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Us Constitution We the People Wall Art Canvas Value Acual Copy

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Aspect of United States law

The Copyright Law of the United States grants monopoly protection for "original works of authorship".[1] [2] With the stated purpose to promote fine art and culture, copyright law assigns a prepare 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 bailiwick to a fourth dimension limit, and generally elapse 70 years later on the author's death or 95 years later on publication. In the Usa, works published before January one, 1927, are in the public domain.

United States copyright law was last generally revised by the Copyright Act of 1976, codified in Championship 17 of the Usa Lawmaking. The United States Constitution explicitly grants Congress the power to create copyright law under Commodity 1, Section 8, Clause eight, known as the Copyright Clause.[3] Under the Copyright Clause, Congress has the ability, "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."[4]

The U.s. Copyright Function handles copyright registration, recording of copyright transfers, and other authoritative aspects of copyright law.[5]

History [edit]

The states copyright constabulary traces its lineage back to the British Statute of Anne, which influenced the beginning U.S. federal copyright law, the Copyright Act of 1790. The length of copyright established by the Founding Fathers was short, xiv years, plus the power to renew information technology in one case, for fourteen more than. forty years subsequently, the initial term was changed to 28 years.

It was non until a total 180 years after its establishment that it was significantly extended beyond that, Copyright Act of 1976 to "Either 75 years or the life of the author plus 50 years" and the Sonny Bono Copyright Term Extension Act of 1998 (also chosen the "Mickey Mouse Protection Human action", because information technology prevented the copyright from expiring on the get-go commercial success of the Disney cartoon grapheme Mickey Mouse), which increased information technology even more than, to 120 years, or the life of the writer plus seventy years.

Purpose of copyright [edit]

The Congress shall accept Power [...] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Correct to their respective Writings and Discoveries.

The goal of copyright police, equally set up forth in the Copyright Clause of the US Constitution, 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."[six] This includes incentivizing the cosmos 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.[7]

Works subject field to copyright law [edit]

The U.s. copyright police protects "original works of authorship," fixed in a tangible medium[8] including literary, dramatic, musical, artistic, and other intellectual works. This protection is bachelor to both published and unpublished works. Copyright police force includes the following types of works:

  • Literary
  • Musical
  • Dramatic
  • Pantomimes and choreographic works
  • Pictorial, graphic, and sculptural works
  • Acoustic works
  • Audio recordings
  • Derivative works
  • Compilations
  • Architectural works[nine]

Idea–expression dichotomy [edit]

Copyright law protects the "expression" of an thought, but copyright does not protect the "thought" itself. This distinction is chosen the idea–expression dichotomy.[ten] The stardom between "idea" and "expression" is primal to copyright law. From the Copyright Deed of 1976 (17 U.S.C. § 102):

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the class in which it is described, explained, illustrated, or embodied in such piece of work.

For example, a paper describing a political theory is copyrightable. The paper is the expression of the author'southward ideas about the political theory. The theory itself is only an thought, and is not copyrightable. Another author is complimentary to describe the same theory in their ain words without infringing on the original author's copyright.[11]

Although fundamental, the idea–expression dichotomy is frequently difficult to put into practice. Reasonable people can disagree about where the unprotectable "thought" ends and the protectable "expression" begins. As Guess Learned Paw put it, "Plainly, no principle can exist stated as to when an imitator has gone beyond copying the 'idea,' and has borrowed its 'expression.' Decisions must therefore inevitably be advertisement hoc."[12]

Compilations of facts and the sweat of the brow doctrine [edit]

Mere facts are non copyrightable. Notwithstanding, compilations of facts are treated differently, and may be copyrightable cloth. The Copyright Act, § 103, allows copyright protection for "compilations", as long every bit in that location 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 club). Copyright protection in compilations is limited to the selection and arrangement of facts, non to the facts themselves.

The Supreme Court conclusion in Feist Publications, Inc., 5. Rural Telephone Service Co. antiseptic 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 forehead" doctrine. That is, copyright protection requires creativity, and no corporeality of difficult work ("sweat of the brow") can transform a not-creative listing (like an alphabetical list of phone numbers) into copyrightable subject affair. A mechanical, non-selective collection of facts (e.g., alphabetized phone numbers) cannot be protected past copyright.[13]

Useful articles [edit]

Copyright protects artistic expression. Copyright does not protect useful manufactures, or objects with some useful functionality. The Copyright Act states:

A "useful article" is an commodity having an intrinsic commonsensical function that is not only to portray the appearance of the article or to convey information. An article that is normally a office of a useful article is considered a "useful commodity".

"the design of a useful article, every bit defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such blueprint incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."[14]

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 simply to the extent that the artistic expression tin can be separated from its utilitarian part.[15]

In 2017, the US Supreme Court granted certiorari 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,[16] holding that such features are eligible for copyright protection "only if the feature (1) can exist perceived as a two- or three-dimensional piece of work of art separate from the useful article and (2) would qualify equally a protectable pictorial, graphic, or sculptural work—either on its ain or stock-still in some other tangible medium of expression—if it were imagined separately from the useful commodity into which it is incorporated."[17] Star Athletica began as a suit by Varsity Brands against Star Athletica for infringing the copyright of five cheerleader uniform designs.[18] Applying its new examination to the cheerleader compatible designs, the court said:

First, 1 can identify the decorations as features having pictorial, graphic, or sculptural qualities. Second, if the system of colors, shapes, stripes, and chevrons on the surface of the cheerleading uniforms were separated from the uniform and applied in some other medium—for case, on a painter's canvas—they would qualify as "two-dimensional ... works of ... art". And imaginatively removing the surface decorations from the uniforms and applying them in another medium would not replicate the uniform itself. Indeed, respondents accept applied the designs in this case to other media of expression—dissimilar types of wear—without replicating the compatible. The decorations are therefore separable from the uniforms and eligible for copyright protection.[19]

This produces a relatively low threshold for pictorial, graphic, or sculptural features on useful articles to exist eligible for copyright protection, which one commentator clearly highlighted: the Star Athletica decision "actually has ensured that all but the subtlest graphic designs volition be able to proceeds copyright protection...once we decide that the designs 'hav[e] … graphic … qualities … [and could be] applied … on a painter's canvas,' the examination for copyrightability is met."[20]

Works by the federal government [edit]

Works created by the federal regime are not copyrightable. 17 U.S.C. § 105. This restriction on copyright applies to publications produced past the The states Authorities, and its agents or employees inside the scope of their employment. The specific linguistic communication is equally follows:

Copyright protection under this title is not available for any piece of work of the United states Government, but the United States Regime is not precluded from receiving and holding copyrights transferred to it past assignment, bequest, or otherwise.

A "work of the United States Government" is divers in 17 U.Southward.C. § 101 as "a piece of work prepared by an officer or employee of the Us Government as role of that person's official duties". Notation that government contractors are generally non considered employees, and their works may be discipline to copyright. Likewise, the US regime can purchase and hold the copyright to works created past 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, just are restricted by other applicative laws. However, even in case of non-underground materials in that location are specific prohibitions against automatic admission to work otherwise covered under 17 U.s.a.C. § 105 for commercial purposes.[21]

Federal and state laws are not protected by copyright [edit]

Federal, state, and local statutes and court decisions are in the public domain and are ineligible for copyright, a concept known as the government edicts doctrine. It is not difficult to see the motivations behind this:

The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authorization from the consent of the public, expressed through the democratic process.[22]

Three fundamental Supreme Court cases established this regime edicts doctrine: Wheaton v. Peters (1834), Banks 5. Manchester (1888), and Callaghan v. Myers (1888).[23] The doctrine was codefied into the United states of america Code at 17 United states of americaC. § 105 via the Copyright Act of 1976. The Copyright Office upholds this doctrine within its own regulations:

Equally a matter of longstanding public policy, the U.S. Copyright Office volition not register a authorities edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Also, the Part will not register a government edict issued past whatever strange government or any translation prepared by a government employee acting within the course of his or her official duties.[24]

The Supreme Court has too ruled that annotated versions of statutes or courtroom decisions at the federal, state, and local level, when such annotations are done by members of the government equally part of their duties, are ineligible for copyright in Georgia 5. Public.Resource.Org, Inc. (2020).[25]

Exclusive rights [edit]

At that place are half-dozen basic rights protected by copyright.[26] The owner of copyright has the sectional right to do and to authorize others to do the post-obit:

  • To reproduce the work in copies or phonorecords;
  • To set up derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by auction or other transfer of buying, or by rental, lease, or lending;
  • To publicly perform the piece of work, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and movement 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 motility picture or other audiovisual work.
  • To digitally transmit audio recordings by means of digital audio transmission.[27]

A violation of any of the exclusive rights of the copyright holder is a copyright infringement, unless fair employ (or a similar affirmative defence) applies.[28]

[edit]

The initial owner of the copyright to a work is the writer, unless that work is a "work fabricated for hire".

  • Works for hire. If a work is made "for rent" inside the meaning of the Copyright Deed, and then the employer or commissioning party, is accounted to be the author and will own the copyright as though it were the true author.[29] These circumstances under which a work may be institute to be a work for rent are:
    • Work prepared by an employee within the scope of their employment. In Community for Artistic Non-Violence v. Reid, 490 U.Due south. 730 (1989), the Supreme Courtroom held that the term "employee" in this context should be interpreted according to common law bureau principles. If the person doing the piece of work is an "employee" within the significant of the mutual 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, past a purpose to serve the employer), then the work is a work for hire and the employer is the initial possessor of the copyright.[30]
    • Especially ordered or commissioned works. Works created by contained contractors (rather than employees) can be accounted works for hire only if two weather are satisfied. First, the work must fit into one of these categories: a contribution to a commonage piece of work, function of a move motion-picture show or other audiovisual piece of work, a translation, a supplementary work, a compilation, an instructional text, a examination, answer material for a examination, or an atlas. Second, the parties must expressly agree in a written, signed instrument that the work volition be considered a piece of work made for rent.[31]

If a piece of work is not a piece of work for hire, then the writer 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 utilize when multiple authors are involved:

  • Joint authorship: The US copyright police recognizes joint authorship in Section 101.[29] The authors of a articulation work are co-owners of a single copyright in the piece of work. A joint work is "a work prepared by 2 or more authors with the intention that their contributions exist merged into inseparable or contained parts of a unitary whole."[29] [32]
  • Collective works: A collective work is a drove of contained, separately copyrightable works of authorship, such as a newspaper, mag, or encyclopedia.[29] In the absence of an limited consignment of copyright, the author of each individual work in the collection retains copyright in that work.[33] The compiler, or author of the collection, owns copyright in the expression he or she contributed, which is primarily the selection and organisation of the separate contributions, but may include such things every bit a preface, advertisements, etc., that the collective writer created.[29]

Transfers and licenses [edit]

Iii types of transfers exist for copyrighted works.

  • Consignment
  • Exclusive license
  • Non-sectional license

The first two, assignment and exclusive licenses, crave the transfer to be in writing. Nonexclusive licenses need non be in writing and they may be implied by the circumstances. Transfers of copyright always involve one or more than 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 set a derivative work (adaptation correct).[34]

The terms of the license is governed past the applicative contract constabulary, all the same there is substantial academic debate about to what extent the Copyright Act preempts country contract police force principles.[35]

An author, after transferring a copyright, tin terminate the transfer nether certain circumstances. This correct to stop the transfer is absolute and cannot be waived.[36]

For works published since 1978, copyrights may revert to the original author after 35 years. Title 17, United States Lawmaking, Section 203 states that the author must write a letter of the alphabet requesting a termination of the original copyright grant at least two years before the effective termination date.[37]

Limitations on exclusive rights [edit]

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.[38] [39] Title 17, United States Lawmaking, Section 107 also places statutory limits on copyright which are commonly referred to as the off-white use exception.[xl] [41]

Registration process [edit]

Late 19th-century newspaper advertisement for copyright registration services. The text reads "United States and Foreign Copyright. Patents and Trade-Marks A Copyright will protect you from Pirates. And make you a fortune. If you have a play, sketch, photo, act, song or book that is worth anything, you should copyright it. Don't take chances when you can secure our services at small cost. Send for our special offer to inventors before applying for a patent, it will pay you. Handbook on patents sent free. We advise if patentable or not. Free. We incorporate stock companies. Small fees. Consult us. Wormelle & Van Mater, Managers, Columbia Copyright & Patent Co. Inc, Washington, D.C."

Late 19th-century paper advertisement for copyright registration services

Copyright is automatically granted to the author of an original work (that otherwise meets the bones copyright requirements, discussed higher up). Registration is not necessary. However, registration amplifies a copyright holder'due south rights in a number of ways. Registration is required before a lawsuit can exist 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 Function does not compare the author's new work against a collection of existing works or otherwise check for infringement.

Deposit requirement [edit]

The United States Copyright Function requires a deposit copy of the work for which copyright registration is sought. Deposits can be made through the Copyright Office'southward eCO System. This deposit requirement serves two purposes. Showtime, if a copyright infringement lawsuit arises, the owner may prove that the material that is infringed is exactly the same cloth for which the owner has secured a registration. Second, this requirement helps the Library of Congress build its collection of works.[ citation needed ]

Failure to comply with the deposit requirement, every bit modified past Copyright Office regulations, is punishable past fine, but does not result in forfeiture of copyright.

Copyright notices [edit]

The use of copyright notices is optional. The Berne Convention, amending US copyright law in 1989, makes copyright automatic.[42] 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 course may reduce the likelihood of a defence force of "innocent infringement" beingness successful.[43]

Duration of copyright [edit]

Expansion of U.S. copyright term (assuming authors create their works at age 35 and live for 70 years)

Copyright protection mostly lasts for 70 years afterward the death of the author. If the piece of work was a "piece of work for hire", so copyright persists for 120 years subsequently creation or 95 years after publication, whichever is shorter. For works created earlier 1978, the copyright duration rules are complicated. However, works published earlier Jan 1, 1927 (other than sound recordings), take made their way into the public domain.

Works created earlier 1978 [edit]

For works published or registered earlier 1978, the maximum copyright duration is 95 years from the date of publication, if copyright was renewed during the 28th year post-obit publication.[44] Copyright renewal has been automatic since the Copyright Renewal Act of 1992.

For works created before 1978, but not published or registered earlier 1978, the standard §302 copyright elapsing of 70 years from the author's death as well applies.[45] 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 accept their protection expire earlier 2048.[46]

All copyrightable works published in the The states before 1927 are in the public domain;[46] works created simply not published or copyrighted before January one, 1978, may be protected until 2047.[47] For works that received their copyright earlier 1978, a renewal had to be filed in the work's 28th year with the Copyright Office for its term of protection to exist extended. The need for renewal was eliminated past the Copyright Renewal Act of 1992, simply works that had already entered the public domain past not-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, merely copying was nonetheless regulated nether various state torts and statutes, some of which had no elapsing limit. The Sound Recording Amendment of 1971 extended federal copyright to recordings fixed on or subsequently February 15, 1972, and declared that recordings fixed before that date would remain subject field to country or mutual constabulary copyright. Subsequent amendments had extended this latter provision until 2067.[48] Every bit a outcome, older audio recordings were not subject to the expiration rules that practical to contemporary visual works. Although these could take entered the public domain as a result of government authorship or formal grant past the possessor, the applied effect has been to return public domain audio virtually nonexistent.[49]

This state of affairs inverse with the 2018 enactment of the Music Modernization Act, which extended federal copyright protection to all sound recordings, regardless of their date of cosmos, and preempted country copyright laws on those works. Under the Human action, 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.[50] [51] Specifically, works fixed 1923–1946 are public after 100 years and works fixed 1947–1956 later on 110 years of fixation. Works fixed 1 January 1957 – 14 February 1972 will all become public on 15 February 2067.[46]

In May 2016, Judge Percy Anderson ruled in a lawsuit betwixt ABS Amusement and CBS Radio that "remastered" versions of pre-1972 recordings can receive a federal copyright as a distinct work due to the amount of creative attempt expressed in the process.[52] The Ninth Excursion appeals court reversed the determination in favor of ABS Amusement.[53]

Copyright limitations, exceptions, and defenses [edit]

United States copyright police includes numerous defenses, exceptions, and limitations. Some of the most important include:

  • Copyright applies but to certain copyrightable subject affair, codified within 17 U.Southward.C. § 102. Works that are not "original works of authorship fixed in whatever tangible medium of expression" are non subject to copyright. 17 United statesC. § 102(b) codifies that copyright protection does non extend to ideas, procedures, processes, systems, etc. Facts may non be copyrighted. "Useful articles" may not be copyrighted. Useful articles includes typeface designs (Eltra Corp. 5. Ringer), way designs, blank forms, titles, names, short phrases, slogans, lists of ingredients and contents, domain names and band names.[54]

As animal-made art, this monkey selfie is ineligible for copyright in the The states.

  • The commencement auction doctrine , 17 United statesC. § 109, limits the rights of copyright holders to control the farther distribution and brandish of copies of their works later on the start sale by the copyright owner. The possessor of a particular copy is entitled to "sell or otherwise dispose of the possession of that re-create" and to "display the copy publicly ... to viewers present at the identify where the re-create is located."
  • The "proficient faith" defense (Department 504(c)(2)) reduces the statutory amercement where the infringer was an educational institution, library, archive, or public broadcaster and reasonably believed that the infringing use was "fair use."
  • The Copyright Deed includes specific exemptions for types of works and item entities, such every bit libraries (§ 108), public broadcasters (§ 110 and § 118), braille (§ 121), software backup copies (§ 117), "cover license" permitting sound recording covers (§ 115), and jukebox compulsory licenses (§ 116).
  • Provisions for the Blind and Disabled. The Copyright Human action, in 17 USC 121 and 17 USC 110(8), includes specific statutory exceptions for reproduction of material for the bullheaded or other persons with disabilities. Section 121 (the "Chafee Amendment") permits the reproduction of copyright works in Braille, audio, electronic, Web-Braille, or other necessary formats. For example, 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.[55]
  • Online Service Provider "Safe Harbor." Section 512 ("OCILLA", passed as part of the DMCA in 1998) provides a contingent "condom harbor" for online service providers from secondary liability for their users' copy infringements.
  • Usa copyright law does not allow works created past animals to be copyrighted.[56] [57] [58]

Fair use [edit]

Fair use is the use of limited amounts of copyrighted material in such a style every bit to not be an infringement. It is codification at 17 UsC. § 107, and states that "the fair utilise of a copyrighted work ... is not an infringement of copyright." The department 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.[59]

  1. 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 exist fair use. This does not mean that all nonprofit didactics and noncommercial uses are fair use or that all commercial uses are not fair. Instead, courts will balance the purpose and character of the utilize 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 dissimilar grapheme, and practice not substitute for the original use of the work.
  2. Nature of the copyrighted piece of work: Using a more creative or imaginative work (such as a novel, film, or vocal) is less likely to support fair apply 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.
  3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts await 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 plant use of an entire work to be fair use, and in other contexts, using fifty-fifty a small amount of a copyrighted piece of work was adamant not to be fair use considering the selection was an of import part—or the "center"—of the piece of work.
  4. Event of the utilize upon the potential market place for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market place for the copyright possessor's original work. In assessing this gene, courts consider whether the utilise is hurting the current market place for the original work (for example, past displacing sales of the original) and/or whether the utilize could cause substantial impairment if it were to go widespread.

In addition to these iv factors, the statute as well 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 upshot of whatever given case depends on the specific facts of that case. At that place 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.[sixty]

The justification of the off-white use doctrine turns primarily on whether, and to what extent, the challenged utilize is transformative. "The use must be productive and must use the quoted thing in a dissimilar 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 every bit raw material, transformed in the cosmos of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair utilize doctrine intends to protect for the enrichment of society."[61]

The Copyright Office provides a searchable list of fair use case law.[62]

Parodies [edit]

Although a parody tin be considered a derivative work, and thus within the exclusive rights of the copyright owner, it may qualify as "off-white apply." Parodies are not automatically off-white use. The Supreme Courtroom of the United States stated that parody (transformative) "is the use of some elements of a prior author's composition to create a new ane that, at least in part, comments on that author'due south works." That commentary function provides some justification for employ of the older work; in dissimilarity, a satire (exaggerated) (which is non targeted at the piece of work borrowed from) does non require utilize of the original work to brand its point. (See Campbell v. Acuff-Rose Music, Inc.).[xiii]

Infringement [edit]

Copyright infringement occurs when someone violates one of the exclusive rights listed in 17 USC 106. Normally, this involves someone creating or distributing a "re-create" of a protected piece of work that is "substantially like" to the original version.

Infringement requires copying. If two people happen to write exactly the aforementioned story, without noesis of the other, at that place is no infringement.

Copyright infringement litigation [edit]

A copyright owner may bring a copyright infringement lawsuit in federal court. Federal courts take exclusive bailiwick-matter jurisdiction over copyright infringement cases.[63] That is, an infringement case may not be brought in land courts. (With an exception for works not protected under Federal law, but are protected under state police force, eastward.grand. land laws prohibiting copying of sound recordings fabricated before February fifteen, 1972.) Note that the Copyright Office handles copyright registrations, only it does not adjudicate copyright infringement disputes.

Ownership of valid copyright [edit]

To bring a copyright infringement lawsuit, a copyright holder must plant ownership of a valid copyright and the copying of constituent elements of the work that are original.[64] The copyright possessor must likewise institute both (a) actual copying and (b) improper appropriation of the work. The copyright possessor, every bit plaintiff, bears the burden of establishing these 3 elements of the prima facie case for infringement.

A plaintiff establishes ownership by authorship (past the plaintiff itself or by someone who assigned rights to the plaintiff) of (1) an original piece of work of authorship that is (ii) fixed in a tangible medium (east.grand. a volume, musical recording, etc.).

Registration is not required to establish copyright protection, merely 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 "bodily copying" with direct or indirect show. Direct evidence is satisfied either by a defendant'south admission to copying or the testimony of witnesses who observed the accused in the human activity. More than commonly, a plaintiff relies on circumstantial or indirect evidence. A court volition infer copying by a showing of a "striking similarity" betwixt the copyrighted work and the alleged copy, along with a showing of both access and use of that access.[65] A plaintiff may establish "access" by proof of distribution over a large geographical expanse, or by eyewitness testimony that the defendant owned a copy of the protected work. Access lonely is not sufficient to found 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.[66] Fifty-fifty 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.[67]

Misappropriation [edit]

A copyrighted work may contain elements which are not copyrightable, such every bit facts, ideas, themes, or content in the public domain. A plaintiff alleging misappropriation must outset demonstrate that what the accused appropriated from the copyrighted piece of work was protectible. Second, a plaintiff must show that the intended audition will recognize substantial similarities betwixt the two works. The intended audition may be the general public, or a specialized field. The degree of similarity necessary for a court to discover misappropriation is not easily defined. Indeed, "the test for infringement of a copyright is of necessity vague."[68]

Ii methods are used to determine if unlawful appropriation has occurred: the "subtractive method" and the "totality method".

The subtractive method, as well known as the "abstraction/subtraction approach" seeks to analyze what parts of a copyrighted work are protectible and which are not.[69] 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 Due west Side Story alleged infringement, the elements of that musical borrowed from Romeo and Juliet would be subtracted before comparing it to the allegedly infringing work because Romeo and Juliet exists in the public domain.

The totality method, likewise 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 five. United Card Co. (1970).[seventy] The individual elements of the declared infringing piece of work may by themselves be essentially different from their corresponding part in the copyrighted piece of work, but nevertheless taken together be a clear misappropriation of copyrightable material.[71]

Modern courts may sometimes use both methods in its analysis of misappropriation.[72] In other instances, one method may find misappropriation while the other would non, making misappropriation a contentious topic in infringement litigation.[73]

Ceremonious remedies [edit]

A successful copyright infringement plaintiff may seek both "injunctive relief" and monetary damages. As of 2019, the United states Supreme Court has held that a copyright holder must register his copyright with the U.Southward. copyright role before he may seek any judicial remedies for infringement.[74]

Injunctions: Copyright Act § 502 authorizes courts to grant both preliminary and permanent injunctions against copyright infringement. At that place are too 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: (one) their actual amercement and any boosted profits of the defendant; or (2) statutory damages.

Withal, Championship 17 United States Code §411(a) states that a civil action to enforce a copyright claim in a U.s. work cannot be made until the work has been registered with the U.Southward. Copyright Role, with a narrow exception if the claim was filed and rejected by the Copyright Office.[75] [76] In 2019, the U.South. Supreme Court decided that §411(a) requires that a lawsuit cannot be initiated until the Copyright Office has processed, not simply received, the application.[76] [77]

Equitable relief [edit]

Both temporary and permanent injunctions are available to forestall or restrain infringement of a copyright.[78] An "injunction" is a court social club 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 lodge the impoundment of whatever and all copies of the infringing products. The seizure club 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 prescript.

Monetary damages [edit]

A copyright holder tin can also seek budgetary amercement. Injunctions and damages are not mutually sectional. One can accept injunctions and no damages, or damages and no injunctions, or both injunctions and damages. In that location are two types of amercement: bodily damages and profits, or statutory amercement.[79]

The copyright possessor may recover the profits he or she would take earned absent-minded the infringement (bodily damages) and any profits the infringer might have fabricated equally a outcome of the infringement but that are not already considered in calculating actual damages.[79] To recover actual damages, the plaintiff must show to the court that, in the absence of the infringement, the plaintiff would have been able to brand boosted sales, or perhaps been able to charge higher prices, and that this would have resulted in profits given the possessor'due south cost structure.[80] In some cases, the profits earned by the infringer exploiting the copyrighted cloth may exceed those earned by or potentially available to the owner. In these circumstances, the copyright owner tin recover the infringer'south profits if he or she tin demonstrate a nexus between the profits and the infringing use.[81]

Statutory damages are available as an alternative to actual amercement and profits.[82] If the copyright was registered either (a) within 3 months of publication or (b) before the infringement, then the plaintiff is eligible to seek statutory damages.[82] Statutory damages tin be awarded past 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.[83]

Statutory amercement are sometimes preferable for the plaintiff if bodily damages and profits are either too small, or too difficult to prove, or both. There are, however, situations where statutory damages are not available. 17 U.S.C. § 412 provides:

  • Statutory amercement are not available if the work is unpublished and the infringement began before the constructive 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 fabricated within three months after the first publication.

Statutory amercement are calculated per work infringed.[82] According to clause (1) of Title 17, United statesC. Section 504(c), statutory damages range from $750 per work to $xxx,000 per piece of work, with two chief 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 item, if the work carries a copyright discover, the infringer cannot claim innocence.[84]
  • In case of "willful infringement" (again, "willful" is a technical term), statutory damages can be no more than $150,000 for an constructive range of $750 to $150,000 per work.[82]

Damages in copyright cases tin can be very high. In Lowry's Reports, Inc. v. Legg Mason Inc.,[85] a 2003 lawsuit betwixt a publisher of stock assay newsletters against a visitor that buys one copy of the newsletters and makes multiple copies for use in-firm, the jury awarded damages – actual damages for some newsletters and statutory amercement for other newsletters – totaling $20 million.

Attorney'south fees [edit]

Cost and chaser fees: Copyright Act § 505 permits courts, in their discretion, to accolade costs confronting either party and to award reasonable attorney fees to the prevailing party. The court may (but is non required to) award to the "prevailing party" reasonable attorney's fees.[86] This applies to both a winning plaintiff (copyright possessor) and a winning defendant (defendant infringer).[87] All the same, attorney's fees accolade is not bachelor confronting the regime. Like statutory amercement, attorney's fees are not available if the work infringed is non registered at the fourth dimension of infringement.

Criminal penalties [edit]

In add-on to the civil remedies, the Copyright Human activity provides for criminal prosecution in some cases of willful copyright infringement. There are also criminal sanctions for fraudulent copyright notice, fraudulent removal of copyright find, and fake 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 non criminal sanctions for violating the rights of attribution and integrity held by the writer of a piece of work of visual art.

Criminal penalties for copyright infringement include:

  • A fine of not more than than $500,000 or imprisonment for not more five years, or both, for the first offense.
  • A fine of not more than $one 1000000 or imprisonment for non more than ten years, or both, for repeated offenses.

Nonprofit libraries, archives, education institutions and public broadcasting entities are exempt from criminal prosecution.

Felony penalties for first offenses brainstorm at seven copies for audiovisual works, and one hundred copies for sound recordings.[88]

Government infringement [edit]

The US government, its agencies and officials, and corporations owned or controlled by it, are field of study to suit for copyright infringement. All infringement claims confronting the U.Southward. that did non arise in a foreign country must be filed with the United states of america Courtroom of Federal Claims within three years of the infringing action.[89] Claims filed in the wrong court are dismissed for lack of discipline-matter jurisdiction. The authorities 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 U.s.a. Constitution, which bars almost forms of lawsuits confronting states in federal courts, but can be abrogated in certain circumstances past Congress.[90] [91] [92] The Copyright Remedy and Clarification Human activity of 1990 (CRCA) states in function that states are liable to copyright infringement "in the aforementioned style and to the aforementioned extent as any nongovernmental entity"[93] and besides that states and state entities and officials "shall not exist allowed, under the Eleventh Amendment to the Constitution of the United States or under any other doctrine of sovereign immunity, from suit in Federal Courtroom by any person"[94] alleging copyright infringement.[95] : 1 The CRCA has been alleged unconstitutional by several federal courts.,[95] : 4 and this was upheld by the US Supreme Court on March 23, 2020.[96]

Public domain [edit]

Works in the public domain are free for anyone to re-create and use. Strictly speaking, the term "public domain" ways that the work is not covered by any intellectual property rights at all (copyright, trademark, patent, or otherwise).[97] Withal, this article discusses public domain with respect to copyright only.

A work may enter the public domain in a number of different means. For example, (a) the copyright protecting the work may have expired, or (b) the possessor 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 [edit]

The "orphan works" problem arose in the United States with the enactment of the Copyright Human activity 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"[98] fall into copyright status. The elimination of registration also eliminated a central recording location to track and place 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 non exist otherwise permitted by law (for case, past off-white use), they must themselves individually investigate the copyright status of each work they program to utilize. With no primal database of copyright-holders, identifying and contacting copyright-holders can sometimes be difficult; those works that autumn into this category may exist considered "orphaned".

Come across also [edit]

  • Bilateral copyright agreements of the United States
  • Copyright Catalog
  • Copyright condition of works past subnational governments of the United states of america
  • Copyright status of works by the federal government of the U.s.a.
  • Off-white Employ Project
  • No Electronic Theft Act
  • TEACH Act
  • United States copyright law in the performing arts
  • United States trademark law
  • Uruguay Round Agreements Human activity
  • Visual Artists Rights Human activity

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  2. ^ "Archived copy" (PDF). Archived (PDF) from the original on April 27, 2020. Retrieved Apr 27, 2020. {{cite web}}: CS1 maint: archived re-create every bit title (link)
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  8. ^ 17 U.S.C. § 102
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  98. ^ 17 U.S.C. § 102.

Further reading [edit]

  • Copyright Law of the United states (U.s.a. Copyright Office, 2011).
  • Copyright Law, 2nd Edition, Prof. Robert Gorman (Federal Judicial Middle, 2006).
  • Intellectual Property: Law & the Information Society. Cases & Materials Archived March 13, 2016, at the Wayback Machine (First Edition, 2014) James Boyle and Jennifer Jenkin.
  • Toward a Fair Use Standard. Pierre N. Leval (103 Harvard Law Review 1105 (1990)).

External links [edit]

  • United States Copyright Office
    • Copyright Office—Searchable Off-white Use Index
    • U.s.a. Copyright Office list of circulars
    • Copyright Law of the United States
  • Cornell University: Copyright Term and the Public Domain in the United States
  • Digital copyright slider to determine copyright status of a piece of work
  • "How Tin can I Tell Whether a Copyright Was Renewed?". The Online Books Page. University of Pennsylvania.
  • Copyright Timeline: A History of Copyright in the U.S.
  • Text of every version of U.S. Copyright Act for 1909 to the present

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Source: https://en.wikipedia.org/wiki/Copyright_law_of_the_United_States

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