Copyright Law: Overview

Copyright law protects a variety of original expressions, including art, sculpture, literature, music, songs, choreography, crafts, poetry, software, photography, movies, video games, videos, websites, architecture, and graphics. Protection occurs automatically—that is, you acquire copyright once you fix the work in a medium—but this automatic protection can be enhanced by registering the work with the U.S. Copyright Office.

Copyright lasts for the life of the work’s creator (its author) plus 70 years. In cases where the creator is a business, the copyright lasts between 95 and 120 years. Most nations of the world offer copyright protection to works by U.S. citizens and nationals, and the United States offers its copyright protection to the citizens and nationals of these same nations.

What is a copyright?

A copyright gives the owner of a creative work the right to keep others from unauthorized use of the work. Under copyright law, a creative work (often referred to as a “work of authorship”) must meet all of these three criteria to be protected:

• It must be original—that is, the author must have created rather than copied it.

• It must be fixed in a tangible (concrete) medium of expression—for example, it should be recorded or expressed on paper, audio or videotape, computer disk, clay, or canvas.

• It must have at least some creativity—that is, it must be produced by an exercise of human intellect. There is no hard and fast rule as to how much creativity is enough. To give an example, it must go beyond the creativity found in the telephone white pages, which involve a nondiscretionary alphabetic listing of telephone numbers rather than a creative selection of listings.

Copyright does not protect ideas or facts; it protects only the unique way in which ideas or facts are expressed. For instance, copyright might protect an author’s science fiction novel about a romance between an earthling and a space alien, but the author cannot stop others from using the underlying idea of an intergalactic love affair.

How is a copyright created?

A creative work is protected by copyright the moment it assumes a tangible form—which in copyright circles is referred to as being “fixed in a tangible medium of expression.” Contrary to popular belief, providing a copyright notice or registering the work with the U.S. Copyright Office is not necessary to obtain basic copyright protection. But there are some steps that can be taken to enhance the creator’s ability to sue or stop others from copying:

• Place a copyright notice on a published work. The copyright notice, or “copyright bug” as it is sometimes called, commonly appears in this form: “© (year of publication) (author or other basic copyright owner).” Placing this notice on a published work (distributed to the public without restriction) prevents others from claiming that they did not know that the work was covered by copyright. This can be important if the author is forced to file a lawsuit to enforce the copyright, since it is much easier to recover significant money damages from a deliberate (as opposed to innocent) copyright infringer.

• Register works with the U.S. Copyright Office. Timely registration—within three months of the work’s publication date, or before the infringement actually begins—creates a legal presumption that the copyright is valid and, if accomplished prior to someone copying the work, allows the copyright owner to recover up to $150,000 (and possibly attorneys’ fees) without proving any actual monetary harm. Registration may be accomplished online, or by filing a paper form and depositing one or two samples of the work (depending on what it is) with the U.S. Copyright Office.

• Currently, the fee to register is $35 if you file electronically and provided you’re registering one work created by one person who also owns the copyright. All other electronic application filings are $55. Paper application filings are $85.

Who owns a copyright?

With three important exceptions, a copyright is owned by the person who created the work. In copyright lingo, these people are all called “authors.”

The exceptions are:

• If a work is created by an employee in the course of employment, it is called a “work made for hire” and the copyright is owned by the employer (which employer is considered the “author” for copyright purposes).

• If the work is commissioned (created by an author working as an independent contractor) and the parties sign a written work-made-for-hire agreement, the copyright will be owned by the commissioning party as long as the work falls within one of the statutory categories of commissioned works that can qualify as works made for hire.

• If the author sells (“assigns”) the copyright to someone else, the purchasing person or business owns the copyright.

Can copyrights be divided or transferred?

A copyright actually encompasses a bundle of separate exclusive rights, including the exclusive right to:

• reproduce the work

• display or perform the work

• distribute the work, and

• prepare adaptations of the work (derivative works).

A copyright owner who wishes to commercially exploit a work typically transfers one or more of these rights to the publisher or other entity who will be responsible for getting the work to market. It is also common for the copyright owner to place some limitations on the exclusive rights being transferred. For example, the owner might limit the transfer to a specific period of time, allow the right to be exercised only in a specific part of the country or world, or require that the right be exercised only on certain computer platforms.

When all copyright rights are transferred unconditionally, it is ordinarily termed an “assignment.” When only some of the rights associated with the copyright are transferred, it is known as a “license.” An exclusive license exists when the right being licensed can be exercised only by the licensee, and no one else. If the license allows others to exercise the same rights being transferred in the license, the license is said to be nonexclusive.

The U.S. Copyright Office allows buyers of exclusive and nonexclusive copyright rights to record the transfers in the U.S. Copyright Office. This helps to protect the buyers in case the original copyright owner later decides to transfer the same rights to another party.

How long does copyright protection last?

As a result of the Copyright Term Extension Act of 1998, most copyrights for works published after January 1, 1978, last for the life of the author plus 70 years. However, in the following circumstances, the copyright lasts between 95 and 120 years, depending on the date the work is published:

• The work belongs to the author’s employer under work-made-for-hire principles.

• The work was commissioned under a work-made-for-hire agreement (and fits within one of the categories of works that qualify for work-made-for-hire treatment).

• The author publishes and registers the work anonymously or under a pseudonym.

After a copyright expires, the work goes into the public domain, meaning it becomes available for anyone’s use.

For works created before 1978, the duration times are different:

• If the work was published before 1924, it is in the public domain (available for use without permission). (Note: On January 1, 2019, for the first time since 1998, expiring copyrighted works entered the public domain. So, in 2019, works first published in the U.S. before 1924 entered the public domain. In 2020, works first published before 1925 will enter the public domain, and so forth.)

• If the work was published between 1924 and 1963 and not renewed, it is in the public domain.

• If the work was published between 1924 and 1963 and it was renewed, the copyright lasts 95 years from the date of first publication.

• If the work was published between 1964 and 1977, the copyright lasts for 95 years from the date of publication.

• If the work was created before 1978 and published before December 31, 2002, the copyright lasts the longer of either (a) life of the author plus 70 years, or (b) until December 31, 2047; if created before 1978 and not published before December 31, 2002, the copyright lasts for the life of the author plus 70 years.

What happens if a copyright is infringed?

In the event someone infringes (violates) the exclusive rights of a copyright owner, the owner is entitled to sue in federal court and ask the court to:

• issue orders (restraining orders and injunctions) to prevent further violations

• award money damages if appropriate, and

• in some circumstances, award attorneys’ fees.

Whether the lawsuit will be effective and whether damages will be awarded depends on whether the alleged infringer succeeds in raising one or more legal defenses to the charge. Common legal defenses to copyright infringement are:

• Too much time has elapsed between the infringing act and the lawsuit (the statute of limitations defense).

• There is no infringement; it is a fair use.

• The infringement was innocent (the infringer had no reason to know the work was protected by copyright).

• The infringing work was independently created (that is, it wasn’t copied from the original).

• The copyright owner authorized the use in a license.

When can a copyrighted work be used without an owner’s permission?

Some uses of a copyrighted work are considered fair use—that is, the use might infringe, but the infringement is excused because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. When determining whether an infringement should be excused on the basis of fair use, a court will use several factors including the purpose and character of the use, amount and substantiality of the portion borrowed, and effect of the use on the market for the copyrighted material.

It’s important to understand that fair use is a defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file a lawsuit and the court upholds the fair use defense. There is, therefore, no way to find out in advance whether something will or won’t be considered a fair use. Of course, if the copyright owner is willing to grant permission for the use, then the uncertainty surrounding the use goes away. For this reason, most people who propose to use a copyrighted work do what they can to obtain permission and rely on the fair use defense only if permission is not granted or the copyright owner can’t be located.

A person who infringes a copyright but has good reason to genuinely believe that the use is a fair use is known as an innocent infringer. Innocent infringers usually don’t have to pay any damages to the copyright owner but do have to cease the infringing activity or pay the owner for the reasonable commercial value of that use.

What laws cover copyright protection in the United States and other countries?

In the United States, copyright protection derives from the U.S. Constitution, which requires that original works of authorship be protected by copyright. The current (and exclusive) source of this protection is the federal Copyright Act of 1976, as amended. There are no state copyright laws.

Copyright protection rules are fairly similar worldwide, due to several international copyright treaties, the most important of which is the Berne Convention. Under this treaty, all member countries (in excess of 100 countries, including virtually all industrialized countries) must afford copyright protection to authors who are nationals of any member country. This protection must last for at least the life of the author plus 50 years and must be automatic, without the need for the author to take any legal steps to preserve the copyright.

In addition to the Berne Convention, the GATT (General Agreement on Tariffs and Trade) treaty contains a number of provisions that affect copyright protection in signatory countries. Together, the Berne Copyright Convention and the GATT treaty allow U.S. authors to enforce their copyrights in most industrialized nations and allow the nationals of those nations to enforce their copyrights in the United States.

What’s new in copyright law since the last edition?

Below are some changes in copyright law that have occurred since the last edition.

• The public domain opens for business. The 1998 Sonny Bono Copyright Act had extended copyright for 20 years, at the same time preventing any works from expiring for 20 years. On January 1, 2019—for the first time since 1998—expiring copyrighted works entered the public domain. So, in 2019, works first published in the U.S. in 1923 entered the public domain. In 2020, works first published in 1924 will enter the public domain, and so forth.

• Filing an application does not equal registration. In 2019, the Supreme Court held that registration of a copyright is required as a condition of filing an infringement action. The copyright owner had filed a suit after it had applied for but not received a registration. The Supreme Court also held that once copyright is registered, the owner can recover retroactively for infringement. (Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC., 586 U.S. (2019).) One of the early beneficiaries of the Supreme Court’s opinion was model Gigi Hadid, who was sued for reposting a photo. She successfully defended herself by demonstrating that the plaintiff had no registration.

• Music Modernization Act (MMA) passed. This Act was signed into law on October 11, 2018, and incorporated three pieces of legislation that alter copyright law as follows:

New music licensing collective. The Act simplifies the licensing rules for digital music providers and creates a new music licensing collective (MLC), which should take effect in 2021. Once in place, the MLC will act as a toll booth for Spotify, Pandora, SoundCloud, and other digital music providers. These providers will pay the MLC for each use of a song, and the MLC will compensate the owners accordingly. The MLC will also identify copyrighted material embodied in sound recordings, locate the copyright owners of such material, administer ownership claims, and assist with the setting of royalty rates and terms.

Pre-1972 recordings covered by copyright. Before the MMA, pre-1972 sound recordings were protected under state law, making them ineligible to collect the digital performance right granted to sound recordings in 1995. The MMA extends the public performance right to pre-1972 recordings, thereby requiring digital music providers to compensate those recording artists and song owners.

Music producers collect royalties directly. Individuals who create sound recordings (producers, engineers, mixers) can now seek royalties directly from SoundExchange, rather than pursuing the sound recording artists and performers for the payment.

• “Full Costs” in copyright litigation limited to six categories. The Supreme Court held that the award of “full costs” (as used in the Copyright Act) was not meant to go beyond the six categories in the federal statute authorizing district courts to award costs. (28 U.S. Code §§ 1821 and 1920). The categories include: (1) Fees of the clerk and marshal; (2) Fees for printed or electronically recorded transcripts; (3) Fees and disbursements for printing and witnesses; (4) Fees for exemplification and the costs of making copies; (5) Docket fees; (6) Compensation of court-appointed experts, and compensation of interpreters. (Rimini Street v. Oracle U.S.A., 139 S. Ct. 873 (2019).)

• Friendship does not infer access. Horizon, a comic book publisher, alleged that the mechanized suit featured in the promotional poster for Iron Man 3 was taken from a character in Horizon’s comic book series. Horizon claimed that Marvel employees might have seen the drawing at a comic convention. Still, the court rejected the argument that a reasonable possibility of access exists due merely to the “friendship” between the parties’ employees. What the court wanted was “significant, affirmative and probative evidence” of a “particular chain of events,” sufficient to permit a reasonable jury to infer access. (Horizon Comics Productions, Inc. v. Marvel Entertainment, LLC., No. 16-CV-2499 (J.P.O.) (S.D.N.Y. July 15, 2019).)

• Claim for CMI removal requires more than a general possibility of infringement. Corelogic “scraped” ( a data collection process) various real estate websites for photos of properties that the company downsized. In the process, CMI (copyright management information) was removed by the software. Although a trial court determined there was no infringement, several photographers sued because removing the CMI metadata also removed the attribution. The Ninth Circuit rejected the claim because the photographers had failed to offer any specific evidence that the removal of the CMI metadata impaired their ability to police possible infringement. (Stevens v. Corelogic, Inc., 899 F.3d 666 (9th Cir. 2018).)

• Three seconds of graffiti in a TV show is de minimis. In 2018, a New York District Court ruled that a fleeting shot of barely visible graffiti painted on a dumpster, appearing in the HBO series Vinyl was a de minimis use (trivial) and did not amount to infringement of the graffiti artist’s work. (Gayle v. Home Box Office, Inc., No. 1:2017cv05867 (S.D.N.Y. May 1, 2018).)

• No copyright for short phrases like “Haters gonna hate.” In a copyright dispute about a Taylor Swift song, the district court held that the phrases, “Playas gonna play” and “Haters gonna hate,” could not be legally protected. (Hall v. Swift, CV 17-6882-MWF (ASx) (C.D. Cal. February 13, 2018).)

• Monkey see, monkey sue. An Indonesian crested macaque took several photos of itself when a photographer left his camera unattended. PETA, an animal rights group, sued on behalf of the animal, claiming it should be awarded copyright in the photos. The Ninth Circuit disagreed. “We conclude that this monkey—and all animals since they are not human—lacks statutory standing under the Copyright Act.” (Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).)

• Reselling digital music files prohibited. An Internet company, ReDigi, used a business model in which a user could sell digital music files, thereby taking advantage of the First Sale Doctrine (that allows a purchaser of a copy to sell or otherwise transfer a copy). Record companies sued, and the Second Circuit Court of Appeals ruled against ReDigi because each transaction resulted in the making of at least one unauthorized copy of the song (prohibited by the First Sale Doctrine). (Capitol Records v. ReDigi, 910 F. 3d 649 (2nd Cir. 2018).)

• VARA protects graffiti. A New York district court determined that graffiti works painted on buildings had the “recognized stature” to qualify as protected artwork under the Visual Artists Rights Act (VARA). The works in question, known as the 5Pointz Project, had been whitewashed by the developer of the building. The court awarded the artists $6.7 million, the maximum statutory damages for 45 of the murals. (Cohen v. G&M Realty L.P., 13-CV-5612 (FB) (E.D.N.Y. June 22, 2018).)

• Embedding photo tweets might violate display right. In a case involving embedding of a tweeted photo of quarterback Tom Brady, a New York district court rejected the Ninth Circuit’s server test. “When defendants caused the embedded tweets to appear on their websites, their actions violated the plaintiff’s exclusive display right,” the judge wrote. “The fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.” (Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585 (S.D.N.Y. 2018).)

• Pending legislation: the CASE Act. Officially known as the Copyright Alternative in Small-Claims Enforcement Act of 2017, the CASE Act is intended to create a forum for, as the bill advertises, small copyright claims. The bill creates the Copyright Claims Board, a body within the U.S. Copyright Office to decide copyright disputes. The board shall be authorized to hear copyright infringement claims, actions for a declaration of noninfringement, claims that a party knowingly sent false takedown notices, and related counterclaims. Damages awarded by the board are capped at $30,000. Participation in board proceedings is voluntary, and parties may choose instead to have a claim or defense heard in court. If the parties agree to have their dispute heard by the board, they shall give up the right to be heard before a court and the right to a jury trial.

The bill provides for various procedures, requests for information from the other party, and requests for the board to reconsider a decision. The board may issue monetary awards based on actual or statutory damages. The parties shall bear their own attorneys’ fees and costs except where there is bad faith misconduct, and such awards shall be limited to $5,000. A board’s final determination precludes relitigating the claims in court or at the board, but parties may apply to a federal district court for review of the decision.

The following fair use cases were decided since the last edition:

• Copying portions of interface programs is not a fair use. Oracle sued Google for $9 billion, claiming that Google’s Android operating system improperly used JAVA application programming interface code (“APIs”). APIs are bits of software that interface with programs to trigger software functions. The district court found that Google’s use of JAVA components was “fair use,” primarily because APIs exist to interface with other codes and are traditionally borrowed as industry protocols. However, on appeal, the federal circuit ruled that the use of APIs was not fair use because it wasn’t minimal or transformative. (Oracle Am., Inc. v. Google LLC, 886 F.3d 1179 (Fed. Cir. 2018).)

• Copying catalog photos of Picassos is a fair use. An American art editor reproduced several photos of works by Picasso for a book about the artist. Sued in France, a French court determined the use to be an infringement and awarded damages of $2.25 million. A U.S. judge refused to enforce the French judgment, considering the publication to be fair use. Important factors: Besides promoting both free speech and “criticism, teaching, scholarship, and research,” the court determined that the art editors’ use of the photos was not in competition with the catalog from which the images were taken. (De Fontbrune v. Wofsy, cv-05957-EJD (N.D. Cal. 2019).)

• Using phrase from other album in a new way is a fair use. Notorious B.I.G., a rap artist, borrowed the phrase “party and bullshit” from an album by The Last Poets. Important factors: B.I.G.’s use was considered transformative because it “exalts ‘party and bullshit’ rather than condemning it,” (as did The Last Poets). (Oyewole v. Ora, 291 F. Supp. 3d 422 (S.D.N.Y. 2018).)

• Warhol silkscreen of Prince photos is a fair use. In 1984, Andy Warhol created a series of silkscreens of the musician, Prince, using photos by Lynn Goldsmith as his source material. A district court held that Warhol’s series was fair use. Important factors: According to the court, “The Prince Series works can reasonably be perceived to have transformed Prince from a vulnerable, uncomfortable person to an iconic, larger-than-life figure.” (Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, 17-cv-2532 (J.G.K.) (S.D.N.Y. July 1, 2019).)

• Borrowing section of “Super Bowl Shuffle” is a fair use. A documentary maker used 2% of the “Superbowl Shuffle” song in a film celebrating the Chicago Bears, without permission. An Illinois district permitted this as fair use. Important factors: The portion taken constituted 1% of the documentary itself, and was “no more than necessary to serve as a historical reference point in the commentary.” (Red Label Music Publ’g Inc. v. Chila Prods., No. 18 C 7252 (N.D. Ill. May 30, 2019).)

• Reproduction of Trump-photobombed wedding picture is not a fair use. A wedding guest photographed President Trump as he “crashed” a wedding at Trump’s golf course in New Jersey. The photo appeared on Instagram and was subsequently reproduced by CNN, TMZ, and several other media companies. Important factors: The court rejected the theory that the use was transformative simply because the photographer took the photo for personal use, not news use. (Otto v. Hearst Comm., 1:17-cv-04712-GHW-JLC (S.D.N.Y. 2018).)

• Competitor’s reproduction of bond trader photo is not a fair use. A photographer created a portrait of a bond trader for Forbes magazine. Subsequently, Barron’s a competitor of Forbes, reproduced the photo without permission. Important factors: The court did not consider the competitor’s use to be transformative: “[u]sing a photo for the precise reason it was created does not support a finding that the nature and purpose of the use was fair.” (Michael Grecco Productions, Inc. v. Valuewalk, LLC., 345 F. Supp. 3d 482 (S.D.N.Y. 2018).)

• Tagging photos and making them searchable does not make it a fair use. VHT, who licensed real estate photos to Zillow, claimed Zillow exceeded its license by displaying the photos after the sale, and at a second website for home renovations. Zillow argued unsuccessfully that tagging the photos and making them searchable qualified for fair use. Important factors: The Court of Appeals found that making the images searchable did not fundamentally transform their original purpose, namely displaying the property. (VHT, Inc. v. Zillow Group, Inc., 918 F. 3d 723 (9th Cir. March 15, 2019).)

• Clipping and categorizing TV news is not a fair use. An online company, TVEyes, offered a video news clipping service that allowed professional subscribers to monitor news programs. After Fox News sued, a lower court ruled that the TV searching service constituted fair use, not unlike Google’s book searching feature. On appeal, the Second Circuit reversed the fair use ruling. Important factors: The Second Circuit did not agree that the TVEyes searching system was analogous to Google’s book search. Also, the court ruled that the fourth fair use factor, effect on the market, weighed heavily in favor of Fox. (Fox News Network, LLC v. TVEyes, Inc., 883 F. 3d 169 (2d Cir. 2018).)

• “Good Faith” is not a fair use factor. A film festival reproduced a cityscape photo at its website without authorization. The photographer sued, and a lower court ruled that the usage was fair, partially because of the good faith actions of the film festival. The Fourth Circuit reversed the lower court and found no fair use. Important factors: The Fourth Circuit deemed there to be no precedent for the proposition that “good faith” helped a fair use argument. Because infringement is a strict liability defense, the state of the defendant’s mind makes no difference to the issue of liability. (Brammer v. Violent Hues, 922 F.3d 255 (4th Cir. 2019).)

Copyright resources

You can find valuable information about copyright by using any of the following Web resources:

• Nolo (www.nolo.com). Nolo offers self-help information about a wide variety of legal topics, including copyright law.

• Copyright Office (www.copyright.gov). The U.S. Copyright Office’s website offers forms, circulars, and a wide range of helpful copyright information.

• Copyright & Fair Use (https://fairuse.stanford.edu). Operated by the Stanford University Libraries, this site provides a through overview of copyright and fair use.

• Dear Rich: Nolo’s Patent, Copyright & Trademark Blog (www.dearrichblog.com). Have a question about copyright law? This intellectual property blog operates as a companion to this book.