concerto[106] by the Toys was an adaptation of The Minuet in G by Johann Sebastian Bach.

A rich and expanding public domain is essential for creativity, and there is a danger that excessively-long copyright terms will lock up more and more of our culture under the control of large for-profit corporations, in which each new work that is created will require an expanding number of clearances, permissions and payments. The progressive extension of the lengths of copyright terms will steadily diminish the amount of material in the public domain, so that eventually virtually nothing will be free to be used by others without requiring someone’s permission or a payment to someone. Lengthening the term of copyright increases the cost to non-copyright holders of producing new works. It, helps the big studios, the large record labels, and the major publishers to maintain a virtual monopoly in selecting and rewarding new talent.

Orphan Works

“Orphan” works[107] [108] [109] are those works which still fall under copyright, but for which the copyright owner no longer exists or is hard or impossible to find. Examples might be works whose authors have moved somewhere else and left no forwarding address, works by authors who died a long time ago and which are now owned by heirs or estates, or works owned by corporations that went out of business many years ago or by organizations that no longer exist. In any case, these works no longer retain any commercial value and were withdrawn from the marketplace long ago by their owners, and are no longer available in any form. Nevertheless, copyright protection may still be applicable to these orphan works, and you could still be sued by an irate rightsholder if you re-use these works without obtaining permission. Unfortunately, one sure way to find a missing copyright owner might be to go ahead and infringe on their work, and then first find out that they still exist when they sue you in court.

Because the cost of finding the owner is so high, creators can’t build on orphan works, and can’t run the risk of converting them to new formats. Prime examples of orphan works are old movies from the 1920s and the 1930s, many of which are sitting in a can somewhere, slowly crumbling away. Noone dares save these movies in digital form for fear of violating someone’s copyright and getting sued, and it costs too much to find out whom if anyone owns the copyright. These orphan works are frozen into a sort of legal limbo until they finally enter the public domain, and recent extensions of the copyright expiration term have greatly lengthened this period. Archivists, historians, and others interested in preserving these works for posterity are locked out for no good reason. The high cost of locating the owner of these abandoned works is contrary to the Constitutional intent of copyright; it decreases the incentive to create derivative works, and prevents historians and artists from being able to exploit them.

The Public Domain Enhancement Act [110] [111] is a proposed law introduced before Congress by Zoe Lofgren (D-CA) and John Doolittle (R-CA) in 2003 to modify the Sonny Bono Copyright Term Extension Act so that any work over 50 years old would have to have its copyright renewed once a year by paying a small fee. This renewal procedure would make it a lot easier for potential users to find the owners of these older works. Any work over 50 years old that is not renewed would then automatically pass into the public domain, and would be free for anyone to use. While imposing essentially no cost on the owners of commercially valuable copyrights, it would reclaim for the public domain the vast majority of works that have retained no commercial value after 50 years. The bill was bottled up in committee, has not developed any traction and has not gone anywhere. It was reintroduced in 2005, and sits somewhere in committee at the present time.

The US Copyright Office has been studying the whole “orphan works” issue, acting on a request from Senators Orrin Hatch and Patrick Leahy of the Senate Judiciary Committee. In January of 2006 the Copyright Office issued its report[112] to the Committee. The report was a long and comprehensive document that clearly confirmed that there is indeed a problem with orphan works and that something should be done to make them more accessible for preservation. The report also issued some proposals for legislation that would correct the problem, and in May of 2006 Congressman Lamar Smith (R-TX) introduced the Orphan Works Act of 2006 that incorporated many of the Copyright Office’s recommendations. The Act recommends that a copyrighted work be deemed an orphan if the copyright owner cannot be located after a “reasonably diligent search”. If the rightsholder can’t be found, then the copyright owner’s rights will be curtailed and the user will be free to do as they please with the work. The Copyright Office would be charged with the task of developing procedures and protocols for the establishment of some sort of registry of copyrighted material, one that would be easily searchable by people trying to locate copyright owners.

Unlike the Loftgren/Doolittle bill, the orphan works proposal would apply to all copyrighted works foreign and domestic, as well as published and unpublished works. The proposal has been criticized[113] on the basis that it applies to all copyrighted works, not just those deemed to be “older” than a certain number of years. The Act might be particularly unfair to authors whose works were produced after 1978, when the requirement for formal copyright registration was eliminated and copyright protection became automatic as soon as a work was fixed into some definitive form. Currently, authors and artists don’t have to be concerned very much about formalities, since copyright protection is automatic and a copyright cannot be lost simply because a rightsholder missed a deadline or filled out a form incorrectly. Under the current system, an author certainly doesn’t have to worry about whether or not they can be located by people who want to obtain their permission to quote, copy, or reuse their work--whether or not someone can find you does not matter, since they are still not allowed to use your work without your permission. The new system will impose an additional formality on copyright owners that they did not anticipate when they first created their works. If the Act passes, a copyright owner will have to take additional steps to make sure that potential users will be able to contact them to request permission--how is it possible for a copyright owner to make absolutely sure that they can be found after a “reasonably diligent search” and that they won’t lose their copyright because they have omitted some obscure but important step in the process? This new system will add new costs and new hassles to the creative process and will probably be a full-employment act for copyright lawyers, since they will have to be consulted by artists and authors at all steps in the process.

In September of 2006, the Smith bill was folded into the more complicated Copyright Modernization Act of 2006, which also deals with the licensing of online music.

First Sale[114]

The legal principle of first sale means that once a customer has legally acquired or purchased a copy of a copyrighted work, they can do whatever they please with the item, so long as what they do with the work does not step on any of the copyright owner’s exclusive rights. You can do just about anything you like with a copy of a copyrighted work that you own, except publicly perform the work, display it in public, create a derivative work based on it, or make and distribute unauthorized copies, since these are rights that are reserved exclusively for the copyright owner.

The first sale doctrine makes it legal for you to sell, loan, or give away copies of copyrighted works that you legally acquired, even if the copyright holder opposes your action. In addition, you can re-read a book several times or watch a DVD again and again without paying an additional fee. It is perfectly legal to sell used books, movies, or music on eBay or Amazon.com. The first sale doctrine is what makes lending libraries, video rental stores, used record stores, and used bookstores legal—they have the right to operate without having to consult with a rightsholder every time they lend or sell a work

First sale is explicitly provided for in Section 109 of the 1976 Copyright Act, but it has been a part of the common law since the beginning of the twentieth century. The first sale doctrine was first applied by the Supreme Court in the case of Bobbs-Merrill Co vs Strauss in 1908[115], when they ruled that the exclusive right to sell copies of copyrighted works applied only to the first sale of the copyrighted work, and that the copyright owner gave up his ability to control the subsequent fate of the individual copy of the work once it has been sold to a customer.

The first sale principle also makes it legal for you to make copies of software, DVDs or CDs that you legally acquired for your own use, provided you do not give or sell them to others. It is perfectly legal for you to make a backup copy of your Microsoft Windows XP^® disk, provided you don’t give it to someone else. The Audio Home Recording Act of 1992 makes it legal for listeners to make personal digital copies of their music. So it is legal for you to rip songs off of a CD that you legally purchased and burn them onto other CDs or copy them onto your PC hard drive or onto your iPod, provided you don’t sell them or give them to someone else.

The doctrine of first sale also makes it legal for you to watch or listen to the copyrighted work you legally purchased on any type of equipment you please. It is perfectly legal for you to play your CD on your home computer, or to watch a DVD on your laptop. You can also read the book you purchased anytime and anywhere you please—on the train, while sitting in the park, while lying in bed at home, or even while in the bathroom.

The principle of first sale also means that one is permitted to modify, deface, or destroy his or her legitimately acquired copies of copyrighted works, so long as duplication is not involved. This means that I am completely free to rip pages out of a book I legally purchased, to throw it away, or even burn it completely to ashes. However, the principle of first sale might not apply to limited edition artworks or works of fine art—for example it might be illegal under the principle of artists’ moral rights to destroy or deface a signed and numbered photograph that was created in limited editions of just a few copies.

The doctrine of first sale is an important guarantor of First Amendment rights—it prevents the rights holder of intellectual property from being able to completely control who has access to it and how it is used. Without first sale, publishers could refuse to let unfriendly critics have access to their books, corporations could prevent consumer groups from seeing documents that cast them in an unflattering light, and authors could be able to prevent satirists from getting copies of their works.

The principle of first sale is somewhat in conflict with the principle of “moral rights”, under which an artist has the power to regulate the subsequent use of the artwork, even after it has been sold to someone else. However, in the USA moral rights are restricted to unique visual works of art—generally it applies strictly to one-of-a-kind works that are hanging in an art gallery or are on public display—and prevents them from being dishonored or defaced.

The “gray market”[116] has provided an interesting challenge to the first sale doctrine. Because of currency fluctuations and lower advertising costs, American companies can often sell their copyrighted products in foreign markets at significantly lower prices. Once these prices drop low enough, it becomes economically feasible for foreign buyers to import these products back into the American market, undercutting American vendors. This is known as the “gray market”, and it is not illegal. However, American vendors regard this as unfair competition and have used the copyright laws to try and stop it. In 1998, the Supreme Court ruled that domestic manufacturers of copyrighted goods could not use their copyright monopolies to protect themselves from gray market competition.

Does the principle of first-sale apply to computer software? Can I sell, give away, or lend the software that I have legally purchased? This is an area of some legal confusion. The 1990 Computer Software Rental Amendments Act specifically forbids the commercial rental or leasing of computer software without the permission of the copyright owner, which removes from computer software some of the first-sale rights granted to other media such as books and movies. Software publishers such as Microsoft or Adobe claim that the first-sale doctrine does not apply at all to them because software is understood to be licensed, not sold. They maintain that when you purchase software, you are not really purchasing the software itself, but are only purchasing a license to use the product in a manner bound by the provisions of the End User License Agreement (EULA)[117]. The license is written in almost unintelligible legalese and is usually printed on a piece of paper that is packed inside the box that holds the installation disks and the documentation. The box is covered by a shrink-wrap transparent plastic coating, and opening the box implies that the purchaser accepts the terms of the license. Because of the wrap, the customer can’t read the terms of the license until they have actually purchased and opened the package, so the customer is forced to “sign” a contract that they haven’t read. For this reason, the EULA is sometimes known as a “shrink-wrap” license. Sometimes you don’t see the EULA until you actually begin installing the software on your computer and see a window pop up with a whole bunch of mind-numbing legal jargon on it, listing the terms of the license. If you don’t click on the “I accept” button to agree to the terms of the license, you will not be allowed to install the software. For this reason, the license is sometimes called a “click-through” license.

Typically, the EULA explicitly removes[118] the right of ownership of the software and instead confers only a right to use the software, subject to a long list of conditions, restrictions, and exclusions. You do not own the software that you bought, in the same sense that you own your car. The EULA typically forbids you to lend the software to others, to sell or give copies of it to others, or to post it where others could easily make copies of it. Some EULAs shield the vendor from liability claims other than physical defects in the CD, which is designed to protect them from frivolous lawsuits. Some EULAs forbid you from reverse-engineering the product, and prevent you from tinkering with or altering the product in any way so that might better be able to meet your needs. Some EULAs prevent you from reselling or giving the original software to others—if you find that you no longer need the software or if you find that it doesn’t meet your needs, you are stuck with it. People who have tried to sell their unneeded software on eBay have been threatened with legal action by the software vendors. You may even be forbidden to install the software on more than one computer—you can use it on your computer, but you can’t put it on your spouse’s computer.

There is a controversy about whether EULAs are legally enforceable[119]. The courts have issued contrary decisions[120],[121]. So far, there is no definitive ruling. More and more computer industries, software vendors, and rights holders of all sorts are insisting that the first sale doctrine is an obsolete concept that is not valid at all in the digital era[122]. In the present environment, the customer’s first sale rights are steadily being eroded away. First, the rental of phonograph records was forbidden, next the rental of computer software was forbidden. Shrink-wrap licenses now stop you from selling or lending your computer software to others, prevent you from tinkering with the software or modifying it in any way, and prevent you from making copies. In imitation of the practices of software distributors, more and more vendors in other areas are attempting to impose restrictive EULAs on their customers. Certain CD-ROM videogame vendors argue that the first sale doctrine should not apply to them because they are computer programs. Some book publishers and record labels have even attempted to impose “shrink-wrap” licenses on their customers. Since so many products nowadays have a computer chip in them, there will be strong pressure to do away with the principles of first sale altogether, replacing them with uses that are governed by increasingly complex and limiting EULAs that effectively strip away all first sale rights.

Fair Use

Copyright laws provide an exception for fair use, where you don’t need the permission of the copyright owner to copy or perform their work. The fair use doctrine is perhaps the most significant limitation on the exclusive rights held by a copyright owner. It provides for the legal, non-licensed citation or incorporation of copyrighted material into another author’s work under certain circumstances. The fair use doctrine assumes that certain uses of a copyrighted work constitute a sufficiently compelling social good for the general public that even if the copyright holder objects, the uses can nevertheless go forward without restriction.

The idea of fair use is fundamentally based on free-speech rights granted by the First Amendment of the US Constitution—copyright cannot be used to take away your basic rights as a citizen of the USA. If permission were required every time a document is copied for private use or if one had to get permission every time they wanted to incorporate a quotation into a new work, the hassle of tracking down copyright owners, seeking permissions, and paying fees would cripple our ability to share ideas. If schoolteachers had to get permission for every image, film, song, or article that they used in the classroom, education would be stifled. Copyright owners could censor ideas by denying permission to anyone whose views they disliked. If the owners of intellectual property could use their government-granted monopoly to withhold access to their works at will, this would be a violation of the First Amendment’s guarantees of free speech. However, the concept of fair use is sort of vague, and whether or not a specific use of a copyrighted work is fair use can often only be settled in court.

At the very highest level, the principle of fair use allows for uses of a copyrighted work by others for purposes that are deemed socially beneficial, for example in education, criticism, commentary, scholarship, research, reportage, or parody. Generally, the principle of fair use means that you are allowed to use short quotations from a copyrighted work while writing a review or a commentary without having to obtain permission from the work’s copyright holder. If you broadcast movie reviews for a TV station, you are allowed to show a short clip from a copyrighted movie while broadcasting a review of the movie without having to get permission from the movie studio. An author is allowed to use short quotations from other writers without having to obtain permission or pay any fees. A reporter is allowed to quote facts and opinions from others while writing newspaper articles. An individual is permitted to make photocopies of copyrighted journal articles for personal, research, or educational uses. You are allowed to create a parody of a novel, song, movie, or TV show without asking permission from anyone, even if the copyright owner strenuously objects to what you are doing. If you are a teacher in a nonprofit educational institution, you are allowed to exhibit or display copyrighted works during face-to-face classroom teaching, and you are allowed to hand out multiple copies of copyrighted works for classroom use.

The principle of fair use was codified in Section 107 of the 1976 Copyright Act, although federal courts had been using a common law form of the notion of fair use since the 1840s. Section 107 of the Copyright Act says that the reproduction of copies for purposes such as criticism, commentary, news reporting, research, scholarship, teaching (including multiple copies for classroom use) is not a copyright violation. Generally, the principle of fair use means that if what you are doing is seen as benefiting the public in some way, you are permitted a great deal of latitude in your use of copyrighted materials. Section 107 was amended in 1992 to clarify that fair use applies to unpublished as well as published works.

The copyright law and the courts interpret fair use as an “affirmative” defense[123], which means that if a lawsuit is filed, the burden of proving that their use was fair rests with the defendant—the plaintiff does not have to prove that the use was “unfair”, the defendant must prove that it was “fair”. For this reason, most defendants in copyright lawsuits that involve fair use questions usually settle out of court rather than go through the expense and hassle of a court trial. The settlement usually involves the payment of damages, along with the removal of the offending work from the marketplace.

Even though schools and universities fulfill a valuable social function and are allowed a great deal of fair use access to copyrighted works, not all educational uses are fair uses, and you have to be extremely careful about what you do in the classroom. Just because a copyrighted work is copied or performed in a school, college, or university, or is used in such a way that has educational overtones, the use may not necessarily be fair. For example, it is definitely not fair use for a schoolteacher to make photocopies of the entire course textbook and hand them out in class. Instructors are allowed to copy short segments of copyrighted works and hand them out in class, but when a for-profit copy shop starts making money off photocopying fees for classes, the courts will start to be suspicious.

Section 107 also specifies four nonexclusive factors that are to be considered by the courts in determining whether any particular use of a copyrighted work is fair use. These are

Purpose and character of use, including whether such use is of a commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
The effect of the use upon the potential market for or value of the copyrighted work.

In order for your use to be considered fair, you don’t necessarily have to have all four of these factors working in your favor, but if the matter goes to court there will be an complex interplay between these four categories and a decision will be made on the basis of the four factors to see if the use tilts toward or away from fair use. Since fair use is not an exact doctrine, if you want to use something written or created by someone else, it is probably wise to get permission in writing first.

Here are some more details on the four fair use categories

1. Purpose and Character of Use, Including Whether Such Use Is Of A Commercial Nature or Is For Nonprofit Educational Purposes.

This fair use category has two aspects. First, it asks what the purpose of your use of copyrighted materials was, and secondly it asks what sort of product you produced when you used the copyrighted material. The law does not actually spell out any details about what purposes and characters of use are actually favored under fair use, other than a rather general statement that non-profit educational uses of copyrighted works are more likely to be judged fair use than are commercial applications that are designed to make money.

Basically, the “purpose” part of this particular rule asks whether the use of the copyrighted work was intended to serve some sort of public or societal interest such as education, scholarship, or research, or was strictly for commercial profit-making purposes. It essentially boils down to the question--did you make any money when you incorporated someone else’s copyrighted work in your own work, when you performed it in public, or when you made and distributed copies? If you made money on the deal, that might in itself tilt the scales against fair use.

In addition, some recent court decisions seem to indicate that even if you didn’t make any money but are perceived as benefiting in some manner by your use of copyrighted material, it might not fall under fair use. Of course, if this view were taken to extreme it would mean that no use whatsoever of a copyrighted work would ever be considered as being fair use, since it is hard to imagine why anyone would ever employ copyrighted material in their work unless they expected some sort of benefit.

Just what does “non-profit educational purpose” mean? The term “not-for-profit” turns up quite often in copyright law, and this particular fair use factor specifically says that there is different treatment if the use of the work was by a nonprofit educational institution than if it was used by a for-profit organization for commercial purposes. Consequently, some discussion of exactly what constitutes a not-for-profit organization is probably in order. The formal definition of what defines a not-for-profit organization is not all that clear, but the most often quoted definition is that a nonprofit organization has as its primary purpose for existence the support of some matter of public interest[124], and does not have a goal of generating a monetary profit. A nonprofit organization is typically involved in activities that are intended to benefit the public in some manner—such as the arts, social issues, charities, healthcare, research, religion, or education. A nonprofit organization certainly does need to bring in money to sustain its operations, but making money is not its primary goal.

Most colleges and universities are classed as not-for-profit, although there are a growing number of educational institutions that do operate for a profit. Unlike for-profit corporations, nonprofits do not issue stock or pay dividends. Many nonprofits rely on government grants or tax credits to fund their operations, as well as grants from charitable foundations or direct donations. A not-for-profit organization may accept, hold, and disburse money and other things of value, and it may even charge money for the use of its services. However, the extent to which a nonprofit is allowed to generate income may be constrained, and if they do manage to make a profit the use of the profits may be restricted.

In the United States, nonprofits can apply to the Internal Revenue Service for tax-exempt status, which makes them immune from federal income taxes, although they usually have to file a return. Often, nonprofits are also exempt from state sales taxes or local property taxes. This tax-exempt status is considered so important and so vital that it is often used as an operational definition of what it means for an organization to be a non-profit, and the IRS has some rather rigid restrictions on what non-profits can do[125] and how much money they can make, and if they exceed these bounds they can lose their tax-exempt status.

Some legal authorities interpret the “purpose and character of use” rule as meaning that any use whatsoever of a copyrighted work by a for-profit organization is automatically outside the bounds of fair use, and that fair use does not apply at all to a for-profit organization. However, this is much too strict an interpretation, and fair use applies to everyone, not just to non-profit organizations. Use of a copyrighted work by a for-profit corporation can still fall under fair use if it somehow benefits the public or falls under the protection of the other three fair use categories. Conversely, not all uses of copyrighted material by a nonprofit organization are automatically fair uses, especially when all four of the fair use factors are brought into account. But it is still true that the courts do generally favor non-profit use over for-profit use when they consider copyright issues that are brought before them. Reproductions or performances of copyrighted works made by nonprofit educational institutions are more likely to be deemed fair use than those made by for-profit businesses and used for commercial purposes. Any hint of a commercial exploitation of a reproduction or performance of a copyrighted work might in itself deem the act not to be fair use. However, a commercial motive doesn’t always automatically disqualify someone from being able to claim fair use--a use that benefits the public can qualify as fair use, even if it makes money for the user. Many of the cases in which the courts have found unlicensed uses of copyrighted works to be fair have involved commercial projects that were designed to make money.

The “character” part of this fair use factor asks how the copyrighted material was actually used when the copy was made. What sort of product did you produce when borrowed something from someone else’s copyrighted work and inserted it into your own work? Was the character of the use transformative, that is, was what you borrowed used to help create something new and different, or was it simply inserted verbatim into another work? Did you add value to the original work by creating new information, new aesthetics, new insights, or new understandings? Did you create something new or were you just copying? A use of a copyrighted work is more likely to be protected under fair use if it transforms the original from which it borrows—it adds something new, perhaps with a different character, or provides a new expression, meaning, or message. Uses of copyrighted works for the purpose of review, criticism, commentary, news reporting, scholarship or education are generally considered to be transformative and are usually likely to be judged fair use. If you simply convert a song into an MP3 file, this is not transformative, since you are simply copying and the new work is superseding the old one.

What about parodies of copyrighted works? The First Amendment of the US Constitution guarantees the right of free speech, which includes the right to poke fun at politicians, celebrities, media stars, books, songs, and movies. Parody is generally considered as coming under category 1 of the fair use criteria--parodies are generally considered transformative, and they are thought to provide a social benefit by highlighting the earlier work and creating a new one in the process. However, in order to be considered as fair use, a parody must be perceived by audiences as a parody. But proving whether your parody of a song, movie, or book is actually a parody rather than just a derivative work is tough. The courts have generally concluded that a parody should take just enough to conjure up the original work in peoples’ mind, not any more. If a work is both transformative and is seen by most reasonable people as a parody, it is likely to be judged fair use, even if it is sold for its own sake and hence commercial in nature.

The courts have generally ruled that a parody of a copyrighted work is protected as fair use, but not a satire. A satire uses the original work as a point of departure to comment about society, religion, politics, or morals in general, whereas a parody makes fun of the theme and values expressed in the original itself. According to the Supreme Court, in order for a work to be considered as being a parody of a prior composition, it must involve the use of some elements of the prior composition to create a new work that, at least in part, comments about the prior work itself. A work that merely uses the original work as a vehicle to launch a criticism of something else (such as religion or society in general) is considered as a satire and is therefore not protected under fair use. If one wants to write a satire that is based on a piece of copyrighted art, you are creating a “derivative work” and you generally require the permission of the copyright owner or you could end up in court. However, the distinction between a satire and a parody is vague at best, and the so-called parody/satire distinction has been the subject of several recent court decisions.

The musical satirist Weird Al Yankovic[126] makes a career out of lampooning popular songs, but since he can’t really be sure whether his songs will be considered as satire or parody, in order to cover his backside he goes through the process of obtaining permission from the owners of these songs before he releases his adaptations. Since his songs generally don’t adversely affect the market for the originals (and also because his songs sell fairly well), he has generally been successful in obtaining permission.

2. The Type of Work That is Copied

Is the work that was copied factual or creative? Reproducing a factual work is more likely to be judged to be fair use than the reproduction of a creative work such as music, a movie, or a fictional novel. Authors usually have more leeway in using material from factual works (e. g. scholarly, scientific, or technical works) than from creative works such as novels, poems, or plays. This is true especially when it is necessary to use extensive quotations from factual works to ensure accuracy.

The basis for the different treatment of creative and factual works is that creative expressions can be copyrighted, but not ideas or bare facts. Consequently, if a copyrighted work is predominately factual in nature (such as a news article, a scientific paper, or an official report), then the reuse of the work is more likely to be considered as fair use. The facts that appear in a news story may reasonably be copied into a second article, but the manner in which these facts are presented cannot be copied. So it is usually OK if you quote the results of a factual news report in your own article, provided that you express it in your own words and properly acknowledge the source.

If you use parts of a work that is still under copyright but which is no longer commercially available (such as a book which is now out of print), this is more likely to fall under fair use than if you used parts of a work which is still on the commercial market. If you used major parts of a book still in print without getting permission, this might not be considered as fair use, because what you did might be considered as competing in the marketplace with the original work.

In addition, the reuse or copying of copyrighted materials that are considered as being “consumable” is not generally considered as being fair use. Materials considered to be “consumable” are those that are intended for one-time use and, once used, they cannot be used again. Examples are workbooks, surveys, or standardized tests that once they are used have no further value.

Yet another aspect of this factor is whether the work that was copied was itself a published work or not. If the work has never been published (such as, for example, private letters, or an unpublished manuscript), the copying of the work into another work is generally not considered fair use. This is because it is thought that the original author should have the first crack at publishing the work.

3. The Amount of Work Copied

How much of the original work was used? The smaller the amount that you take, the more likely it is that you will be able to avoid a lawsuit. However, the law does not specify any word count numbers, any percentages, any ratios, or any absolute indication of any sort of the amount of copying that is allowable under fair use, since the use of the entire work might be fair use under certain circumstances whereas the use of only a small part might not be fair use in other circumstances.

Generally, the more that is taken from the original, the less likely it is that it will be considered fair use. The courts want to make certain that the user has taken no more of the copyrighted material than was absolutely necessary to achieve the purpose. Even though the amount taken is small, it should not be an amount equivalent to the “heart” of the work, or else the user could be in legal hot water. But determining exactly what the “heart of the work” is can be rather subjective. Just a few pilfered song notes could be considered as an infringement if a court agrees that those few notes are the “essence” of the song. In any case, the reuse of entire works is only very rarely considered fair use, and if you take all or substantially all of a copyrighted work without permission you are probably asking for trouble. However, the quoting of just a few lines from a movie (or the use of a short clip) for the purpose of a review would certainly be considered fair use.

Pictures and photographs present a special problem, because it usually the entire image that is copied, not just part of it. Posting an exact copy of a copyrighted photo on a website would definitely not be fair use, although there are cases in which such duplication is OK if a thumbnail is used, in which the duplicate is a low-resolution copy of the original. If you want to use a copyrighted photograph in your new book, the publisher will require that you obtain permission in writing from the owner of the photo before you will be allowed to use it.

4. Impact on the Potential Market

This rule asks whether a new work that reuses parts from a copyrighted work competes economically in the marketplace with the original work from which it borrowed. Will the new work cause fewer numbers of people to buy or rent the original work, adversely affecting its economic value? Will the new work result in lost business for the original work’s copyright owner? This test evaluates the potential as well as the actual financial harm to the original copyrighted work, which means that the test could focus on adverse impacts on any possible future sources of revenue a rightsholder could tap, regardless of whether such a market actually exists at present. Even if you are not now directly competing with the original work, if you deprive the copyright owner of income by undermining a new or potential market for their work, you might be asking for a lawsuit. You could be accused of copyright infringement even if what you did actually created the new market for the original work in the first place.

Basically, the principle of fair use allows you to use a small portion of someone else’s work in a non-competitive way for purposes that benefit the public. But if you take large portions of someone else’s work for your own personal financial gain, you may have diminished the worth of the original in the marketplace and you will be in legal hot water. This factor does not presume that all commercial harm to the original is automatically not fair use, but if the new work is not transformative and if the creator makes money selling it, it will be difficult to prove that the original work was not financially damaged.

The courts have established that the existence of a system for purchasing licenses or permissions to use a copyrighted work is one of the potential economic values of the work. Some argue that the mere failure to purchase a license when one is readily available is automatically a copyright violation, irrespective of how the work is used. However, the existence of a license does not in itself mean that the use of the work is not fair, especially if the other three factors favor a finding of fair use. Before one can conclude that the failure to purchase a license for the use of a copyrighted work is a valid economic loss to the rightsholder, one must first show that such a license is actually required. The other three fair use factors need to be considered--not all uses of a copyrighted work require permission.

Note that this fourth test asks only if the new work will compete economically with the original one that it borrowed from. It does not ask whether the new work, through criticism or parody, reduces the demand for the original. If that were the case, then a scathing review of a movie that causes fewer numbers of people to attend would be a copyright violation. The Supreme Court has ruled that this is not the kind of economic harm recognized by copyright law.

Fair Use Precedents and Cases

Perhaps the best way to describe how fair use works in actual practice is to quote some law cases dealing with the subject. These show just how confusing the whole issue is, and how inconsistent the outcomes were. If you are looking here for a definitive ruling about what counts as fair use and what does not, you will be greatly disappointed. The results of your fair use legal case might depend on which court or which judge gets the case.

MCA Music vs. Earl Wilson (1976)[127]

The World War II classic Boogie Woogie Bugle Boy of Company B was used as a part of a risqué musical piece entitled The Cunnilingus Champion of Company C, one of several songs performed in the 1974 musical Let My People Come—A Sexual Musical. The copyright owner of Boogie Woogie Bugle Boy of Company B sued for copyright infringement.

The court concluded that The Cunnilingus Champion of Company C was indeed copied in substantial part from Boogie Woogie Bugle Boy of Company B and that the two songs are substantially similar. The court ruled that the new song was not a burlesque or parody of the original--the intent was to ridicule sexual mores, not to ridicule the song itself. The amount taken by the new song exceeded the permissible scope under fair use, and the new song had taken more than was necessary to recall or conjure up the original.

Keep Thomson Governor Committee vs. Citizens for Gallen Committee (1978)[128]

A candidate for political office used 15 seconds of his opponent’s campaign song in a political advertisement.

This was ruled fair use, since the amount that was taken was small and it was part of a political debate.

Italian Book Corporation vs American Broadcasting Company (1978)[129]

During the TV coverage of an Italian festival in Manhattan, NY, the film crew happened incidentally to record a band playing a portion of a copyrighted song. The owner of the copyrighted song sued the TV network for copyright infringement.

This was ruled fair use, since only a small portion of the song was used, no damage to the market value of the song was done, and the replaying of the song was incidental to the news event.

Elsmere Music, Inc vs National Broadcasting Company, Inc (1980)[130]

The song I Love New York was written in 1977 as part of an ad campaign for New York City. In 1978, the TV show Saturday Night Live performed a comedy sketch in which the song I Love Sodom was sung to the tune I Love New York. The copyright owner of I Love New York was not amused, and sued for copyright infringement.

The Circuit Court ruled in favor of fair use. The purpose and nature of the copying was to create a parody, and that the parody was not intended to replace the original. The authors of I Love Sodom used no more of I Love New York than was necessary to conjure up the image of the original. The market for the original had not been harmed.

Roy Export Company Establishment of Vaduz, Liechtenstein vs Columbia Broadcasting System (1982)[131]

Shortly after the death of the great filmmaker/comedian Charlie Chaplin, the CBS television network broadcasted a half-hour retrospective program about him and his work. To create the program, the network copied several short segments from Charlie Chaplin films and used them in the news report. The network had not obtained proper permission from Charlie Chaplin’s copyright holders to show all these clips. The movies’ copyright holders then sued CBS for copyright infringement.

CBS argued in court that their inclusion of the Chaplin segments was fair use, because they were reporting on a news event of some significance, namely the death of Chaplin. However, the court ruled against fair use and concluded that the portions that had been taken corresponded to the “heart” of the films, since the network had deliberately chosen the scenes considered to be among Chaplin’s best work. In addition, the court concluded that CBS could have achieved their purpose by including only those Chaplin segments that were in the public domain, and that their decision to include copyrighted material without permission was motivated by commercial rather than educational considerations.

ABKCO Music Inc vs Harrisongs Music, Ltd (1983)[132]

This involved a dispute between Bright Tunes Music Corp and the famous former Beatle George Harrison. In 1970, George Harrison released the song My Sweet Lord on the album All Things Must Pass. In February 1971, Bright Tunes brought suit against Harrison, alleging that his song infringed the Ronald Mack song He’s So Fine, sung by the Chiffons and released in 1963.

After a 3-day bench trial in February of 1976, the court ruled in favor of the plaintiff and concluded that the tune for My Sweet Lord was substantially similar to He’s So Fine, and that Harrison had had access to the latter. The substantial similarity coupled with access constituted copyright infringement, even though subconsciously accomplished. The “heart” of the work was taken, since the tunes of the two songs were substantially the same. The case was appealed to the US District Court, which ruled in favor of the plaintiff in 1983.

Eloise Toby Marcus vs Shirley Rowley and San Diego Unified School District (1983)[133]

Eloise Marcus wrote a booklet entitled Cake Decorating Made Easy. The defendant, Shirley Rowley, a teacher in the San Diego school system, incorporated substantial parts of Ms. Marcus’s work into a booklet that she used in her classes. Ms Marcus found out about this, and sued both Ms. Rowley and the San Diego school district for copyright infringement.

A lower court ruled in favor of fair use in this issue, stating that the defendant’s copying of the plaintiff’s material for nonprofit educational purpose constituted fair use. The appeals court reversed the lower court’s ruling, and ruled against fair use. Since Ms. Rowley’s copying was for the most part verbatim, and there was no attempt by the defendant to obtain permission to copy the material and no credit was given, this mitigated against fair use. A substantial portion of the work had been copied, which also militated against fair use. In addition, the copying had an adverse effect on the market for the original work.

Encyclopedia Britannica Educational Corp vs Crooks (1983)[134]

A consortium of public school districts had systematically taped educational programs that were broadcast on public television stations and made copies available to member schools.

The court ruled against fair use. The court was largely sympathetic with the educational purpose of the copying and the distribution, but found that the highly-organized and systematic actions of the school board would have had a detrimental effect on the market for the commercially-produced programs, because all of the works were available on the market for lease. If the works had been unavailable through normal channels, there might have been more justification for reproduction. Although the taping was for educational purposes, the schools were retaining copies for 10 years, thus competing with the license.

The court did not address the issue of a single teacher making copies of copyrighted material and showing them in class.

Hustler Magazine Inc vs Moral Majority, Inc (1985)[135]

Hustler magazine publisher Larry Flynt made some inflammatory statements about the Reverend Jerry Falwell in an article in one of his magazines. Falwell then made hundreds of thousands of copies of the article and distributed them as part of a fundraising effort. Flynt then sued Falwell for copyright infringement.

The court concluded that this was fair use on Falwell’s part, since the magazine sales were not diminished because it was already off the market.

Harper & Row vs The Nation (1985)[136]

President Gerald Ford contracted with Harper and Row to publish his memoirs. Time magazine then contracted with Harper and Row to publish a 7500-word excerpt from the book one week before the book would be shipped to the stores. The Nation magazine obtained a copy of the Ford manuscript and then, several weeks before Time’s publication was due out, published its own article that included quotes, phrases, and facts from the manuscript. Time then cancelled the publication of its article and did not pay Harper and Row for the rights. Harper & Row then sued the Nation magazine for copyright infringement.

The case eventually wound up in the Supreme Court. The Court found in favor of Harper & Row. Although the purpose of the article was reportage, the Nation magazine was found to be involved in a commercial enterprise since it had the stated objective of scooping both the book and the Time article. Even though the article was factual rather than creative, the Court concluded that since the Ford manuscript had not yet been published it weighed against fair use. Although the amount used in the Nation article was small, the Court concluded that the words quoted were the “heart of the work” (the quoted passage dealt with the reasons why President Ford pardoned Richard Nixon) and hence not fair use. The Court also ruled that the market value for the serialization of President Ford’s memoirs had been substantially damaged by the Nation’s article.

In summary, the Supreme Court concluded that all four of the fair use factors weighed against the Nation’s defense of their publication of the article based on President Ford’s memoirs.

Fisher vs Dees (1986)[137]

Disk jockey Rick Dees produced a 29 second parody of the Johnny Mathis song When Sunny Gets Blue called When Sonny Sniffs Glue. The owner of the Johnny Mathis song sued for copyright infringement.

The Appeals Court concluded that this was fair use since the song that Rick Dees wrote was a parody. Only 29 seconds of the original song were used, and the composer of the parody did not act in bad faith. Even though the use was commercial, it did not adversely affect the market value for the original. The economic effect of a parody is not its potential to destroy or diminish the market for the original—any bad review can have that effect—but whether it competes with the demand for the original. Copyright law is not intended to stifle critics.

Maxtone-Graham vs Burtchaell (1987)[138]

In 1973, Katrina Maxtone-Graham wrote a book based on interviews with women about their pregnancies and their abortions. James Tunstead Burtchaell wrote his own book on the same subject, but from an opposing point of view, and sought permission to use excerpts from Ms Maxtone-Graham’s work. Ms. Maxtone-Graham refused permission, but Burtchaell decided to go ahead and publish anyway without getting permission. Ms Maxtone-Graham then sued for copyright infringement.

The court ruled in favor of fair use. Although the book was put out by a commercial press in the hope that it would make money, the main purpose of the book was to educate the public. The amount of quotation of the plaintiff’s work was less than 5 percent, which was not considered excessive. Since the plaintiff’s book was now out of print, the quotations offered no significant threat to the market for the work. In addition, since the point of view was opposite, the new work was not likely to appeal to the same readers. Another factor was that the original author had denied the use of limited quotations in a work that had an opposing point of view, which meant that relying on fair use was the only effective means by which the second author could reasonably build on the scholarly work of others.

Steinberg vs Columbia Picture Industries, Inc et al (1987)[139]

In order to promote the 1984 movie Moscow On The Hudson, the Columbia movie company used a piece of artwork similar to the famous New Yorker cartoon drawn by Saul Steinberg which shows a humorous view of the USA from the viewpoint of a New York City resident. Saul Steinberg sued the producers, distributors, promoters, and advertisers of the film for copyright infringement.

The court ruled against fair use. It was concluded that the movie artwork was quite similar to the original cartoon—it was not a true parody, it simply borrowed from the original.

J. D. Salinger vs. Random House (1987)[140]

The author J. D. Salinger has not published anything since 1965, and had become somewhat of a recluse, shunning all publicity and rejecting any and all inquiries about his private life. The author Ian Hamilton decided to try and write a biography of Salinger, but Salinger refused to cooperate with the project. An important source of material for the biography was several unpublished letters written by J. D. Salinger. Even though these letters had been deposited in a library, Salinger had not authorized their reproduction, and he told Hamilton to remove them from his manuscript. Hamilton nevertheless included paraphrased versions of the letters in his biography. Salinger sued to prevent their publication.

The court ruled in favor of Salinger and against fair use. The letters were unpublished, and the court concluded that they were the “heart” of the biography. Salinger’s letters contained a number of facts, and facts can be reported, but not Salinger’s particular expression of these facts. The court felt that the letters had been taken more to add to the commercial value of the biography than to provide a critical study of Salinger.

Love vs. Kwitny (1989)[141].

This case dealt with a case in which more than half of an unpublished manuscript on the subject of the overthrow of the Iranian government was copied by an author.

The court concluded that too much (over half) of the work had been taken and that the work had not yet been published. The use was ruled not to be fair.

Basic Books Inc et al vs Kinko’s Graphics Corp (1991)[142]

A university created what is known as coursepacks that included a collection of chapters from a selection of college textbooks, and then used the Kinko’s photocopying service to duplicate the coursepacks and sell them to students for class work. Several major publishers then sued Kinko’s for copyright infringement

The court found that three of the fair use factors worked against Kinko’s. The coursepack was created by verbatim copying of the works and was not transformative since it simply repackaged and republished the original material. Even thought the use of the coursepacks was educational, because Kinko’s is a commercial enterprise and made a profit in the deal, this tipped the scales against fair use. The fact that the work copied was factual and not creative weighted in favor of the defendant. The court ruled that Kinko’s had copied the “heart” of the works in the coursepacks, not just small parts. Finally, the economic value of the original works were harmed because the purchase of the packets obviated purchase of the full texts. The plaintiffs derived a significant part of their income from textbook sales and also by collection of permission fees. This impact is especially detrimental to authors of out-of-print books for whom the collection of permission fees is a significant source of income.

However, the court did not rule that coursepacks couldn’t constitute fair use in other circumstances. The real issue here was the use of a commercial photocopying shop to do the work. The court left open the question of whether universities could produce coursepacks in their own photocopying facilities so long as they do not enjoy any direct commercial gain.

Wright vs. Warner Books, Inc (1991)[143]

An author writing a biography of Richard Wright quoted from six unpublished letters and ten unpublished journal entries by Wright.

Even though the material copied was unpublished, the court ruled in favor of fair use because no more than one percent of Wright’s unpublished letters were copied and the purpose was informational.

Rogers vs Koons (1992)[144] [145]

Art Rogers is a professional photographer who took a famous photograph of a husband and wife with their arms full of puppies. The photo was used on lots of greeting cards and other merchandise. Jeff Koons made a sculpture based on the photograph in order to make a point on the banality of everyday items. Rogers found out that his photo had been copied, and sued Koons for copyright infringement.

The court ruled against fair use. The similarity was so close that most people could recognize the similarity. The original work was a work of art, which militated against fair use. The essence of the work had been copied. The court rejected the parody argument, since Koons’ work was commenting on society in general, not directly on Rogers’ photograph. The market value of the original photograph was harmed because other sculptors might be willing to purchase the rights. Koons had produced the sculpture for sale, and the purpose of the copying was therefore commercial.

American Geophysical Union vs. Texaco (1992)[146]

Scientists at the Texaco Corporation had photocopied technical journal articles to support their research without paying any fees to the to the publishers. Six scientific publishers filed a class action suit.

The courts ruled against fair use in this matter. Although research is generally a factor supporting fair use, the ultimate purpose of the copying was to strengthen Texaco’s corporate profits. The profit motive of the company was relevant. The entire article was copied, not just small parts, and the copying was not transformative, since exact photocopies do not build on the existing work in a productive manner. The copying by Texaco was seen as institutional, systematic, and archival in function, which weighed against fair use—there was large-scale systematic copying to create individual libraries of papers for researchers who often did not even use or read the papers that were copied. The courts also concluded that although the amount of copying was small, the market was adversely affected because there was a mechanism in place in which Texaco could have paid royalties through the Copyright Clearance Center.

The case was appealed to the Supreme Court, but before the case was heard a settlement was reached in which Texaco agreed to pay a licensing fee to the Copyright Clearance Center. The Second Circuit later amended its decision to clarify that it applies only to systematic, institutional copying and that the ruling does not apply to the isolated copying by independent researchers.

The case did not apply to copying done in nonprofit educational institutions or in libraries and archives.

Twin Peaks vs Publications Int’l Ltd (1993)[147]

Publications Int’l Ltd published a book about the television show Twin Peaks, including direct quotations and detailed descriptions of plots. The show’s owner sued for copyright infringment.

The court ruled against fair use, concluding that the amount of material taken was substantial and that the book adversely affected the potential market for any future authorized books about the program.

Campbell vs. Acuff-Rose Music, Inc (1994)[148][149]

In 1989, the Acuff-Rose Music, Inc, the publisher of Roy Orbison’s classic rock song Oh Pretty Woman sued songwriter Luther Campbell for writing a mocking parody version of the song with altered rap lyrics. Campbell borrowed the opening musical tag and the words (but not the tune) from the first line of the song. The rest of the song was quite different. The lyrics of the two songs are also quite different. Campbell arranged for 2 Live Crew to record his song. Soon after writing the song, Campbell had 2 Live Crew’s manager approach Acuff-Rose to try to buy the right to use portions of the song, but was rebuffed by the publisher. 2 Live Crew decided to go ahead and release the song anyway. Acuff-Rose promptly sued for copyright infringement.

The district court of Tennessee was the first to hear the case, and they held that the 2-Live Crew song was a parody, and was meant as commentary and criticism of the original and was therefore fair use and not copyright infringement. The parody was not likely to adversely affect the market for the original.

However the Sixth Circuit Court of Appeals reversed the decision, and ruled that any work intended for the commercial market could not count as fair use even if it was a parody. In addition, the court ruled that the market for the original song had been harmed by the 2 LiveCrew song, and was thus an infringement that outweighed any parodic purpose. The case was remanded to a trial court.

Campbell then appealed to the Supreme Court, which reversed the Appeals Court decision in 1994 and concluded that although the use was indeed commercial and that a key riff had been used throughout the parody, the amount taken was just enough to conjure up the original in the mind of the listener, and that the parody did not affect the market for the original song. The use was transformative and borrowed only a small portion of the song. The 2 Live Crew version was essentially a new piece of music. The Supreme Court ordered the District Court to implement the Supreme Court’s findings in order to decide if the song counted as fair use. Before the next trial phase could take place, the litigants settled out of court.

The key to parody being successfully used as a fair use defense appears to be taking as little as possible to conjure up the original.

Religious Technology Center vs Pagliarina (1995)[150]

Scientology is a religion founded by the science fiction writer L. Ron Hubbard. The Church of Scientology claims exclusive rights to certain of Hubbard’s unpublished works, access to which are restricted to members of the church only. The Washington Post newspaper used three brief quotations from Church of Scientology texts posted on the Internet. The Church sued.

This was ruled fair use since only a small portion of the work was used, and the purpose was for news commentary.

Religious Technology Center vs Lerma (1996)[151]