I recently took a class in Copyright with the renowned scholar and professor Paul Goldstein and enjoyed it immensely. I learned that copyright issues abound in our daily lives: sports team logos, movies, Instagram posts, the google search function, and more. Here is my quick and dirty overview of the copyright system in the U.S. I hope that this summary piques your interest in this area and intellectual property law in general.
What is copyright?
In the United States, copyright protection allows a copyright owner to exploit the copyrighted work. In general, the owner has the exclusive rights to reproduce the work, make a derivative work, and publicly display, distribute, and perform the work. The owner can also transfer these rights – such as authors assigning all rights to their publishers or negotiating a license for a movie studio to create a film adaptation.
Copyright law is grounded in federal statute
The Copyright Act of 1976 is the foundation of the copyright regime in the U.S. today. It has been amended several times since its passing, most notably to conform to the international Berne Convention in 1988 and to extend copyright duration with the Sonny Bono Term Extension Act in 1998.
Copyright law is policy-driven
Copyright protection is based on various, competing policies. They are (1) utilitarianism – incentivizing the creation of works that will benefit society; (2) the Lockean labor theory – recognizing that it is fair and necessary to respect a person’s labor; (3) the Kantian personhood theory – supporting the autonomy and personhood of the creator; and (4) the transactions costs concern – worrying about restricted public access and use due to the difficulties of locating the copyright owner and negotiating permissions.
In response to these concerns, the U.S. copyright system incentivizes and rewards creation by granting authors a broad set of rights over a long period of time, generally the life of the author plus 70 years. Once this period lapses, works fall into the public domain, and anyone can freely use them without permissions or costs. The Copyright Act also exempts from liability certain uses of copyrighted works, such as nonprofit libraries and schools making copies of or displaying these works for educational purposes, or the disabled community using such works in an accessible format. The Act also provides a fair use defense to accused infringers. The defense has been found to apply to parodies, time-shifting done with DVR systems, and software reverse-engineering.
Copyright is automatically granted to certain types of work
Copyright extends to eight categories of “works of authorship”:
- Literary works
- Pictorial, sculptural, graphic works
- Architectural works
- Dramatic works
- Pantomime and choreographic works
- Motion pictures and other audiovisual works
- Musical works
- Sound recordings
The list might seem comprehensive, but copyright does not protect procedures, ideas, facts; pictorial, sculptural and graphic works that solely serve a utilitarian purpose; or government works.
Moreover, the work must be “original,” meaning that it was independently created, rather than copied from someone or someplace else, and has a modicum of creativity. The work does not need to be novel. For example, if you write a song that is exactly the same as a song composed by someone else, and you did not copy any part of your song from this previous work, your song is entitled to copyright protection.
Lastly, once the work is embodied in a stable and non-transitory medium, like a poem written on paper or a song recorded on a CD, it is protected under the law. There are no formalities that a creator must meet to gain copyright protection. However, in order to initiate a copyright infringement lawsuit, the owner of a U.S. work must first register the work with the Copyright Office and secure a copyright certificate.
Copyright infringement is a strict liability offense
Imagine this: you reproduce or perform a copyrighted work without getting a license, but you did not know the work was protected by copyright. Can you be sued? The answer is yes. Under copyright law, intent or knowledge does not matter for liability. The moral of the story is to be safe than sorry: either make sure that the work is in the public domain, or secure the correct scope of permissions from the copyright owner or assignee.
However, your degree of awareness does affect statutory damages for copyright infringement. Willful infringement can triple the maximum statutory damages to $150,000, while innocent infringement reduces the minimum damages to $200.
Liability can be direct or secondary
A plaintiff makes a prima facie case for direct liability by proving that he or she owns the copyright, and that the defendant used all or some of the protected work in a way that constitutes unlawful appropriation.
When volition is missing, a copyright owner can still pursue an infringer under secondary liability theories, which include contributory liability, vicarious liability, and inducement. In the digital age, secondary liability exposes internet companies whose users directly infringe on copyrights. For example, the Ninth Circuit found Napster contributorily and vicariously liable for providing software that allowed peer-to-peer music file sharing, where users reproduced copyrighted MP3 files and sent them to each other.
However, since the effective date of the 1998 Digital Millennium Copyright Act, internet service providers can take advantage of certain safe harbors. As long as they meet certain requirements, service providers who transmit, cache, host, or provide location information regarding copyrighted content are protected from copyright liability.
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