United States: International Comparative Legal Guide To Copyright 2018: USA Chapter

Last Updated: October 13 2017
Article by Roberta L. Horton and Michael E. Kientzle

1 Copyright Subsistence

1.1 What are the requirements for copyright to subsist in a work?

No formalities are necessary for copyright to exist in a work. Copyright arises as soon as an author "puts pen to paper", that is, as soon as any original work is "fixed in any tangible medium of expression". 17 U.S.C. § 102. The threshold for originality is very low.

In general, copyright protection in the United States is governed by the U.S. Copyright Act, 17 U.S.C. §§ 101 et seq., effective January 1, 1978. Some works are still governed by the former U.S. Copyright Act of 1909. In addition, U.S. copyright law changed to some extent when the United States became signatory to the international Berne Convention in 1989.

1.2 On the presumption that copyright can arise in literary, artistic and musical works, are there any other works in which copyright can subsist and are there any works which are excluded from copyright protection?

The U.S. Copyright Act, 17 U.S.C. § 102, lists the following categories of works of authorship that may be subject to copyright protection: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; and architectural works.

Copyright in other types of works is limited. Among other things, a third party may generally make and use a photograph, drawing or other pictorial representation of an architectural work if that work is visible from a public place. 17 U.S. C. § 120(a). As discussed in question 1.5, limited copyright protection is accorded to industrial designs such as semiconductor chips and vessel hulls.

Notably, several categories of items are not subject to copyright protection. Specifically, mere ideas are not copyrightable; nor are ideas that may only be expressed in a limited amount of ways (this is considered the "merger" of ideas and expression). In addition, mere facts that are not arranged or selected in any creative matter is not subject to copyright protection. See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 363-364, 111 S. Ct. 1282 (1991) (names, towns and telephone numbers of utility's subscribers were uncopyrightable facts).

1.3 Is there a system for registration of copyright and if so what is the effect of registration?

The U.S. Copyright Office affords a system of registration online at https://www.copyright.gov/. The copyright filing fee is $35.00 USD for one work by a single author who is also the claimant provided that the work is not made for hire. Otherwise, the filing fee is $55.00 USD. The registration dates back to the filing date of the copyright application if the application, deposit and filing fee are all acceptable. Although the Copyright Office examines the application, the examination process is not as exhaustive as the trademark examination process at the U.S. Patent and Trademark Office. Indeed, the infrequent refusals are usually based upon those submissions that do not meet low originality thresholds.

Although a copyright registration is not necessary for protection to adhere, it does provide important advantages to the copyright owner:

In general, a copyright registration is necessary for a copyright owner to file a copyright infringement suit (or for a litigant to file a counterclaim of infringement) in the United States. Note, however, that an applicant whose copyright application is refused registration may also bring a suit for infringement, as long as the applicant services notice upon the Register of Copyrights. Limited exceptions to this registration prerequisite include: actions for violations of artists' rights (see question 4.2); actions by owners of foreign works; suits for declarations of copyright ownership; and actions under the Digital Millennium Copyright Act (see question 4.2).

Aside from the ability to bring suit, the principal benefit of registration – depending upon the timing of that registration – is the copyright owner's potential to collect statutory damages pursuant to Section 504 of the Copyright Act. Such damages may be significant and much easier for a copyright plaintiff to obtain than actual damages, as the plaintiff need not show such damages. See discussion in question 5.6.

Other benefits to copyright registration, if made within five years of first publication of the work, include a prima facie evidence of the validity of the copyright and the facts that the registration certificate states. In addition, registration provides constructive notice of copyright transfers and priority against any subsequent transfers of copyright.

1.4 What is the duration of copyright protection? Does this vary depending on the type of work?

The duration of a copyright may depend upon whether or not the work was published; whether or not it bore the requisite notice; and whether or not the copyright was renewed in the work.

General Principle: Assuming any requisite formalities (including, if necessary, notice and renewal) were met, all works copyrighted on or after 1924 are still under copyright protection. (This is calculated 95 years from first publication of a work for hire – the longest conceivable period, or 95 + 1924 = 2019.)

Works created on or after January 1, 1978 (the effective date of the 1976 Copyright Act), the following rules apply:

  • A work created by an individual author (natural person): Life of the author plus 70 years.
  • For joint authors, life of the last surviving author plus 70 years.
  • A work made for hire: Either 95 years from first publication or 120 years from creation, whichever expires first.
  • An anonymous or pseudonymous work: Also 95 years from first publication or 120 years from creation, whichever expires first. If the identity of one or more authors is revealed in a registration record, that period converts to the life of the (last surviving) author plus 70 years.

Works created before 1978: Assessing the length of protection for a copyrighted work created prior to the effective date of the 1976 statute is more complex; it is governed under the 1909 Copyright Act:

  • A work published with valid notice: A total of 95 years from when statutory copyright is obtained (aggregating an initial term of 28 years and a renewal term of 67 years, unless not renewed, in which case copyright protection would be lost in the 28th year of the copyright).
  • A work published under the author's authority without proper notice, which notice was not cured, lost copyright protection and was injected into the public domain.
  • Curing of notice: Works published without notice between January 1, 1978 and March 1, 1989 could be "rescued" from the public domain in certain cases if affixed with proper notice in that interval. See 17 U.S.C. § 405(a).
  • A work "created but not published or copyrighted before January 1, 1978" (17 U.S.C. § 303): In general, duration is measured by the 1976 Act rules, although:
  • the copyright expired, if the term specified in the 1976 Act had already expired; and
  • if the work was published between 1978 and 2002, the copyright will not expire until December 31, 2047.
  • "Rescue" of a foreign work non-compliant with U.S. formalities: Certain works penned by foreign authors are restored to copyright protection even with notice defects if they were still eligible for copyright protection in their home countries, pursuant to certain international agreements.

1.5 Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?

Under the Semiconductor Chip Protection Act of 1984, copyright protection in semiconductor chips adheres, but only on a limited basis: the copyright in the chip must be registered within two years of its first commercial exploitation, and protection endures for only 10 years. Copyright protection in the design of vessel hulls is also limited; protection only applies to those designs reflected in actual vessel hulls publicly exhibited, distributed, on sale or sold since October 28, 1998.

Electronic databases are considered compilations subject to copyright protection. The aspects of a database that may be protected by copyright are therefore similar to other compilations – the author is protected in his or her selection of data, and the way in which he or she arranges the data.

1.6 Are there any restrictions on the protection for copyright works which are made by an industrial process?

Only humans can be "authors" of works for the purposes of U.S. copyright law, although courts have indicated that divinely-inspired works, fixed by humans, can be copyrightable. Humans may use tools and industrial processes to create works, which are only entitled to copyright protection if they reflect a sufficient level of originality. Conversely, works created by forces of nature or works that are randomly-generated (such as a random series of numbers) are not copyrightable.

The position that only humans may be authors has been litigated recently. See Naruto v. Slater, Case No. 15-cv-04324-WHO, 2016 WL 362231 (N.D. Cal. Jan. 28, 2016), in which People for the Ethical Treatment of Animals (PETA) sued a photographer on behalf of the monkey "Naruto", claiming that the photographer had infringed Naruto's copyright in a "selfie" photograph taken by Naruto with the photographer's camera. The court dismissed the infringement claim, finding that only humans could be authors. PETA appealed to the U.S. Court of Appeals for the Ninth Circuit. After argument on appeal, in August 2017, the parties jointly moved for a stay in view of settlement negotiations.

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