Copyright Basics: The Exclusive Rights of Copyright Holders

Copyright law can be confusing. As my last post focused what material is subject to copyright I wanted to focus this post on the next basic concept: The exclusive rights in copyrighted works.

The rights of copyright holders are outlined in 17 §106 and subject to restrictions laid out in §§ 107-122. Because these posts are meant to be short I will not dive deeply into the restrictions, suffice to say they are filled with nuisances that could fill several copyright textbooks.

Copyright holders have the exclusive rights as outline below

1. The reproduction Right

The reproduction right is the right of the author to make copies of his or her work. Thus the owner of a copyright is the only one authorized to make copies of the work and the right is violated when someone other than the holder of the copyright creates a copy of the work. There are certain situations where the statute allows “unauthorized” copying of work such as in the case of libraries making copies for archival purposes, home video recording, and, more recently, recording of copies onto a home DVR device.

2. The right to prepare derivative works

A “derivative work” is another work which is based on a preexisting work. These can be a “musical arrangement, dramatization, fictionalization, motion picture” or other forms of the original work.  Essentially it means that any work which is based on the original that in itself an original work of authorship. It gives the copyright holder the exclusive right to create new works based on the original. Therefore, making a movie version of a book is an excellent example. The copyright in the derivative work in no way extends or enlarges the “scope, duration, ownership, or subsistence of copyright protection in the preexisting material”. Additionally, the copyright in a derivative work extends only to the material “contributed by the author of such work, as distinguished from the preexisting material employed in the work”. Creating a derivative work does not give the author any right in the material on such the derivative work is based.

This means that only the copyright holder is authorized to make derivative works and anyone who wishes to create such work must obtain the appropriate rights from the author in order to do so.

3. The distribution right

The distribution right can be described as the right of the author of a work to distribute to the public copies of work “by sale or other transfer of ownership, or by rental, lease, or lending.” This means that only the copyright holder has the right to sell or distribute their work. This is an area that sees a lot of action these days as lawsuits involving torrent sites and file sharing often assert that this  right violated by hosting the files or allowing others to download them via torrent programs. Therefore, you do not have the right to share music through computer systems as this it can result in some pretty huge lawsuits.

4. The public performance right

This right applies, as indicated by §106, in the case of “literary, musical, dramatic, and choreographic works, and pantomimes, and motion pictures and other audiovisual work”.

For this right to be infringed the work has to be “performed” and it has to be to the “public”. The statute doesn’t define performance but it is not limited to someone standing there and singing a song or preforming a play; it also can apply to playing music in a café.  Performing a work publically means to “perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family is gathered.

Really this just means that the copyright holder has the exclusive right to perform the work or authorize the performance of the work publically; if someone wants to play music at their bar or restaurant they have to obtain these rights and pay royalties to a performing rights society such as the American Society of Composers, Authors and Publishers (ASCAP), and Broadcast Music, Inc. (BMI).

5. The right to display the work publically

This right applies in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or…sculptural works.” This right also applies to individual images of motion picture or other A/V work.  §101 defines displaying a work as showing “a copy of it, either directly or by means of a film, slide, television image, or any other device or process…”

This right is quite similar to the public performance right. That is, the holder of the copyright has the exclusive right to display the work except as limited in §109 and the first sale doctrine

I have decided not to include two rights listed under § 106, the right to perform work by means of digital audio transmission and the right of attribution and integrity. I did this not only for the sake of length but also because the digital performance right is exceedingly complicated by §114 of the act. The right of attribution and integrity, also known as the moral rights, are infrequently enforced and only a part of the copyright act because of the provisions of the Berne convention, most likely I will return to “moral rights” in a subsequent post.

As always, this information is not legal advice. Should you have a legal issue related to copyright please contact an attorney.


Raptorchef’s Weekly Soft IP Round-up. Week of April 8, 2013

This week was quite slow in Soft-IP related news. Below find links to this week’s most interesting stories on Soft IP Law.

Should your company in South Korea be worried about the tense situation with North Korea? A great post by Sean Hayes at the Korean Law blog.  Full Story

In a move to streamline international trademark registration, India joins he Madrid Protocol. This will enable rights holders in India to obtain cost effective registration. The treaty will be effective in India on July 8, 2013. Full Story

In a short news week this story seems to have dominated any Trademark related news.  Texas restaurant chain Trademarks the term “Breastaurant” used in relation to food ordered with a “scenic” view. Full Story

USTPO apologizes to Apple and determines its initial refusal of a trademark for “IPAD Mini” was premature. The trademark examiner has decided to allow the mini mark as long as Apple disclaims the right to use the word mini. Full Story

Fifty Shades of Grey and a grey area of Copyright law. Movie studio asserts material for movie adaptation is in the public domain because most of the content of the book was user submitted fan-fiction. Full Story

As always, China Law Blog has good advice on protecting your Trademarks in the dynamic market. Counterfeit goods and working in China. Full Story

As Maria Pallante testifies for comprehensive changes to the copyright law the need for protection and the purpose of copyright remains the same. Protection encourages creativity and new work. Full Story

A new study shows that having a Trademark attorney greatly increases the chances your trademark will be approved. Full Story

Last Week’s IP roundup:

Prenda Lawyers continue to have problems as Judge Otis Wright attempts to have them explain their actions, but Prenda lawyers plead the Fifth. John Steele is said to have sued from than 20,000 people and made millions from pornography copyright lawsuits. Full Story

ISOhunt’s founder, Gary Fung, demands a jury trial after the Motion Picture Industry of America automatically wins a case on the merits in the 9th Circuit Court of Appeals. ISOhunt is a popular torrent site; Fung faces up to $150,000 per infringement. Fung claims liability will chill free speech and ruling is a miscarriage of justice. Full Story

Microsoft and Fox agree to share the “Killer Instinct” Trademark as long as they promise not to move into each other’s territory in using the mark. Microsoft is the owner of the Killer Instinct mark as used on video games; Fox registered a mark for a TV show under the same name. Full Story

As we see more retro car designs entering the market, Chevrolet applies for a trademark on Chevelle sparking questions of whether the automaker plans to remake its classic muscle car. Full Story

More IP problems for Facebook as it faces a Trademark battle for use of “Timeline”. As it turns out, another social media company used the same name on a website which catalogs a user’s history of events as posted on social media. registered their mark in 2010, Judge rejects facebook’s claim that is term is too generic as facebook has claimed use of “like” is not generic. Full Story

DC claims copyright in its Official Code, public domain advocates deliver special package to ThinkProgress. Currently there is no way to digitally download the code unless a person has a subscription to Lexisnexus. Full Story

Why are CD and tapes are better than digital copies? First Sale Doctrine takes a hit as a Judge rules that reselling digital copies is Copyright Infringement. Full Story

Copyright Basics: Subject Matter of Copyright

This is the beginning of a series of posts about basic copyright; each post will highlight important sections of the Copyright Law. Today I will cover which materials are subject to copyright protection and explain why certain things are not subject to copyright protection.

The subject matter of copyright is covered by Title 17 of the United States Code § 102. § 102 (a) says copyright protection subsists “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated either directly or with the aid of a machine or device.”[1]

The first part of the statute promulgates two important points: To have protection the work must be original and it must be fixed in some form. This means written, recorded by sound or video, chiseled into stone, saved on a hard-drive or any other way which seems appropriate for the particular form of work. The protection is extremely broad as it allows for “any” medium which exists now or is later be developed. I.e. if in the future holograms à la Star Trek: The Next Generation come into existence, a hologram artist would probably own a copyright in the image he or she creates. The fixation requirement also means that any works not fixed in a tangible manner cannot be subject to copyright protection. Therefore, speeches, live performances, and dances cannot gain protection unless they are reduced to some fixed form.

Under § 102 there are eight categories of protect works;

  1. Literary works;
  2. Musical works, including any accompanying words;
  3. Dramatic works, including any accompanying music;
  4. Pantomimes and choreographic works;
  5. Pictorial, graphic, and sculptural works;
  6. Motion pictures and other audiovisual works;
  7. Sound recordings; and
  8. Architectural works

That’s right mimes, or it could also mean panto; which looks like a awfully silly British Christmas play, but I doubt it. These categories cover nearly all possible forms of creative expression. Protection even extends to works that may not be considered “creative” in the traditional sense, such as computer software and textbooks. Also, there is no protection for works created by the United States government[2]; therefore, all statutes and government publications are not subject to copyright protection.

Limitation: idea vs expression

The most important limitation on copyright is commonly referred to as the “idea expression dichotomy”. This means that copyright does not extend to any idea but only to the particular expression of the idea. This limitation was created in a famous copyright case, Baker v. Selden and the government even incorporated the Baker rule into the Copyright Act which states not only that copyright does not extend to ideas, but also not to any “procedure, process, system, method of operation, concept, principle, or discovery.”[3]  Therefore, copyright cannot exist in titles for albums, blank forms, or works containing common information with no original authorship.[4]  The government provides specifics on the limitations in Chapter 37 of the Code of Federal Regulation § 202.1.

So next time you hear someone say “Hey, (insert name here), had the idea for that movie first!” you may appropriately say, “well, that may be true, but there is no copyright protection in ideas, only expressions of ideas”. This will probably result in a blank stare, but it’s true, so therefore you may create a story about a masked vigilante who fights crime under the darkness of night; just don’t give him a backstory of dead parents at childhood, a loyal butler, who is billionaire industrialist by day but a caped crusader at nighttime.

Limitation: useful articles

The last limitation is a bit of a complicated matter. While copyright may exist in areas previously discussed; a copyright will not be granted in the design of a useful article (even if it looks artistic or pretty). A “useful article” is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”[5]  This means that copyright may not extend to lamps, sinks, banks, clothing, or anything else that looks neat but has a primary function of being used for some purpose other than aesthetics. As you might imagine, this is much more complicated than it seems because a copyright may be granted “if, and only to the extent that, such design 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.”[6] For example, a toy’s primary function may be a child’s plaything but it could be protected as a sculptural work.

So that is copyrightable subject matter in about five hundred words; keep in mind this area is more complex than it seems and each of the aforementioned rules is subject to an immense amount of limitations in the copyright law and in common law; not to mention several treaties the United States has entered over the last 100 years which further complicates matters.

DISCLAIMER: This article is purely informational, any information contained within is not legal advice. Should you need help with a legal matter please contact an attorney.

[1] 17 U.S.C § 102 (a)

[2] 17 U.S.C § 105

[3] 17 U.S.C. 102(b)

[4] 37 C.F.R. § 202.1

[5] 17 U.S.C § 101

[6] 17 U.S.C § 101


Time for Friday’s Soft IP round up. Here are the top Copyright and Trademark stories from this week. Unfortunately, I was out of town this week and could not make regular posts.  Enjoy!

Gumpy Cat files for Trademark with USPTO, doesn’t like it

USPTO Eliminates Medical Marijuana from TM Categories

Mexican Supreme Court rules against Apple in iFone Trademark Case

Fight to defend Sherlock’s presence in the public domain

Library of Congress fights to preserve achieves of protected music

Copyright lawyers face sanctions for pornography cases

Meltwater’s use of AP news clippings is not fair use

Ninth Circuit reaffirms decision, isohunt induced users to illegally download movies and TV shows


Summary Judgment Reversed in Favor of Superman’s Copyright Holders

A few months back DC comics and Warner Brothers Entertainment, Inc. successfully appealed a California district judge’s grant of summary judgment in favor of Laura Siegel Larson, the heir of Joe Siegel, the creator of Superman.

The issue at hand in the appeal was whether the parties reached an agreement on the transfer of the copyright in the Superman character. The court determined that a letter mailed from Larson’s attorney constituted an acceptance of DC’s offer and was therefore binding on the parties. The court cited the letter itself which stated the heirs have “accepted DC Comics offer of October 16, 2001 in respect to the ‘Superman’…properties.” The letter outlined years of negotiations between DC and Siegel’s heirs which apportioned substantial compensation to the heirs and gave DC the right to produce works based upon the Superman character. Statements from the attorneys indicated that the letter reflected the material terms that the parties agreed upon and was therefore binding. The court also said that California contract law allows parties to be bound even if some aspects of the contract will be prepared at a later date. The court’s decision can be found here: Larson v. Warner Bros

The context surrounding this case seems more like a problem from a 1L contracts class. It’s simple: negotiations + oral agreements + letter summarizing negotiation with major contract points + signature of duly authorized agent = binding terms.

See also 17 USCS § 204(a) Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.