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The copyright law of the United States grants
monopoly A monopoly (from Greek language, Greek el, μόνος, mónos, single, alone, label=none and el, πωλεῖν, pōleîn, to sell, label=none), as described by Irving Fisher, is a market with the "absence of competition", creating a situati ...
protection for "original works of authorship". With the stated purpose to promote art and
culture Culture () is an umbrella term which encompasses the social behavior, institutions, and norms found in human societies, as well as the knowledge, beliefs, arts, laws, customs, capabilities, and habits of the individuals in these groups ...
, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, , are in the public domain. United States
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
law was last generally revised by the
Copyright Act of 1976 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...
, codified in Title 17 of the United States Code. The United States Constitution explicitly grants Congress the power to create copyright law under Article 1, Section 8, Clause 8, known as the Copyright Clause.Stanford Fair Use and Copyright Center. U.S. Constitution. http://fairuse.stanford.edu/law/us-constitution/ . Retrieved December 3, 2015. Under the Copyright Clause,
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
has 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." The
United States Copyright Office The United States Copyright Office (USCO), a part of the Library of Congress, is a United States government body that maintains records of copyright registration, including a copyright catalog. It is used by copyright title searchers who ar ...
handles copyright registration, recording of copyright transfers, and other administrative aspects of copyright law.


History

United States
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, educatio ...
law traces its lineage back to the British
Statute of Anne The Statute of Anne, also known as the Copyright Act 1710 (cited either as 8 Ann. c. 21 or as 8 Ann. c. 19), was an act of the Parliament of Great Britain passed in 1710, which was the first statute to provide for copyright regulated by the g ...
, which influenced the first U.S. federal copyright law, the Copyright Act of 1790. The length of copyright established by the Founding Fathers was 14 years, plus the ability to renew it one time, for 14 more. 40 years later, the initial term was changed to 28 years. It was not until a full 180 years after its establishment that it was significantly extended beyond that, through the
Copyright Act of 1976 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...
to "Either 75 years or the life of the author plus 50 years" and the Sonny Bono Copyright Term Extension Act of 1998 (also called the "Mickey Mouse Protection Act", because it prevented the copyright from expiring on the first commercial success of the
Disney The Walt Disney Company, commonly known as Disney (), is an American multinational mass media and entertainment conglomerate headquartered at the Walt Disney Studios complex in Burbank, California. Disney was originally founded on October ...
cartoon character
Mickey Mouse Mickey Mouse is an animated cartoon Character (arts), character co-created in 1928 by Walt Disney and Ub Iwerks. The longtime mascot of The Walt Disney Company, Mickey is an Anthropomorphism, anthropomorphic mouse who typically wears red sho ...
), which increased it even more, to 120 years, or the life of the author plus 70 years, whichever ends earlier.


Purpose of copyright

The goal of copyright law, as set forth in the Copyright Clause of the
US Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nation ...
, 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." This includes incentivizing the creation of art, literature, architecture, music, and other works of authorship. As with many legal doctrines, the effectiveness of copyright law in achieving its stated purpose is a matter of debate.


Works subject to copyright law

The United States copyright law protects "original works of authorship" fixed in a tangible medium, including literary, dramatic, musical, artistic, and other intellectual works. This protection is available to both published and unpublished works. Copyright law includes the following types of works: * Literary * Musical * Dramatic * Pantomimes and choreographic works * Pictorial, graphic, and sculptural works * Audio-visual works * Sound recordings *
Derivative work In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in ...
s * Compilations * Architectural works


Idea–expression dichotomy

Copyright law protects the "expression" of an idea, but copyright does not protect the "idea" itself. This distinction is called the idea–expression dichotomy. The distinction between "idea" and "expression" is fundamental to copyright law. From the
Copyright Act of 1976 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...
(): For example, a paper describing a political theory is copyrightable. The paper is the ''expression'' of the author's ideas about the political theory. The theory itself is just an ''idea'', and is not copyrightable. Another author is free to describe the same theory in their own words without infringing on the original author's copyright. Although fundamental, the idea–expression dichotomy is often difficult to put into practice. Reasonable people can disagree about where the unprotectable "idea" ends and the protectable "expression" begins. As Judge
Learned Hand Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 an ...
put it, "Obviously, no principle can be stated as to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably be ad hoc."


Compilations of facts and the ''sweat of the brow doctrine''

Mere facts are not copyrightable. However, ''compilations of facts'' are treated differently, and may be copyrightable material. The Copyright Act, , allows copyright protection for "compilations", as long as there is some "creative" or "original" act involved in developing the compilation, such as in the selection (deciding which facts to include or exclude) and arrangement (how facts are displayed and in what order). Copyright protection in compilations is limited to the ''selection and arrangement of facts'', not to the facts themselves. The
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
decision in ''
Feist Publications, Inc., v. Rural Telephone Service Co. ''Feist Publications, Inc., v. Rural Telephone Service Co.'', 499 U.S. 340 (1991), was a landmark decision by the Supreme Court of the United States establishing that information alone without a minimum of original creativity cannot be protected by ...
'' clarified the requirements for copyright in compilations. The Feist case denied copyright protection to a "white pages" phone book (a compilation of telephone numbers, listed alphabetically). In making this ruling, the Supreme Court rejected the " sweat of the brow" doctrine. That is, copyright protection requires creativity, and no amount of hard work ("sweat of the brow") can transform a non-creative list (like an alphabetical listing of phone numbers) into copyrightable subject matter. A mechanical, non-selective collection of facts (e.g., alphabetized phone numbers) cannot be protected by copyright.Bryan M. Carson. Legally Speaking—The Top Ten Intellectual Property Cases of the Past 25 Years. Against the Grain 17.2 (April 2005). http://works.bepress.com/bryan_carson/28 . Retrieved December 2, 2015.


Useful articles

Copyright protects artistic expression. Copyright does not protect useful articles, or objects with some useful functionality. The Copyright Act states: However, many industrial designers create works that are both artistic and functional. Under these circumstances, copyright law only protects the artistic expression of such a work, and only to the extent that the artistic expression can be separated from its utilitarian function. In 2017, the US Supreme Court granted
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
in the case '' Star Athletica, L. L. C. v. Varsity Brands, Inc.'' to determine when a "pictorial, graphic, or sculptural feature" incorporated into a useful article is eligible for copyright protection, holding that such features are eligible for copyright protection "only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated." ''Star Athletica'' began as a suit by Varsity Brands against Star Athletica for infringing the copyright of five cheerleader uniform designs. Applying its new test to the cheerleader uniform designs, the court said: This produces a relatively low threshold for pictorial, graphic, or sculptural features on useful articles to be eligible for copyright protection, which one commentator clearly highlighted: the ''Star Athletica'' decision "really has ensured that all but the subtlest graphic designs will be able to gain copyright protection...once we determine that the designs 'hav … graphic … qualities … nd could beapplied … on a painter's canvas,' the test for copyrightability is met."


Works by the federal government

Works created by the federal government are not copyrightable. . This restriction on copyright applies to publications produced by the United States Government, and its agents or employees within the scope of their employment. The specific language is as follows: A "work of the United States Government" is defined in as "a work prepared by an officer or employee of the United States Government as part of that person's official duties". Note that government contractors are generally not considered employees, and their works may be subject to copyright. Likewise, the US government can purchase and hold the copyright to works created by third parties. 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 for commercial purposes.


Federal and state laws are not protected by copyright

Federal, state, and local statutes and court decisions are in the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
and are ineligible for copyright, a concept known as the government edicts doctrine. It is not difficult to see the motivations behind this: Three key Supreme Court cases established this government edicts doctrine: '' Wheaton v. Peters'' (1834), ''
Banks v. Manchester ''Banks v. Manchester'', 128 U.S. 244 (1888), was a United States Supreme Court ruling dealing with copyright. In 1882, to facilitate the printing of records of the Supreme Court of Ohio, the state of Ohio passed a resolution to establish a c ...
'' (1888), and ''
Callaghan v. Myers ''Callaghan v. Myers'', 128 U.S. 617 (1888), was a United States Supreme Court ruling dealing with copyright. The firm of Eugene B. Myers & Chandler, composed of Myers and Horace P. Chandler, purchased the copyright of the arrangement of a number ...
'' (1888). The doctrine was codified into the
United States Code In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
at via the
Copyright Act of 1976 The Copyright Act of 1976 is a United States copyright law and remains the primary basis of copyright law in the United States, as amended by several later enacted copyright provisions. The Act spells out the basic rights of copyright holders, cod ...
. The Copyright Office upholds this doctrine within its own regulations: The Supreme Court has also ruled that annotated versions of statutes or court decisions at the federal, state, and local level, when such annotations are done by members of the government as part of their duties, are ineligible for copyright in '' Georgia v. Public.Resource.Org, Inc.'' (2020).


Exclusive rights

There are six basic rights protected by copyright. The owner of a copyright has the exclusive right to do and authorize others to do the following: * To ''reproduce'' the work in copies or phonorecords; * To prepare ''derivative works'' based upon the work; * To ''distribute'' copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; * To ''publicly perform'' the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; * To ''publicly display'' the work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. * To ''digitally'' transmit sound recordings by means of digital audio transmission. A violation of any of the exclusive rights of the copyright holder is a
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, ...
, unless fair use (or a similar affirmative defense) applies.


Authorship, ownership, and work for hire

The initial owner of the copyright to a work is the author, unless that work is a "work made for hire". *Works for hire. If a work is made "for hire" within the meaning of the Copyright Act, then the ''employer'' or ''commissioning party'' is deemed to be the author and will own the copyright as though it were the true author. These circumstances under which a work may be found to be a work for hire are: **Work prepared by an ''employee'' within the scope of their employment. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court held that the term "employee" in this context should be interpreted according to common law agency principles. If the person doing the work is an "employee" within the meaning of the common law, and the work was done within the scope of their employment (whether the work is the kind they were employed to prepare; whether the preparation takes place primarily within the employer's time and place specifications; and whether the work was activated, at least in part, by a purpose to serve the employer), then the work is a work for hire and the employer is the initial owner of the copyright. **Specially ordered or commissioned works. Works created by independent contractors (rather than employees) can be deemed works for hire only if two conditions are satisfied. First, the work must fit into one of these categories: a contribution to a collective work, part of a motion picture or other audiovisual work, a translation, a supplementary work, a compilation, an instructional text, a test, answer material for a test, or an atlas. Second, the parties must expressly agree in a written, signed instrument that the work will be considered a work made for hire. If a work is not a work for hire, then the author will be the initial copyright owner. The author generally is the person who conceives of the copyrightable expression and "fixes" it in a "tangible medium of expression." Special rules apply when multiple authors are involved: * Joint authorship: The US copyright law recognizes joint authorship in Section 101. The authors of a joint work are co-owners of a single copyright in the work. A joint work is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or independent parts of a unitary whole." *
Collective work A collective work is a work that contains the works of several authors assembled and published under the direction of one natural or legal person who owns the copyright in the work as a whole. Definitions vary considerably from one country to a ...
s: A collective work is a collection of independent, separately copyrightable works of authorship, such as a newspaper, magazine, or encyclopedia. In the absence of an express assignment of copyright, the author of each individual work in the collection retains copyright in that work. The compiler, or author of the collection, owns copyright in the expression he or she contributed, which is primarily the selection and arrangement of the separate contributions, but may include such things as a preface, advertisements, etc., that the collective author created.


Transfers and licenses

Three types of transfers exist for copyrighted works. *Assignment *Exclusive license *Non-exclusive license 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 are 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. For works published since 1978, copyrights may revert to the original author after 35 years. states that the author must write a letter requesting a termination of the original copyright grant at least two years before the effective termination date.


Limitations on exclusive rights

Title 17, United States Code, Section 108 places limitations on exclusive copyrights for the purposes of certain limited reproduction by a public library or an archive. Title 17, United States Code, Section 107 also places statutory limits on copyright which are commonly referred to as the fair use exception.


Registration procedure

Copyright is automatically granted to the author of an original work (that otherwise meets the basic copyright requirements, discussed above). Registration is not necessary. However, registration amplifies a copyright holder's rights in a number of ways. Registration is required before a lawsuit can be filed, and registration creates the possibility for enhanced "statutory" damages. A copyright can be registered online at the US Copyright Office's website. The Copyright Office reviews applications for obvious errors or lack of copyrightable subject matter and then issues a certificate of registration. The Copyright Office does not compare the author's new work against a collection of existing works or otherwise check for infringement.


Deposit requirement

The United States Copyright Office requires a deposit copy of the work for which copyright registration is sought. Deposits can be made through the Copyright Office'
eCO System
This deposit requirement serves two purposes. First, if a copyright infringement lawsuit arises, 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 helps the Library of Congress build its collection of works. 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.


Copyright notices

The use of copyright notices is optional. The Berne Convention, amending US copyright law in 1989, makes copyright automatic. 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. 17 U.S.C.


Duration of copyright

Copyright protection generally lasts for 70 years after the death of the author. If the work was a "work for hire", then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. For works created before 1978, the copyright duration rules are complicated. However, works published before January 1, (other than sound recordings), have made their way into the public domain.


Works created before 1978

For works published or registered before 1978, the maximum copyright duration is 95 years from the date of publication, if copyright was renewed during the 28th year following publication.
Copyright renewal Copyright renewal is a copyright formality through which an initial term of copyright protection for a work can be extended for a second term. Once the term of copyright protection has ended, the copyrighted work enters the public domain, and can ...
has been automatic since the
Copyright Renewal Act of 1992 Copyright Renewal Act of 1992, , is the first title of the Copyright Amendments Act of 1992, an act of the United States Congress that amended copyright renewal provisions of Title 17 of the United States Code enacted under Copyright Act of 1 ...
. For works created before 1978, but not published or registered before 1978, the standard §302 copyright duration of 70 years from the author's death also applies. Prior to 1978, works had to be published or registered to receive copyright protection. Upon the effective date of the 1976 Copyright Act (which was January 1, 1978) this requirement was removed and these unpublished, unregistered works received protection. 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, would not have their protection expire before 2048. All copyrightable works published in the United States before are in the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
; works created but not published or copyrighted before January 1, 1978, may be protected until 2047. For works that received their copyright before 1978, a renewal had to be filed in the work's 28th year with the Copyright Office for its term of protection to be extended. The need for renewal was eliminated by the
Copyright Renewal Act of 1992 Copyright Renewal Act of 1992, , is the first title of the Copyright Amendments Act of 1992, an act of the United States Congress that amended copyright renewal provisions of Title 17 of the United States Code enacted under Copyright Act of 1 ...
, 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. Before 1972, sound recordings were not subject to federal copyright, but copying was nonetheless regulated under various state
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
s 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, and declared that recordings fixed before that date would remain subject to state or
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
copyright. Subsequent amendments had extended this latter provision until 2067. As a result, older sound recordings were not subject to the expiration rules that applied to contemporary visual works. Although these could have entered the public domain as a result of government authorship or formal grant by the owner, the practical effect has been to render public domain audio virtually nonexistent. This situation changed with the 2018 enactment of the
Music Modernization Act The Orrin G. Hatch–Bob Goodlatte Music Modernization Act, or Music Modernization Act or MMA (, ) is United States legislation signed into law on October 11, 2018 aimed to modernize copyright-related issues for music and audio recordings due t ...
, which extended federal copyright protection to all sound recordings, regardless of their date of creation, and preempted state copyright laws on those works. Under the Act, the first sound recordings to enter the public domain were those fixed before 1923, which entered the public domain on January 1, 2022. Recordings fixed between 1923 and February 14, 1972, will be phased into the public domain in the following decades. Specifically, works fixed 1923–1946 are public after 100 years and works fixed 1947–1956 after 110 years of fixation. Works fixed 1 January 1957 – 14 February 1972 will all become public on 15 February 2067. In May 2016, Judge Percy Anderson ruled in a lawsuit between ABS Entertainment and
CBS Radio CBS Radio was a radio broadcasting company and radio network operator owned by CBS Corporation and founded in 1928, with consolidated radio station groups owned by CBS and Westinghouse Broadcasting/Group W since the 1920s, and Infinity Broad ...
that "remastered" versions of pre-1972 recordings can receive a federal copyright as a distinct work due to the amount of creative effort expressed in the process. The Ninth Circuit appeals court reversed the decision in favor of ABS Entertainment.


Copyright limitations, exceptions, and defenses

United States copyright law includes numerous defenses, exceptions, and limitations. Some of the most important include: * Copyright applies only to certain copyrightable subject matter, codified within . Works that are not "original works of authorship fixed in any tangible medium of expression" are not subject to copyright. codifies that copyright protection does not extend to ideas, procedures, processes, systems, etc. Facts may not be copyrighted. "Useful articles" may not be copyrighted. Useful articles includes typeface designs ('' Eltra Corp. v. Ringer''), fashion designs, blank forms, titles, names, short phrases, slogans, lists of ingredients and contents, domain names and band names. * The first-sale doctrine, , limits the rights of copyright holders to control the further distribution and display of copies of their works ''after'' the first sale by the copyright owner. The owner of a particular copy is entitled to "sell or otherwise dispose of the possession of that copy" and to "display the copy publicly ... to viewers present at the place where the copy is located." * The "good faith" defense (Section 504(c)(2)) reduces the statutory damages where the infringer was an educational institution, library, archive, or public broadcaster and reasonably believed that the infringing use was "fair use." * The Copyright Act includes specific exemptions for types of works and particular entities, such as libraries (), public broadcasters ( and ), braille (), software backup copies (), "cover license" permitting sound recording covers (), and jukebox compulsory licenses (). * Provisions for the Blind and Disabled. The Copyright Act, in 17 USC 121 and 17 USC 110(8), includes specific statutory exceptions for reproduction of material for the blind or other persons with disabilities.
Section 121 (the "Chafee Amendment")
permits the reproduction of copyright works in
Braille Braille (Pronounced: ) is a tactile writing system used by people who are visually impaired, including people who are blind, deafblind or who have low vision. It can be read either on embossed paper or by using refreshable braille displ ...
, audio, electronic
Web-Braille
or other necessary formats. For instance, the National Library Service for the Blind and Physically Handicapped (NLS) administers a program under Section 121, and the HathiTrust Digital Library also relies on Section 121 in providing access to disabled users. * Online Service Provider "Safe Harbor." Section 512 ("OCILLA", passed as part of the DMCA in 1998) provides a contingent "safe harbor" for online service providers from secondary liability for their users' copy infringements. * US copyright law does not allow works created by animals to be copyrighted. The Compendium lists several examples of such ineligible works, including "a photograph taken by a monkey" and "a mural painted by an elephant".


Fair use

Fair use is the use of limited amounts of copyrighted material in such a way as to not be an infringement. It is codified at , and states that "the fair use of a copyrighted work ... is not an infringement of copyright." The section lists four factors that must be assessed to determine whether a particular use is fair. There are no bright-line rules regarding fair use and each determination is made on an individualized case-by-case basis. #''Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes'': Nonprofit educational and noncommercial uses are more likely to be fair use. This does ''not'' mean that all nonprofit education and noncommercial uses are fair use or that all commercial uses are not fair. Instead, courts will balance the purpose and character of the use against the other factors below. Additionally, "transformative" uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work. #''Nature of the copyrighted work'': Using a more creative or imaginative work (such as a novel, movie, or song) is ''less'' likely to support fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair. #''Amount and substantiality of the portion used in relation to the copyrighted work as a whole'': Courts look at both the quantity and quality of the copyrighted material that was used. Using a large portion of the copyrighted work is less likely to be fair use. However, courts have occasionally found use of an ''entire'' work to be fair use, and in other contexts, using even a small amount of a copyrighted work was determined not to be fair use because the selection was an important part—or the "heart"—of the work. #''Effect of the use upon the potential market for or value of the copyrighted work'': Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner's original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread. In addition to these four factors, the statute also allows courts to consider any other factors that may be relevant to the fair use analysis. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on the specific facts of that case. There is ''no formula'' to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission. The justification of the fair use doctrine turns primarily on whether, and to what extent, the challenged use is ''transformative''. "The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test.... If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society." The Copyright Office provides a searchable list of fair use case law.


Parodies

Although a
parody A parody, also known as a spoof, a satire, a send-up, a take-off, a lampoon, a play on (something), or a caricature, is a creative work designed to imitate, comment on, and/or mock its subject by means of satiric or ironic imitation. Often its sub ...
can be considered a derivative work, and thus within the exclusive rights of the copyright owner, it may qualify as "fair use." Parodies are not automatically fair use. The
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. Federal tribunals in the United States, federal court cases, and over Stat ...
stated that parody (transformative) "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 (exaggerated) (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.'').


Infringement

Copyright infringement occurs when someone violates one of the exclusive rights listed in 17 USC 106. Commonly, this involves someone creating or distributing a "copy" of a protected work that is "substantially similar" to the original version. Infringement requires copying. If two people happen to write exactly the same story, without knowledge of the other, there is no infringement.


Copyright infringement litigation

A copyright owner may bring a copyright infringement lawsuit in federal court. Federal courts have ''exclusive''
subject-matter jurisdiction Subject-matter jurisdiction (also called jurisdiction ''ratione materiae')'' is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority ...
over copyright infringement cases. That is, an infringement case may not be brought in ''state'' courts. (With an exception for works not protected under Federal law, but are protected under state law, e.g. state laws prohibiting copying of sound recordings made before February 15, 1972.) Note that the Copyright Office handles copyright registrations, but it does not adjudicate copyright infringement disputes.


Ownership of valid copyright

To bring a copyright infringement lawsuit, a copyright holder must establish ownership of a valid copyright and the copying of constituent elements of the work that are original. The copyright owner must also establish both (a) actual copying and (b) improper appropriation of the work. The copyright owner, as plaintiff, bears the burden of establishing these three elements of the ''
prima facie ''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
'' case for infringement. A
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of t ...
establishes ownership by authorship (by the plaintiff itself or by someone 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, musical recording, etc.). Registration is not required to establish copyright protection, but registration is necessary before bringing a lawsuit. Registration is also useful because it creates a presumption of a ''valid'' copyright, it allows the plaintiff to collect enhanced "statutory damages", and to be eligible for an award of attorney fees. 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. 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. Even then, the plaintiff must show that the copying amounted to improper appropriation. Indeed, the United States Supreme Court has held that not all copying constitutes infringement and a showing of misappropriation is necessary.


Misappropriation

A copyrighted work may contain elements which are not copyrightable, such as facts, ideas, themes, or content in the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
. 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." 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 which parts of a copyrighted work are protectible and which are not. 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 ''West Side Story'' is a musical conceived by Jerome Robbins with music by Leonard Bernstein, lyrics by Stephen Sondheim, and a book by Arthur Laurents. Inspired by William Shakespeare's play '' Romeo and Juliet'', the story is set in the mid ...
'' alleged infringement, the elements of that musical borrowed from ''
Romeo and Juliet ''Romeo and Juliet'' is a tragedy written by William Shakespeare early in his career about the romance between two Italian youths from feuding families. It was among Shakespeare's most popular plays during his lifetime and, along with ''Ham ...
'' 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. This was first formulated in ''
Roth Greeting Cards v. United Card Co. ''Roth Greeting Cards v. United Card Co.'', 429 F.2d 1106 (9th Cir. 1970), was a Ninth Circuit case involving the copyright of greeting cards that introduced the "total concept and feel" standard for determining substantial similarity. Courts use ...
'' (1970). 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. Modern courts may sometimes use both methods in their analysis of misappropriation. In other instances, one method may find misappropriation while the other would not, making misappropriation a contentious topic in infringement litigation.


Civil remedies

A successful copyright infringement plaintiff may seek both "injunctive relief" and monetary
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
. As of 2019, the United States Supreme Court has held that a copyright holder must register his copyright with the U.S. copyright office before he may seek any judicial remedies for infringement. Injunctions: Copyright Act § 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement. There are also provisions for impounding allegedly infringing copies and other materials used to infringe, and for their destruction. Damages and/or Profits: Copyright Act § 504 gives the copyright owner a choice of recovering: (1) their actual damages and any additional profits of the defendant; or (2) statutory damages. However, Title 17
United States Code In the law of the United States, the Code of Laws of the United States of America (variously abbreviated to Code of Laws of the United States, United States Code, U.S. Code, U.S.C., or USC) is the official compilation and codification of the ...
§411(a) states that a civil action to enforce a copyright claim in a US work cannot be made until the work has been registered with the U.S. Copyright Office, with a narrow exception if the claim was filed and rejected by the Copyright Office. In 2019, the U.S. Supreme Court decided that §411(a) requires that a lawsuit cannot be initiated until the Copyright Office has processed, not merely received, the application.


Equitable relief

Both temporary and permanent injunctions are available to prevent or restrain infringement of a copyright. An "injunction" is a court order directing the defendant to stop doing something (e.g., stop selling infringing copies). 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.


Monetary damages

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. 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. To recover actual damages, the plaintiff must prove to the court that, in the absence of the infringement, the plaintiff would have been able to make additional sales, or perhaps been able to charge higher prices, and that this would have resulted in profits given the owner's cost structure. In some cases, the profits earned by the infringer exploiting the copyrighted material may exceed those earned by or potentially available to the owner. In these circumstances, the copyright owner can recover the infringer's profits if he or she can demonstrate a nexus between the profits and the infringing use.
Statutory damages Statutory damages are a damage award in civil law, in which the amount awarded is stipulated within the statute rather than being calculated based on the degree of harm to the plaintiff. Lawmakers will provide for statutory damages for acts in wh ...
are available as an alternative to actual damages and profits. If the copyright was registered either (a) within three months of publication or (b) before the infringement, then the plaintiff is eligible to seek statutory damages. 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. Statutory damages are sometimes preferable for the plaintiff if actual damages and profits are too small, too difficult to prove, or both. There are, however, situations where statutory damages are not available. provides: * Statutory damages are not available if the work is unpublished and the infringement began before the effective date of its registration. * Statutory damages are not available if the work is published but the infringement commenced after the first publication and before the effective date of its registration, unless registration is made within three months after the first publication. Statutory damages are calculated per work infringed. According to clause (1) of Title 17, U.S.C. Section 504(c), statutory damages range from $750 per work to $30,000 per work, with two principal exceptions: * In case of "innocent infringement", the amount may be reduced to a sum "not less than $200" for an effective range of $200 to $30,000 per work. "Innocent" is a technical term. In particular, if the work carries a copyright notice, the infringer cannot claim innocence. * In case of "willful infringement" (again, "willful" is a technical term), statutory damages can be no more than $150,000 for an effective range of $750 to $150,000 per work. Damages in copyright cases can be very high. In ''Lowry's Reports, Inc. v. Legg Mason Inc.'', 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.


Attorney's fees

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. This applies to both a winning plaintiff (copyright owner) and a winning defendant (accused infringer). 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.


Criminal penalties

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: * A fine of not more than $500,000 or
imprisonment Imprisonment is the restraint of a person's liberty, for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is " false imprisonment". Imprisonment does not necessar ...
for not more than five years, or both, for the first offense. * A fine of not more than $1 million or imprisonment for not more than 10 years, or both, for repeated offenses.
Nonprofit A nonprofit organization (NPO) or non-profit organisation, also known as a non-business entity, not-for-profit organization, or nonprofit institution, is a legal entity organized and operated for a collective, public or social benefit, in co ...
libraries, archives, education institutions and
public broadcasting Public broadcasting involves radio, television and other electronic media outlets whose primary mission is public service. Public broadcasters receive funding from diverse sources including license fees, individual contributions, public financing ...
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.


Government infringement

The US 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. Claims filed in the wrong court are dismissed for lack of
subject-matter jurisdiction Subject-matter jurisdiction (also called jurisdiction ''ratione materiae')'' is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority ...
. The government and its agencies are also authorized to settle the infringement claims out of court. The states have sovereign immunity provided by the Eleventh Amendment to the United States Constitution, which bars most forms of lawsuits against states in federal courts, but can be abrogated in certain circumstances by Congress. The Copyright Remedy and Clarification Act of 1990 (CRCA) states in part that states are liable to copyright infringement "in the same manner and to the same extent as any nongovernmental entity" and also that states and state entities and officials "shall not be immune, under the Eleventh Amendment to the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Court by any person" alleging copyright infringement.Pet. for a writ of cert.
, ''Allen v. Cooper'', No. 18-877 (U.S. Sup. Ct.)
The CRCA has been declared unconstitutional by several federal courts., and this was upheld by the US Supreme Court on March 23, 2020.


Public domain

Works in the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
are free for anyone to copy and use. Strictly speaking, the term "public domain" means that the work is not covered by any
intellectual property Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
rights at all (copyright, trademark, patent, or otherwise). However, this article discusses public domain with respect to copyright ''only''. A work may enter the public domain in a number of different ways. For example, (a) the copyright protecting the work may have expired, or (b) the owner may have explicitly donated the work to the public, or (c) the work is not the type of work that copyright can protect.


Orphan works

The "
orphan works An orphan work is a copyright-protected work for which rightsholders are positively indeterminate or uncontactable. Sometimes the names of the originators or rightsholders are known, yet it is impossible to contact them because additional details ...
" 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" 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".


Copyright reform

Critics of copyright assert that copyright protections last too long before copyrighted works are allowed to enter into the
public domain The public domain (PD) consists of all the creative work to which no exclusive intellectual property rights apply. Those rights may have expired, been forfeited, expressly waived, or may be inapplicable. Because those rights have expired ...
. For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been commissioned) or is published anonymously, the copyright lasts between 95 and 120 years, depending on the date the work is published. In 2022, legislation introduced by Senator Josh Hawley, entitled the Copyright Clause Restoration Act of 2022, seeks to reduce the protection from 70 years after the creator's death (post 1978) and 95 years (pre 1978) to 28 years, with the option to renew at the end of that term for a limit of 56 years total. These same terms were in place from 1909 up until 1976.


See also


References


Further reading


Copyright Law of the United States
(US Copyright Office, 2011).
Copyright Law, Second Edition
Prof. Robert Gorman (Federal Judicial Center, 2006).
Intellectual Property: Law & the Information Society. Cases & Materials
(First Edition, 2014) James Boyle and Jennifer Jenkin.
Toward a Fair Use Standard
'.'' Pierre N. Leval (103 Harvard Law Review 1105 (1990)).


External links


United States Copyright Office
*

*
United States Copyright Office list of circulars
*
Copyright Law of the United States

Cornell University: Copyright Term and the Public Domain in the United States


to determine copyright status of a work *
Copyright Timeline: A History of Copyright in the U.S.

Text of every version of U.S. Copyright Act
for 1909 to the present
Jeanne C. Fromer & Christopher Jon Sprigman, ''Copyright Law: Cases and Materials'' (v. 4.0)
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United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...