United States: What Is A Copyright?

Last Updated: May 10 2019
Article by William M. Borchard

A copyright seeks to promote literary and artistic creativity by protecting, for a limited time, what the U.S. Constitution broadly calls the "writings" of "authors." Copyrightable works include:

  • literary, musical and dramatic works;
  • pantomimes and choreographic works;
  • pictorial, graphic and sculptural works (including the nonutilitarian design features of useful articles);
  • motion pictures and other audiovisual works;
  • sound recordings;
  • computer programs;
  • certain architectural works; and
  • compilations of works and derivative works.

Copyright only protects particular expressions of ideas, not the ideas themselves. And a protectible work must be "original," i.e., not copied from another source (although two separately protectible works theoretically could be identical by coincidence). The work also must not be so elementary that it lacks sufficient creativity to be copyrightable (such as a common shape or a short phrase).

Copyright owner's rights.

The creator basically has the exclusive rights to reproduce the work, to distribute the reproductions, to display and perform the work publicly, to make derivative works, and to authorize others to do any of these things. The creator of certain works of fine art also may have rights to control their attribution or modification. The performance right in a sound recording is limited to digital transmissions, such as webcasting, with lower royalty rates for small webcasters.

How to obtain copyright rights.

The moment you have created and fixed a copyrightable work in a tangible form, such as by writing it down or recording it, it automatically enjoys copyright protection whether or not it has been published or registered. There is no state copyright protection, although states still can redress violations of rights outside the scope of copyright, such as breaches of contracts, acts of unfair competition or defamations. Unfixed works, such as extemporaneous speeches or unrecorded live performances, may be protected by state law because they are not covered by the federal statute.

Notice of claim to copyright.

No copyright notice is required or even prescribed for an unpublished work. However, you may affix a statutory copyright notice to all publicly distributed copies of a work in a manner and location giving reasonable notice. The copyright notice consists of all three of the following elements:

  • the symbol , or the word "Copyright," or the abbreviation "Copr." (except that for sound recordings the symbol is used);
  • the year of first publication (which may be omitted on greeting cards, postcards, stationery, jewelry, dolls, toys, and useful articles); and
  • the name of the owner of copyright, or a recognizable abbreviation of the name, or a generally known alternative designation of the owner.

On copies distributed before 1978, an omission of the notice, or an error in it, could have thrown the work into the public domain. A change in the law in 1978 made it possible to cure the defect on copies distributed on or after that date. And on works created on or after March 1, 1989, a copyright notice is no longer mandatory. However, you should use a copyright notice anyway because an innocent infringer, relying on the absence of notice, is not liable for actual or statutory damages before receiving actual notice of the copyright. Furthermore, a court may even grant the infringer the right to continue the infringing activity provided it pays a reasonable license fee to the copyright owner.

Any person who uses or removes a copyright notice with fraudulent intent is subject to a fine.

Library of Congress deposit.

Within 3 months after your work is first published in the United States, you are required to deposit in the Copyright Office two complete copies of the best edition of the work for the use or disposition of the Library of Congress. Failure to make this deposit does not invalidate the copyright, but if the Register of Copyrights makes a written demand for the deposit, failure to make the deposit within 3 months after this demand can result in a fine plus other penalties.

Copyright Registration.

You can register the copyright in any published or unpublished work at any time during the period of copyright by depositing in the Copyright Office two complete copies of the best edition of the work (one is enough in some cases) together with an application and a small fee. The copies accompanying your application satisfy the Library of Congress deposit requirement.

Failure to register the copyright does not invalidate it, but prompt registration is a good idea because:

  • It is a prerequisite to suing an infringer (except for works originating in a Berne Convention state other than the U.S.);
  • You cannot recover statutory damages or attorney's fees for infringement of a published or unpublished work commenced before its registration unless you registered the copyright within 3 months after first publication of the work;
  • A certificate of a copyright registered before or within 5 years after first publication is prima facie evidence of the validity of the copyright and the facts stated in the certificate;
  • You can record the certificate with U.S. Customs and Border Protection to protect against the importation of infringing works; and
  • Registration is the best way to preserve the necessary copyright information about the work.

You also can preregister certain types of works, while they are being created for commercial release, that have a history of prerelease infringement: motion pictures, sound recordings, musical compositions, literary works for book publication, computer programs and advertising or marketing photographs.

How long a copyright lasts.

This is a complex area because the term of copyright largely depends upon when and where the work was first published and whether or not the U.S. copyright was federally registered or renewed.

  • A general rule of thumb is that an authorized work published in the U.S. before 1924 is public domain in the U.S.
  • A work published with a proper copyright notice between 1924 and 1964 could still be in copyright if, during the 28th year after publication, a renewal was filed for another 67 years.
  • A copyright secured from 1964 through 1977 is deemed automatically renewed for a total of 95 years.
  • A work not published or registered for copyright before January 1, 1978 is protected for the author's (or surviving joint author's) lifetime plus 70 years, unless it was published before the end of 2002 in which case the copyright will not expire before 2047, even if the life-plus-70 term would expire before that date.
  • The general rule for a work created on or after January 1, 1978 is that the copyright lasts for the author's (or surviving joint author's) lifetime plus 70 years. But the copyright in a "work made for hire," or in an anonymous or pseudonymous work, lasts for 95 years from publication or 120 years from creation, whichever is shorter.

Libraries and archives may reproduce, distribute, display or perform in facsimile or digital form copies or phonorecords of works for purposes of preservation, scholarship or research during the last 20 years of the copyright if reasonable investigation shows that the work is not the subject of normal commercial exploitation and cannot be obtained at a reasonable price. And some works first published abroad may have their U.S. copyrights, which were forfeited for failure to comply with formalities, reinstated in accordance with the GATT Agreement.

Limited rights in sound recordings fixed before February 15, 1972 generally have a term of 95 years after first publication. But a varying additional term of protection may apply, depending on when first publication occurred, ending not later than February 15, 2067.

Finally, a work may be protected in other countries even though its U.S. copyright protection has ended, and vice versa.

Who owns a copyright.

The individual or joint authors of a work initially own the copyright. But the employer or party commissioning a work automatically is deemed to be the "author" of a "work made for hire" if (for a work created on or after January 1, 1978) either:

  • the work was prepared by an employee within the scope of employment; or
  • the work was specially ordered or commissioned, and is one of nine specific types of works, and most importantly, is expressly agreed to be a "work made for hire" in a written instrument signed by both parties.

A copyright is divisible, so the recipient of any exclusive grant or license of rights becomes the owner of the copyright for those rights. All transfers must be in writing. Although it is not mandatory to record an instrument of transfer in the Copyright Office, recording it gives constructive notice of the transfer to possible subsequent transferees of the same rights.

Under various circumstances, the author, or specified heirs after the author's death, can terminate exclusive and non-exclusive transfers or licenses of any right in any work other than a "work made for hire," and rights in then existing derivative works may be affected by the termination.

What constitutes copyright infringement.

Copyright infringement generally is the unauthorized use or copying of the work. Also, the law provides that those who facilitate or profit from the infringing conduct of another may be liable as vicarious or contributory infringers. It usually is difficult to prove copying, so the copyright owner normally tries to prove that the alleged infringer had "access" to the work and that the copyrightable elements of the two works have "substantial similarity" from the viewpoint of an ordinary observer, after which the burden of proving independent creation shifts to the alleged infringer.

The unauthorized rental of a phonorecord or computer program for commercial advantage, and the unauthorized importation of a copy or phonorecord, also constitute infringement but not if the imported copy was lawfully made and first sold abroad.

Some of the many specified activities not considered copyright infringements by the federal law include:

  • the use of the basic idea expressed in the work;
  • the independent creation of an identical work without copying;
  • the sale or limited public display of a work by the owner of the physical copy or phonorecord;
  • "fair use" of the work (especially if the use is transformative) for purposes such as criticism, comment, news reporting, teaching, scholarship or research;
  • use under one of the "compulsory licenses;"
  • transitory digital communications by an online service provider;
  • certain distance education transmissions;
  • making a copy of a computer program solely for purposes of maintaining or repairing a computer containing it;
  • radio or television performances by certain retailers and restaurants; and
  • filters that mute or skip program content in a private household.

Remedies for copyright infringement.

The federal law makes willful copyright infringement for profit a felony, the penalties for which depend on both the number of copies produced or distributed during a given period of time, and whether it is a first or subsequent offense.

Criminal penalties range from a fine of not more than $25,000, or imprisonment not exceeding 1 year, or both, for first offenses infringing any type of work; and up to $250,000 for individuals and $500,000 for organizations, or 10 years, or both, for a second or subsequent offense of certain types. In addition, a court or Customs may order seizure, forfeiture, destruction, restitution or other disposition of all infringing reproductions and all equipment used in their manufacture. Additional penalties apply to trafficking in counterfeit record, film, and computer program labels and documentation. And fines and imprisonment can be imposed for willful copyright infringement by electronic means, such as by putting someone else's work on the Internet without permission, even if it is not done for profit.

The following civil remedies are also available to the holder of any exclusive rights in the copyrighted work under the federal law:

  • an injunction against future infringement;
  • seizure, forfeiture, destruction, restitution or other disposition of all infringing reproductions and the articles used to make them;
  • seizure of records and information (subject to a protective order as to their discovery and use);
  • the actual damages suffered by the copyright owner during the 3 years before commencement of the infringement action;
  • any additional profits of the infringer within that time period;
  • instead of actual damages and profits, at the copyright owner's election, statutory damages for all infringements of any one work from $750 to $30,000 (subject to reduction to $200 in some instances, or to increase to $150,000 for willful infringement);
  • full costs including a reasonable attorney's fee; and
  • a civil fine imposed by Customs against the importers of counterfeit goods.

Trafficking in, or the importation of, "bootleg" recordings or videos of live musical performances is subject to the same civil and criminal infringement remedies. There are also criminal penalties for making an unauthorized copy or transmission of a movie in a theatre. In addition, there are criminal penalties for willfully infringing any copyright for purposes of commercial advantage or private financial gain, or by reproducing or distributing within a 180-day period works whose total value exceed $1,000, or by distributing a work on a public computer network if it is or should have been known to be intended for commercial distribution.

International copyright protection.

First publication anywhere in the world of a literary or artistic work may affect its copyright status elsewhere. So international treaties are particularly important in the copyright field. The U.S. has copyright relations with many jurisdictions, about 176 of which (including the U.S.) are members of the Berne Convention which provides for copyright protection meeting certain minimum standards without formalities.

Many commercially important countries (including the U.S.) have ratified the Universal Copyright Convention which requires foreign works to have the same copyright protection as domestic works. Berne Convention protection has no formal requirements, but in the few countries which are members of the UCC but are not members of Berne, a published work must bear a copyright notice consisting of ©, the name of the copyright proprietor and the year date of first publication, in order to be considered to have complied automatically with any local formal requirements in each other UCC member country.

A multilateral treaty against the piracy of sound recordings (ratified by the U.S.) is similar to the UCC, except that the prescribed copyright notice includes a . The U.S. also is a member of the Buenos Aires Convention which requires use of a notice such as "All Rights Reserved."

Copyright management protection.

The U.S. has implemented international copyright treaties sponsored by the World Intellectual Property Organization (a) prohibiting the direct or indirect circumvention of technological measures to control access to a copyrighted work, and (b) prohibiting the knowing provision of copyright management information that is false, the intentional removal or alteration of such information, or the distribution, importation or public performance of works knowing that copyright management information has been removed or altered.

Criminal penalties, for proceedings commenced within 5 years from the offense, range from a fine of not more than $500,000, or imprisonment not exceeding 5 years, or both, for the first offense; and up to $1 million, or 10 years, or both, for any subsequent offense. The civil remedies are substantially the same as those for copyright infringement, except that the statutory damages range from $200 to $2,500 for each act of technology circumvention, and from $2,500 to $25,000 for each copyright management information violation, subject to trebling for repeated acts or violations committed within 3 years after a final judgement.

Semiconductor chip protection.

A separate federal law gives the owner of a mask work, that is original when considered as a whole and is not commonplace, the exclusive rights to reproduce it and to import and distribute chips embodying it. This protection starts when you register the mask work rights in the Copyright Office or you first commercially exploit the mask work anywhere, whichever is earlier. It continues for 10 years, but only if you make the mandatory registration within 2 years of the first commercial exploitation.

You may use a non-mandatory prescribed notice of protection.

There are no criminal penalties for infringement. The civil remedies are substantially the same as those for copyright infringement, except that maximum statutory damages are $250,000.

This law specifically immunizes reverse engineering, disposition or use of authorized chips, and innocent infringement.

Vessel hull design protection.

In the first attempt by the U.S. to protect the industrial design of a useful article, a separate federal law gives the owner of a boat hull design, or deck design, or both, that provides a distinguishable variation over prior work pertaining to a similar article which is more than merely trivial and has not been copied from another source, the exclusive rights to make, have made or import, for sale or use in trade, and to sell or distribute for sale in or use in trade, any useful article embodying that design. This protection starts upon the date of publication of your application for registration in the Copyright Office or the date the design is first made public, whichever is earlier. It continues for 10 years, but only if you make the mandatory registration within 2 years after the date the design is first made public.

You may use a non-mandatory prescribed notice of protection on the boat hull or deck.

There are no criminal penalties for infringement, although the importation restrictions will be enforced by U.S. Customs and Border Protection and the U.S. Postal Service. The civil remedies are substantially the same as those for copyright infringement. The issuance of a design patent would terminate this form of protection for the design.

Trafficking in counterfeit or illicit labels.

A separate federal law makes it a crime knowingly to traffic in either (a) a counterfeit or illicit label designed to be affixed to, enclose or accompany a phonorecord of a copyrighted sound recording, a copy of a copyrighted computer program, a copyrighted motion picture or other audiovisual work, a literary work, a pictorial, graphic or sculptural work, a work of visual art, or copyrighted documentation or packaging for them; or (b) counterfeit documentation or packaging that is copyrighted.

Criminal penalties are a fine of up to $250,000, or imprisonment not exceeding 5 years, or both. In addition, a court may order forfeiture and destruction or other disposition of the labels, the articles to which they relate, and any devices used to make the labels.

Any copyright owner injured or threatened with injury may bring a federal civil action within 3 years of discovering the violation for the following civil remedies:

  • One or more temporary or permanent injunctions;
  • impoundment of any article that the court has reasonable ground to believe was involved in the violation;
  • reasonable attorneys fees and costs;
  • actual damages calculated by multiplying the retail value of the articles to which the labels, documentation or packaging relate by the number of those articles;
  • any additional profits of the violator;
  • instead of actual damages and profits, at the injured party's election, statutory damages for each violation from $2,500 to $25,000; and
  • up to three times the damages, in the court's discretion, for a subsequent violation within 3 years of a final judgment for a prior violation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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