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The site will give you an overview of Intellectual Property law and related procedures, and how these may differ from country to country.

Copyrights - Copyright protection - United States

Overview

Article 1, Section 8, Clause 8 of the U.S. Constitution is known as the Copyright Clause. Through this provision, Congress has the power to pass laws "[t]o 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." The current version of the U.S. Copyright Act (17 U.S.C. §§ 101-810) was enacted in 1976. It applies to all works created after 01 January 1978. Older works are governed by the Copyright Act of 1909.

U.S copyright law gives protection to authors of "original works of authorship," including literary, dramatic, musical, artistic, and certain other intellectual works. Generally speaking, this protection is available to both published and unpublished works and vests at the moment the work is created in fixed form.

It is unlawful for anyone to violate any of the rights provided by copyright law to copyright owners. Copyright rights, however, are not unlimited. They apply only to the portion of the work that is considered to be the author's original expression, and not to ideas, facts, elements of works that are taken from the public domain, or standard elements of a genre referred to as scène à faire. Sections 107 through 122 of the 1976 Copyright Act also establish other limitations on copyright rights. One major limitation is the doctrine of "fair use," which permits unauthorized use of copyrighted works if the use is considered fair under a four-part legal test. Another limitation is the availability of "compulsory licenses" under which certain limited uses of copyrighted works are permitted based on payment of specified royalties and compliance with statutory conditions.

Frequently Asked Questions

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-What are the works that can be protected?

Copyright protects "original works of authorship" that are fixed in a tangible form of expression and possess "at least some minimal degree of creativity." Copyrightable works include the following categories:

  • Literary works
  • Musical works, including any accompanying words
  • Dramatic works, including any accompanying music
  • Pantomimes and choreographic works
  • Pictorial, graphic, and sculptural works
  • Motion pictures and other audiovisual works
  • Sound recordings
  • Architectural works.

These categories are viewed broadly. For example, the U.S. Copyright Office advises that computer programs may be registered as "literary works" and that maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

Several kinds of works are usually not eligible for federal copyright protection. These include among others:

  • Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
  • Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
  • Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
  • Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).
  • Copyright protection also does not apply to portions of an otherwise protected work that are not considered to be the author's original expression, such as ideas, facts, elements of works that are taken from the public domain, and standard elements of a genre referred to as scène à faire.

-Will the work be protected in other countries?

The U.S. Copyright Act has no extraterritorial effect and cannot be invoked to secure relief for acts of infringement occurring outside of the U.S. However, some U.S. courts have held that even a small amount of activity connected to the U.S. can render an infringing activity as arising under the U.S. Copyright Act. Such a nexus can exist where infringing materials were imported to the U.S. or made available via the Internet to the U.S.

The U.S. Copyright Act applies to unpublished works regardless of the nationality or the domicile of the author. For published works, the U.S. Copyright Act provides protection to works: (1) for which one or more authors are nationals or domiciliaries of the U.S. or of a country with which the U.S. has a copyright treaty, as well as stateless persons regardless of where they are domiciled; (2) that are first published in either the U.S. or a foreign nation with which the U.S. has a copyright treaty in effect as of the date of first publication; (3) that are first published in countries with which the U.S. does not have a copyright treaty but are then subsequently published within the U.S. or a treaty country within thirty days of having been first published in another country; (4) that are sound recordings, which were first fixed in a nation that is a treaty party; (5) that are pictorial, graphic, sculptural, or architectural in nature and are incorporated into a building or structure located in the U.S. or in a country that is a treaty party; (6) that are first published by the United Nations, any of its specialized agencies, or the Organization of American States; or (7) that come within the scope of a presidential proclamation, which the president may issue with respect to countries that bilaterally offer protection to works first published in the U.S. or by U.S. nationals.

The United States is a party to most of the international treaties and conventions on copyright protection, namely:

  • Beijing Treaty on Audiovisual Performances (2012) (treaty not yet in force)
  • Berne Convention for the Protection of Literary and Artistic Works (1971 Paris revision)
  • Buenos Aires Convention of 1910
  • Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (Geneva 1971)
  • Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (Brussels 1974)
  • Universal Copyright Convention (Geneva 1952)
  • Universal Copyright Convention (Paris 1971)
  • Uruguay Round Agreements Act (URAA) of 1994
  • World Intellectual Property Organization Convention (1967)
  • World Intellectual Property Organization Copyright Treaty (Geneva 1996)
  • World Intellectual Property Organization Performances and Phonograms Treaty (Geneva 1996)
  • World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights - TRIPs (1994)

-What are the requirements for copyright protection?

Accrual

Under the Copyright Act of 1976, copyright accrues the moment it is "fixed" in a "tangible medium of expression," which the Act defines as the moment "its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." 17 U.S.C. § 101. This is a significant change from the prior Copyright Act (the Copyright Act of 1909), pursuant to which statutory copyright rights accrued upon a "publication" that complied with formalities required by statute.

Notice

Due to a change in U.S. copyright law adopted in 1989, authors are no longer required to publish a copyright notice with their works in order to be protected by copyright law. Nevertheless, it remains good practice to publish a copyright notice with works, because (a) it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication, and (b) in the event the work in infringed, the infringer may not argue that he or she is a so-called "innocent" infringer for purposes of mitigating damages. Notice need not be lengthy - in fact, pursuant to the Uniform Copyright Convention, the "C in a circle," ©, accompanied by the name of the author and the year of publication is sufficient notice (e.g., "© John Doe 2013").

Registration

Under the 1976 Copyright Act, copyright registration is generally regarded to be a legal formality intended to make a public record of the basic facts of a particular copyright - it is not a requirement for copyright to accrue, which, as noted above, accrues with the author the moment the work is fixed in a tangible medium of expression. Nevertheless - like publishing a notice of copyright - it remains good practice to register the copyright promptly upon its accrual, as there are certain benefits that come with copyright registration. These include: (i) for works of U.S. origin, you can sue for infringement (you cannot sue for infringement if the copyright has not been registered or refused registration); (ii) if made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate, which any copyright infringement defendant will then have to rebut; and (iii) if registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions (otherwise, only an award of actual damages and profits is available to the copyright owner).

Registration is managed by the Copyright Office at the U.S. Library of Congress. Staffers at the office generally do not undertake any review or vetting process prior to registering the copyright (unlike trademarks and patents, which are carefully scrutinized by attorneys prior to the trademark being registered or a patent being issued). Applications for copyright registrations can now be submitted online. Copyright registrations can be searched online at www.copyright.gov/records

Term of protection

The term of protection for copyright increased dramatically during the late twentieth century, with copyright term being extended for works that may have otherwise fallen into the public domain by now. Under the current regime, copyright exists for the life of the author, plus an additional 70 years thereafter - the so called "life plus 70" rule. In the case of a work with joint authors, the term lasts for 70 years after the death of the last surviving author. For "works made for hire" - i.e., works made within the scope of one's employment or certain categories of works created by independent contractors pursuant to a written agreement providing that the work is being created as a work made for hire - the term of copyright is either 95 years from first publication or 120 years from creation, whichever is shorter.

Further, should an author choose to assign his/her copyright, the Copyright Act provides an opportunity to "recapture" that copyright at any time within the period between 35 and 40 years after the initial assignment by "terminating" that transfer. The author must provide the transferee with a notice of termination at least two and no more than ten years in advance of the chosen termination date. The purpose of this provision is to protect authors whose work ends up being far more valuable than originally anticipated at the time of the initial transfer - serving a termination notice will, in most cases, cause the parties to renegotiate the assignment. Termination rights do not apply to works made for hire.


-What are the author's rights under the national law?

U.S. copyright law protects a variety of exclusive rights upon authors and other owners of copyrights. These exclusive rights, explicitly set forth within the Copyright Act, include the following:

  • To reproduce the work
  • To prepare derivative works based upon the work
  • To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • To perform and/or display the work publicly.

Unlike many foreign laws, the Copyright Act protects the "moral" rights of authors only in a narrow set of circumstances. The U.S. is a signatory to the Berne Convention, which explicitly calls for the protection of moral rights. However, in implementing the convention, the U.S. Congress declared that existing American copyright law satisfied the requirements of the Berne Convention. Since then, Congress has provided a limited range of moral rights for the authors of some "work[s] of visual art" such as paintings, sculptures, and photographs, allowing those authors to either claim (or disclaim) authorship of the works and maintain the integrity of such works.

The exclusive rights provided by the Copyright Act of 1976 are subject to some limitations. One such limitation is the doctrine of "fair use," which permits use of protected works without permission under certain circumstances. In determining whether an unauthorized use of a protected work is "fair," a court will consider four factors including the reason for and character of the use, the type and amount of the work copied, and the impact, if any, on the value of the underlying work. Another limitation is the availability of "compulsory licenses," under which certain kinds of uses are permitted based on payment of specified royalties and compliance with statutory conditions. For example, for some kinds of musical works, once a record has been distributed to the public, others may obtain a compulsory license that allows them to use the underlying musical composition to make and distribute their own records.

The Copyright Act provides for both criminal penalties and civil remedies for copyright infringement, which includes unlawful exercise of any of the rights protected by copyright law without the owner's permission. Copyright owners who register their copyrights with the Copyright Office prior to infringement, or, if the work was already published, within three months of initial publication, can seek "statutory damages" for acts of infringement. Statutory damages are set at a fixed amount of compensation per violation (rather than any measurement of the owner's lost profits or the infringer's unearned income). Statutory damages often exceed the "actual damages" that would be available to rights holders.

The Copyright Act also provides for the award of attorney's fees to a "prevailing party" in an infringement action, but again only when the allegedly infringed work was registered with the Copyright Office at the time of the alleged infringement, or if already published, was registered within three months of the first publication of the work.


-How do you assign copyrights / author rights?

Under U.S. law, copyright ownership vests in the person or persons who created the original expression contained in the work, otherwise known as the "author" of the work. Where a copyrightable work is made for hire, unless a written agreement provides to the contrary the employer is considered to be the author of works its employees create so long as their creations are within the scope of the employees' job responsibilities. By contrast, independent contractors are considered to be the authors and owners of works they create unless a written agreement says otherwise and the work falls within one of the nine relatively narrow statutory categories.

For joint works created by more than one person, each author is considered to be a co­owner of the copyright in the work, unless there is an agreement to the contrary. By contrast, copyright in each separate contribution to a periodical or other collective work vests initially with the author of the contribution.

Under U.S. copyright law, the author of a copyrightable work owns the copyright unless and until the author transfers those rights. Like any other property, all or part of the rights in a copyrighted work may be transferred from the owner to another person or entity, subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property.

Transfers of copyright are normally made by contract. Such transfers can be for all of the copyright rights in work (in what is usually referred to an "assignment") or for some portion of the copyright rights (also known as a "license"). Generally, transfers of exclusive rights are not valid unless they are in writing and signed by the copyright's owner or duly authorized agent. Nevertheless, the transfer of a right on a nonexclusive basis does not require a written agreement.

U.S. law provides for the recordation of transfers of copyright ownership with the U.S. Copyright Office. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.