The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.
Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution. The power to enact copyright law is granted in Article I, Section 8, Clause 8, also known as the Copyright Clause, which states:
The Congress shall have 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 forms the basis for U.S. copyright law ("Science", "Authors", "Writings") and patent law ("useful Arts", "Inventors", "Discoveries"), and includes the limited terms (or durations) allowed for copyrights and patents ("limited Times"), as well as the items they may protect ("exclusive Right to their respective Writings and Discoveries").
In the U.S., registrations of claims of copyright, recordation of copyright transfers, and other administrative aspects of copyright are the responsibility of the United States Copyright Office, an arm of the Library of Congress.
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The U.S. Congress first exercised its power to enact copyright legislation with the Copyright Act of 1790. The Act secured an author the exclusive right to publish and vend "maps, charts and books" for a term of 14 years, with the right of renewal for one additional 14 year term if the author was still alive. The act did not regulate other kinds of writings, such as musical compositions or newspapers and specifically noted that it did not prohibit copying the works of foreign authors. The vast majority of writings were never registered — between 1790 and 1799, of approximately 13,000 titles published in the United States, only 556 works were registered.
Copyright law has been modified many times since to encompass new technologies such as music recording, to extend the duration of protection, and to make other changes. U.S. courts have interpreted this clause of the Constitution to say that the ultimate purpose of copyrights is to encourage the production of creative works for the public benefit, and that therefore the interests of the public are primary over the interests of the author when the two conflict. These rulings have since been formalized into fair use laws and decisions. Certain attempts by copyright owners to restrict uses beyond the rights provided for by copyright law may also subject them to the copyright misuse doctrine, preventing enforcement against infringers.
Key laws regulating U.S. copyrights and their key effects include:
Key international agreements affecting U.S. copyright law include:
The United States became a Berne Convention signatory in 1988, and the treaty entered into force with respect to the U.S. on March 1, 1989. The U.S. is also a party to TRIPS, which itself requires compliance with Berne provisions, and is enforceable under the WTO dispute resolution process. To meet the treaty requirements, protections were extended to architecture (where previously only building plans were protected from copying, not buildings, though currently the law makes exception for reproduction of buildings in photographs or paintings if they are ordinarily visible from a public place), and certain moral rights of visual artists.
The British Statute of Anne did not apply to the American colonies, although some scholars have asserted otherwise. The colonies' economy was largely agrarian, hence copyright law was not a priority, resulting in only three private copyright acts being passed in America prior to 1783. Two of the acts were limited to seven years, the other was limited to a term of five years. In 1783 several authors' petitions persuaded the Continental Congress "that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius and to promote useful discoveries." But under the Articles of Confederation, the Continental Congress had no authority to issue copyright, instead it passed a resolution encouraging the States to "secure to the authors or publishers of any new book not hitherto printed... the copy right of such books for a certain time not less than fourteen years from the first publication; and to secure to the said authors, if they shall survive the term first mentioned,... the copy right of such books for another term of time no less than fourteen years.[2] Three states had already enacted copyright statutes in 1783 prior to the Continental Congress resolution, and in the subsequent three years all of the remaining states except Delaware passed a copyright statute.[3] Seven of the States followed the Statute of Anne and the Continental Congress' resolution by providing two fourteen year terms. The five remaining States granted copyright for single terms of fourteen, twenty and twenty one years, with no right of renewal.[4]
At the Constitutional Convention 1787 both James Madison of Virginia and Charles Pinckney of South Carolina submitted proposals that would allow Congress the power to grant copyright for a limited time. These proposals are the origin of the Copyright Clause in the United States Constitution, which allows the granting of copyright and patents for a limited time to serve a utilitarian function, namely "to promote the progress of science and useful arts". The first federal copyright act, the Copyright Act of 1790 granted copyright for a term of "fourteen years from the time of recording the title thereof", with a right of renewal for another fourteen years if the author survived to the end of the first term. The act covered not only books, but also maps and charts. With exception of the provision on maps and charts the Copyright Act of 1790 is copied almost verbatim from the Statute of Anne.[4]
At the time works only received protection under federal statutory copyright if the statutory formalities, such as a proper copyright notice, were satisfied. If this was not the case the work immediately entered into the public domain. In 1834 the Supreme Court ruled in Wheaton v. Peters, a case similar to the British Donaldson v Beckett of 1774, that although the author of an unpublished work had a common law right to control the first publication of that work, the author did not have a common law right to control reproduction following the first publication of the work.[4]
Copyright did not apply to slaves or Native Americans. Slaves had no legal rights to intellectual property as both the slave and his work were the property of the person who "owned" the slave.
During the American Civil War, the law of the Confederate States on copyright was broadly the same as that of the existing Copyright Act of 1831; twenty-eight years with an extension for fourteen, with mandatory registration. This was passed into law by an act in May 1861, shortly after the outbreak of hostilities. A later amendment, in April 1863, provided that any copyright registered in the United States before secession, and held by a current Confederate citizen or resident, was legally valid within the Confederacy. Confederate copyrights were apparently honoured after the end of the war; when federal copyright records were transferred to the Library of Congress in 1870,[5]
Historically, copyright protection was provided by a dual system under both federal and state laws. Federal law provided what was commonly called "statutory copyright" and the laws of each state would provide what was called "common-law copyright," even though many states have statutes governing copyright as well. Roughly speaking, the old "statutory copyright" protected works that were registered and the old "common-law copyright" protected works that were not.
In 1976 Congress, at the urging of major corporate media interests, abolished most state copyrights through preemption of state copyright law. The federal preemption provision is codified at , which states, in relevant parts:
On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright ... in works of authorship that ... come within the subject matter of copyright ... are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
The preemption is complete insofar as works fall within the federal copyright statute. A work that falls generally within the subject matter of copyright (such as, a writing) must either qualify to be protected under federal law, or it cannot be protected at all. State law cannot provide protection for a work that federal law does not protect.[6] It covers enforcement too. A person accused of copyright infringement cannot be prosecuted in state courts.[7][8]
State copyright law is not preempted by non-protected works. For example, those that have "not been fixed in any tangible medium of expression are not covered."[9] "Examples would include choreography that has never been filmed or notated, an extemporaneous speech, original works of authorship communicated solely through conversations or live broadcasts, a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down."[10]
The purpose of copyright law is "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."[11] Current copyright law has expanded coverage to include the idea of stimulating the creation of as many works of art, literature, music, and other works of authorship. The goal is to promote Progress of Science and (as we would say today) engineering and manufacturing as much as possible, per the constitution, as well works of art, literature, music, and other works of authorship, to benefit the public. The United States recognizes no absolute, natural right in an author to prevent others from copying or otherwise exploiting his work. The copyright laws give authors limited property rights in their works, but for the ultimate purpose of benefiting the public by encouraging the creation and dissemination of more works. The author's interest is secondary to that of the public.
As is the case with other intellectual property doctrines, copyright law attempts to reach an optimal balance between the potential conflicting public interests of:
The balance in copyright is drawn by limiting property rights to the author's particular method of expressing an idea or information. Copyright never gives rights in the idea being expressed, or in facts or other elements of the public domain which an author may incorporate into his work. Others are free to express the same idea as the author did, or use the same facts, as long as they do not copy the author's original way of expressing the ideas or facts. In addition, even those rights granted in the author's expression are limited in duration and are subject to certain exceptions permitting public use under limited circumstances.
The United States copyright law protects "original works of authorship,"[12] including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.
Copyright law includes the following types of works
An important limitation on the scope of copyright protection is the idea/expression dichotomy: While copyright law protects the expression of an idea, it does not protect the idea itself.
The distinction between "idea" and "expression" is a fundamental part of U.S. law, but it is not always clear. From the 1976 Copyright Act (17 U.S.C. § 102):
A paper describing a political theory, for example, is copyrightable; it may not be reproduced by anyone else without the author's permission. But the theory itself (which is an idea rather than a specific expression) is not copyrightable. Another author is free to describe the same theory in his or her own words without violating copyright law, and in fact need not even give credit to the original author (although failing to do so may be considered plagiarism, an ethical transgression). Courts disagree on how much of the story and characters of a copyrighted novel or film should be considered copyrightable expression.
Facts are considered synonymous to "ideas" or "discoveries" under this law and are not copyrightable. By extension, a compilation of facts is also unable to be copyrighted. However, § 103 of the Copyright Act allows for the protection of "compilations," provided there is a "creative" or "original" act involved in such a compilation, such as in the selection (deciding which things to include or exclude), and arrangement (how they are shown and in what order). The protection is limited only to the selection and arrangement, not to the facts themselves, which may be freely copied.
The Supreme Court decision in Feist v. Rural further made clear the requirements that a compilation be original in its composition, in denying protection to telephone "white pages". The Feist court rejected what was known as the "sweat of the brow" doctrine, in ruling that no matter how much work was necessary to create a compilation, a non-selective collection of facts ordered in a non-creative way is not subject to copyright protection.
If a pictorial, graphic or sculptural work is a "useful article", it is copyrighted only if its aesthetic features are separable from its utilitarian features. A useful article is an article having an intrinsic utilitarian function that does not merely portray the appearance of the article or convey information. They must be separable from the functional aspect to be copyrighted.[13]
There are several tests for conceptual separability. The primary use test asks whether an article is primarily used as art or function. The second test, the marketable as art test, asks whether the article can be sold as art, whether functional or not. This test does not have much utility, as almost anything can be sold as art. The third test, the temporal displacement test, questions whether an individual can conceptualize the article as art without conceptualizing functionality at the same time. Finally, the Denicola test inquires whether copyrightability should ultimately depend on the extent to which the work reflects the artistic expression inhibited by functional considerations. If an article came to have a pleasing shape because there were functional considerations, the artistic aspect was constrained by such concern.
Several important rights exist under the United States copyright law only for "copies" of works — material objects in which the work is embodied.[14] Section 106(1) prohibits the reproduction only of copies of works, and section 106(3) prohibits the distribution only of copies of works.[15] Thus, as the Ninth Circuit held in Perfect 10, Inc. v. Amazon.com, Inc., a link (even a deep link or inline link) to an image does not involve reproduction of a copy of the image by the person on whose web page the link appears.[16] An instruction to a browser to jump to an URL is not a reproduction or distribution of a copy of what is at the referenced URL.[17]
Furthermore, a three-dimensional counterpart of a two-dimensional drawing is usually not a "copy" of the drawing. Thus, the copyright of a drawing of the approach to the Triboro Bridge is not infringed when the bridge approach is built.[18] On the other hand, because the essence of what is protected in a cartoon is captured by a doll depicting the cartoon figure, courts have repeatedly held unauthorized dolls to infringe the copyright of the underlying cartoons.[19]
17 U.S.C. § 105 withholds copyright from most publications produced by the United States Government, and its agents or employees while in their employment. All such work is therefore in the public domain in some sense. The specific language is as follows:
Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.
The intent of the section is to place in the public domain all work of the United States Government, which is defined in 17 U.S.C. § 101 as work prepared by an officer or employee of the United States Government as part of that person's official duties. In most cases, contractors are not employees.
The government may restrict access to works it has produced through other mechanisms. For instance, confidential or secret materials are not protected by copyright, but are restricted by other applicable laws. However, even in case of non-secret materials there are specific prohibitions against automatic access to work otherwise covered under 17 U.S.C. § 105 for commercial purposes.[20]
Federal statutes are in the public domain and no copyright attaches to them. The same is true of court decisions. It is not difficult to see the motivations behind this:
The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process. (State of Georgia v Harrison Co, 548 F Supp 110, 114 (ND Ga 1982))
Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments. (Compendium II: Copyright Office Practices section 206.01 [1] Paragraph 3.6 at 14 February 2006)
In the United States the exclusion of legislation from the scope of copyright laws dates to 1834, when the Supreme Court interpreted the first federal copyright laws and held that "no reporter has or can have any copyright in the written opinions delivered by this Court". In the same case it was argued – and accepted by the Court – that "it would be absurd, for a legislature to claim the copyright; and no one else can do it, for they are the authors, and cause them to be published without copyright … Statutes were never copyrighted." Further, "it is the bounden duty of government to promulgate its statutes in print". "[A]ll countries ... subject to the sovereignty of the laws" hold the promulgation of the laws, from whatever source, "as essential as their existence." "If either statutes or decisions could be made private property, it would be in the power of an individual to shut out the light by which we guide our actions." (Wheaton v. Peters, 33 US (8 Pet) 591, 668 (1834))
That the public interest is the primary determinant is clear from Banks v Manchester (128 US 244, 9 S Ct 36 (1888)). In this the United States Supreme Court denied a copyright to a court reporter in opinions of the Ohio Supreme Court, on the grounds that "There has always been a judicial consensus, from the time of the decision in the case of Wheaton v. Peters, that no copyright could, under the statutes passed by Congress, be secured in the products of the labor done by judicial officers in the discharge of their judicial duties. The whole work done by the judges constitutes the authentic exposition and interpretation of the law, which, binding every citizen, is free for publication to all, whether it is a declaration of unwritten law, or an interpretation of a constitution or statute."
The law, as thus (widely) defined, is in the public domain, and therefore not amenable to copyright. In Howell v Miller, (91 F 129 (1898)) Justice Harlan denied an injunction sought for the compiler of Michigan statutes, holding that "no one can obtain the exclusive right to publish the laws of the state in a book prepared by him." The question of formal ownership of the text of laws and decisions is perhaps secondary to the question of the dissemination of the law.
There are five basic rights protected by copyright, sometimes called the five "pillars" of copyright. The owner of copyright has the exclusive right to do and to authorize others to do the following:
A violation of any of the exclusive rights of the copyright holder is said to be a copyright infringement.
The author of a work is the initial owner of the copyright in it, and may exploit the work himself or transfer some or all the rights conferred by the copyright to others.[22] The author generally is the person who conceives of the copyrightable expression and fixes it or causes it to be fixed in a tangible form. Exceptions and special cases in determining the author are:
Three types of transfers exist for copyrighted works.
The first two, assignment and exclusive licenses, require the transfer to be in writing. Nonexclusive licenses need not be in writing and they may be implied by the circumstances. Transfers of copyright always involve one or more of the exclusive rights of copyright. For instance, a license may provide a right to perform a work, but not to reproduce it or to prepare a derivative work (adaptation right).
The terms of the license is governed by the applicable contract law, however there is substantial academic debate about to what extent the Copyright Act preempts state contract law principles.
An author, after transferring a copyright, can terminate the transfer under certain circumstances. This right to terminate the transfer is absolute and cannot be waived.[24]
While copyright in the United States automatically attaches upon the creation of an original work of authorship, registration with the Copyright Office puts a copyright holder in a better position if litigation arises over the copyright. A copyright holder desiring to register his or her copyright should do the following:
Registration of copyright refers to the act of registering the work with the United States Copyright Office, which is an office of the Library of Congress. As the United States has joined the Berne Convention, registration is no longer necessary to provide copyright protection. However, registration is still necessary to obtain statutory damages in case of infringement.
Copyright Act § 407 provides that the owner of copyright in a published or unpublished work may, at any time during the copyright, register the work with the Copyright Office. The purpose of the registration provisions is to create as comprehensive a record of U.S. copyright claims as is possible. To register, the registrant must complete an application form and send it, along with the filing fee and copies or phonorecords of the work, to the Copyright Office.
The Copyright Office reviews applications for obvious errors or lack of copyrightable subject matter, and then issues a certificate of registration.
Registration as a prerequisite to claim of moral rights violation: it's not necessary for any author to register prior to bringing suit for violation of the rights of attribution or integrity in a work of visual art, pursuant to Copyright Act § 106A.
The United States Copyright Office requires that applicants for registration must deposit with that office copies of the work for which protection is sought. This requirement serves two purposes. First, if an action arises from the infringement of the work, the owner may prove that the material that is infringed is exactly the same material for which the owner has secured a registration. Second, this requirement assists the Library of Congress in building its collection of works.
The Copyright Office has authority to make some exceptions to this rule by regulation, and has done so. Failure to comply with the deposit requirement, as modified by Copyright Office regulations, is punishable by fine, but does not result in forfeiture of copyright.
Deposits can be made electronically through the eCO Online System.
The United States district courts have exclusive subject-matter jurisdiction over copyright cases.[25]
Prior to 1989, use of a copyright notice — consisting of the copyright symbol (©, the letter C inside a circle), the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder — was part of United States statutory requirements.[26][27] Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol (℗, the letter P inside a circle), which indicates a sound recording copyright. Similarly, the phrase All rights reserved was once required to assert copyright.
In 1989, the U.S. enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act to conform to most of the provisions of the Berne Convention. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic.[28] However, the lack of notice of copyright using these marks may have consequences in terms of reduced damages in an infringement lawsuit — using notices of this form may reduce the likelihood of a defense of "innocent infringement" being successful.[29]
Works created in or after 1978 are extended copyright protection for a term defined in 17 U.S.C. § 302. With the passage of the Sonny Bono Copyright Term Extension Act, these works are granted copyright protection for a term ending 70 years after the death of the author. If the work was a work for hire (e.g., those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter.
The § 302 term above also applies to works created before 1978 that were not yet published or registered prior to 1978, with the exception that such copyrights would not expire before 2003. Prior to 1978, works had to be published or registered to receive copyright protection. Upon the effective date of the 1976 Act (January 1, 1978) this requirement was removed and these works received protection despite having not been published or registered. However, Congress intended to provide an incentive for these authors to publish their unpublished works. To provide that incentive, these works, if published before 2003, will not have their protection expire before 2048.
Works published or registered before 1978 currently have a maximum copyright duration of 95 years from the date of publication, if copyright was renewed during the 28th year following publication[30] (such renewal was made automatic by the Copyright Renewal Act of 1992; prior to this the copyright would expire after 28 years if not renewed). The date of death of the author is not a factor in the copyright term of such works.
All copyrightable works published in the United States before 1923 are in the public domain;[31] works created before 1978 but not published until recently may be protected until 2047.[32] For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Library of Congress Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the Copyright Renewal Act of 1992, but works that had already entered the public domain by non-renewal did not regain copyright protection. Therefore, works published before 1964 that were not renewed are in the public domain. With rare exception (such as very old works first published after 2002), no additional copyrights will expire (thus entering the public domain) until at least 2019 due to changes in the applicable laws.
Before 1972, sound recordings were not subject to federal copyright, but copying was nonetheless regulated under various state torts and statutes, some of which had no duration limit. The Sound Recording Amendment of 1971 extended federal copyright to recordings fixed on or after February 15, 1972 (the effective date of the act), and declared that recordings fixed before that date would remain subject to state or common law copyright. The Copyright Act of 1976 maintained this until February 15, 2047, which was subsequently extended by the Sonny Bono Copyright Term Extension Act to the same date in 2067.[33] As a result, no sound recording can reliably be considered in the public domain in the United States before that date, even if the recording was in existence before 1923 and even if it originated in another country where it has entered the public domain.[34]
US copyright law includes numerous defenses, exceptions, and limitations. These protect both the boundary with the free expression guarantees of the First Amendment and establish carve-outs to address specific situations.
Some of the most important include:
Although a parody can be considered a derivative work under United States Copyright Law, and thus within the exclusive rights of the copyright owner, it may qualify for the "fair use" exception to the exclusive rights, which is codified at 17 U.S.C. § 107. Parodic works are not automatically fair use of the material parodied, however. The Supreme Court of the United States stated that parody "is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works." That commentary function provides some justification for use of the older work; in contrast, a satire (which is not targeted at the work borrowed from) does not require use of the original work to make its point. (See Campbell v. Acuff-Rose Music, Inc.)
There is specific statutory provision for reproduction of material for the blind or other persons with disabilities. Specific legislation permits the reproduction of copyright works in Braille, audio, electronic, Web-Braille, or other necessary formats. The program is administered by the National Library Service for the Blind and Physically Handicapped (NLS).
Infringement is defined in 17 U.S.C. § 501. Infringement requires
If a work is not protectable it cannot be infringed upon. For instance, spoken conversations that are unrecorded ("fixed in a tangible medium of expression") are not protectable. Similarly, if two individuals both create a story that by pure coincidence is nearly identical, but each without knowledge of the other, there is no infringement since there is no copying. Typically this is referred to as the defense of independent creation; however, technically this is not a defense since without copying there is not an infringement to begin with. Even if a defendant copied protected works that act might be permissible under one of the defenses or limitations. Fair use is one such defense. Quoting from a book in a review might be a copying of protected material, however this copying may well be permissible under 17 U.S.C. § 107. The fair use factors are described below.
The U.S. government, its agencies and officials, and corporations owned or controlled by it, are subject to suit for copyright infringement. All infringement claims against the U.S. that did not arise in a foreign country must be filed with the United States Court of Federal Claims within three years of the infringing action.[35] Claims filed in the wrong court are dismissed for lack of subject-matter jurisdiction. The government and its agencies are also authorized to settle the infringement claims out of court.
A copyright owner whose exclusive rights have been infringed may pursue relief. There is no "copyright police" that enforces copyright without the copyright owner taking action. For example, the FBI investigates cases of criminal infringement (mostly audio and video products), but even then, it does not do so on its own, only on cases where a complaint is received from the copyright holder. The FBI has its own guidelines on which cases to investigate.
US law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original.[36] Assuming the plaintiff proves ownership of a valid copyright, the holder must then establish both actual copying and improper appropriation of the work. The burden lies with the plaintiff to establish these three elements in what is known as the prima facie case for infringement.Copyright owners are required to actively enforce rights.
A plaintiff establishes ownership by authorship (by the plaintiff itself or by one who assigned rights to the plaintiff) of (1) an original work of authorship that is (2) fixed in a tangible medium (e.g. a book or musical recording). Registration is not required for copyright itself, but in most cases is a jurisdictional requirement to bring the suit. Registration is also useful because it gives rise to the presumption of a valid copyright, and eliminates the innocent infringement defense, and (if timely made) it allows the plaintiff to elect statutory damages, and to be eligible for a possible award of attorney fees.
Works that are not sufficiently original, or which constitute facts, a method or process cannot enjoy copy protection.[37] U.S. Courts do not recognize the "sweat of the brow" doctrine, which originally allowed protection for those who labored to collect and organize facts. To combat this, business which assemble databases of information have relied on contract law where copyright law offers no protection.[38] For a work to be original, it must possess a "modicum of creativity", which is a "low threshold" although some creativity must exist.[39]
Copyright protects the fixed expression of ideas, but not the ideas themselves.[40] (Ideas are protected by patents). Nevertheless, an expression must exist in a fixed tangible medium.[41] A movie script writer who discusses a plot idea which has not yet been written would not be protected if another heard his idea and wrote a screenplay himself. Whether RAM constitutes a "fixed medium" is a contentious issue in copyright litigation because of the transitory nature of RAM.[42]
A plaintiff establishes actual copying with direct or indirect evidence. Direct evidence is satisfied either by a defendant's admission to copying or the testimony of witnesses who observed the defendant in the act. More commonly, a plaintiff relies on circumstantial or indirect evidence. A court will infer copying by a showing of a "striking similarity" between the copyrighted work and the alleged copy, along with a showing of both access and use of that access.[43] A plaintiff may establish access by proof of distribution over a large geographical area, or by eyewitness testimony that the defendant owned a copy of the protected work. Access alone is not sufficient to establish infringement. The plaintiff must show a similarity between the two works, and the degree of similarity will affect the probability that illicit copying in fact occurred in the court's eyes.[44] Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the US Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary.[45]
A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must first demonstrate that what the defendant appropriated from the copyrighted work was protectible. Second, a plaintiff must show that the intended audience will recognize substantial similarities between the two works. The intended audience may be the general public, or a specialized field. The degree of similarity necessary for a court to find misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague."[46] Two methods are used to determine if unlawful appropriation has occurred: the subtractive method and the totality method.
The subtractive method, also known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not.[47] The unprotected elements are subtracted and the fact finder then determines whether substantial similarities exist in the protectible expression which remains. For instance, if the copyright holder for West Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain.
The totality method, also known as the "total concept and feel" approach takes the work as a whole with all elements included when determining if a substantial similarity exists.[48] The individual elements of the alleged infringing work may by themselves be substantially different from their corresponding part in the copyrighted work, but nevertheless taken together be a clear misappropriation of copyrightable material.[49]
Modern courts may sometimes use both methods in its analysis of misappropriation.[50] In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.[51]
Barring investigation by law enforcement, therefore, a copyright holder must file a lawsuit in federal court to pursue his or her remedies. These remedies fall into two general categories: Injunctions and damages.
Injunctions: Copyright Act § 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement and against violations of the author's rights of attribution and integrity in works of visual art. There are also provisions for impounding allegedly infringing copies, phonorecords, and other materials used to infringe, and for their ultimate destruction upon a final judgment of infringement.
Damages and/or profits: Section § 504 of the 1976 Act gives the copyright owner/author a choice of recovering: (1) their actual damages and any additional profits of the defendant; or (2) statutory damages.
Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright.[52] Where the infringer is the government, however, injunctions are not available and the copyright holder can only seek monetary damages.[52]
One form of equitable relief that is available in copyright cases is a seizure order. At any time during the lawsuit, the court may order the impoundment of any and all copies of the infringing products. The seizure order may include materials used to produce such copies, such as master tapes, film negatives, printing plates, etc. Items that are impounded during the course of the lawsuit can, if the plaintiff wins, be ordered destroyed as part of the final decree.
A copyright holder can also seek monetary damages. Injunctions and damages are not mutually exclusive. One can have injunctions and no damages, or damages and no injunctions, or both injunctions and damages. There are two types of damages: actual damages and profits, or statutory damages.[53]
United States law permits both equitable (injunction) and monetary damages. The copyright owner may recover the profits he or she would have earned absent the infringement(actual damages) and any profits the infringer might have made as a result of the infringement but that are not already considered in calculating actual damages.[54] In addition, under certain conditions, the infringing goods may be impounded and destroyed, and the copyright owner's costs costs and reasonable attorney's fees may also be part of the remedies awarded by the court.[55] To recover actual damages, the plaintiff or, more often, a suitable expert witness, must prove to the court that, in the absence of the infringement, the copyright owner would have been able to make additional sales, perhaps been able to charge higher prices on all sales of the infringed work, and that this would have resulted in profits given the owner's cost structure.[56] In some cases, the copyright owner may not have commercially exploited the infringed work, but the infringer may have profited from it. In these circumstances, the copyright owner can recover those profits.[57] Alternatively and at the copyright owner's election, if the work's copyright was registered within three months of publication or before the infringement, an infringer can be liable for statutory damages[58] Statutory damages can be awarded by the court within the range of $750 to $30,000, but this can be lowered if the infringement is deemed inadvertent, or increased significantly if the infringement is willful.[59]
Statutory damages are available as an alternative to actual damages and profits.[60] This is sometimes preferable if actual damages and profits are either too small, or too difficult to prove, or both. There are, however, situations where statutory damages are not available. 17 U.S.C. § 412 provides:
Statutory damages are calculated per work infringed.[60] Statutory damages range from a few hundred dollars to hundreds of thousands:
Damages in copyright cases can be very high. In Lowry's Reports, Inc. v. Legg Mason Inc.,[62] a 2003 lawsuit between a publisher of stock analysis newsletters against a company that buys one copy of the newsletters and makes multiple copies for use in-house, the jury awarded damages - actual damages for some newsletters and statutory damages for other newsletters - totaling $20 million.
During the course of the lawsuit, the copyright holder can ask the court for both, in the alternative. However, at the end of the case, they are mutually exclusive: Only one can be awarded and not the other.[60]
Cost and attorney fees: Copyright Act § 505 permits courts, in their discretion, to award costs against either party and to award reasonable attorney fees to the prevailing party.
The court may (but is not required to) award to the "prevailing party" reasonable attorney's fees.[63] This applies to both the winning plaintiff (rightsholder) and the winning defendant (accused infringer).[64] However, attorney's fees award is not available against the government. Like statutory damages, attorney's fees are not available if the work infringed is not registered at the time of infringement.
In addition to the civil remedies, the Copyright Act provides for criminal prosecution in some cases of willful copyright infringement. There are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright notice, and false representations in applications for copyright registration. The Digital Millennium Copyright Act imposes criminal sanctions for certain acts of circumvention and interference with copyright management information. There are not criminal sanctions for violating the rights of attribution and integrity held by the author of a work of visual art.
Criminal penalties for copyright infringement include:
Nonprofit libraries, archives, education institutions and public broadcasting entities are exempt from criminal prosecution.
Felony penalties for first offenses begin at seven copies for audiovisual works, and one hundred copies for sound recordings.[65]
Works are in the public domain if they are not covered by intellectual property rights, such as copyright, at all, or if the intellectual property rights to the works has expired.[66] At most, copyright terms end 120 years after creation in the United States, but they may end or have already ended sooner in certain situations.[67] Although it is held under Feist v. Rural that Congress does not have the power to re-copyright works that have fallen into the public domain, re-copyrighting has happened: "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain, principally by aliens of countries with which we had been at war."[68] Works published with notice of copyright or registered in unpublished form in the years 1964 through 1977 automatically had their copyrights renewed for a second term. Works published with notice of copyright or registered in unpublished form on or after January 1, 1923, and prior to January 1, 1964, had to be renewed during the 28th year of their first term of copyright to maintain copyright for a full 95-year term.[69] With the exception of maps, music, and movies, the vast majority of works published in the United States before 1964 were never renewed for a second copyright term.[70]
Works "prepared by an officer or employee of the U.S. government as part of that person's official duties" are automatically in the public domain by law.[71] Examples include military journalism, federal court opinions (but not necessarily state court opinions), congressional committee reports, and census data. However, works created by a contractor for the government are still subject to copyright. Even public domain documents may have their availability limited by laws limiting the spread of classified information.
The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years. For a work made for hire, the copyright in a work created before 1978, but not theretofore in the public domain or registered for copyright, subsists from January 1, 1978, and endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.[72] If the work was created before 1978 but first published 1978–2002, the federal copyright will not expire before 2047.
Until the Berne Convention Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978 and February 28, 1989, this could be prevented by registering the work with the Library of Congress within five years of publication. After March 1, 1989, an author's copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.[73]
In the United States, the images of Frank Capra's film It's a Wonderful Life (1946) entered into the public domain in 1974, because the copyright holder failed to file a renewal application with the Copyright Office during the 28th year after the film's release or publication. However in 1993, Republic Pictures utilized the 1990 United States Supreme Court ruling in Stewart v. Abend to enforce its claim of copyright because the film was a derivative work of a short story that was under a separate, existing copyright, to which Republic owned the film adaptation rights, effectively regaining control of the work in its complete form.[74]
Charles Chaplin re-edited and scored his 1925 film The Gold Rush for reissue in 1942. Subsequently, the 1925 version fell into the public domain when Chaplin's company failed to renew its copyright in 1953, although the 1942 version is still under US copyright.[75]
The distributor of the cult film Night of the Living Dead, after changing the film's title at the last moment before release in 1968, failed to include a proper copyright notice in the new titles, thereby immediately putting the film into the public domain after its release.[76] This provision of US copyright law was revised with the United States Copyright Act of 1976, which allowed such negligence to be remedied within five years of publication.[77]
The "orphan works" problem arose in the United States with the enactment of the Copyright Act of 1976, which eliminated the need to register copyrighted works, instead declaring that all "original works of authorship fixed in any tangible medium of expression"[78] fall into copyright status. The elimination of registration also eliminated a central recording location to track and identify copyright-holders. Consequently, potential users of copyrighted works, e.g., filmmakers or biographers, must assume that many works they might use are copyrighted. Where the planned use would not be otherwise permitted by law (for example, by fair use), they must themselves individually investigate the copyright status of each work they plan to use. With no central database of copyright-holders, identifying and contacting copyright-holders can sometimes be difficult; those works that fall into this category may be considered "orphaned".
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