US Copyright Law/Rights

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Rights conferred by copyright[edit]

The actual rights contained within a copyright are:

  • Right to copy. This right includes all exact or substantially similar reproduction of the work.
  • Right to make derivative works. Derivative works include translations, adaptations to other media (for instance, movies based on books, books based on movies, toys based on movies, movies based on other movies, books based on other books, art works based on photographs, etc.), annotations and editorial revisions. Unauthorized derivative works receive no copyright protection, even for their original elements.
  • Right to distribute. The author has the right to control the sale and importation of their work, subject to the "first sale doctrine" described under Infringement.
  • Right to publicly perform. Performance applies to dynamic works such as drama, music and choreography. Any act that makes such works perceivable to viewers or listeners is a performance; "public" generally means in an environment "open to the public." Note that authors have no performance right in a sound recording, although there is a performance right in musical compositions.
  • Right to publicly display. Display applies to static works such as photography and sculpture. Generally, the owner of a copy has the right to display their copy to anyone present at the place where it is located: this means that authors cannot keep art works out of galleries. The display right is generally invoked to stop broader displays of a work, such as on a television broadcast or web site. Note that authors have no display right in architectural works.
  • Moral rights. Authors of works of visual art gained the right to attribution and integrity when the U.S. acceded to the Berne Convention in 1989. These rights include the right to "prevent any intentional distortion, mutilation, or other modification" to one's work if it would be prejudicial to the author's honor or reputation. 17 U.S.C. 106A.

Ownership of copyright[edit]

When an individual single-handedly creates a work, they receive the copyright in that work.

When an individual creates a work within the scope of their employment, their work is considered a work for hire and, in the absence of a contrary provision in the contract, the copyright goes to their employer. The doctrine is governed by the common law of agency, so independent contractors are not considered to be working for hire; see Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) [1]. Some works of non-employees may considered to be works for hire, but only "if the parties expressly agree in a written instrument signed by them": such works include translations, contributions to collective works, atlases and parts of motion pictures. 17 U.S.C. § 101. Courts generally except university professors from this rule: they usually have copyright in their work regardless of whether it was made in the scope of their employment. See Hays v. Sony Corp of Am., 847 F.2d 412 (7th Cir. 1988).

When a work has more than one author, the authors can have joint ownership. To receive joint copyright, the authors must each contribute an independently copyrightable contribution, and must intend their contributions be merged into a unitary whole. This is often governed by contracts between authors, but can also be inferred from the parties' roles in the creation of the work; see Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000).

Collective works such as periodicals, anthologies and encyclopedias can be copyrighted independently of their contributions. The authors retain copyright in their individual contributions, but the compiler has copyright in the entire collective work. 17 U.S.C. § 201(c).

Duration[edit]

The duration of copyright has been continuously extended by legislation throughout the 20th century. The most recent legislation, the Sonny Bono Act of 1998, extended copyright terms for an additional 20 years after intense lobbying by the entertainment industry. This was challenged on constitutional grounds (that Congress could not keep extending copyrights indefinitely), but the Supreme Court's decision in Eldred v. Ashcroft, 537 U.S. 186 (2003) [2], held the act to be constitutional. The current duration rules are, in general, as follows:

Date of creation Date copyright attaches Duration of copyright
Created before 1978 but unpublished January 1, 1978 Life of the author plus 70 years
Published between 1923 and 1963 Date of publication 28 years, with an option to renew for 67 years. If not renewed, public domain.
Published between 1964 and 1977 Date of publication 95 years
Created 1978 or later Date of fixation For individual authors, life of the author plus 70 years. For corporate or anonymous authors, 95 years from publication OR 120 years from creation, whichever is less.

Division and transfer[edit]

Like real property, a copyright can be subdivided and its parts can be transferred to others. This was not always the case: under the 1909 Act, a copyright was only transferable in its entirety: transferring part of a copyright was interpreted as a license, akin to a lease of property. Under the 1976 Act, a transfer of a copyright or part of a copyright is valid if executed in writing and signed by the copyright owner. 17 U.S.C. § 204.

The Copyright Act also contains provisions for termination of transfer in 17 U.S.C. §§ 203 and 304(c). These provisions allow the original author of many types of work to "take back" their copyright at a certain date after transferring it.

  • Authors of works created after 1977 may terminate transfers between the 35th and 40th year following the execution of the transfer.
  • Authors of works created before 1978 may terminate transfers between the 56th and 61st year of copyright protection.
  • The transfer to an employer of a work made for hire may not be terminated. This includes all motion pictures, sound recordings and contributions to collective works (e.g. magazines and anthologies).