September 24, 2018


Copyright law, in general, protects “original works of authorship,” which is broadly defined by statute to include “literary works, musical works, dramatic works, pantomimes, pictorial graphic, sculptural works, motion pictures, sound recordings and architectural works.”  In other words, copyright law protects almost all works of creative expression as long as they have some modicum of originality and are “fixed in a tangible medium of expression.  Copyright law protects, however, only a work’s expression, not its underlying ideas.  This distinction is not always easy to make and courts having expended a great deal of effort in fashioning a bright line test to differentiate an expression from the underlying idea.  At its most basic level, it would permit, for example, a person to use all of the ideas and information contained in a book, such as in Intellectual Property & Computer Crimes, so long as that person did not duplicate the manner in which these ideas are expressed or organized.  Regardless of how much effort or time it took to compile the information, it can be freely used without violation of copyright.   In another example, facts about the September 11, 2001, attacks on the United States are not protected by copyright.

The fundamental purpose underlying U.S. copyright law is to promote the creation and dissemination of knowledge.  The idea is that authors and artists would not be willing to devote their time and effort  to developing new works if others can simply copy their works for free and the authors and artists are not compensated for their efforts.

One way that copyright encourages the creation of new works is to allow a new generation of authors and artists to build on the works that have come before them, either by using the unprotectable ideas conveyed in existing works or by using works that have fallen into the public domain because, for example, the term of copyright has expired.  The tension or balance between rewarding artists for their creations and promoting innovations by limiting copyright protection came to a head in Metro-Goldwyn Studios, Inc. v. Grokster 545 U.S. 913 (2005), in which the Supreme Court held, in general, that inducement liability for copyright infringement goes beyond encouraging a particular consumer to infringe a copyright, and the distribution of a product intended and encouraged the product to be used to infringe.  Thus, a distributor of peer-to-peer software that allows a user to swap copyrighted material may be liable for copyright infringement.

Courts have struggled to determine the scope of copyright and patent protection as applied to computer software.  Since both protections are available, computer programmers routinely turn to both copyright and patent for protection.  For example, a computer program can by copyrighted, but this may not prevent the copying of the functional aspects of the program to be incorporated into a new program.  The functional aspects of computer software can be patented so long as they meet the requirements for patent protection including novelty, non-obviousness and utility.

There is no longer any steps that an author or artist must undertake to obtain copyright protection.  Under United States law, copyright protection attaches as soon as the work is fixed in a tangible medium of expression.  However, many routinely seek to register a work with the United States Copyright Office because there are a number of advantages.  First, a registration certificate generally constitutes prima facie evidence of the validity of the copyright and the claim of the registrant to be the owner of the copyright.  Second, prompt registration is necessary to qualify for an  award of attorney fees or statutory damages.  Third, a registration certificate is a necessary precondition to bring an infringement action.

Copyright law grants the owner of a copyright the exclusive right to reproduce, distribute, and publicly display or perform the copyrighted work, as well as to prepare derivative works based upon the original copyrighted work.  The concept of civil  copyright infringement is defined by reference to violating one of these exclusive rights.  Unlike patent law, copyright law protects against only the copying of works, and not to making, using or selling works.  Hence, copyright law does not prevent others who independently develop a work from competing with the author.

These exclusive rights, however, are subject to a number of important limitations.  First, the Constitution authorizes Congress to enact legislation “securing for limited times to Authors and Inventors the exclusive Right to their Writings and Discoveries.”  Thus, Congress is explicitly prohibited from creating monopolies in perpetutity over intellectual property in general, and copyright, in particular.

Second, under the first sale doctrine, the copyright owner has no right to control the distribution of a work after the original copy has been sold.  In other words, a sale of a “lawfully made” copy terminates the copyright holder’s authority to interfere with or control subsequent sales or distributions of that particular copy.

Third, “fair use” allows the public to use not only facts and ideas contained in a copyrighted work but also the expression itself for purposes, such as teaching, scholarship, or research.

In addition to these general exceptions, there are also a number of very specific and narrow ones.  For example, broadcasting organizations licensed to broadcast a musical recording are allowed to make a copy of the work to facilitate the broadcast.  Libraries may make photocopies provided they comply with certain conditions and limitations.  If cable television operators pay a statutory license fee, they can rebroadcast without the permission of the owners of copyrights of the work being broadcast.  A restaurant under a certain size may play radio or television broadcasts, but may not play prerecorded music.