Issues in American Copyright Law and Practice

Last revised January 20, 2012

This work is issued under

a Creative Commons license

This is my layman’s perspective on American copyright law and practice. I should mention as a disclaimer that I am not a lawyer, nor do I play one on TV. Certainly don’t take this as legal advice of any sort—for that you should talk to a real lawyer.

Congress shall have the Power 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

This clause gives Congress the power to grant the author or the owner of a creative work a bundle of exclusive rights to use or exploit their work in certain ways. This set of exclusive rights is known as copyright--once a work is copyrighted, no one else can do any of these things without the permission of the copyright owner. This clause is often referred to as the intellectual property clause, since it gives Congress the power to give people the right to profit by the use of their intellect--it covers patents as well as copyrights.

It is very rare that the Constitution actually lists any specific reasons for the powers that are granted to government, but a reason is spelled out here. The Constitution says that the purpose of copyright (as well as patents and intellectual property laws in general) is to advance the progress of science and the useful arts—the 18^th century way of saying that the ultimate purpose of copyright and patent laws is to promote the advancement of knowledge and technology. The purpose of copyright and patent laws is not to provide authors and inventors with an income—the establishment of a legal system that ensures that authors and inventors can get paid for their work is a means, not an end. The Framers imagined that the best way to promote the advancement of technology and knowledge was to ensure that authors and inventors could obtain financial remuneration for their efforts, which would encourage them to produce still more works.

Over the years, Congress has passed numerous laws that have given legal backing to the notion of copyright, including the granting of a set of exclusive rights to copyright holders. Among the rights that Congress has given to the copyright owner is the exclusive right to reproduce the work, to publish or distribute copies of the work, as well as the exclusive right to perform or display the work in public. Also included among the bundle of rights granted by Congress to the copyright holder is the exclusive right to make a copy of their work, as well as the exclusive right to create a derivative work based on the original work. Basically, copyright is a government-mandated monopoly that is granted to the copyright owner, one which if properly exercised is supposed to benefit the public by encouraging artists and authors to create still more works.

Copyright grants the artist an exclusive monopoly on the performance, publication, or distribution of their work, but the Framers were highly suspicious of any sort of monopoly, so they deliberately required that the monopoly had to be a limited one, that it would expire after a certain amount of time, and afterwards the work would be free for anyone to use in whatever manner they liked. The Framers felt that the monopoly that copyright grants must of necessity be limited so as to avoid the danger of any sort of monopolistic stagnation, and always be an effective mechanism by which the storehouse of knowledge would steadily increase and by which democracy would grow and flourish. Copyright was intended to be a delicate balance between the economic interests of authors and publishers and the interests of consumers, readers, and the public at large, one that if properly observed should encourage authors to create still more works but at the same time should also provide a benefit to the public as a whole.

What can be copyrighted? Just about anything, it turns out. The first copyright law, passed by Congress in 1790, gave protection only to maps, charts, and books, but in succeeding years copyright protection was gradually expanded to cover more and more categories of artistic and intellectual creativity. The current copyright law now says that copyright protection applies to “original works of authorship”, a category so broad that it includes almost anything. Copyright nowadays applies to just about every form of creative expression one can think of: literary works, novels, biographies, academic textbooks, scholarly journal articles, magazines, music and songs (both the words and the tune), poetry, dramatic works (including the accompanying music), pantomimes, choreography, pictures, photographs, cartoons, radio and television broadcasts, graphic works, paintings, sculpture, movies, sound recordings, and architectural works. Also copyrightable are computer software programs, even embroidery patterns. The copyright law purposely uses the broad phrase “works of authorship” to describe the types of works that can be protected by copyright in order to avoid the need for Congress to rewrite the copyright laws every time a new medium is created.

Exclusive Rights

On the copyright notice page of a book, you will often see the phrase All Rights Reserved. What does this mean? It means that a certain bundle of rights are reserved exclusively for the copyright owner, and that anyone else who wants to exercise any of these rights needs the permission of the copyright owner to do so.

The primary monopoly granted by copyright law to the rightsholder is the exclusive right of reproduction of the work. This means that only the copyright owner can distribute copies of their work, and anyone else who wants to distribute copies of the work by any manner whatsoever needs the permission of the copyright owner to do so. This distribution of copies can take place in any number of different ways--via sale, by lending, by renting, or even by giving them away for free. If someone else has already published a best-selling novel, it would be an infringement if you were to print and distribute cheap copies of the novel without the permission of the copyright owner. It would be an infringement if you burned copies of a hit compact disk recording and then sold them for a cheap price at a swap meet. Giving the copies away for free is still an infringement of the rightsholder’s exclusive rights, if this is done without obtaining permission. There is no minimum number of copies that need to be distributed in order for the copyright owner’s exclusive monopoly to have been infringed—in principle, all that would be needed is for just one copy to have been distributed.

Another exclusive right is the right of publication—the copyright owner is the only one who can publish the work, and anyone else who wants to do so needs the permission of the copyright owner to do so. The right to publish the work is often confused with the right to distribute copies of the work. These two rights are related, but they are not precisely the same. For a long time, what was actually meant by publication was not explicitly defined or spelled out under the copyright law, and the outcome of many lawsuits hinged on whether or not publication had actually taken place. This uncertainty was finally resolved in the 1976 copyright law. Publication now formally means the act of making copies of the work available to a general public audience on an unrestricted basis, either by sale, rental, lease, or distribution. The copies don’t even have to be sold in order for publication to be said to have taken place—they could actually be given away for free.

There is an additional wrinkle in the formal definition of publication, which says that the copies must be distributed to the general public in order for publication to be said to have taken place. This means that a distribution of copies solely to a restricted set of people such as your friends and family, to a selected group of theatre critics, to just a few newspaper reviewers, or strictly to the employees of a particular business would not formally count as a publication under the copyright law if the recipients of the work don’t have the right to distribute the work to people outside the group. Nevertheless, the distribution of copies even to a restricted audience (such as the employees of your corporation) without the permission of the rightsholder would still be a violation of the copyright owner’s exclusive rights, even though publication would not formally have taken place.

Copyright restrictions also apply to the public performances of copyrighted works. A public performance is formally defined in copyright law as the reciting, rendering, playing, dancing, or acting of a creative work in a place or location that is open to the public, or in any place in which an audience of a substantial number of people beyond one’s immediate friends and family can see or hear the performed work, whether money is charged or not. The law says that a public performance also takes place when a transmission or communication of the work is made to a place where a public audience can see or hear the work, whether it is seen in the same place or in a separate place, whether at the same time or at different times. This means that television and radio broadcasts, as well as cable transmissions and Internet streaming also count as public performances. Consequently, if you play or transmit a DVD in such a manner that a public audience can see it, this counts as a public performance under copyright law.

Only the copyright owner is allowed to make a public performance of their work. If you want to read a book out loud in such a way that a public audience can hear it, you need the permission of the book’s copyright owner. If you read a copyrighted poem to a public audience, you need the permission of the copyright owner of the poem. If you want to show a motion picture to a public audience, you need the permission of the movie production entity that owns the copyright, whether an admissions fee is charged or not. If your theatre group wants to perform Death of a Salesman, they need the permission of the Arthur Miller estate to do so and probably must pay a royalty fee. If your rock group wants to perform the Eagles song Hotel California at one of their concerts, they need the song publisher’s permission to do so. When a disk jockey plays a music recording on the radio, the station must pay a fee to the owner of the song. Even if you play recorded music in such a way that a public audience can hear it, you need permission to do so and must pay for the privilege.

However, there are some provisions in the copyright laws that exempt from copyright restrictions certain public performances of music and nondramatic works such as speeches, lectures, or poetry when they are done for nonprofit educational or charitable purposes. Instructors or students at a nonprofit educational institution are allowed to perform a copyrighted work in the course of face-to-face teaching activities without obtaining the permission of the copyright owner. The basic idea behind these exemptions is to exclude from copyright restrictions those live performances of copyrighted works in which there is no direct or indirect commercial purpose involved, when the performers are not being paid, or when there is no admission charge, or if there is a admission charge but the proceeds are used exclusively for educational, religious, or charitable purposes and not for private financial gain. This exception also applies to transmissions for the blind or for other handicapped persons, as well as performances held at social functions organized by nonprofit veterans or fraternal organizations, so long as the proceeds are used solely for charitable purposes and not for private financial gain.

Under copyright law, a public performance is not formally equivalent to a publication—in order for publication to be said to have legally taken place, it is necessary that copies of the work have been distributed to the general public. Performing a play, giving a lecture, singing a song, or showing a movie does not count as publication, because no copies are being distributed. However, prior to 1978, if a work of art was displayed to the public in such a manner that people were allowed to copy it freely, publication was considered as having taken place.

Copyright owners are given control over public performances of their works, but not over private performances. You are free to let your spouse and children watch the video you purchased, you can lend the book you just bought to your friend, and you can play a copyrighted recording on your stereo for your friends and neighbors when they visit your house. You can sing a copyrighted song to your kids without getting anyone’s permission or paying any fees. You can let your relatives watch The Sopranos on HBO when they visit you. Any attempt by copyright holders to regulate or restrict private performances of their works would require a totalitarian state, much like that depicted in the novel 1984, under which every human activity was closely observed and monitored by the state authorities.

Copyright restrictions also apply to public displays of copyrighted works. Legally, a “display” of a work involves the showing of a copy of it, either directly or by means of a film, a slide, a television image, or even by the incorporation of the image onto an Internet website. The display is “public” if the work is shown at a place that is open to the public or at a place when a substantial group of people beyond your immediate friends and family can see the copy of the work. Public displays are treated in copyright law somewhat differently than are public performances. Public performance generally applies to things like music, dramatic works, or movies, whereas public displays refer to paintings, sculptures, or photographs. The showing of a motion picture would be treated as a public performance, but the showing of individual images from the movie would be considered as a public display.

Only the copyright owner has the right to make a public display of their work. If you put a copy of a copyrighted work in any place where the public is able to see it, you could be accused of copyright infringement unless you have the permission of the copyright owner to do so. If you want to mount a copy of a copyrighted photograph on the wall of your business, you need the photograph owner’s permission to do so. Posting something on the Internet is equivalent to making a public display of it—if you scan and digitize a copyrighted photograph from a magazine and post the image on the Internet without permission, you are committing a copyright infringement which could get you into serious trouble. However, a face-to-face display by the owner of a legally-acquired copy of a copyrighted work in a public gathering of viewers present at the place where the copy is located is not considered as an infringement, nor is the use of a projection device to throw an image of the work onto a screen. If you simply hold up a picture from a magazine while giving a public lecture, the owner of the copyright on the photograph will probably not object and this would not be an infringement. But if the display of the image is by a closed-circuit TV system, or if the display is via multiple TV screens or via a set of computer monitors, an unauthorized display might be an infringement.

Copyright restrictions also apply to the making of derivative works, which are creative works that are based on or derived from another work. Examples are translations, musical versions, dramatizations, adaptations for film or theatre, abridgements, fictionalizations, edits, condensations, fan fiction, and sequels. The owner of the copyright on a creative work has the exclusive right to create a derivative work based on it. If a motion picture studio wants to make a movie of your best-selling novel, they need your permission to do so. If you want to write a musical version of the M*A*S*H hit TV show, you would need the permission of the show’s copyright owner to do so. If you write words to a musical tune, or set a poem to music, you are creating a derivative work, and you would need the permission of the original work’s copyright owner to do so. If you want to translate a Tom Clancy technothriller into German, you need Tom Clancy’s permission to do so. A sequel also counts as a derivative work--if you want to write a sequel to The DaVinci Code, you need Dan Brown’s permission to do so. The reuse of characters, plots, or situations from previous works is also considered as a creation of a derivative work--you would need Paramount’s permission if you wish to use Captain Kirk or Mister Spock in your work of fiction. Photographs or artworks that have been electronically manipulated or altered also count as derivative works—if you scan someone’s copyrighted photo and then use Adobe Photoshop to copy parts of it into another work, you need the photo owner’s permission to do so.

You are completely free to create a derivative work based on something that is not subject to copyright—for example you could write a musical version of Shakespeare’s Hamlet without having to get permission from anyone, since Shakespeare’s work is no longer under copyright. If you want to make a movie out of the novel Wuthering Heights, you don’t need anyone’s permission to do so, since the copyright on the novel expired a long time ago. However, if the original work is under copyright, you definitely need the permission of the copyright owner in order to create a derivative work based on it.

The courts have concluded that a secondary author may actually be infringing if what they did somehow invoked the original work’s “total concept and feel”, even if they did not literally copy or even paraphrase any of the expression in the original work. A work that resembles the style, mood and overall aesthetic appeal of an original expressive work may well be an infringement.

Fan publications or fan websites are especially risky--it is definitely not a good idea to set up a fan website for Boston Legal, with photos and episode summaries, without the permission of the TV show’s owner. Even though you might think that the show would welcome the free advertising, the TV show’s lawyers may take a different view. It often happens that the holders of popular copyrights ignore fan websites or fan publications or even subtly encourage them because it helps them in the promotion of their products, but it is entirely up to the rightsholder whether to do that. The copyright owners of Star Trek, Star Wars, ET, The Simpsons, and Harry Potter have been quite hostile to people who try to do fan creations without their permission. However, there is a special provision for parody, so if you want to do a parody of a Star Trek episode on Saturday Night Live, this is usually OK. But the difference between a parody and a derivative work is often a very subtle one, and sometimes can be decided only in court.

With the passing of the Copyright Act of 1909, the right to make a copy of a copyrighted work was added to the list of exclusive rights granted to the copyright owner. Only the copyright owner can legally make a copy of their protected work, whether the copy is distributed to others or not. The purpose of this change was originally to prevent others from making illicit copies of one-of-a-kind works of fine art such as paintings or sculptures, but nowadays this rule has been expanded to mean a prohibition of making a copy of any sort of copyrighted work of art—a book, a music CD, a photograph, or a movie. Under this law, the making of even one copy of a copyrighted work without the permission of the rightsholder could in principle be an infringement, even if no attempt is made to sell, lend, rent or otherwise distribute that copy to others.

When Congress first passed copyright laws in the late 18^th century, the making and distributing of copies of any creative work were both extremely difficult and expensive propositions, and few people had the resources to do so, which meant that copyright law affected only a tiny minority of the population. The only people who had to worry very much about copyright laws were book or newspaper publishers and perhaps a few celebrated authors. In fact, as recently as only 60 years ago if you were just an ordinary individual with only limited resources and did not have access to a printing press, a recording studio, or a television network, you would be hard pressed to violate copyright even if you wanted to. For example, suppose that back in the 1950s you wanted to hand out free copies of a hit novel of the day (say Peyton Place) to passersby in the street. In order to make illicit copies of the book, you would have to laboriously hand-copy or type the entire text of the book onto mimeograph masters, mount the masters one at a time onto the drum of the mimeograph machine, turn the crank, collate the pages, fasten them together, and then hand-carry the copies and pass them out. It would probably not be worth the cost and the hassle.

However, technology has advanced quite a bit in recent years, with the advent of the tape recorder, the photocopy machine, the videocassette recorder, and finally the computer and the Internet, all of which make the copying of copyrighted material a lot easier and cheaper for people to do. Just about anyone can now copy creative works very easily and with very little cost. And, by use of the Internet, it is very easy and inexpensive to distribute these copies to others, which means that just about anyone with access to a computer, a modem, a scanner, a tape recorder, or a photocopy machine can be a “publisher” in the strict legal sense of the term. Consequently, copyright restrictions have been extended to the prohibition of the creation of unauthorized copies of protected works, whether actual publication or distribution is intended or not. Copyright practice now applies more to the making of copies of protected works than it does to actual publication. This means that copyright law now affects just about everyone—anyone who creates artistic works or who consumes or uses media needs to pay close attention to the copyright law lest they get themselves into trouble.

An obvious example is that FBI copyright warning that you always see when you view a commercial movie on a DVD disk. This warning is telling you that it is illegal to make a copy of the DVD movie without the permission of the copyright owner. If you make an MP3 copy of a popular song and make it available to others via peer-to-peer computer networks, you run the risk of being sued. In order to make multiple photocopies of a book or magazine article, and use them for certain purposes, you need the permission of the copyright owner. In order to duplicate a photograph and put it on your website or mount it on the wall of your business, you require the permission of the photo’s owner. If you are writing scholarly papers or textbooks, you need to clear the rights on every photograph or quotation that you use. Computers are especially tricky in copyright law--just about everything that you do with a computer involves making a copy of some sort, which means that copyright law can impose certain restrictions on what you are allowed to do with your computer.

However, in practice these restrictions on copying are not absolute—if you want to make a copy of a protected work strictly for your own personal use, this is usually OK. No one is going to drag you into court for ripping a song from a CD that you legally purchased and copying it onto your iPod, so long as you don’t sell or give the copy to someone else. It is also legal for you to go to the library and make photocopies of short parts of books or magazine articles for your own personal use. It is certainly true that copyright holders are not entirely happy about this sort of personal copying, but if your copying was strictly for your own personal, private use and did not interfere with the copyright owner’s profits, rightsholders have usually not objected and the law typically does not intervene. In America the government cannot and should not try to regulate what you do in the privacy of your own home—what you do there is your own business so long as you do not endanger or adversely affect the rights of others. A certain amount of copying is also considered to be OK if it is done strictly for nonprofit, educational purposes and if the person doing the copying does not somehow earn money by their act. However, if you make and distribute multiple copies in such a manner that you end up competing with the original in the commercial marketplace, or if you somehow end up making money by your copying, you could get into some trouble. But the boundaries between harmless copying and copying which adversely affects the copyright owner’s profits are not clear, which keeps a lot of copyright lawyers in business.

Copyright Myths and Misconceptions

Copyright law is a very arcane subject, and very few people, including some lawyers, actually understand how it really works. In place of a deep understanding of copyright law and practice, there are a lot of myths and misconceptions about copyright out there, some of which are described below.

Some people erroneously think that when they purchase a book, music CD, or DVD they also own the copyright to it. This is entirely wrong. Although you may own a particular copy of a creative work, the original author or creator still owns the copyright on the work itself, and you cannot reproduce, distribute, display, or perform the work without the permission of the copyright owner. Suppose you purchase a book in a bookstore. The book is now yours, and you can do what you please with it--you may sell the book to someone else, lend it out, give it away, let your spouse read it, cut out pages, or even destroy it. However, you did not receive the copyright on the book when you bought it, and you really only own the pieces of paper that the words are printed on, not the words themselves. The content of the book is still the intellectual property of the copyright holder and you may not make and distribute copies of the book, may not write a sequel, may not create an abridgment, may not make a public performance of the book by reading it aloud in public, and may not post it on the Internet, since all of these rights are reserved exclusively for the copyright owner.

Another misconception about copyright law is that copyright is infringed only if you charged admission to a public performance or display that you made of the work, or if you charged money for the copies that you distributed or somehow made money in other ways by your copying. This too is entirely incorrect. Copyright is still violated even if you do not charge for the copies you distributed or the public performance that you gave, only the amount of damages awarded in court is affected, especially if you happen to hurt the commercial value of the original copyrighted work by copying or performing it.

Yet another common misconception is that if the owner of a copyright does not defend against infringements, then they lose their copyright forever. The idea of undefended loss is a concept from trademark law, under which you can lose your trademark if you no longer actively use it in the marketplace, or if you go out of business or if you see infringements and do nothing about them. Copyright holders are not required to sue infringers in order to maintain their exclusive rights--copyright is never lost unless it is explicitly signed over to someone else or if it expires. Unlike the owners of trademarks, copyright owners are not required to actively market their works to the public or even to stay in business in order to maintain their protection.

Another misconception is that when an author or artist dies, the copyright protection provided for their works ends at the same time and that thereafter one is free to do anything they like with their works. This also is wrong--when an author dies, his or her copyright does not die with them--it lives on and on, for 70 years or even longer after the death of the author, and the owner’s heirs or estate assume ownership of the copyright and inherit all the rights. An example is the composer George Gershwin, who died in 1937. Despite his death, his music is still protected by copyright. His estate now owns and controls the copyrights on his works, and you need the permission of the Gershwin estate if you want to perform An American in Paris or Rhapsody in Blue, and the estate continues to bring in a significant income from royalties and licenses. The Gershwin copyrights will not begin to expire until sometime between 2019 and 2027 at the earliest.

Yet another misconception about copyright is that works must be registered with the US Copyright Office (a part of the Library of Congress) in order for protection to apply. This was true at one time in the past, but is now no longer true. The Copyright Act of 1976 removed the requirement for registration with the US Copyright Office in order for copyright to apply.

So what do you have to do in order to copyright your work? Not much of anything, it turns out. According to current US copyright law, a creative work is now automatically protected by copyright as soon as it is rendered into any definitive, fixed form or medium that makes it possible for others to access the work. Formally, a work is said to be “fixed” when it is rendered into a form that permits it to be perceived, reproduced, or otherwise communicated to others for a period of more than just transitory duration, either directly or with the aid of a machine or device. So you now don’t have to do anything in order to obtain a copyright—it is automatic once you put your work into a tangible, definitive form, whatever the form might be. Virtually anything will qualify as a tangible medium—words on paper, sounds recorded on magnetic tape or optical disks, songs written in musical notation, photographs, drawings, paintings, video recorded on a VHS tape or on a DVD, data stored on a computer hard drive or memory disk, even scribbled notes on the back of an envelope.

The requirement for a definitive fixed form means that simply telling your friends about the great novel, screenplay, or song you have in mind is not sufficient to guarantee any rights under copyright law—you have to put it into some sort of tangible form, like writing it down, drawing it on a piece of paper, filming it, or recording it. If all you do is tell someone about your radically new idea for an artistic expression without ever writing it down or drawing it on a piece of paper, it is not protected by copyright since it has not been expressed in any fixed form such that others can read and study it. However, as soon as you type your novel or your poem on your computer’s word processor, it is now fixed in a definitive form and is automatically protected by copyright. As soon as you write down your new song in musical notation on a sheet of paper, it is automatically protected. As soon as you record your new song on tape or on a CD, it is automatically protected. As soon as you process the film in your camera, the photographs you took are automatically protected. As soon as you put something up on your website, it is automatically protected. All that is required is that the work be rendered in some sort of tangible, non-transient form, no matter what the form may be.

Although copyright registration is no longer required for protection to apply, there are still some advantages in doing so. To register a work with the US Copyright Office[1], all you have to do is fill out an application form, deposit a copy of the work, and pay a filing fee of $45. A registration request can be filed with respect to either a published or an unpublished work. Registration may be made at any time during the life of the copyright, although the act of registration does not extend the life of the copyright. The Register of Copyrights can refuse a registration request if the material being deposited is not eligible for copyright protection—perhaps the work lacks originality or creativity, maybe the material itself is uncopyrightable, or the claim is invalid for other reasons. Once a registration request has been approved, it establishes a public record of any copyright claim and could be of help if the validity of the copyright is ever challenged in court. Registration makes it much easier to prove that you actually own the copyright that you are claiming. If registration is made within 5 years after first publication of the work, the certificate issued by the Copyright Office is prima facie evidence of the validity of the copyright. An artist often cannot collect statutory royalties and fees unless their work is registered.

Although registration is no longer required, the owners of works published in the USA are still required to deposit within 3 months of publication two copies of their works for use by the Library of Congress. If the publisher fails to comply with this deposition requirement, there are fines and penalties, but the underlying copyright protection is not lost. However, there are some categories of works that are exempt from mandatory deposition requirements.

Under US copyright law, registration is required before an infringement lawsuit can be filed in federal court. However, this requirement does not apply to works initially published outside the USA, so long as the nation where the work was originally published adheres to the Berne Convention. A copyright holder can of course simply wait to register until they find that they actually need to sue someone for infringement, but if they do wait they can’t recover nearly as much in a suit. Only if a work is formally registered within 90 days of publication is an author entitled to statutory damages and attorneys’ fees upon successful litigation against an infringer. These statutory damage charges allow copyright holders who succeed in court with claims of infringement to receive a set amount of compensation per work, as opposed to compensation for actual financial losses. These statutory damages can greatly exceed the actual financial harm suffered. For example, plaintiffs who can show willful infringement can get damages of up to $150,000 per work infringed, without having to prove any actual monetary harm. The prospect of having to pay astronomical statutory damages is a potent legal threat that copyright owners can use against private individuals—a person willfully infringing a copyright might face statutory damages that are larger than their entire assets.

Some people talk about the so-called “poor man’s copyright” as an alternative to formal copyright registration with the US Copyright Office. This consists of simply mailing an envelope with a copy of the work enclosed to yourself, preferably by certified mail, and then storing the envelope unopened somewhere in a safe when it arrives. It is claimed that this tactic could in principle help to provide proof of creation of the work, and could be important evidence if someone else later falsely claims that they have created the work. However, the protections supposedly offered by the “poor man’s copyright” are little more than an urban legend[2], and the technique has no legal basis, at least in the USA. I am unaware of any case in which an author’s copyright was established and legally defended in a court of law by this method. The postmarked-and-sealed envelope technique is probably too easily circumvented for courts to regard this as reliable evidence. In any case, the US Copyright Office explicitly says on its website that there is no provision in US copyright law for the “poor man’s copyright” and that such a technique is not a substitute for “real” copyright registration, especially if you want to collect statutory royalties or find that you need to sue someone for copyright infringement.

Another misconception is that by making a live performance of your work, you guarantee your copyright on the work. This is not necessarily true. Live performances that have never been fixed in any permanent media have a rather ambiguous copyright status. Simply making a public performance of your work may not necessarily provide you with any copyright protection—if you simply sing your new song in public without ever writing it down or recording it on tape or on a CD, it is not protected by copyright since you have not fixed it in any tangible form. A live television broadcast that is not being simultaneously taped or recorded by the broadcaster is not being fixed in any non-transient medium either--once the electromagnetic wave leaves the transmission tower, the program is gone forever and can never be seen again. Nevertheless, even before their work is formally “fixed”, some state laws may grant the author some degree of protection under the state’s statutory or common-law rules. Examples could be an improvised comedy skit or a live interview that might be protected by state laws against secret, unauthorized taping or recording by members of the audience. But just as soon as the comedian or the interviewer writes down the performance or records it themselves, it automatically falls under federal copyright protection.

Still another misconception is that the author must publish their work before it is eligible for copyright protection. This too is completely wrong. Within copyright law, publication has a precise technical meaning--it formally means making copies of the work available on an unrestricted basis to a public audience, either by sale, by rental, by leasing, or by lending. Examples of works that have never been published are private letters that are kept stored in a trunk, private family photographs that have never been taken out of a photo album, or an author’s manuscript that has been locked away and never released to the public. A work is also considered to be unpublished in the copyright law sense even if it is distributed or displayed, but is done so under conditions where there are significant restrictions placed on who can see it, what can be done with the work, or when it can be shown to others. All of these unpublished works are nevertheless protected by copyright because the current copyright law says that all that is necessary for copyright protection to apply is for a work to be rendered or fixed into some sort of definitive, tangible form that makes it possible for others to apprehend or access the work. This means that works by authors that have never been published, such as manuscripts, notes, or private letters, are definitely protected by copyright and the restrictions on their use by others can actually be more stringent than those applicable for published works. This is because it is thought that the author should have first crack at publishing the work.

Another common misconception is that material on the Internet is free for anyone to use without restriction. This also is completely wrong. Materials posted on the Internet are works that have been rendered into a fixed form that can be accessed by others (HTML files, JPEG photos, MPEG movies, MP3 sound files, etc), so copyright does apply there. The posting of something on the Internet (text, pictures, music, video) is equivalent to making a public display of the item, and only the copyright owner of the item can legally do this. Just about everything posted on the Internet is owned by someone, either by the creator of the website or by some other party. If you want to use something posted on the Internet in your own work, make sure you get permission from the owner of the material before you do so, or else you may find yourself in court. Also, be very careful about what you put up on your own website. Make sure what you put up there is really your own work and is not borrowed from someone else. If you do borrow something from someone else, make sure you have permission from the copyright owner to do so. Definitely do not post an image of Mickey Mouse on your website. You do not want a visit from the Disney organization’s lawyers. They have much deeper pockets than you do.

Some people erroneously believe that when you perform someone else’s work in public or when you copy someone else’s work into your own work, you will be shielded against an accusation of copyright infringement if you properly acknowledge the source. This is a confusion of two different concepts—copyright infringement and plagiarism. Plagiarism is using the work of others without proper acknowledgment, whether the work is copyrighted or not, whereas copyright infringement is using someone else’s copyrighted work without permission, whether it is acknowledged or not. Copyright infringement is a legal matter, but plagiarism is a matter of professional and scholarly ethics. When you include someone else’s copyrighted text in your work, quoting the name of the original author may help, but it might not be sufficient to protect you against an accusation of copyright infringement, especially if you copied a lot of stuff and did not ask for permission to do so. Conversely, you could be accused of plagiarism even if you used material from an uncopyrighted work but did not quote its origin. Although plagiarism is in itself not a legal matter, the courts could interpret many aspects of plagiarism as copyright infringement, especially if the stuff you plagiarized was from a copyrighted work and you were seen as profiting economically from your act. In any case, if an author is caught plagiarizing another work, this can often be a career-ender or at least a major public embarrassment.

There are also myths and misconceptions about copyright notices. On the opposite side of the title page of a book, on a website, on a magazine article, or somewhere on just about any sort of artistic work, you will usually see the familiar copyright notice. The presence of this copyright notice means that the copyright owner reserves the rights associated with copyright exclusively for themselves. The accepted format of the copyright notice must include the copyright symbol © (or the word “Copyright” or the abbreviation “Copr”), the year of publication, and the name of the copyright owner. An example is

Sound recordings use the letter P in a circle, the notice appearing somewhere on the CD jewel case or on the disk label itself. .

A major misconception on the part of many is that a creative work must have this copyright notice attached to it in order for copyright to apply, and the absence of such a mark means that the work is not protected by copyright and that anyone can do what they like with the work. Like the requirement for registration, there was actually a requirement for the inclusion of a proper copyright notice at one time in the past—if a work had no copyright mark on it, this meant that you were completely free to use it in any manner whatsoever. In fact, if you carelessly left off the copyright mark when you published your work, you automatically forfeited any copyright protection even if the work had previously been registered.

However, the requirement for the inclusion of a copyright notice was removed when the USA adhered to the Berne Convention, effective March 1, 1989, although it must still be present on works copyrighted before that date. This now means that even if there is no copyright notice anywhere in sight, the work may nevertheless be subject to copyright protection, and the absence of a copyright notice no longer necessarily means that you are free to use the work in any manner you please. You even have to be careful about works published or copyrighted before 1989—even if such a work lacks a proper copyright notice, the copyright law did have provisions under which the owner was able to correct the problem of the missing copyright notice at a later time[3]. You need to carefully investigate to be sure that such a work is truly free of copyright restrictions.

Even though a copyright notice is no longer required, there are still some good reasons for attaching one to your copyrighted work[4]. It informs the public that your work is indeed protected by copyright, and the presence of this notice may be an intimidating factor that scares off some potential infringers. It also prevents another party from credibly claiming that they innocently infringed your copyright when they copied your work, thus escaping certain damages under the Copyright Act. The presence of a copyright notice also identifies the copyright owner and the date of first publication, so it makes it easier for someone to reach you and request a license or permission to use the work.

Since neither registration nor a copyright notice is required for copyright to apply, you should usually assume that just about everything you see, hear, or read is copyrighted, even if there is no copyright mark anywhere on it. Someone probably owns every photograph you see printed in a magazine or posted on the Internet. Somebody probably owns every song that you hear on the radio. Everything posted on the Internet is probably someone’s intellectual property and should not be taken or used by you without permission. Before you use anything created by someone else in your own work, make sure you have permission in writing to do so. Sometimes royalties must be paid. If you are in doubt about whether your use of a copyrighted work is legal, ask permission first.

At one time, you had to be very careful about the whole copyright process—it was so complex that you could inadvertently lose your copyright if you screwed up the paperwork, if you omitted an obscure but vital step in the process, or if you missed an important deadline. Copyright was very process-intensive, and you could lose your copyright if you made even the slightest misstep. Authors lost their copyrights if they forgot to renew them in a timely fashion, people lost their copyrights if they filled out the paperwork improperly, and publishers even lost their copyrights if they forgot to include the required copyright notice in their published works. If the copyright notice had the wrong format, if the year of publication was incorrect, if the wrong name was placed in the notice, even if the notice was in the wrong location--any of these errors could result in an irretrievable forfeiture of the copyright. However, things are entirely different now—you now no longer even need to register your work for copyright to apply, copyright notices are no longer required, most of the paperwork in the process has been almost entirely eliminated, and authors and rightsholders no longer have to worry very much about formalities in order to maintain their protection.

Works for Hire

“Works for hire” [5]are those for which an employer rather than the employee is considered to be the author of the work and owns the copyright on it. This would, for example, include a work prepared by an employee within the scope of their employment, or a work specially ordered or commissioned as part of another larger work. Most firms require that their employees sign an agreement that stipulates that all the works that they create in the course of their jobs become the intellectual property of the employer. So if I work for the Disney organization, my employer owns the copyright on the creative works that I perform for them, not me. This means that my employer owns all the exclusive rights granted under copyright law, and I have no say in what happens to my work or in what the company does with my work. The only money I get from the Disney organization is my salary and benefits--I am not entitled to receive any money from the commercial exploitation of the work or sale of the work in the marketplace.

However, if a company employee writes a novel or textbook on a subject that is totally unrelated to their job and they do it at home and in their spare time, they can usually claim the copyright on it, but they should probably go ahead and clear the ownership status with the company management, just to keep themselves out of trouble in case there is a disagreement later on.

Determining who qualifies as an “employee” under the works-for-hire provision of the copyright law can sometimes not be easy—generally the determination of whether or not someone is an “employee” of a given firm is based on the amount of control exerted by the employer over the employee, on whether the employer can dictate how or where the work is done, whether the employer supplies equipment and resources for the employee’s use, and on whether payments of salary and benefits are made and on whether taxes are withheld. So an independent contractor would not be considered as an “employee” under the copyright law, but the work that they do might nevertheless be considered as a “work-for-hire” if it were specially commissioned by the firm and if there is a written agreement between the contractor and the firm that the work is a work made for hire. The legal status of works created by outside contractors can often be quite unclear--there have been several legal disputes in which corporations claimed that outside contractors who created artistic works for them were actually “employees” of the corporation, and that the corporation “owned” the intellectual property that they created.

Copyright Transfers

The ownership of a copyright can be transferred from one party to another via sale, grant or gift, and can be bequeathed by will just like any other sort of personal property. All of the exclusive rights involved in the possession of a copyright also go along with the copyright itself, and the person or persons who receive the copyright can also lay claim to any and all of the exclusive rights involved in the copyright. The transfer of copyright ownership has to be done in writing, and the transfer can be recorded in the Copyright Office.

Very often, when an author or artist wishes to commercially exploit their work, the creator typically transfers the ownership of the copyright to the company that will get the work to market, such as a book publisher or a record company. This is because few authors or artists except the most famous and celebrated have the resources or channels of distribution to disseminate their creations. This is what happened when I published my two books—my publisher owns the copyright on my books and all of the associated exclusive rights, not me. This means that I would not be allowed to distribute copies of my own books, republish them somewhere else, perform them in public, post them on the Internet, or create derivative work based on my books, at least not without getting the permission of my publisher to do so. However, it is common for the author to place some limitation on the number of exclusive rights transferred to the publisher, for example perhaps the transfer will last for only a limited time, it might only be applicable in certain locations, or it will only be exercised through certain media. All of these details are worked out at the time the initial book or recording contract is signed.

A transfer of copyright from an author or artist to a book publisher or a recording company is not formally the same as a “works-for-hire” agreement, since the author or the artist is not considered as being an “employee” of the book publisher or record company. However, when working out the details of the contract, the author needs to make sure that the contract they will be signing does not have wording in there which states or even implies that their creation will be treated as a “work-for-hire” by the publisher or record label. The author should probably have an experienced intellectual property attorney look over the contract before they sign it, lest he or she be taken to the cleaners.

If the author of the work has granted the copyright to another party, the author does have the right to terminate the grant and reclaim their copyright at any time during a period of five years beginning at the end of 35 years from the date of execution of the original grant. Upon termination, all rights revert back to the author, but derivative works prepared while the grant was in effect may continue to be utilized. After reclamation, the author could republish their work, print and issue copies, create derivative works, or do whatever they please with it. However, if the author had inadvertently agreed that the party receiving the copyright could treat the work as being a “work-for-hire”, the author could never be able to reclaim their copyright.

Copyright Collaborations

Very often, two or more people collaborate in the creation of a work. In such cases, who owns the copyright on the work? The authors of a joint work[6] are considered as being the co-owners of the copyright, unless there is an agreement to the contrary. All of the authors of the work must intend that their contributions be combined into a single work, although is not necessary that the contributions of all the authors be equal in value or effort. One of the authors can use the entire work as they please without getting the permission of the other authors.

An example of a joint work might be a popular song written by collaboration between a composer who writes the music and a lyricist who composes the words. One of the best known of these songwriting teams was Richard Rodgers and Lorenz Hart, who worked together on over 30 musicals between 1919 and 1943. In such a case, the composer and the lyricist would be the joint owners of the copyright on the song that they wrote and would share in the profits. However, if a lyricist simply writes words for a previously existing piece of music, this would not be a joint work, since the lyricist would be creating a “derivative work”, for which the permission of the writer of the original music would be required.

Not Subject to Copyright

Despite the rather draconian tone of what appears above, not everything can be copyrighted. Things that are not subject to copyright are said to be in the public domain[7]. No one can claim exclusive ownership of things in the public domain, and anyone can do whatever they please with public domain works without obtaining anyone’s permission or paying any fees. You are completely free to make copies of things in the public domain, you can publish them, you can perform them, you can display them, or create derivative works based on them.

The copyright law specifically says that for a work to be eligible for copyright protection, it must be original. The work cannot be a mere mechanical reproduction of a previous work. For example, you can’t simply copy the text of Shakespeare’s Othello onto a CD and claim that you own a new copyright on it. You can’t scan and digitize the famous Matthew Brady photograph of Abraham Lincoln and claim that you now own a copyright on the digital version. Even if you change the typeface, correct the spelling errors, or reformat the line spacing in a nineteenth-century Dickens novel, you still have not met the standard of minimal originality required for copyright to apply. Blank forms such as time cards, graph paper, bank checks, checklists, and address books cannot be copyrighted, because they do not contain even a minimum amount of originality. You cannot copyright information that is common property and which contains no original authorship, such as a calendar, a ruler, a height and weight chart, or a list of scientific unit conversions. However, the amount of originality required is quite small, and just about any work that is created by an author or artist will usually qualify for copyright protection. Quite a bit or even most of the author’s work could actually be copied or even lifted bodily from previous works, but so long as at least some part of it is original, the work usually qualifies for copyright protection.

Other examples of things that are not subject to copyright are works that have not yet been fixed in a tangible form of expression, such as speeches, songs, jokes, novels, or performances that have not yet been written down or recorded. Simply singing your new song in public is not enough to obtain a copyright on it—you have to record it on some sort of medium such as audio tape or CD or write it down in musical notation on a piece of paper. However, you have to be careful about works that have been fixed in tangible form but have not yet been published—they can still be protected by copyright and there are special restrictions on their use by others.

Titles, names, short phrases and slogans, familiar symbols or designs, lettering, typefaces, or coloring schemes are not copyrightable. You cannot copyright your name, and then start suing anyone who uses it without your permission. Short phrases such as “Make My Day”, “Do You Feel Lucky”, “Beam Me Up”, “Round Up the Usual Suspects”, or “Show Me the Money” were made popular by the movies and television, but they cannot be copyrighted since they are common idioms used in the English language. This is a source of major confusion to many people, since, although these things cannot be copyrighted, they can be trademarked. A trademark is a mechanism used by the owner to identify the source of their goods and services in the marketplace, and is used to distinguish them from those of others. Trademark law is rather different from copyright law, and will be described in more detail later.

In general, copyright cannot protect single words or short phrases, even if those words or short phrases are nonsense words. But there are a few cases[8] that indicate that nonsense words or phrases might be copyrightable under certain circumstances. Examples might be things like Lewis Carroll’s Jabberwocky phrases, which might be considered to have a sufficient level of originality that they could be protected by copyright. Judge Learned Hand has argued that such a string of nonsense words might under the right set of circumstances be sufficiently original that they could conceivably be protected by copyright. One might argue that if you created a new word that you could prove that no one had ever used before, it might be copyrightable and you could prevent others from using that word without your permission. This logic has been used to protect the source code for computer programs—these consist of a string of seeming nonsense words such as if, case, switch, else, char, int, main, while, return, and the like, interposed with strange names and numbers which mean something only to a computer compiler.

You cannot copyright a strictly useful or utilitarian article such as an automobile, airplane, boat, appliance, tool, dish, lamp, or a piece of household furniture. Also you cannot copyright articles of clothing such a dress or a suit, which means that fashion designs cannot be copyrighted. However, you can copyright any of the visual, artistic, or graphic aspects of a useful article that can be identified either physically or conceptually as being separate from its utilitarian aspects. This means that although you can’t copyright a lamp, you could copyright your particular artistic design for the base of the lamp, since the base of the lamp can be identified as being separate from the primary functionality of the lamp. Consequently, a useful article could have both copyrightable and uncopyrightable aspects. However, the courts and the Copyright Office have generally applied the separability test in such a way that most industrial designs are excluded from copyright protection. Separation between the utilitarian aspect and the artistic aspect is especially difficult to achieve for fashion designs, which effectively means that fashion designs cannot be protected by copyright. Although fashion designs cannot be protected by copyright in the USA, they can be protected by copyright in Europe, so you need to be careful.

Mere facts cannot be copyrighted, and anyone is free to quote them without having to obtain anyone’s permission. The statement “John F. Kennedy was the 35th President of the United States” is a fact—it can’t be copyrighted. Facts about scientific, historical, biographical, or newsworthy events cannot be protected by copyright, even if the author spent considerable time and effort discovering things that were previously unknown. The particular words, sounds, or images that an author uses to express these facts can be copyrighted, but not the facts themselves. For example, suppose an author spends a lifetime of research in gathering information about the status and final disposition of military aircraft and publishes the information in a book or posts it on the Internet. Once the material is published, others are free to use the results in their own works without paying the original author anything, provided of course that they express the information in their own words and give proper credit to the original author.

Also, you cannot copyright ideas, procedures, methods, systems, processes, concepts, principles, or discoveries. If you discover a new law of physics, you cannot copyright the new law, but you can copyright your particular description or illustration of the law you discovered. If you invent a new algorithm for solving differential equations, you cannot copyright it. If you devise a new business procedure or a new accounting process, you cannot copyright that either. You cannot copyright a mere listing of ingredients in a recipe or a formula, but any commentary, notes, photos, or illustrations accompanying the list could be copyrightable. Ideas, methods, ingredients, procedures, and processes can, however, be patented. When you patent your idea, the patent gives you a monopoly on any commercial application of that idea, but the patent does not enable you to prevent others from discussing or criticizing the idea. A patent can be a much more valuable protector of intellectual property than a copyright, especially if the idea has any sort of commercial application. Patent law works somewhat differently from copyright law, and will be described later.

Publications, photographs, or works of art created by officers or employees of the federal government as part of their official duties are not subject to copyright. Examples are the texts of Supreme Court decisions, reports put out by Congressional committees, transcripts of Senate hearings, speeches by the President and other government officials, Defense Department reports, federally sponsored photographs, poetry, dramatic plays, music, and paintings such as those produced under New Deal governmental sponsorship during the Depression, photographs and films taken by military personnel during combat, as well as NASA photographs of distant planets. The creation of all of these works was financed by the taxpayers, and these works are considered as being the property of the public at large, and anyone can do what they like with them without asking anyone’s permission or paying any royalties. Even though federally created or sponsored publications or photographs are not subject to copyright, copyright may nevertheless apply to some state or local government publications.

But the federal government is not precluded from receiving and holding copyrights transferred to it by assignment or bequest. Examples are works created by outside private corporations or individuals under contract to the government, such as military recruitment advertisements or public service announcements about the hazards of illegal drugs or the dangers of drunk driving. The government owns the copyright on these, and you have to be careful about using them in your own work.

You also have to be careful about some artistic works that are commissioned by the federal government, such as music or poetry written for certain public occasions such as Presidential inaugurations or other ceremonies. These may not necessarily be free from copyright restrictions--in some cases, the artists who created these federal government works are able to reserve the intellectual property rights for themselves. The details of who owns what are worked out during the initial negotiations at the time the initial contract for the work is signed—if the government so desires, it can insist that the work be dedicated to the public domain, but otherwise the creator can reserve the copyright on the work that they create for themselves[9].

There are some ambiguous copyright situations involving works created by quasi-governmental institutions that one might at first might think are federal agencies, but which really aren’t[10]. Examples of such institutions are the Smithsonian Institution, the National Gallery of Art, the Public Broadcasting Corporation, even the US Postal Service. Congress created these institutions as private and independent nonprofit corporations, they are not formally agencies of the federal government, and they can and do claim copyright on their works. Photographs, books, or brochures put out by the Smithsonian Institution, the television and radio programs created by PBS or NPR for the PBC, publications put out by the National Gallery of Art, even the design of the stamps used by the US Postal Service, are all subject to copyright. Although you are generally allowed freely to use these copyrighted works for noncommercial, educational, or nonprofit purposes without obtaining permission or paying any fees, you generally cannot use them for any commercial, profit-making purposes, at least not without getting permission to do so. Also you have to be careful that when you do use these works in your project, you don’t somehow imply either directly or indirectly that the institution from which you borrowed the item is somehow the sponsor or the creator of your project.

Works created by officials of the American federal government are not subject to copyright, but this not necessarily true for foreign governments. A work created or sponsored by a foreign government might very well be subject to copyright under the laws of that particular country, and if that country were a signatory to the Berne Convention you would be guilty of infringement if you copied or performed the work here in America without permission. An example is the United Kingdom, where the speeches by the Prime Minister, the works printed by Parliament, and the publications issued by Her Majesty’s Stationery Office are subject to what is known as Crown Copyright.[11] You generally cannot use these works without obtaining permission, although there are some complex exceptions in which Crown Copyright does not apply to government-issued works. If you want to use something published by Her Majesty’s government, you need to be very careful.

Copyright can be used to protect the particular expression of an idea, not the idea itself. This is known in copyright law and practice as the idea/expression dichotomy. American copyright law provides protection only for specific expressions of ideas, not the ideas themselves—anyone is allowed to freely use, criticize, or refer to the ideas behind the expression. For example, I can copyright my own book on communication with extra-terrestrial intelligence, but I can’t copyright the general topic of communication with extraterrestrial intelligence and cannot prevent someone else from also writing about the same topic, provided of course that the other author uses his/her own words. This distinction is vital for the maintenance of a free press as well as making it possible for a free and complete discussion of intellectual, political, and religious ideas—it dates all the way back to the Framers, who recognized that granting a complete control over ideas by a government-mandated monopoly would be a powerful medium of censorship and press control. The arena of public discussion and debate would be very silent indeed if authors or large private corporations could claim ownership of ideas and if permission from them was required before others could legally discuss, criticize, or refer to these ideas. However, the distinction between an idea and a specific expression of that idea can be a subtle one, and often can be decided only in court. Is a particular musical chord progression an idea or an expression? Is the notion of a starship engaged in seeking out new life and new civilizations, boldly going where noone has gone before, an idea or an expression?

Databases[12] are a complicated matter in copyright law--they may be subject to copyright protection, but the data in them is not necessarily protected, especially if the individual items in the database are things that are themselves not eligible for copyright such as facts, names, dates, numbers, or short phrases. The copyright law explicitly states that copyright covers only the compilation itself, and not the underlying materials or data that are in the compilation--the underlying data is not automatically granted copyright protection via its inclusion in the database. In order to be eligible for copyright protection, the database must be a collection of preexisting materials or a collection of data that are selected and organized in such a way that the work as a whole can be considered as being an original work of authorship.

An example of a database that could be protected as a compilation would be a listing of Presidential quotations. The individual quotations are not subject to copyright since they are the public utterances of a Federal official, but the choice by the author of which quotations to include would be considered as an original work of authorship and hence eligible for copyright protection. You would not require permission to use just one presidential quote from the database—you certainly wouldn’t need anyone’s permission to use FDR’s famous quote “The only thing we have to fear is fear itself”--but you would probably have to get the database creator’s permission if you wanted to use the whole list of quotes from it in your own work. So a database of unprotected items is protected only as a compilation.

A cookbook that lists a series of recipes would be copyrightable only as a compilation. The individual recipes would not be subject to copyright since they are merely lists of ingredients, but since there is some degree of originality in the choice of which recipes to include in the cookbook, the entire cookbook would be copyrightable as a compilation.

However, not all compilations of data can be copyrighted--in order to be eligible for copyright protection, the making of a compilation must have involved a certain minimal amount of creativity, certainly more than a mere alphabetic sorting of previously-existing information. The Supreme Court held in Feist Publications, Inc vs. Rural Telephone Service Company, Inc (1991) [13]that the white pages of the telephone book do not contain enough creativity to be eligible for copyright protection. Feist Publications had a business in which they issued regional telephone directories that combined listings from several local telephone companies. Most of these local telephone companies readily agreed to license their data to Feist, but the Rural Telephone Service Company did not. Feist went ahead and copied Rural’s telephone numbers into its regional directory without obtaining permission. Rural then sued Feist for copyright infringement. The case went all the way to the Supreme Court. The Court ruled that Feist was not guilty of copyright infringement because alphabetical listings and other such unoriginal assemblies of data cannot be copyrighted. The fact that the Rural Telephone Service Company had spent considerable time, energy, and money (sometimes called “sweat of the brow”) in constructing the data in the telephone book was found to be irrelevant, since the book that was produced was nothing more than an alphabetic listing of subscribers that the company was already required to compile under existing law and that no creative expression was involved.

So the Supreme Court added a new requirement for copyright—the work must exhibit a certain minimal amount of creativity in order for it to be copyrightable. This means that you could not copyright a table of trigonometric data such as a listing of sines and cosines of angles, since the composition of such a table is strictly a mechanical act involving no creativity. This creativity requirement is sort of vague—the courts have not tried to specify the exact amount of creativity that is required in order for a work to be copyrightable, but there has to be at least some minimal amount of creativity present. Nevertheless, the actual amount of creativity required for copyright to apply is quite small. It does not matter if the author’s creation is of poor quality or is totally lacking in ingenuity or is completely devoid of any artistic merit—so long as there is at least some minimal amount of creativity involved, the work is protected by copyright.

Copyright Expiration and the Public Domain

Another major category of public domain works are those works that were once under copyright but are so no longer. The Constitution requires that copyright terms must last only for limited times. The amount of time that copyrights endure can be a very complicated matter, and some copyrights can last for a very, very long time. But one thing is certain—all copyrights will eventually expire.

When a copyright finally expires, the rightsholder’s exclusive monopoly comes to an end, and the work is now free for anyone to use in any matter they please without obtaining anyone’s permission or paying any fees or royalties. Works whose copyright have expired are said to have entered the public domain—they are considered to be owned by the public at large, not by any individual artist or author or by any corporation or organization. You can do anything you want with a work whose copyright has expired—you can publish it, digitize it, translate it, perform it in public, put it on public display, post it on the Internet, copy it, create a sequel, write a screenplay based on it, make it into a movie, or use it to create any sort of derivative work—anything at all.

You are free to perform Shakespeare’s Hamlet anytime and anywhere you want, you can do what you like with Mark Twain’s Huckleberry Finn, and you are free to have your orchestra perform Brahms’s First Symphony, since the copyrights on all of these works expired a long time ago. You are free to create derivative works based on the Grimm Brothers fairy tales without getting anyone’s permission, since the copyrights on these works have also expired. However, music can be a bit tricky--even though the music of Brahms’s First Symphony is free of copyright restrictions, a particular audio recording of the music might very well be protected by copyright and may not be copied and distributed without permission.

The rules governing the duration of copyrights can be quite complicated. Under current copyright law, for any work created after 1978 the duration of its copyright is the life of the author plus 70 years. Works for hire last even longer--they enjoy protection for 95 years from date of publication or 120 years from date of creation, whichever is shorter. Works that had been published or registered for copyright prior to January 1, 1978 that were still under copyright on that date have terms of 95 years following the date that the copyright was initially secured. So it is going to be a long, long time before most modern works will enter the public domain. But all of them eventually will.

Generally, anything published before 1923 can be considered as now being in the public domain, and numerous works published after 1923 are also in the public domain because their copyrights have now expired. But thousands of other works published after 1923 are still under copyright, and you would need permission to use them. Unpublished works created even before 1923 are not necessarily in the public domain—these works are protected for at least the life of the author plus 70 years. If they were created before 1978 but first published before 2002, the works have protection until 2047.

Also in the public domain are works published before 1964 but for which the copyright was not renewed in a timely fashion[14] under the rules in existence at the time. This renewal must have been made during the 28^th year after the work was first published or registered, which means that a book published in 1938 would have to have had its copyright renewed in 1966. If this didn’t happen, the book automatically fell into the public domain and anyone could do anything they pleased with it. It turns out that most copyrights were not renewed--fewer than 11 percent of the copyrights initially registered between 1883 and 1964 were actually renewed at the end of their 28-year terms, even though the cost of renewal was fairly small. This lack of renewal is due to the fact that most of the income from the vast majority of copyrighted works is derived strictly from the first couple of years that they are on the market, and declines fairly rapidly after that. This meant that most works were essentially worthless by the time that the end of their initial 28-year term was reached. Since these works were no longer worth very much anyway, the copyright owners (even if they still existed) very often simply didn’t bother to renew their copyrights. This means that a lot of these older works are actually now in the public domain.

It can sometimes be difficult to determine if the copyright of a work published after 1923 had its copyright properly renewed during the 28^th year of its original term. If a work had gotten republished, the copyright notice page will sometimes state explicitly that the copyright was renewed. But more often than not, there will be absolutely no indication on the work of whether its copyright was renewed. But absence of evidence is not evidence of absence—the copyright might have actually been renewed even if there is nothing in writing anywhere on the work. You will probably actually have to search the US Copyright Office records to see if the copyright of a given work was renewed. This is pretty easy to do for works published between 1950 and 1963, since there is a searchable online database maintained by the US Copyright Office. However, for works published earlier, you must search the records manually. Only if you can be absolutely sure that the copyright was not renewed can you feel safe to use the work without obtaining permission.

The determination of whether or not a given copyright has expired is not a simple and easy task, and usually requires a careful search of the records by experienced (and expensive) intellectual property experts. Cornell University provides a flow chart to assist one in determining whether a work is still under copyright or if it has entered the public domain.

Generally, works written by authors long dead are no longer subject to copyright, but even there you have to be careful. The works of Homer are certainly in the public domain since he has been dead for 2700 years, but copyrights may nevertheless exist on new translations or new formulation of his works. Even the Bible may be under copyright in certain situations. The Revised Standard Version of the Bible[15] was a new English translation of the Bible created by a group of scholars in the 1950s from the original Greek of the New Testament and the original Hebrew of the Old Testament, designed to be a more readable and literally accurate version of the King James Version. Although the original Greek and Hebrew works are certainly in the public domain, as is the King James Version as well, the RSV is under copyright, the copyright being owned by the National Council of Churches of Christ in the USA. Music is a special problem—the music for Beethoven’s Fifth Symphony is certainly in the public domain, but an individual sound recording of this symphony may not be, and could well be protected by copyright.

Happy Birthday to You[16] is perhaps the best-known song in the English language—you might think that this song is almost certainly in the public domain, since it is sung at millions of birthday parties and was even sung to President Kennedy by Marilyn Monroe and has been incorporated into millions of music boxes, greeting cards, and other musical products. But you would be wrong--the song is not in the public domain. Somebody still owns Happy Birthday to You and the work will remain under protection until 2030 at least. Although you are probably still safe if you sing the song at home for your family, in order to sing the song in public, to create a musical product using the song or to incorporate the song into your movie, TV show, or commercial, you need the permission of AOL Time Warner to do so, or a battery of lawyers will soon be at your door. The licensing fees and royalties paid on the use of the song bring in about 2 million dollars per year.

The Frank Capra movie It’s a Wonderful Life (1946)[17] [18] accidentally ended up in the public domain in 1974 because somebody forgot to renew its copyright during the 28th year after the film’s release. Inadvertently, the fact that the film was now in the public domain led to its increased popularity—many TV stations could now air the film free of having to pay royalties, and it soon became a perennial Christmas favorite. However, in 1993 Republic Pictures was able to use the Supreme Court ruling in Stewart vs Abend[19] to enforce its claim of copyright on the film. Although the film itself had entered the public domain, the short story upon which it was based had had its copyright properly renewed in 1971, and the movie was considered as being a derivative work and hence still protected by copyright. As a result, only NBC is now licensed to show the film on network television, the colorized versions have all been withdrawn, and Republic now has exclusive video rights. So the movie enjoyed a few years of life under the public domain, but is now back firmly under copyright.

Dedicated Works

Dedicated works[20] are those that are deliberately placed in the public domain by their creators, usually by people who want to make some sort of political or intellectual point. This sort of dedication is rare, and you need to make sure that the owner really has dedicated the work to the public domain before you are free to use it. Also, you need to make sure that the person making the dedication has the right to do so. Only the copyright owner has the right to make such a dedication, and sometimes the creator of the work is not the copyright owner—you need to contact the copyright owner to be sure. For example, I do not own the copyrights on the two books that I wrote—the publisher does—and I would not have the power to dedicate my books to the public domain, even if I wanted to.

Assuming that an author actually wants to dedicate their work to the public domain and wishes to abandon all their rights under copyright to their creative work, how do they actually go about doing this[21]? Actually, the copyright law provides no formal procedure for doing this, and some experts in copyright law think that it isn’t even legally possible to abandon one’s copyright. In response to a query, the Copyright Office told me that although there is no formal procedure for the renunciation of copyright, there is no law requiring that a copyright owner actually enforce their rights, and they could ignore any and all infringements if they choose to do so.

Since copyright is automatic, if an author wants to voluntarily place their work into the public domain, they need to take affirmative steps to do so. But it is not entirely obvious how someone would actually go about doing this. One thing that an author might do is to inform the Copyright Office in writing that they intend to relinquish all rights under copyright to their work. However, the Copyright Office has no official form to do this, and since there is no recognized procedure in place for relinquishing copyright, it is not clear what the legal effect of submitting such a relinquishment letter would be, if any. Alternatively, if the author really wants to abandon their exclusive rights under copyright, the Public Domain Sherpa website recommends that the author should attach an unambiguous and unequivocal statement to their work acknowledging their intention to give up all rights under copyright to the work[22]. The statement must be carefully worded in order to avoid any possible misunderstanding. The statement must not say that the author is giving up just some of their rights under copyright law—it must say that they are giving up all of them. The statement should also say that the author is giving up any right to enforce their copyright by legal means such as the filing of a lawsuit. In addition, the statement should also say that the dedicator relinquishes all present and future rights in perpetuity, which would ensure that the author or his heirs and successors couldn’t change their minds and come back at a later time and reassert their copyright. If you don’t see all of these things stated clearly and unambiguously in the relinquishment statement, be very careful before you go ahead and use the work—contact the author to make certain that you know what their intention really is, or you could find yourself in court.

Could an author who voluntarily placed their work in the public domain change their mind at a later time and put the work back under copyright restrictions? Since copyright is automatic, and since the Copyright Office does not recognize any formal procedure for the renunciation of copyright, I supposed that one could reasonably argue that full copyright protection was always potentially available for the entire period of time that the author had voluntarily put their work into the public domain, and they could decide to enforce their copyright at any time they pleased. However, one might also argue that if the author had attached a clear and unambiguous statement of copyright relinquishment to their work, this might be considered as a contract, and that it would difficult to sue someone who copied, performed, or distributed the work under the reasonable assumption that they had the right to do so

Copyright Infringement and the Law

Any person, company, or organization that violates any of the exclusive rights granted to the copyright owner can be accused of what is known as copyright infringement. Copyright infringement falls mostly under civil law, but there are criminal penalties for some of the more flagrant examples of copyright infringement, such as selling pirated DVDs off the back of a truck. People who willfully and deliberately infringe copyrights for the purpose of monetary gain can be accused of a federal crime and can be sentenced to jail time if convicted. Upon conviction, the court has the discretion of ordering the forfeiture and destruction of all infringing copies as well as the destruction of all devices or equipment used in the creation of the infringing copies. The duration of the prison sentence and the amount of the fine are generally based on the total value of the goods involved in the infringement and the frequency at which the offense was committed.

Recently, the No Electronic Theft act was passed to make it possible for people who reproduce, distribute, or share copies of electronic copyrighted works having a total retail value of more than $1000 to be criminally prosecuted, even if they had no discernable profit motive. The law was designed to close a loophole in the previous law, under which people who intentionally distributed copyrighted software over the Internet did not face criminal penalties if they did not profit by their actions. Maximum penalties are 3 years in prison and a fine of $250,000.

However, criminal prosecutions for copyright infringement are quite rare, since the federal government simply lacks the resources to track down and prosecute every infringer—crimes such as terrorism, counterfeiting, drug dealing, political corruption, kidnapping, financial fraud, and child molestation have a much higher priority with the Department of Justice. Most copyright infringement actions are civil actions, in which the offended party sues the infringer in federal civil court. This means that it is the responsibility of the individual copyright owner to enforce their exclusive rights, not the government. The copyright owner must go through the hassle and expense of hiring a lawyer, filing a lawsuit, gathering evidence, and testifying in court.

Since copyright infringement is usually a civil matter, the constitutional protections provided for defendants in criminal prosecutions do not apply. In order to successfully sue you in court for copyright infringement, the plaintiff does not have to show that you are guilty beyond a reasonable doubt, they only have to show that a preponderance of the evidence shows that you have violated a copyright. The burden of proof is much lower in a civil matter than it is in a criminal case, which means that the plaintiff usually wins in court.

Copyright laws recognize two different types of copyright violations—direct copyright infringment and indirect copyright infringement.

Anyone who violates any of the exclusive rights of the copyright owner (e.g. reproduction, adaptation, distribution, public performance, or display) can be sued in civil court for what is known as direct copyright infringement. In order to prove direct copyright infringement in court, the plaintiff must show that they do indeed own the copyright in question, that the defendant had access to the work, and that the defendant violated one or more of the rightsholder’s exclusive rights. Copyright infringement is what is known as a strict liability, under which you can be held legally liable for acts of infringement even if there was no actual “fault” on your part. This means that it is no excuse in court to say that you didn’t know you were infringing a copyright, that you did it by accident, that you thought that what you were doing caused no one any harm, or even if you didn’t make any money by what you did. It is also no excuse to say that your infringing action was done for some greater good or that it benefited the public in some manner.

The civil penalties for direct copyright infringement can be very harsh. Courts can award up to $150,000 in damages for each separate act of willful infringement, that is, if you knew you were infringing but went ahead and did it anyway. However, even if you didn’t know you were infringing you are still liable for damages, only the amount of the award will be affected. However there is the “good faith fair use defense”, which is a special provision in the law that allows a court to refuse to award any damages if the court could be convinced that the person who copied the material reasonably believed that what they did fell under fair use.

A copyright owner is under no obligation to enforce their copyright by filing a lawsuit, and they could ignore any and all infringements should they choose to do so. There is a “statute of limitations” built into copyright law, under which a copyright owner has a maximum of three years to file an infringement lawsuit in federal court from the date that they first learn about the infringement or should have reasonably learned about it. Courts often look askance at copyright owners who wait too long to file a lawsuit.

People or organizations that are not themselves directly copying or distributing a copyrighted work but are somehow assisting, promoting, or abetting the infringement process can still be dragged into court under what is known as indirect or secondary copyright infringement. The copyright law does not actually mention or recognize indirect infringement as a legal category, but it has evolved over the years through case law, and the concept of indirect or secondary liability is recognized in many areas of law, under which it is thought reasonable to hold an individual liable for the actions of another. The danger of secondary infringement liability is an important concern for many business and corporate entities, since there is no requirement that the company itself actually be engaged in the underlying infringement in order for them to be sued.

The courts recognize two separate and distinct categories of indirect copyright infringement: contributory and vicarious copyright infringement.

Contributory copyright infringement[23] can happen when a person or corporation is fully aware of an infringing activity (or should have known about it) and provides a material contribution, an active assistance, or inducement, to the infringing activity, even if they don’t engage in any direct infringing activity themselves. In order to a business or individual to be held liable for contributory infringement, the plaintiff must be able to convince the court that the accused person or organization had actual knowledge of the infringing activity and that they induced, caused, or materially contributed to the infringement. The person or organization need not necessarily have profited financially from the infringing activity in order to be held liable for contributory copyright infringement—all which is necessary to show in court is that the offending party aided and abetted the infringement and was aware of what was going on.

Examples of things involved in contributory copyright infringement are websites that permit the publication of passwords or access codes for unauthorized access to software, the creation of a website or service that can be used for the uploading or downloading of copyrighted material, or a website that publishes links or addresses to Internet sites that host infringing material. Companies that produce devices, software, processes, or equipment whose primary purpose is to make it possible for users to subvert copyright can also be held liable for contributory infringement.

Vicarious copyright infringement liability[24] can be found when a company, organization, corporation, or service that has the right and ability to control the activities of its users, customers, agents, contractors, or employees but nevertheless permits or ignores infringing activity on their part and also somehow derives a monetary profit from such activity. Even if the organization or individual is completely unaware of these infringing acts, they can still be found liable. Consequently, the prospect of vicarious copyright infringement liability is an ever-present nightmare for many companies and organizations, and extreme measures are often taken to prevent or reduce such legal exposure.

However, in order to successfully sue someone for vicarious copyright infringement, the plaintiff needs to be able to show that the offender had the right and ability to control, regulate, or block the alleged infringing activity. The plaintiff must also show that the defendant derived a direct financial benefit from the acts of infringement on the part of its users, customers, contractors, or employees. This financial benefit does not necessarily have to come from the actual sale or rental of copyrighted works, and can include just about any sort of financial income that can be somehow linked even tenuously to the infringing activity, such as the charging of a subscription fee, the collection of advertising revenue or even an exchange of goods and services that are associated in some way with the infringing activity. Even if the availability of infringing material simply acted as a draw for customers, the defendant can still be held liable for vicarious infringement. Even if the defendant charges no money at present but there is a hope or expectation to derive financial income in the future from the presence or support of infringement, there could be a judgment of vicarious infringement.

A chain of department stores where a concessionaire was selling counterfeit recordings was held liable for vicarious copyright infringement[25]. The operator of a swap meet at which pirated records and software were being sold by third party vendors was held liable for vicarious copyright infringement, even though the operator was unaware of what was going on but had the ability to control vendor sales. He derived a monetary benefit from the infringing activity since he charged money for attendance at the swap meet, and his swap meet had increased attendance due to the presence of the infringing vendors[26]. Even operators of entertainment venues such as dance halls have been held liable for infringing performances held by hired bands at their facilities.

Federal Copyright Laws

Since the Constitution gives Congress the power to provide for copyright, Congress has passed several federal laws over the years that define the meaning of copyright more precisely and provide means for copyright enforcement.

· President George Washington signed the first copyright law in 1790[27] [28]. It was based largely on the 1710 Statute of Anne in England. It applied copyright only to books, maps, and charts and set the copyright term to 14 years, renewable just once for another 14 years. The term “book” was interpreted rather broadly--it included virtually all printed media, including sheet music. The law was intended to protect authors of copyrighted works against others printing, reprinting, or publishing their works without their permission. A work did not necessarily have to be published in order for copyright to apply, but the law did require that the work be formally registered in order for it to receive copyright protection, and it required that copies of the work be placed on file with the local district court. The owner was then required to post a notice of this registration in a US newspaper for at least four weeks and was required within six months of publication to deposit another copy with the secretary of state. However, copyright protection was limited to American citizens, which made it legal for American printers to flood the market with cheap editions of leading British authors.

· In 1802, the law was amended to give copyright protection to the design, engraving, and etching of prints. The amendment also required that a copyright notice be placed on copies of protected works.

· The first major revision of copyright law took place in 1831. Copyright protection was extended to cover cuts and engravings. The new law also arranged for musical compositions (but not performances) to be covered under separate statutory copyright protection. The copyright term was extended to 28 years, with the possibility of a one-time renewal for another 14 years. The law also allowed an author’s widow or children to file for a copyright renewal.

· In 1856 the rights of public performance of dramatic works was added to those things protected by copyright—one could not make a public performance of a dramatic work such as a play without the consent of the copyright owner. The music that accompanied a stage dramatic production was also given a right of public performance, which meant that the music could not be played in public without the permission of the copyright owner.

· In 1865, photographs and negatives were given copyright protection.

· In the second major copyright law revision, which took place in 1870, copyright functions were centralized within the Library of Congress. Before that time, copyright claims had been recorded by Clerks of the US District Courts Now, in order to obtain a copyright, the applicant had to register the work with the US Copyright Office by filling out a form and paying a fee. In addition, a copy of the work had to be deposited with the US Copyright Office. Paintings, drawings, chromolithographs, statues, and other fine arts were also given copyright protection

· In response to complaints from English authors like Charles Dickens, who objected to the flood of cheap American knockoffs of his works for which he received no royalties, Congress passed the International Copyright Act of 1892, which extended copyright protection to foreign works. Foreign authors were provided with copyright protection in the American market, provided that the author’s country provided equal protection to the works of American authors.

· In 1895, the printing of government documents was centralized in the Government Printing Office. In addition, the copyrighting of any government publication was prohibited.

· In 1897, all music (not just the music that accompanied a dramatic production) was protected against unauthorized public performance. You could not sing or play a song in public for profit without the permission of the song’s copyright owner. However, non-profit music performances were specifically exempted from these restrictions.

· In 1897 the US Copyright Office was established as a separate department of the Library of Congress. The position of Register of Copyrights was created.

· The third major revision of copyright law was the Copyright Act of 1909[29], which increased the copyright renewal term to 28 years. The law broadened the subject matter of copyright to include “all the writings of an author”. It also added “copying” to the list of exclusive rights held by the copyright owner (along with printing, reprinting, publishing, and selling). The initial intention was that this new exclusive right to copy should refer strictly to one-of-a-kind works of art such as paintings, sculptures, and statues, but over the years it has expanded to include the copying of just about any kind of copyrighted art.

The new law established a compulsory (or statutory) license system for the mechanical recording of musical compositions. Before this time, piano roll vendors and recording companies were completely free to make and distribute mechanical recordings of copyrighted music without getting permission from anyone or paying any fees. This was changed by the 1909 law—a system was established under which songwriters and music publishers were paid a fee whenever their music was recorded onto a mechanical medium such as a piano roll or a sound recording. A government agency sets the amount of the royalty. A statutory licensing system enables someone to use a copyrighted work without having to go through the hassle and expense of obtaining the explicit permission of the copyright owner, provided that the specified royalties are paid.

The 1909 Act specifically exempted coin-operated music machines (such as the devices that were popular in the penny arcades of the day) from having to make payments for the public performance of copyrighted music, so long as the premises on which they were located did not charge an admissions fee. This later came to be known in copyright law as the “jukebox exemption”.[30]

The 1909 Copyright Act also introduced the concept of a corporate copyright. Before that time, only individual authors could claim copyright on a work, although individual authors could and did license their works to publishers. The 1909 act introduced the concept of “works-for-hire”, under which a corporation such as a newspaper could retain copyrights on news reports and articles that appeared in its pages, even if their employees had produced the actual work

The 1909 Copyright Act also provided that one could now obtain a copyright in two different ways—one being the familiar process of registering the work with the US Copyright Office, and a new process by which copyright was obtained by simply publishing the work with a prescribed copyright notice attached to it. In either case, distributing the work without the copyright notice attached to it automatically forfeited the copyright. Registration was in any event necessary for renewal of a copyright.

One of the features of the 1909 act was the preservation of state copyright protection (known as common-law copyright) for unpublished works. An author of an unpublished work could invoke state common-law copyright protection that prevented others from publishing or distributing the work without their permission. This common-law copyright protection persisted until the work was formally published--once the work was published federal copyright protection was automatically obtained so long as certain formalities were adhered to, such as registration or the attachment of the prescribed copyright notice to the work. Otherwise the copyright on the work was forfeited.

· In 1912, motion pictures were given copyright protection. Before that time, motion pictures had been previously registered as photographs.

· In 1914, the USA formally adhered to the Buenos Aires Copyright Convention of 1910, which established joint copyright protection between the United States and certain Latin American nations.

· In 1947, copyright law was codified into positive law as title 17 of the US Code.

· In 1953, public performances for profit and the recording of nondramatic literary works were added to author’s rights. These would include poetry, novels, and textbooks.

· In 1955, the USA became a member of the Universal Copyright Convention, which had been signed at Geneva in 1952.

· In 1971, the Sound Recording Act extended federal copyright protection to sound recordings. This first became effective on February 15, 1972, and extended limited copyright protection to sound recordings that were fixed and first published on or after this date. Before that time, the only copyright protection available for sound recordings was at the state level (usually involving antipiracy laws or unfair trade practice laws), and this varied from state to state. Recordings created after 1972 are now protected by federal copyright, but those created before 1972 are still protected by state laws. The record label generally owns the copyright on the sound recording, and no one can distribute the recording or make copies of it without the permission of the record label. However, public performance rights were not applied to sound recordings—when a sound recording is played in public, it is the songwriter that gets paid, not the performer or the record label.

· The fourth major change in the copyright law was the Copyright Act of 1976,[31] which was intended to incorporate the advent of new technologies into copyright law. It spelled out the rights of copyright holders, it formally defined what was meant by “publication”, it codified the idea/expression dichotomy and the doctrines of “fair use” and “first sale” (which had only been a part of common law before that time), and it changed the rules dictating the duration of copyrights. The law went into effect on January 1, 1978. It governs copyright in the United States today, along with several amendments that have been added in later years.

The law added a provision that copyright now applied to “original works of authorship”, which eliminated the necessity for Congress to rewrite the copyright laws each time a new medium was created. This means that just about any form of creative expression is eligible for copyright protection, no matter what the medium.

For works created after the law went into effect in 1978, the new copyright law removed the requirement for publication or the registration of the work with the Copyright Office in order for copyright to apply. After 1978, the only requirement for copyright to apply is simply that the work be fixed in some sort of medium where others can access it, whether published or unpublished. The concept of state “common-law” copyright was abolished from that date onward, and was replaced by federal copyright--“publication” no longer served as the dividing line between state and federal copyright protection. However, for works created prior to 1978, either formal registration or publication with a copyright notice attached was still required for copyright to apply.

Even though registration is optional, the 1976 Copyright Act required that the copyright owner deposit copies of their work with the Copyright Office within 3 months after publication. Failure to do so could result in a fine, but would not invalidate the copyright. There is no requirement to deposit copies of unpublished works.

The rules about copyright notices were also changed. The copyright notice was still required on works published even after 1978--the federal copyright protection that was initially acquired when the work was fixed could still be lost if the work were later published without a proper copyright notice attached. But there was some protection made available to careless or inadvertent errors on the part of publishers. Under the new law, if a publisher failed to use the notice, the problem could be corrected at a later time without the publisher losing its copyright on the work. However, a publisher was given only 5 years to cure any such errors; otherwise the copyright on the work was irretrievably lost.

The law also changed the rules used to determine the durations of copyrights. Under the rules in effect prior to 1978, copyrights lasted for a fixed period of time based on the date of initial publication or registration—the duration of a copyright was 28 years with the possibility of a one-time renewal for another 28 years. Under the terms of the new law, for works created on or after 1978, the copyright term was now based on the date of the creator’s death—works now had a copyright duration equal to the life of the author plus 50 years.

“Works for hire” now enjoyed protection for 75 years from date of publication or 100 years from date of creation, whichever is shorter

Those works created before 1978 that were still under copyright when the new law went into effect and which were in their renewal term had the renewal term retroactively extended from 28 years to 47 years, which gave them a total of 75 years of copyright life following the date the initial copyright had been secured. The owners of works still in their initial copyright term in 1978 could also apply for an extension term of 47 years, which gave them access to a total copyright term of 75 years as well. But they had to actually apply for this renewal—it was not automatic.

The new law also added a provision that allowed library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan purposes under certain circumstances.

The law established a compulsory licensing system for cable TV, requiring cable TV operators to pay royalties to television broadcasters when they carried their programming.

Under the new law, non-profit performances were now also required to pay public performance royalties. The law also eliminated the “jukebox exemption”—the operators of coin-operated music players were now required to pay a compulsory license fee to perform the music “publicly”.

· In 1980, copyright protection was provided for computer programs. The Computer Software Act defined what a computer program actually was and clarified the extent of protection afforded to computer software.

· Copyright law was amended in 1982 to provide that people who infringe copyrights willfully and for purpose of monetary gain are guilty of a federal crime.

· In 1984, Congress passed the Record Rental Amendment[32], which amended the 1976 Copyright Act to make it illegal to make phonograph records available for commercial leasing or rental without the permission of the copyright owner. However, nonprofit libraries and nonprofit educational institutions were still allowed to lend out phonograph records. This law was passed to address recording industry concerns about illicit copies of the rented phonograph records being made onto magnetic tape. Nevertheless, the rental of videocassettes is still allowed, since another bill that proposed to apply the same restrictions to video rentals was defeated.

· Also affecting copyright in the USA is the Berne Convention, which was an international agreement that was first adopted in Berne, Switzerland back in 1886. It formed a framework for the international protection of intellectual property. It requires the signatories to protect the copyrights on works of authors from other signatory countries. It has been revised and amended several times.

The United States initially did not sign on to the Berne Convention because some of its provisions conflicted with US copyright law as it existed at the time. The US did not become a party to the agreement until Congress formally adhered to the Berne Convention on March 1, 1989.

A major provision of the Berne Convention was the elimination of the requirement for the inclusion of a copyright notice on a published work in order for copyright to apply. The inclusion of a copyright notice for works published after March 1, 1989 is now entirely voluntary, and the failure to include a copyright notice on a published work no longer runs the risk of copyright forfeiture.

The Berne Convention also required that signatory nations pass laws requiring that all works except photos and movies shall be protected for at least 50 years after the author’s death, although individual signatories were allowed to set longer terms.

There are some misunderstandings about what is actually required under the Berne Convention. The Berne Convention prevents a signatory nation from imposing registration formalities on foreign works, but does not necessarily prevent that nation from imposing registration requirements on works created by its own citizens. American copyright law actually does impose formalities on domestic copyright holders--for example, American copyright holders are required to register their works in order to be able to sue for copyright infringement, but foreign rightsholders are not subject to this requirement.

· In 1990, Congress passed the Computer Software Rental Amendments Act[33], which amended the 1976 Copyright Act to prohibit the commercial lending leasing, or renting of computer software without the consent of the copyright owner. However, it did allow nonprofit libraries and nonprofit educational institutions to lend software, provided the copy that was lent had a copyright warning attached to it. Behind the amendment was a fear that people would illegally copy rented software programs.

This amendment modified the first sale doctrine. Heretofore, the first sale doctrine held that someone who had legally acquired a copyrighted work would do what they pleased with it. Under the new amendment, commercial concerns which rented or leased computer software were now illegal.

· The Architectural Works Copyright Protection Act of 1990 provided copyright protection for architectural works.

· The Visual Artists Rights Act of 1990 applies some “moral rights” to authors of visual works of art.

· The Copyright Renewal Act of 1992[34] amended the 1976 Copyright Act and reversed the long standing requirement that in order to secure a second term of copyright protection, the copyright owner had to formally renew the copyright with the Library of Congress. Although the Copyright Act of 1976 stipulated that the copyright duration for works created after January 1, 1978 should be the life of the author plus 50 years, works copyrighted in the USA before January 1, 1978 and still in their first term were still subject to a renewal system if the owner wanted a second term. In order to receive a second term of 47 years, the copyright owner had to go through the steps of formally renewing the copyright. This was all changed by the 1992 amendment, and the requirement for copyright renewal of works originally copyrighted between January 1, 1964 and December 31, 1977 was eliminated. The date of January 1, 1964 was chosen, because this was the earliest date on which a work could have been copyrighted and still be in its first term in the year 1992. A second term of 47 years was automatically secured for such works. Renewal registration for these works was made optional, but could still be done. However, a copyright that was originally secured before January 1, 1964 and which had not been renewed by the year 1992 was lost—the protection would have expired at the end of the 28^th calendar year of the copyright, and it could not be brought back to life.

· The increasing popularity of digital music led to the Audio Home Recording Act [35] of 1992, which amended the 1976 Copyright Act to require that manufacturers and importers of digital audio recording devices and media pay royalties to music copyright holders, to compensate them for music that is presumably being copied at home. The payments are made to the US Copyright Office, which then distributes the royalties accordingly. Digital audio recording devices must also have the Serial Copy Management System (SCMS) that prevents serial copying (making copies of copies). The law specifically permits consumers to use audio recording devices at home for noncommercial use without fear of being sued. The royalty requirements and the serial copying restrictions do not apply to computers, since their primary purpose is not to act as a digital audio recording device.

· The Uruguay Round Agreements Act[36] of 1994 implemented in US copyright law the agreements resolved at the Uruguay Round of conferences held earlier that decade under the auspices of the General Agreement on Tariffs and Trade (GATT). Representatives of GATT meet periodically to resolve tariff and trade disputes and to handle international disagreements about things like intellectual property.

The URAA prohibited the unauthorized making or distribution of recordings of live music concerts, even when there was no other fixation going on during the concert. This was designed to close a loophole in the copyright law, under which live music concerts that were not being recorded by the performers were unprotected by copyright law because they were not fixed in any tangible form. This caused problems when bootleg tapes or recordings of rock concerts began to appear, since there was no cause for action under the Copyright Act of 1976. The courts have upheld the congressional implementation of this treaty as an exercise of Congress’s power to regulate interstate commerce rather than under the copyright clause of the Constitution.

The Uruguay Round also contains specific provisions that required the USA to restore full recognition to all foreign works that were still under copyright in their home countries but had lost their copyrights in the USA because of noncompliance with certain formalities in American copyright law such as registration or the inclusion of copyright notices. All foreign works that had been exploited in the USA without authorization because of failure to comply with US formalities were restored to full copyright protection, effective January 1, 1996.

· The Digital Performance Right in Sound Recording Act[37] of 1995 made it possible for recording artists and record labels, in addition to songwriters, to collect “public performance” royalties for the digital transmission of their sound recordings, such as that which takes place over satellite radio services and subscription digital cable providers that deliver music. This was a major change, since conventional radio broadcasters need to pay public performance royalties only to the copyright owners of the songs that they play on the air, and not to the recording artists or the record labels. These new public performance royalty requirements were limited to digital audio transmissions and did not include analog audio transmissions such as AM or FM radio. The reasoning behind this change was that it possible to make a copy of the digital music transmission that was just as good as the original, which could then be burned or recorded onto a blank CD. This would compete in the marketplace with the original CD and thus eat into the profits of the recording industry.

The act also created a compulsory license mechanism for “noninteractive” digital audio transmissions (those which don’t allow the listener to choose the songs being played), which allowed digital broadcasters to transmit music without needing to seek explicit permission from recording artists or record companies, provided that the license fees are paid. Music copyright owners still retain their preexisting public performance rights, payable through blanket licenses managed by performance rights organizations, but sound recording copyright owners now gain a public performance right for any sound recording performed by means of digital audio transmission.

· The No Electronic Theft (NET)[38] [39] [40] Act of 1997 amended the US Code to permit felony or misdemeanor criminal prosecution of large-scale illegal reproduction of copyrighted works even where the infringers had no discernable profit motive. The law specifically included unauthorized electronic reproduction and distribution of copyrighted material as being subject to criminal penalties. The law was designed to close a loophole in which someone who intentionally distributed copyrighted software over the Internet did not face criminal penalties if they did not profit from their actions, although they could still be sued in civil court. Excluded were reproductions that were not done willfully or that were small-scale non-commercial copying (copyrighted works with a total retail value of less than $1000. Electronic copyright infringement carries a maximum penalty of 5 years in prison and a $250,000 fine.

· The Fairness in Music Licensing Act[41] of 1998 exempts small business establishments from paying public performance royalties.

· In 1998, the Sonny Bono Copyright Term Extension Act[42] [43] added 20 years to the lifetime of all copyrights. The copyright duration was now the life of the author plus 70 years. Works for hire now enjoyed protection for 95 years from date of publication or 120 years from date of creation, whichever is shorter

· In 1998, the Satellite Home Viewer Act[44] established a compulsory license system for satellite dishes, similar to that earlier established for cable TV.

· In 1998, the Digital Millennium Copyright Act [45] [46] (DMCA) was passed. This law made it illegal to circumvent a digital lock that a copyright holder used to protect their work against infringement. The law also had a safe harbor provision in which Internet Service Providers (ISPs) are not themselves liable for copyright infringement on websites created by their subscribers, provided that the ISPs quickly remove or disable the offending websites immediately after receiving a notice from the copyright owner.

· The Technology, Education, and Copyright Harmonization (TEACH)[47] act of 2002 was designed to clarify the role of copyright in online or distance education. It expands the scope of educators’ rights granted in face-to-face classroom teaching into the realm of distance education.

· In 2005, the Family Entertainment and Copyright Act [48] [49] [50] was passed. It makes the use of a camcorder to record a movie in a theatre a federal crime. It also makes it a criminal act to distribute a copyrighted work before it is released to the commercial market, such as the posting of new movies and songs on the Internet before they are released.

The law also makes legal those video players that can be programmed to filter out objectionable scenes in DVD movies, and makes such players immune from copyright or trademark infringement lawsuits. However, the law does not permit someone to create a new hardcopy of a sanitized movie or insert new video or audio material to replace the offensive content. The law also removes an inadvertent limitation on access by libraries and archives to works that are in the last 20 years of their copyright terms and that are not being commercially exploited.

· The Enforcement of Intellectual Property Rights Act[51][52](formerly known as the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act) passed Congress in 2008 and was signed into law by the President in October of that year. The law increases both the civil and the criminal penalties for copyright and trademark infringement. Punishments include not only the seizing of pirated copies but also seizure of the records documenting the manufacture, sale or receipt of pirated items, as well as any device upon which the copies are stored--previously, only the infringing items and things used to make the infringing items could be impounded.

Any computer or piece of network hardware used to facilitate a copyright infringement could be seized by the Justice Department and auctioned off —the owner does not even need to be found guilty of a crime for his property to be seized. The law also says that copyright registration is not required in order for there to be criminal enforcement of a copyright.

The Bush administration, as well as the Department of Justice, had initially opposed the PRO-IP legislation because of the presence of a provision that would have allowed the Department of Justice to conduct civil lawsuits on behalf of private copyright holders and pass along the winnings to the rightsholders. This provision was eventually removed from the bill, and the President signed the bill into law.

The law also creates a new executive branch office, the Office of the White House Intellectual Property Enforcement Coordinator[53][54], this office being modeled on the office of the US Trade Representative. The function of the office will be to coordinate US domestic and international action to stop IP piracy by overseas operators, typically from China.

The bill that was originally proposed called for the creation of a whole new IP enforcement bureaucracy underneath what would have been an “IP Czar” appointed by the President and confirmed by the Senate. The Justice Department had argued that the congressional-mandated creation of such an office might actually be unconstitutional, since it would amount to a congressional usurpation of a presidential prerogative. This provision was eventually removed, and the bill as finally signed by the President simply moves the already existing International Intellectual Property Enforcement Coordinator from the Department of Commerce (US Patent and Trademark Office) to the White House.

International Copyright

Copyright restrictions also apply to works created or published in a foreign country. This protection is a result of international treaty obligations, under which signatory nations have agreed to give citizens of other member countries the same level of copyright protection that they give to their own citizens. For many years, American copyright law had a significant loophole that allowed domestic publishers to freely pirate the works of popular English authors such as Charles Dickens, by putting out cheap editions for which the famous author derived no income. By international agreement, this practice is no longer allowed, and Americans are obligated to respect English copyrights, so long as English publishers respect American copyrights. For example, a British author such as J. K. Rowling is given the same degree of copyright protection in the US market as an American author such as Saul Bellow.

The first such international agreement was the Berne Convention for the Protection of Literary and Artistic Works[55]. The Berne Convention was first formulated at the suggestion of the novelist Victor Hugo and was first accepted at Berne, Switzerland in 1886. Since then, it has been revised several times. Each nation that signs the Berne Convention agreement must guarantee to authors of other member countries the same rights of copyright protection that it grants to its own nationals. It also requires that signatory nations must enact copyright laws that adhere to certain uniform standards, particularly in matters concerning copyright durations, the kinds of works that are protected, the moral rights of authors, along with the abandonment of requirements for registrations, deposits, and the attachment of copyright notices.

For many years the United States had refused to ratify the Berne Convention, since adherence to the Convention would require major changes in US copyright law. Congress would have to agree to lengthen copyright terms, it would have to abolish requirements for registration and the attachment of a copyright notice, and it would have to provide authors with “moral rights”. Also reluctant to sign on were some developing countries that felt that that the Berne Convention unfairly favored the interests of copyright-exporting nations.

Nevertheless, most of these nations, including the USA, still wanted to get involved in some sort of multilateral copyright protection, and a different sort of international agreement, known as the Universal Copyright Convention[56], was developed by the United Nations at Geneva in 1952 as an alternative to the Berne Convention. The UCC was much less stringent in the requirements that it dictated about the copyright laws its member nations must pass. The USA ratified the Universal Copyright Convention in 1972.

However, over the years the USA did gradually change its copyright laws to bring them more into conformity with the requirements dictated in the Berne Convention, and the USA finally agreed to ratify the Berne Convention in 1989. Most nations are members of both Conventions, which means that the UCC is largely irrelevant today. As of 2008, 164 nations had ratified the Berne Convention. The Berne Convention is administered by the World Intellectual Property Organization (WIPO)[57], which is an agency of the United Nations.

The General Agreement on Tariffs and Trade[58] (GATT) was established shortly after World War II to set up rules governing international trade among its members and to try and reduce tariffs, as well as to resolve trade and tariff disputes. GATT never had any formal organizational structure, but its members regularly met in a series of trade negotiations (known as negotiating rounds) to try and straighten out trade disputes. A series of critical issues, including complaints from some member nations that their intellectual property was being widely pirated in many developing nations, led to the establishment of the Uruguay Round, which was held between 1986 and 1994. One of the agreements worked out during the Uruguay Round was incorporated into US law in 1994, which added civil and criminal penalties for people who are caught “bootlegging” sound recordings of live musical performances, and restored the copyrights of those works by foreign authors still under copyright in their home countries but which had lost their copyright in the USA because of failure to conform to certain formalities under American copyright law.

The Uruguay Round culminated in a 1994 treaty that established the World Trade Organization (WTO)[59] as a replacement for GATT. The WTO differs from GATT in having a definite organizational structure, and is based in Geneva, Switzerland. The WTO currently has 146 members, accounting for about 97 percent of all world trade, and has as its goals the fostering of liberalized trade relations among its members. The WTO acts as an overseer of a variety of treaties concerning international trade, and attempts to resolve trade disputes between nations. It is currently hosting new trade negotiations, under the Doha Development Agenda, started in 2001. The WTO is extremely controversial and has been the subject of numerous demonstrations, some of them violent. The WTO is accused of being the tool of the rich and powerful, that it is in the pocket of powerful multinational corporate interests. The WTO is blamed for the destruction of jobs in high-wage nations by facilitating the outsourcing of jobs to low-cost nations, and is accused of facilitating the exploitation of low-wage workers in third world nations. The WTO is also charged with ignoring the concerns of health and the environment.

The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was negotiated during the Uruguay round, and brought intellectual property questions into international trade issues for the first time. One of the goals of the WTO is to bring intellectual property under common international rules, as well as to establish minimum levels of protection that each government must give to the intellectual property of fellow WTO members. The TRIPS agreement calls for the WTO to attempt to resolve questions about the application of intellectual property rules in international trade disputes. US representatives to WTO periodically complain about the violation of American intellectual property rights by other nations, particularly China, where bootleg CDs, software, and DVDs are readily bought and sold in the open market.

WTO intellectual property rulings can sometimes be quite controversial. Many observers have been critical of the organization as too heavily tilted towards the interests of large publishing, software, broadcasting, and recording companies, at the expense of ordinary users, viewers, and listeners. On occasions the WTO has found a permitted use under national copyright law to be a violation of international trade treaty commitments—an example being a ruling that a US law which exempted small restaurants from having to pay public performance royalties was a violation of international treaties.

There is yet another international organization dedicated to intellectual property issues, the World Intellectual Property Organization [60](WIPO). WIPO was founded in 1967, and was originally developed out of a Berne Convention-created organization known as the United International Bureau for the Protection of Intellectual Property (best known by its French acronym BIRPI). WIPO formally became a part of the United Nations in 1974. It currently has 184 member states and is headquartered in Geneva, Switzerland. WIPO is dedicated to the establishment of a viable international system to handle copyright, trademark, and patent matters and to the promotion of the protection of intellectual property throughout the world via cooperation among nations and through collaborations with other intellectual organizations. It administers numerous international treaties dealing with various aspects of intellectual property protection, including the Berne Convention

There is some amount of overlap between WIPO and the WTO on intellectual property matters, and in 1996 the two agencies agreed to collaborate and cooperate with each other. Like the WTO, WIPO has been accused of unfairly favoring the interests of large entertainment and publishing conglomerates.

Another international treaty is the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcast Organizations, first signed in 1961. It is administered by WIPO. Signatories agree to protect music performers or broadcasters of music against certain acts that they have not consented to. Music performers are protected against unauthorized recordings of their live performances. In addition, recording companies are given a public performance right—their permission is required whenever their recordings are played in public, either live or over radio or television. Broadcasters are given a right of rebroadcast, fixation, reproduction, or public performance of their broadcast if it is made in a public place where there is an entrance fee charged. Most nations have signed the Rome Convention. However, the United States has not yet signed this treaty, which means that record labels or performers in the USA do not have a public performance right when their recorded music is played—only songwriters and music publishers have such a right. This is a major point of contention and trade friction between the USA and Europe.

Intellectual Property

Copyright is a subcategory of what is known as intellectual property. Other subcategories are patents, trademarks, and trade secrets. These work somewhat differently than copyrights, and people often confuse the four types of intellectual property with each other.

· Ideas and discoveries cannot be protected by copyrights, but they can be protected by patents[61] [62] [63]. A patent gives you a monopoly on the commercial exploitation of your invention, which means that only you can put the invention on the market. Once you have a valid patent, you can prevent a competitor from marketing or selling your patented product without your permission. Even if someone else independently and legitimately comes up with the same idea that was described in your patent, your patent still takes precedence and the new inventor is prohibited from marketing the product without your permission. A patent owner can exclude others from marketing the invention or idea, even if the owner chooses not to exploit the idea themselves, so you are not required to bring your product to market after you patent it.

The granting of patents encourages the advancement of the sciences and the useful arts in two ways. First, it provides the inventor with a means by which they can profit financially from their ideas, supposedly encouraging them to produce still more inventions. Second, since the patent applicant is required to submit a detailed description of their invention and how it works, the patent process helps to disseminate technological and scientific information to other inventors and to the general public at large. The patent process also encourages and motivates large corporations to produce new products—this sort of intellectual property is often a significant part of a company’s assets.

Patents are intended to apply to objects, processes, or ideas that have practical, real-world applications, and can cover just about anything that has a potential for being sold as a useful product in the marketplace Patents can be taken out on new products, new processes or new machines. Patents can be taken out on chemical compositions, mixtures of ingredients, or chemical compounds. Patents can also be taken out on new ways of planning or constructing articles of manufacture. Patents can be taken out on chemicals, pharmaceuticals, drugs, even on new varieties of vegetation created through breeding or genetic manipulation. Patents can also be taken out on improvements on already patented processes, machines, or compositions.

A patent holder can profit from their invention by going into business for themselves, or they can license the use of their invention by another company. Many patents are an improvement of prior inventions that may still be covered by someone else’s patent. If the original patent is still in force, the owner of the new patent cannot bring out the product in the marketplace without the permission of the original patent’s owner, but the new patent owner can exclude the original patent owner from using the improvement without his permission.

The law says that in order for something to be patentable, it must be useful--it must have some sort of practical, real-world application. You can’t patent something that has no practical use. You can’t patent a novel, a poem, a song, or a dramatic production--copyright is used for these. In addition, laws of nature, mental processes, mathematical algorithms, physical phenomena, and abstract ideas cannot be patented. You cannot patent laws of physics--Einstein’s General Theory of Relativity revolutionized the world of physics, but it cannot be owned by anybody, not even by Albert Einstein. You cannot patent a scientific discovery--if you go into the New Guinea jungle and find a new species of plant, you cannot patent the plant that you found. However, if you produce that same new species of plant via genetic manipulation, you could patent that—such a patent is known as a plant patent.

Unlike copyrights, patents definitely need to be registered in order to be valid. A patent is taken out by filling out an application form and submitting it to the US Patent and Trademark Office[64], which is a part of the Department of Commerce. According to the law, a product idea must meet three standards to qualify for patent protection: it must be useful, it must be novel, and it must not be obvious. Also, if the inventor has previously described their invention in a printed publication or has already used the invention publicly, they must submit the patent application before one year has gone by, or else the patent application will be rejected. The clerks in the Patent and Trademark Office then study the application and see if it meets the standards and then either approve or reject the application. Patents applications can be rejected if they do not meet the standards.

Approximately 18 months after a patent application is filed, the US Patent and Trademark Office will publish it in an official notice, unless the applicant specifically requests non-publication at the time of filing. Publication does not mean that the patent has been approved, or even that the patent will necessarily be approved in the future. However, publication of the patent application enables certain damage recoveries to take place in case someone else makes, uses, sells or imports the invention during the time while the patent application was under review. But such damage recoveries can only take place after the patent application is actually approved.

Since the patent approval process can take years, it often happens that the inventor starts marketing their product as soon as the application is submitted, and they may legally label it as “patent pending”. However, the label “patent pending” has no legal effect, and the protection afforded by a patent does not start until the actual granting of the patent. Nevertheless, anyone who copies the invention after the Patent and Trademark Office has published the patent application can be sued for past transgressions once the patent is finally granted, provided that the patent holder placed them on notice regarding the patent pending status.

The term of a US patent is 20 years from date of initial application (only 14 years for design patents)—much shorter than the duration of copyrights—and cannot be renewed except under very limited circumstances.

But there are limits on what a patent can actually do. The possession of a patent does not actually grant you the right to market your product, since antitrust laws or FDA regulations may restrict the ways in which a patent holder can market their invention. Taking out a patent is no guarantee that your invention will be commercially successful. All that a patent can really do is to prevent someone else from putting your product out in the marketplace without your permission. So the possession of a patent is basically the right to exclude others from the commercial exploitation of your idea.

Having a patent does not mean that you can squelch or prohibit any speech or commentary about your idea or your product. Taking out a patent cannot prevent others from discussing, analyzing, or even criticizing your idea or invention, but it can prevent someone else from putting your product on the commercial market without your consent.

In the United States, only individuals may apply for patents, not corporations or organizations. However, it is common for a corporate employee to be required to assign the ownership rights of their patents to their employer as a condition of their employment.

In order to obtain a patent, you must disclose in the application the details of your invention or discovery, so when you take out a patent on your invention you also reveal to the public the details of how it works. As a result, when your patent expires, competitors will be completely free to copy your invention and put it on the market. Even though you might choose to forego obtaining a patent so that you keep your invention a trade secret, there is still some protection by federal laws that make industrial espionage and the unlawful disclosure of trade secrets a crime. But without a patent there is no legal recourse if some other inventor happens independently to come up with your same idea.

A patent can be a considerably more powerful protector of intellectual property than a copyright, especially if the intellectual property has any sort of commercial application. It would certainly be foolish of you to publish details of your invention without patenting it first. For example, suppose you describe your new invention in a scholarly journal article without taking out a patent on the invention. Your article is certainly protected by copyright, and no one else can copy the text of your article without your permission. But copyright only protects the specific expression of your idea, not the idea itself, and without a patent, you cannot prevent someone else from manufacturing or selling the invention that you described.

Patent infringement is the unauthorized manufacture, sale, marketing, or use of the patented invention. Patents are generally enforced by filing a civil action for infringement in a Federal court, but it is the responsibility of the individual patent holder to go after infringers in court, not the government. Typically, the plaintiff will seek financial compensation for past infringement and will seek an injunction preventing the defendant from further infringements. The history of invention is replete with inventors having to spend a large fraction of their time battling against infringers—the early history of the telephone being a prominent example. Despite its innovative technology, the telephone was actually a fairly simple device that could easily be copied, and Alexander Graham Bell was forced to sue lots of infringers to protect his invention.

Patents can also be taken out on the ornamental appearance of an object rather than on its functionality or its structure. Such a patent is known as a design patent. Design patents can protect the ornamental design, configuration, or shape of an invention, independent of its functionality. A design patent would be appropriate if the basic product already exists, and is not being improved on in its functionality but only in its style. Design patents can protect industrial products like computers, cell phones, furniture, even items of clothing like bunny rabbit slippers. Novel fonts and computer icons can be covered by design patents, if they are displayed on a computer screen and are part of an article of manufacture that has practical utility. The shape of an article of manufacture can even be the subject of a design patent—the unique shape of the Coca-Cola bottle had a design patent taken out on it in 1915. Design patents can be used to prevent competitors from making, using, or selling knock-offs or imitations of the owner’s patented design.

There is some degree of overlap between design patents, copyrights, and trademarks. Although design patents and copyrights both cover aesthetic features, copyright is generally used for non-utilitarian articles (those which exist merely for their looks or appearance rather than for any useful purpose), whereas design patents cover the novel ornamental features of a utilitarian object, such as the base of a lamp. A trademark may be taken out on an object already covered by a design patent if its shape, color, or appearance is used to indicate its origin. The difference between a design patent, a copyright, and a trademark can often be a subtle one.

However, design patents are rather difficult and expensive to obtain, since the applicant for a design patent must still meet the novelty and non-obviousness tests. Many original designs of fashion and industrial art fail to meet these standards. In addition, in order for a design to be eligible for a patent, it must be original—a design that is similar in appearance to a well-known or naturally occurring object would not be original and hence not patentable. In order to be eligible for a design patent, the design must have a unique and original feature or group of features that distinguish it from prior designs that are already publicly available. In addition, the design patent process can take several years, which exceeds the life expectancy in the marketplace for many designs, which means that by the time a design patent finally gets approved, the market window for the product will probably already have closed. Design patent infringement lawsuits can be difficult to win in the courtroom, since the plaintiff must be able to prove that an “ordinary observer” would be convinced that the offending design is substantially similar to the patented design. For these reasons, design patents are often regarded as not a very useful or effective means of protecting intellectual property such as fashion designs or industrial designs.

Can computer software be patented? This is a subject of some controversy[65], since there have been some rather abusive patent claims of ownership of things like voice over IP, streaming media, online gaming, online test taking, digital music, hyperlinks, pop-up windows, the computer simulation of physical processes, the manipulation of mathematical formulas, even the procedure used by Google to rank websites and the ‘one-click” procedure used by Amazon.com to sell books online. The Supreme Court has repeatedly ruled that abstract concepts and mathematical algorithms are not patentable--is a computer program really nothing more than a mathematical algorithm and hence not protectable by patent? Nevertheless, the Federal Circuit Court[66] has ruled that computer software can indeed be patented, but only under rather restrictive circumstances. A computer program can be patented only if the computer is used to manipulate real-world numbers and quantities (such as money, fuel consumption statistics, or medical data), but not if the program is only a mathematical algorithm such as the conversion of base-10 numbers into hexadecimal form, the determination of prime numbers, or the factoring of a polynomial.

But where should the boundary between patentable and un-patentable software lie? A lot of people think that the granting of software patents discourages innovation by locking basic ideas out of the marketplace. Software developers have to be extremely careful that they do not inadvertently use some idea in their programs that is covered by somebody else’s prior patent. A lot of experts feel that software ideas are being granted patent protections that are so obvious[67] that just about anyone who is computer literate could have come up with them. Another problem is that patent applications require that the inventor reveal how their process works, but most computer source codes remain proprietary and secret, and the general public and other inventors never get to see how the ideas are actually implemented and do not benefit by the awarding of the patent. Responding to these criticisms, the Patent and Trademark Office has recently said[68] that it will be very resistant to approving new software patent applications, arguing that process inventions are unpatentable unless they result in the physical transformation of an article or are tied to a particular machine.

Another source of confusion is that software is often covered by copyrights as well as by patents. The possession of a copyright allows the author of a computer program to prevent others from copying the program but does not prevent others from writing their own versions of the basic implementation, whereas a patent prevents others from using any of the ideas behind the software, even if they were independently developed and there was no copying involved. Consequently, a patent can provide quite a bit more protection for a software developer than can a copyright.

· A trademark[69] [70] [71] [72] [73]protects words, names, phrases, slogans, pictures, packaging, symbols or designs that are used by the trademark owner to identify their goods in the marketplace, and is used to distinguish them from the goods of others. If the words or design is used to identify the source of a service rather than a product, it is called a service mark. Trademarks and service marks are sometimes collectively referred to together as simply marks.

There are a couple of other types of marks—certification marks and collective marks[74].

A certification mark is any word, phrase, symbol or logo that is intended to be used in commerce by someone other than the mark’s actual owner, but with the owner’s permission. It can used to certify the origin of a product, to designate the mode of manufacture of the product, or to indicate that the quality, reliability, and safety of the product meet certain standards. An example of a certification mark is the Good Housekeeping Seal Of Approval that is applied to household products that have been judged to be of sufficiently high quality. Another example is the Underwriters Laboratories mark that is attached to items of electrical equipment that indicates that they satisfy certain safety standards. Yet another example of a certification mark is the AARP endorsements of Medicare Supplemental insurance policies that are actually sold by the United HealthCare insurance company.

A collective mark is a mark that is owned by an organization or association and is used to indicate membership in that organization or is used to identify goods or services that originate from members of that organization. An example of a collective mark is CPA, which is used to indicate membership in the Society of Certified Public Accountants. Another example is a mark owned by a trade union such as the International Ladies Garment Workers Union which would be applied to a product’s label to indicate that it was manufactured in a shop whose workers were members of that union. A further example of a collective mark is the torch logo used by businesses that have been accepted as members of the Better Business Bureau, which accredits businesses which meet certain reliability and integrity standards. The primary difference between a collective mark and a certification mark is that a collective mark can be used only by members of the organization which owns the mark, whereas a certification mark can be used by anyone who complies with the standards specified by the organization which owns the particular certification mark.

Trademarks and service marks are governed by state statutory and/or common law and by the federal Lanham Act of 1946, which is designed to protect consumers from misrepresentations of products and services, by enabling them to rely on well-known marks to identify quality goods or services, and to prohibit businesses from passing off shoddy products and lousy services using the good names of established brands.

With trademark protection, a customer who has purchased boxes of Kellogg’s Corn Flakes in the past and has liked the product, can be reasonably assured that the next time they buy a box of breakfast cereal labeled as Kellogg’s Corn Flakes they will be getting a product that has the same quality and taste as the ones that they have previously purchased, and not some sort of cheap, lower-quality knockoff. It would be a trademark violation for someone to put out a breakfast cereal labeled as Corn Flakes, marketed in such a way that would confuse the customer into thinking that they were purchasing the genuine Kellogg’s product. Cheap, low-quality products made or marketed in such a way that they resemble established well-regarded products are also illegal--a cheap imitation Rolex watch would also be a trademark violation.

Trademark or service mark owners can be quite hostile to people who use or copy their marks without permission, especially if there is even the slightest danger of the public being misled into assuming that the mark holder is the owner or sponsor of the product or service on which the mark is used. For example, you cannot market “Harry Potter” toy brooms, because Warner Brothers owns the Harry Potter trademark and the associated franchise, and you would be making money illegitimately by trading on the status and good name of an established brand. In addition, people might be misled into thinking that Warner Brothers actually produced your toy broom. Most Internet Service Providers forbid their subscribers from posting on their personal websites any trademarks or service marks that they do not actually own or control, since people might mistakenly assume that the mark owner is somehow the creator or the sponsor of the website.

Even though the federal government cannot claim copyright on any works created by their employees in the performance of their official duties, the government can claim trademark rights on its designs and logos. You definitely do not want to use the NASA logo in your project without permission, because people might mistakenly assume that NASA is somehow the sponsor or creator of your project. Again, the no-confusion rule applies here.

There are situations under which trademark issues overlap with copyright concerns. In one case[75], a merchandiser was prevented by Universal City Studios from using the phrase “E.T. Phone Home” from the popular motion picture ET—The Extra Terrestrial on its line of drinking mugs and pencil holders. This case primarily involved trademark issues, since the court concluded that people might be confused into thinking that the defendant’s line of mugs and pencil holders was actually produced by Universal or its licensees. But the court also concluded that Universal’s copyright on their movie was infringed, since key lines of dialogue were used from the copyrighted motion picture without permission.

There are some things that are protected by both trademark and copyright restrictions—Mickey Mouse being a particularly well-known example. Mickey Mouse is both a copyrighted work of art and a recognizable mark symbol that identifies Disney products and entertainment services. The Disney organization is particularly ruthless in going after people who infringe either the copyright status or the mark status of Mickey Mouse. The Disney organization is a large and wealthy corporation with “deep pockets” that can hire the most expensive lawyers, and inevitably wins whenever they drag someone into court.

A mark can be registered with the US Patent and Trademark Office (an agency of the Department of Commerce) by filling out an application and paying a fee (currently $325). The power of the federal government to register marks is derived from the interstate commerce clause of the Constitution, rather than from the intellectual property clause. In the United States, registration is not required in order for a mark to be valid, but many owners do so in order to inform others of their claims. The existence of a registration can be valuable evidence that the owner really does the mark that they are claiming if the validity of the mark is ever challenged in court. Registration of a mark can also be useful if the business crosses state lines or is intended to expand nationally, or it can be useful if there is a fear that a competitor might attempt to imitate the mark in the future. Registration can make it a lot easier to obtain trademark or service mark registration in foreign countries. However, even if you haven’t registered your mark, you can in certain cases stop others from infringing under state or common law trademark rights. Although a mark owner is not required to register their mark in order for it to be valid in the marketplace, registration is required before a trademark or service mark infringement lawsuit can be filed in federal court.

Once the mark application is received by the Patent and Trademark Office, a clerk then examines the application and either accepts or rejects it. The most common reason for rejection is that the mark is confusingly similar to an already-existing mark. Mark registrations can also be turned down if the mark is judged to be not sufficiently distinctive, if one is attempting to register a generic term, or if the term being registered is judged as being somehow obscene, scandalous, immoral, or offensive. An example of the misuse of a generic term would be an attempt to reserve the name Coffee Shop as a trademark for your new neighborhood bistro. However, one can use a generic term in a trademark—Office World and Office Depot being examples, but the owners of these marks cannot claim exclusive trademark rights to the individual words Office, Depot, or World. The law requires that in order to register a mark, the owner must be actually using it in commerce, or must state that they have a bona fide intention to use it in commerce within six months of the application. Once registered, the famous symbol ® can be applied to the design or phrase to indicate to potential infringers that the mark has indeed been registered. The well known ™ symbol (the symbol is ^SM for service marks) is used when exclusive marketing rights are claimed in association with a mark, but the mark has not yet been registered. It is not required that either symbol be used, but these symbols are widely used throughout the world.

Once a mark registration request has been accepted, the US Patent and Trademark Office places it on one of two lists—the Principal Register or the Supplemental Register. Which registry the mark will appear on depends on the perceived strength and distinctiveness of the mark in the marketplace. Marks that are based on coined words or distinctive designs are usually classified as being strong and distinctive and are placed on the Principal Register—Polaroid, Kodak, Memorex, Verizon, and Xerox being prominent examples. The Nike swoosh and the AT&T globe are examples of distinctive logos that have strong protection. Terms or phrases that have a suggestive quality without actually describing the goods or services are also strong. An example is “Like It Never Even Happened”, which is used by the Servpro water and fire damage repair service. Names such as Healthy Choice, Beauty Trends, or Best Interiors that attempt to describe some quality or characteristic of the goods or services being offered are considered as being weaker and less distinctive and get placed on the Supplemental Register. The owners of both types of marks are entitled to use the ® symbol if they so choose. However, if a mark on the Supplemental Register happens to have acquired a sufficient level of distinctiveness via continued use over time, it can be moved to the Principal Register.

What about using your name as a trademark for your new business? If you are reasonably certain that there is no one else anywhere with your same name in the same line of business, you can probably feel safe to go ahead and use your name as the trademark for your new business. However, you might have a problem if you want to register your name as a trademark with the US Patent and Trademark Office. Under Federal trademark law, a surname can be registered as a mark only if it has already become well-known through advertising or long-term use. Examples are Mrs. Fields, Sears, Hyatt, McDonalds’s, Calvin Klein, Honeywell, Harriet Carter, and J. C. Penny. These marks have become sufficiently well-known that they now have strong protection. If someone who happens to have the last name of Sears attempts, for example, to open up a mom-and-pop dry cleaning establishment named Sears, the Sears corporation will probably drag them into court, lest customers be misled into thinking that Sears, Roebuck and Co actually owns or operates that dry-cleaning establishment. So it is probably a good idea to search the trademark database very carefully before you try to use your name as a trademark for your new business, just to make sure that there is no other business already using it and you find yourself dragged into court.

Use of the ® symbol in advertising or merchandising informs the public that the associated mark has indeed been registered with the US Patent and Trademark Office. The presence of this mark can act as a deterrent to potential infringers who might be tempted to use this mark for their own businesses. However, a mark owner must be careful never to use the ® symbol if their mark has not actually been registered—doing so could be considered as fraud, which could subject the user to civil or even criminal penalties.

The owner must periodically renew their trademark or service mark registration, once every ten years. This is fairly simple to do--in the renewal request, all that the owner has to do is allege that they wish to continue the use of their mark in commerce. If the owner does not renew their mark, there is a danger that they might lose control of their mark in the marketplace. However, the renewal can be performed an indefinite number of times, so in principle the mark registration could last forever.

Unlike copyrights or patents, trademarks and service marks can last indefinitely if the owner wants to continue to use them to identify their products or services, but the owner can lose control of their mark if they go out of business, if they stop using it in the marketplace, or if they see infringements and do nothing about them. Legally, a mark is considered to be abandoned if its use in the marketplace has been discontinued with intent not to resume such use, and nonuse for 3 consecutive years is considered prima facie evidence of abandonment. Marks can also be lost if they are licensed to a franchisee without adequate supervision or quality control. A mark can also be lost if it has become generic over time—aspirin, cellophane, and thermos being prime examples. These terms now stand for a broad line of products and are thus no longer entitled to trademark or service mark protection.

However, just because a particular company has gone out of business does not necessarily mean that its marks can be freely used by others. It is quite difficult to prove in court that that the mark owner has no intent to resume use--somebody might still own the mark, even if the company that used it has gone out of business. Companies known as trademark speculators sometimes buy up marks at cheap prices from bankrupt or defunct companies in the hope that they can be sold to someone else for a higher price at a later time, and you might still be infringing if you use such marks without permission[76].

Trademark law does not provide any sort of general protection for physical objects such as fashion designs or industrial articles. Trademark law would only provide protection if the configuration of the product somehow served to identify the source of the product, an obvious example being the unique shape of a Coca-Cola bottle. A fashion designer could not take out a trademark on his latest dress, unless the appearance of the new dress somehow served to identify the source. Even if the configuration of the product did qualify for a trademark, the protection would only apply against uses of the design that would be likely to confuse or mislead customers.

The ownership of a mark does not necessarily mean that you own all the words used in the mark. Ownership of a mark only means that you have the exclusive right to use it in commerce to identify your product line or service, and to distinguish it from competitors who offer a similar line of products or services. Others can use the same words, provided that there is no danger that reasonable people might mistakenly assume that the words being used are referring to your product line or service. It is also permissible to use the same word or words to distinguish different kinds of goods--Microsoft Windows and Anderson Windows can coexist, since no one is going to assume that Anderson Windows is selling computer operating systems or that Microsoft is offering household storm windows for sale.

However, owners of very famous marks can often succeed in preventing the use of their marks by others on goods or services that do not compete with or are even similar to their famous product. For trademarks that have become famous over the years, the courts are willing to grant much broader protection for these marks and will usually prohibit almost all use of the trademark (or anything even close to it) by anyone other than the famous mark’s owner. For example, the famous fast-food vendor McDonald’s was able to prevent a motel chain from using the mark McSleep, because the courts concluded that the motel chain was trading unfairly on McDonald’s reputation and that the public would be confused into believing that the motels were actually owned or operated by McDonald’s[77]. Consequently, it is probably never a good idea to use the prefix “Mc” in your trade name, lest people confuse it with McDonald’s. Basically, the rule applied in court is that if the reuse of a similar-sounding trademark is likely to cause customer confusion, or if it trades unfairly on the reputation of the original mark’s owner, it will probably be considered as an infringement.

Like patents, a mark owner has the responsibility to defend against infringements, not the government. This enforcement is usually handled by suing the infringer in federal court. In order to successfully sue for infringement, you have to show that the infringer has improperly used in commerce your logo, words, or other registered marks in connection with the sale, distribution, or advertising of their goods or services. Also you must be able to show that the borrowing has created a likelihood of confusion with your original mark. A successful lawsuit against an infringer usually involves the awarding of financial damages along with the imposition of a cease and desist injunction requiring that the infringer stop the infringing activity.

Trademark dilution is another form of trademark infringement, one in which someone is using a famous mark for commercial purposes in such a way that it somehow diminishes or harms the distinctive value of the mark in the marketplace. The courts recognize two distinct types of trademark dilution—blurring and tarnishment. Blurring of a trademark can occur if its market power is somehow diminished through its unauthorized use in association with dissimilar products. Trademark dilution can be charged even if there is no danger that anyone will mistakenly assume that the trademark owner is responsible for producing the product where the mark is used. Examples of famous trademarks are Kodak, Xerox, or Kleenex. Blurring would occur if, for example, someone brought out a line of Xerox bicycles, a line of Kodak hair dyes, or a line of Kleenex radios—each of these uses might diminish the power of the original mark through its identification with dissimilar goods. Tarnishment of a trademark can occur if someone casts an unflattering light on the mark by using it in association with inferior, shoddy, or unseemly products or if it portrayed in an unwholesome or unsavory manner in the marketplace. The Disney organization uses this notion to go after pornographers that are using images of Mickey Mouse or Snow White in their films.

There are some limitations on trademark and service mark rights. Free speech rights still exist in the trademark and service mark world, and a mark owner cannot prevent others from discussing, lampooning, parodying, or criticizing their mark, especially if there is no danger of product confusion, no competition with the products or services covered by the mark, nor any possibility that reasonable people could be misled into thinking that the mark owner was the author of the parody or was the source of the discussion or criticism. You cannot prevent a competitor from mentioning your mark in a commercial, even if the ad is criticizing your product or service or is comparing it unfavorably with theirs. The use of marks is also permitted in news reporting, in criticism, or for literary purposes, in which the marks are being used solely to identify products or services, and so long as the use is strictly informational and not intended to sell anything. Authors can use a mark in a descriptive sense in both fiction and nonfiction works, so long as they use the mark in such a way that it doesn’t suggest any association with the goods or services that it represents. If no income is solicited or earned by the people who use your mark, or if no goods or services are actually being offered in conjunction with your mark, or if the goods or services that are being offered cannot be confused with those that you offer, then the use of your mark is considered to be non-commercial and is generally allowed. Again, the non-confusion rule applies here—if no reasonable person is going to mistakenly assume that the mark owner is the sponsor or creator of the place or situation where their mark is being used, the use is generally allowed. Mad magazine became famous for producing parody advertisements, using subtle alterations of marks to lampoon famous products and services.

This legal doctrine is known as nominative use, and it allows someone to use the trademark of another as a reference to describe the other product or to compare it to their own. This doctrine was first used in 1992 when a court ruled that it was OK for a magazine to use the name of the New Kids On The Block band in a survey, and the court found that there was no way to ask people their opinion of the band without actually using its name.

A recent example of the application of trademark law involved the use of the phrase “Fair and Balanced”[78] by the satirist Al Franken in the subtitle of a book that he wrote lampooning the far right. Fox News, which generally leans toward the conservative side of the political spectrum in its broadcasts, claims that phrase as a trademark, and they filed a lawsuit claiming that people might be deceived into thinking that the Franken book was a Fox News product. The courts rejected the claim, concluding that the phrase was a common idiom used in everyday life, and that Franken was within his rights in lampooning and criticizing the phrase. Others can use the phrase “Fair and Balanced” without permission, provided that there is no risk of product confusion and no possibility that a reasonable person might imagine that Fox News is the sponsor or owner of the work where the phrase is used.

In 1997, the pop group Aqua released a song named “Barbie Girl”, which was a tune lampooning the popular Barbie and Ken dolls marketed by the Mattel Corporation. Mattel, which had a reputation of intolerance for any criticism or ridicule of their products, was not amused, and sued the group[79], claiming that Aqua had violated the Barbie trademark by turning her into a sex object, that the band had tarnished the reputation of the doll by implying in the lyrics that she was a “loose woman”, and that the song had harmed the value of the Barbie trademark and had impinged on Mattel’s marketing plan. The lawsuit was ultimately dismissed in 2002 by the lower courts, on the grounds that the song was protected as a parody under the trademark doctrine of nominative use as well as by the First Amendment of the US Constitution. The Supreme Court decided not to accept Mattel’s appeal, so the lower court ruling stands. In 2009, Mattel decided to lighten up, and announced that they were going to use an adaptation of the song in their advertising campaigns[80].

In March of 2011, Amazon.com, the well known online vendor of books, videos, music, and just about everything else, announced that it was going to open an online service that would distribute applications for the Google Android line of smart cell phones. They called it the “Appstore”. This immediately aroused the wrath of Apple Inc, which runs its own “App Store” to sell applications for its iPhone, iPad, and iPod mobile devices. Apple sued, accusing Amazon of infringing on its App Store trademark[81][82].

Apple had been awarded the App Store trademark by the U.S. Patent and Trademark Office in 2010. However, Microsoft had formally opposed Apple’s trademark registration, on the grounds that the term “App Store” was too generic and that Apple was attempting to claim a trademark on what was simply a descriptive term. An official ruling on that objection is pending. Apple is hoping that will be able to show that it has used this “App Store” descriptive term so extensively that the public has come to associate that descriptive term with the company, which means that the company will indeed be able to claim trademark rights in that term. Apple will no doubt try to show in court that it has undertaken great efforts and expense to get the public to associate the name “App Store” exclusively with its brand. Apple is trying to avoid what happened to Aspirin, Kleenex and Xerox—namely they want to prevent the words “App Store” from becoming part of our lexicon, which would cause the dilution and eventual loss of their trademark on the name. To the extent it can do that, it may have success against Amazon.

Trademark issues have even entered the world of the Internet. The reason for this is the so-called domain name, which is used by online businesses to direct customers to their websites. Prominent examples are Amazon.com, Google.com, Facebook.com, Twitter.com, and Peapod.com. First, a little technical discussion is in order. When you are surfing the Internet, each computer on the World Wide Web is assigned a unique address known as the IP address[83]. It is a series of four numbers separated by dots, an example being 207.88.144.157. All of the routers, switches, and servers in the system use this address to route the messages to their destinations. Since these numbers are hard to remember, the World Wide Web uses a Domain Name System, which maps these numbers into more easily remembered names. So, when you want to reach Amazon.com to purchase a book or a DVD, your computer automatically first sends a message to a special computer known as a Domain Name Server (DNS), which maintains a directory of these IP address/domain name mappings. The DNS looks up the IP address associated with the name of the site you are looking for, and then returns the number to your machine. When your computer actually tries to reach Amazon.com, it uses the IP address for the routing. All of this is completely transparent to you and you are completely unaware of what is actually going on as you surf the Net.

In the era of Internet commerce, an easily recognizable domain name can be an extremely valuable commodity[84]. Anyone can obtain a domain name by contacting any one of dozens of companies that handle domain name registrations, filling out an application and paying a fee. The Internet Corporation of Assigned Names and Numbers (ICANN)[85] is a not-for-profit public-benefit corporation formed in 1998 to handle the job of managing and coordinating the Domain Name System. It has the job of approving domain name applications, and it accredits and supervises the activities of the dozens of domain name registrars. ICANN ensures that there are no duplications in the names allocated by the registrars that they supervise, and that they all conform to the rules laid down for the allocation of domain names.

Since domain names that actually label the product or service can be quite valuable, Internet businesses will often register their domain names as trademarks with the Patent and Trademark Office to prevent others from misappropriating or misusing their domain names. If you are opening up a new Internet business or are even setting up a new website, when you choose a domain name, you need to make sure that it isn’t identical or even similar to an existing trademark, or you could be sued. You certainly be unwise to try and reserve the name www.haveacoke.com for your own website, since reasonable people might assume that the Coca-Cola bottling company is somehow the owner or the sponsor of your website.

Cybersquatting is the act of reserving domain names that are identical or similar to recognized trademarked brand names, in the hope of being able to sell the rights to these names at a later time for an astronomical price, or to profit in bad will from the goodwill of a trademark owned by someone else. The Anticybersquatting Consumer Protection Act enables a trademark owner to sue someone they believe to have taken out a domain name in bad faith that conflicts with their trademarked business name. Alternatively, a trademark owner can take their case to ICANN for arbitration. Courts and arbitrators generally side with the trademark owner against cybersquatters.

Trade secret [86] [87] [88] [89] law is another important part of intellectual property. Trade secret laws provide some level of legal protection for a company’s products and processes that can on some occasions be preferable to the protection that patents can offer. People who steal or disclose trade secrets via corporate espionage, bribery, or larceny can be prosecuted for criminal offenses, whereas someone who infringes a patent can only be sued in civil court. No registration is required to claim a trade secret—all you have to do is declare something a secret and take measures to keep outsiders from discovering the secret. If there is a stated “don’t tell” policy, this can represent sufficient activity to preserve secrecy. Examples of subjects of trade secrets are chemicals, recipes, lists of ingredients, manufacturing processes, lists of customers or clients, computer program source codes, corporate policies, even lists of the company’s employees.

There are two standards for trade secret legal protection—secrecy and competitive advantage. A trade secret is no longer secret if someone independently and legally figures it out for himself or herself, or if it was so obvious that it was easy to ascertain in the first place. If the company fails to realize any economic or competitive benefit from protecting a trade secret, then the revealer or distributor of the secret might not be legally liable.

Trade secret law can be a powerful and effective way of protecting corporate intellectual property. If the company chooses to patent its trade secrets, the company must reveal them in public and the patent protection will last for only 20 years, after which anyone is free to put out the same product. But if the company does not patent the trade secret, it can protect it virtually forever.

The best-known successful use of trade secrets is the recipe for making Coca-Cola[90]. The Coca-Cola Company chose never to patent their recipe, since this would have revealed the formula to the public. Since any patent that the company took out would last only 20 years, competitors would be completely free to market the product after the patent expired. By relying on trade secret laws, Coca-Cola can protect its formula virtually forever. However, without a patent Coca-Cola cannot prevent competitors from reverse-engineering its product and putting out similar products, such as Pepsi-Cola.

Under the provisions of the 1976 Copyright act, it is possible for the author of computer software to associate trade secrets in the source code and to assert copyright in the source code (and in the executable code).

Apple Vs. Apple

One of the most prominent trademark issues of recent years was the legal dispute between Apple Computers and Apple Records[91], which points out the legal dangers when two separate companies have the same word in their trademarks.

Apple Corps was founded in January 1968 as a tax haven for the considerable cash reserves that the Beatles had accumulated. The name Apple Corps was apparently a pun on the phrase "apple core". It was planned that Apple Corps would finance a record label and other pet projects of the band members while also providing a "front" for their other financial activities in order to reduce personal liability and taxes for the Fab Four. Ultimately, Apple Records was the only successful and long-lived division of Apple Corps. The Apple label released all Beatles records after 1968 and was also home to several other artists.

Steve Jobs and Steve Wozniak created Apple Computer in April of 1976 to sell the Apple 1 personal computer kit. It's likely that Steve Jobs was aware of the existence of the Beatles' holding company because he was a Beatles fan, although choosing Apple as the company name could have been a result from Jobs' previous job at the All-One Farm. The company’s founders realized up front that they were probably asking for trouble by using the Apple name, but they liked it so much that they went ahead and used it anyway.

It didn't take long for Apple Computer to attract the negative attention of Apple Corps. In 1978, Apple Corps sued Apple Computer for trademark violations. After the case went to court, the two parties settled in November 1981 with the understanding that Apple Computer would never enter the music industry and that Apple Corps would never enter the computer business. The other stipulation was that a flat sum would be paid by Apple Computers for the rights to the Apple name. The amount was rumored to be in the tens of millions, but court documents released later reveal that it was only $80,000.

However, the waters began to be muddied when Apple Computer began to develop devices and software that were capable of music playback and creation. This alarmed Apple Corp yet again, and in 1989, eight years after the first settlement, Apple Corps filed suit against Apple Computer again, this time for violating the original agreement not to enter the music industry.

The suit again went to court, and the two parties reached a settlement on October 9, 1991. Outlined in the settlement was a description of each company’s respective trademark rights to the term “Apple”. Apple Computer would still be allowed use of the name “Apple” to market "computers, microprocessors and microprocessor controlled devices, telecommunications equipment, data processing equipment, ancillary and peripheral equipment, and computer software of any kind on any medium" and would be allowed to produce marketing materials and networks to support those products. It was agreed that Apple Corps would reserve the right to use the name Apple on any “creative works whose principal content is music”, but Apple Computer would be allowed to use the Apple name on “goods or services...used to reproduce, run, play or otherwise deliver such music content”. But according to the agreement Apple Computer would not be allowed to create, package, sell, or distribute physical music materials such as records or CDs.

However, the term "physical" as mentioned in the 1991 agreement was sort of ambiguous. If "physical" is defined as meaning devices such as compact discs or other systems capable of storing and delivering pre-recorded music, Apple Computers would indeed be allowed to transmit music to its customers, since what is actually being transmitted is data. But if the aforementioned definition of "physical" refers to any system that delivers music, then Apple Computers would be liable if it ever tried to deliver the song itself online, not just the device to play it on. Apple Corps reserved the right to sue Apple Computer if the company ever used the Apple name to sell "creative works whose principal content is music."

And then Apple Computer began to offer music content for online downloading. The iTunes Music Store was introduced in 2002. The iTunes Music Store offered songs for download onto a customer’s computer or onto their iPod music playback device. In the eyes of Apple Corps, the iTunes Music Store was a clear violation of the terms of the 1991 settlement. In September 2003, Apple Corps sued Apple Computer simultaneously in the US and UK, this time for breach of contract for using the Apple logo in the creation and operation of Apple Computer’s iTunes Music Store.

Settlement talks fell through after Apple Computer offered Apple Corps $1 million for the right to use the Apple name in the music industry. The case went to court on March 29, 2006 in the UK after the suits in the US and the UK were consolidated on September 21, 2004. On 8 May 2006 the court ruled in favor of Apple Computer, with the court holding that no breach of the trademark agreement had been demonstrated. This meant that the Beatles have no claim against Apple Computer's trademark as it pertains to Apple's iTunes software and online service. Apple Corps was also ordered to pay Apple Computer's legal expenses to the tune of over $3.5 million. Apple Corps promised to appeal the decision.

On January 9, 2007, the Apple computer company renamed itself Apple Inc. to reflect its expanding role in the consumer electronics and music industry

On 5 February 2007, Apple Inc. and Apple Corps announced a settlement of their trademark dispute under which Apple Inc. will own all of the trademarks related to “Apple” and will license certain of those trademarks back to Apple Corps for their continued use. The settlement ended the ongoing trademark lawsuit between the companies, with each party bearing its own legal costs, and Apple Inc. would be able to continue using the name Apple on its iTunes products. The settlement included terms that are confidential, although newspaper accounts at the time stated that Apple Inc. was buying out Apple Corps' trademark rights for a total of $500 million U.S. Apple Inc ultimately paid Apple Corps $26.8 million for the right to use the Apple name in computers and music distribution.

In November of 2010, it was announced by Apple Inc that it was going to make Beatles music available for download on iTunes. Incidentally, this represented the first time that Beatles tunes were available for legal download on any online music service. This seems to indicate that the trademark battle between Apple Inc and Apple Corp has finally been resolved at long last.

Moral Rights

Moral rights[92] are the rights given to authors and creators of copyrighted works that are recognized in civil law jurisdictions rather than explicitly in copyright law. In contrast to the economic rights that are protected under copyright, moral rights are concerned with protecting the personality and reputation of authors, giving them the ability to control the eventual fate of their works. Moral rights are codified in the Berne Convention, which the United States ratified in 1988.

Moral rights of authors and artists are recognized in European copyright law but not very much in the USA, at least not yet. In the USA, an artist’s moral rights are protected primarily by defamation, privacy, or unfair competition laws rather than by copyright law, but visual artists are provided with some special protection through the Visual Artists Rights Act (VARA)[93] of 1990. This law applies strictly to unique, one-of-a-kind, visual works of fine art such as a painting, drawing, print, sculpture, or still photograph, that exist as a single copy or only as a limited edition of 200 or fewer copies that are individually signed and numbered by the author. The law does not cover works of graphic design, maps, charts, technical drawings, databases, electronic publications, motion pictures, books, magazines, advertisements, works for trade or commercial purposes, or reproductions. VARA also does not apply to works for hire. The law was designed to protect the post-sale rights of creators of unique pieces of visual fine art--even if the artist has signed over the copyright to someone else or has sold the work, they still retain the moral rights under VARA. However, the author can waive their moral rights under VARA if he or she expressly agrees to such a waiver in writing.

An author of a visual artwork has the right to claim authorship of that work and has the right to prevent the use of their name as the author of any work of visual art that they did not create. Noone can put my name on a visual work of art that I didn’t create, and they can’t take my name off a work that I did create. Moral rights as outlined in VARA allow an author to prevent revision, alteration, or distortion of their work, even if it has been sold to someone else. An author has the right to publish works anonymously or pseudonymously. The author of a visual artwork also has the right to prevent the use of their name as the author of a distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation. If someone draws a moustache on a portrait that I painted, they can’t claim that I did it. It also prevents the destruction, modification, or defacement of an artistic work of recognized stature. Unlike copyright, moral rights under VARA are not transferable, and end with the life of the author. For joint works created by two or more authors, the moral rights endure for a term consisting of the life of the last surviving author.

VARA does not forbid people from distorting or mutilating reproductions, portrayals, depictions, or images of the visual work, such as that which might take place in magazines, newspapers, posters, movies, or advertisements. VARA cannot forbid someone from making a parody of a visual work of art, criticizing it, making fun of it, even ridiculing it. VARA only protects the physical integrity of the visual work itself, not its use in reproductions or images. However, such reproductions may be forbidden under copyright law, since they could be construed as the production of unauthorized “derivative works”.

The Right of Publicity

Somewhat similar in scope to copyright but quite different is the so-called right of publicity[94]. This gives an individual the exclusive right to profit commercially from the use of their name, image, photograph, likeness, and persona. If someone wants to use your name or image in a TV commercial, they need your permission to do so. If someone wants to use your name to endorse a product or service, they need your permission to do so. If someone wants to put your photograph on a T-shirt and sell it to the public, they need your permission to do so. Some laws even protect an individual’s signature, nickname, gestures, and mannerisms—even phrases and pieces of property that are closely associated with the individual. Sometimes impersonations, look-alikes, or impressions can be considered to be unauthorized appropriations of a person’s right of publicity. This means that even if someone does an impersonation of your voice, singing style, or mannerisms in such a manner that they derive a commercial benefit from such an act, this might be a violation of your right of publicity, as well as the misappropriation of your performance or performance style.

There is as yet no federal law dealing with the right of publicity, but several states have enacted such legislation[95]. The state laws vary in their scope—some state laws give a right of publicity only to celebrities or public persons, but others give the right of publicity to any individual. Some states provide protection only if an individual has previously exploited the commercial value of their identity. In some states the right of publicity only exists for individuals and cannot be transferred to someone else, but in others the right can be freely transferred to third parties. In some states, the right of publicity ends with the individual’s death, but in others it can continue for some number of years after the individual has deceased. This means that agents, heirs, and estates can often be in charge of an individual’s right to publicity. In other states, the right of publicity is protected under unfair competition laws that make it a tort if a company falsely claims that you have endorsed their product. However, right of publicity laws protect only the personas of individuals, not the personas of corporations, partnerships, or organizations

The right to publicity has evolved from the right to privacy. The right of privacy is basically the right to be left alone. It protects an individual from the emotional anguish resulting from the publication or dissemination of private facts that are of no concern to the public at large, facts that are embarrassing, intimate, or those facts that portray them in a false light that is highly offensive. The right of publicity is an extension of the right of privacy—it gives an individual a property right in his/her identity, and prevents someone else from deriving a commercial gain from an unauthorized use of this identity. The right of publicity must also be distinguished from defamation in that defamation involves the publication of untruthful information while rights of publicity claims usually result from the publication of truthful information.

Most right of publicity legal actions involve celebrities. Since celebrities have spent a considerable amount of time, money, and talent in the pursuit of becoming famous, they are thought to have the right to make money when they exploit this fame, and they have the right to prevent others from misappropriating their persona without paying for the privilege. Many celebrities derive much more income from commercial endorsements than they do from doing what made them famous in the first place—singing, dancing, acting, or playing sports.

The first right of publicity legal action (in 1953) involved the unauthorized use of the images of well-known baseball players in bubble-gum cards[96]. The singer Bette Midler won a judgment against the Ford Motor Company when an impersonator imitated her voice in a commercial[97]. A circus performer, whose “human cannonball” act was videotaped and shown on television, sued for the unlawful appropriation of his professional property[98]. Singer Tom Waits sued the potato chip vendor Frito-Lay for misappropriation of his voice in a radio commercial[99]. In 2001, the heirs of the Three Stooges sued an artist who had done a charcoal sketch of the slapstick trio[100]. The late-night talk show host Johnny Carson sued in 1983 when a manufacturer of portable toilets used without authorization the phrase “Here’s Johnny” in the promotion of their product[101]. Even though this was a line used by Ed McMahon to introduce the host, the line was seen being so closely associated with Johnny Carson that its unauthorized use infringed his right of publicity. Woody Allen sued when an advertiser used a look-alike in one of their commercials[102]. A NASCAR driver successfully sued when a cigarette company used in an advertisement an image of a distinctive racecar that could be readily identified as belonging to him[103]. Even non-celebrities can sue for unauthorized use of their right of publicity--a jury in California awarded a resident over 15 million dollars when the Nestlé Corporation used his image in a Taster’s Choice coffee commercial without his consent[104]. In 2007, the socialite and model Paris Hilton sued Hallmark Cards for unauthorized use of her photograph on a greeting card, along with an unauthorized use of her trademarked catch-phrase “That’s Hot” which is used on her line of perfumes and clothes[105].

One of the most prominent cases involving the right of publicity was Vanna White vs Samsung Electronics (1992)[106]. Vanna White is the co-hostess of the popular television show Wheel of Fortune, and is famous for walking back and forth in front of a game board, dressed in an exotic gown and pointing to letters as the contestant guesses them. Samsung produced an advertisement for a VCR starring a robot dressed in a wig, gown, and jewelry reminiscent of Vanna White, posed next to a Wheel-of-Fortune game board. The ad was a humorous attempt to depict a future in which robots did everything. Although her name wasn’t used, Vanna White sued for infringement of her right of publicity, for using her likeness, signature, and voice for commercial purposes without her permission. Although the lower court had ruled against Vanna White, she appealed the decision and the Appeals Court ruled that her right of publicity had indeed been infringed. The defendants had argued that their advertisement was a parody and was thus protected speech, but the Appeals Court ruled that the advertisement’s spoof of Vanna White and Wheel of Fortune was subservient and only tangentially related to the ad’s primary message. The purpose was deemed to be commercial, which make the ad a “knock-off” rather than a parody. This decision seems to make actionable the evocation of a celebrity’s identity in any form--just about anything that you put out there in an advertisement for a commercial product that evokes a celebrity’s identity is probably risky. Any image, voice, or even a phrase that evokes an individual’s identity might be judged to be an infringement of their right of publicity.

Even dead celebrities still have rights of publicity. Just because a celebrity is dead, this does not necessarily mean that one is free to use their image or persona for commercial purposes without permission. Dead celebrities such as James Dean, Marilyn Monroe, Buddy Holly, Judy Garland, Humphrey Bogart, John Lennon, Michael Jackson, and Harry Carey are still valuable commodities in advertising and commercials, and you need to get the permission of their estates (and pay a hefty sum) if you want to use their images, recorded voices, or persona for any sort of commercial purpose, lest you get sued. One of the most valuable celebrities is Albert Einstein, whose estate is controlled by the Hebrew University in Jerusalem, Israel, and you need the permission of Hebrew University if you want to use the famous physicist’s image, voice, or persona for any commercial purpose.

Although Elvis Presley died in 1977, his estate (controlled by Elvis Presley Enterprises, Inc) rigidly controls who can sell or use his name, voice, or image[107]. Permission from EPE is required before anyone can use any sort of image of the King, and EPE regularly monitors television shows and movies, looking for any invocation of Elvis’s image, voice, or persona that has not been pre-cleared, that is, one in which the appropriator has not obtained permission and paid for the right to use the image. There are literally thousands of Elvis impersonators out there, and EPE would be hard put to stop all of them. Nevertheless, EPE has sued some of the more successful ones for making a public performance of Elvis’s persona for commercial purposes without permission. Since 1979, EPE has filed over 100 lawsuits to assert the estate’s exclusive rights to Elvis’s name and likeness[108].

Authors of fictional novels or the producers of movies often have to be careful that they do not inadvertently infringe on someone’s persona in their creative works—they may strictly by accident have included a character that is similar in several respects to a real person. Consequently in order to protect themselves against lawsuits, movie producers often include in their movie credits a standard boilerplate legal disclaimer saying that all persons depicted are purely fictional, and that any similarity to actual persons, living or dead, is purely coincidental.

There is some degree of conflict between the right of publicity and the First Amendment of the US Constitution. Under free speech, certain uses of an individual’s identity are permitted—it is generally true that if the issues surrounding an individual are a matter of public concern or if the individual is somehow newsworthy there is a considerable amount of leeway allowed in the use of their persona. It would be impossible, for example, to write historical works or news articles that refer to real characters if an individual’s right of publicity automatically prohibited such efforts. However, if the individual’s persona is used in entertainment or fiction, or if there is even a hint of a commercial application of the individual’s identity such as in a TV commercial or a product endorsement, there is considerably less latitude. Historical fiction and historical entertainment that make mention of real persons can be risky, since they are not primarily intended to disseminate real facts to the public—such a use is not really to inform or educate the public, it is primarily for entertainment and hence has a commercial purpose. If you are making any money by using the identity of a real person, you could be asking for a lawsuit.

The line between a protected and an unprotected use of someone’s publicity right is often unclear. Generally, the unauthorized use of someone’s identity for a commercial purpose is likely to be an infringement. However, if the use adds significant creative elements or if it is used to provide social commentary on matters of public concern and interest, the use is usually considered to be permissible. Generally, uses of someone’s identity for purposes of satire, parody, political debate, or social commentary are protected under the First Amendment. For this reason, Saturday Night Live can probably feel perfectly free to satirize and mock celebrities without any fear of legal sanctions. However, it is often not clear exactly which types of publications or presentations are “news” or “satire” and those that are simply “advertising” or “commercial”. The actress Elizabeth Taylor sued NBC to prevent them from using her name or likeness or using another actress to portray her in a TV miniseries, but the courts rejected her argument, maintaining that the right of publicity cannot be used to suppress commentary about the lives of public people, and would be an unconstitutional prior restraint against First Amendment-protected speech[109].

The right of publicity is a new and evolving aspect of the law, and important changes and adaptations can be expected in the future.

The Undead Copyright

Once a work has entered the public domain, will it stay in the public domain forever, or can someone at a later time come along and put it back under copyright? The answer is generally no--someone cannot come along at a later time and reinstate copyright on a public domain work. Once a copyright has expired, it stays expired and cannot be restored. Like a diamond, the public domain is forever. Even if somebody republishes the work, it still remains in the public domain and can be freely used by anyone without getting permission or paying any fees.

However there is an important exception to this rule, involving works created or published in other countries that got cast into the public domain in the USA because they had failed to comply with some of the formalities of American copyright law such as registration or the attachment of copyright notices. The Uruguay Round Agreements Act (URRA) passed by Congress in 1994 codified an agreement reached by the Uruguay Round of the General Agreements on Tariffs and Trade (GATT), under which those foreign works that had lost their copyrights due to noncompliance with US formalities had their copyrights fully restored, being given copyright terms equal to what they would have had if they fully complied with all US formalities. The URRA became effective January 1, 1996. These foreign works that were brought back under copyright are known in legal parlance as restored works[110].

So a lot of foreign works that had been in the public domain in the USA were suddenly thrust back under copyright--it is now very unlikely that any work first published abroad within the last 50 years will be in the US public domain. As of January 1, 1996, anyone who uses a restored work without permission can be sued for copyright infringement. But not all foreign works had their copyrights restored—those foreign works that had already gotten a full term of copyright protection in the US and whose copyrights had already expired were not restored, nor were those works what were already in the public domain in their source countries. So how can you tell if a foreign work has had its copyright restored? Copyright restoration is automatic, no documents have to be filed, and there is no list anywhere of restored works. So it can take quite a bit of legwork to determine whether a work originating from outside the USA is in the public domain.

What about people who had begun using these works before the URAA was enacted, relying on the fact that they were public domain works? Such people are known in legal speak as reliance parties. What they were doing was perfectly legal at the time, and it would certainly be unfair if they could now be sued because of an inability to predict the future. The URAA requires that the owners of these restored copyrights have to inform the reliance particles if they intend to enforce their rights. They can do this in two different ways. They can do this by providing an actual notice to the specific reliance party, or they can file a notice of intent to enforce a restored copyright with the US Copyright Office. The Copyright Office does maintain a list of notice of intent filings, which can be useful in investigating the public domain status of a work first published outside the USA, but one has to remember that restoration is automatic, and that the list includes only those parties who have given notice that they intend to enforce their copyrights.

However, in April of 2009 a Federal court ruled[111] that Congress had overstepped its authority when it restored these foreign works to copyright protection. The case originally began when a music teacher who had been freely using Prokofiev sheet music before it had been reverted to copyright suddenly found that he had to pay performance fees and sheet music rentals as well as other royalties. The Center For Internet and Society filed a lawsuit in 2001 on behalf of the teacher and others, asking that the URAA be declared unconstitutional. In 2005, the US District Court for the District of Colorado issued a judgment against the plaintiffs. However, the 10^th Circuit Court of Appeals in 2007 [112] said that the case should be sent back to the original court and be reconsidered on First Amendment grounds.

In 2009, the federal judge who had overseen the first trial changed his mind and agreed that the URRA was indeed in violation of the First Amendment. The ruling was based on something that the Supreme Court had said when it handed down its ruling in the Eldred vs Ashcroft case. Although the Court had ruled that the idea/expression dichotomy and the availability of the fair use defense generally make copyright law immune from First Amendment scrutiny, the justices added a statement which said that Congressional copyright action could be overturned if it “altered the traditional contours of copyright expression”. The District Court agreed that the URRA had indeed altered the traditional contours of copyright expression. The tradition in the United States is for all creative works to eventually revert to the public domain and to remain there for perpetuity. By removing works from the public domain and putting them back under copyright, the URRA hampers free expression and undermines the values that the public domain is designed to protect. Further appeals can be expected on this case, so it is hard to guess how this matter will ultimately turn out.

Who Owns H. P. Lovecraft?

Controversy has arisen over the ownership status[113] of some of the works of the supernatural horror author H. P. Lovecraft, who died in 1937. Lovecraft has gotten more popular with each succeeding year, with his novels and short stories still being valuable commodities that have been republished numerous times. In addition, characters, themes, and situations from Lovecraft’s novels and short stores have found new expression in a variety of media, including television, music, short stories, video games, online websites, and movies, and numerous authors have created pastiches based on his work. The copyright status of the original Lovecraft works is relevant here, since any and all of these activities done without the consent of the copyright holder might be a copyright infringement, which could subject the offender to civil or even criminal penalties. Lovecraft himself was quite generous with his creative works, and he freely invited other authors to write sequels, adaptations, or other sorts of derivative works using situations and characters from his works--the fictional book The Necronomicon, the non-existent school Miskatonic University, the imaginary town of Arkham in Massachusetts, and the so-called Cthulhu Mythos surrounding the Great Old Ones and the gods Cthulhu ,Yog-Sothoth and Him Who Is Not To Be Named, being prime examples. But Lovecraft is dead, and his heirs, his estate, and the people who currently own his copyrights might be not nearly so generous.

But does anyone still own H. P. Lovecraft? Clearly, anything that Lovecraft published before 1923 is now in the public domain, and is completely free for anyone to use in any manner whatsoever. However, many of his works published after 1923 have an ambiguous copyright status. Some of them might actually be in the public domain because they were published without the required copyright notice attached. Others may be in the public domain because their copyrights were not renewed in a timely fashion under the rules in effect at the time. Most of Lovecraft’s stories were published in magazines, and although the magazines renewed their copyrights it is not clear if a magazine renewal also covers the individual articles and stories in the magazine. Dedicated searches of the records have failed to find any valid copyright renewals for these individual stories, and this might mean that they are all now in the public domain.

However, there is a possibility that the Arkham House publishing concern had secured the necessary copyrights from Lovecraft’s magazine publishers and from his heirs, and Arkham House now claims ownership of Lovecraft’s copyrights. August Derleth, one of the original founders of Arkham House, was a friend of Lovecraft and he also contributed to the Cthulhu Mythos by writing pastiches of Lovecraft’s works. Derleth claimed that he had acquired control over Lovecraft’s works, and the Derleth estate claims ownership of Lovecraft’s literary material, including all his unpublished works.

Even if someone can prove that he or she owns Lovecraft, it is still not certain if the copyrights on Lovecraft’s works are still valid. If Lovecraft’s works are now all in the public domain, even someone who still “owns” his creative works cannot prevent others from republishing his stories, from writing sequels or derivative works, or even from creating video games based on the Cthulhu Mythos. All of this controversy has caused numerous suits and countersuits, and the issue still stands unresolved today. Although you will find copies of Lovecraft’s works all over the Internet, the legal status of these copies is unclear.

The I Have A Dream Speech Copyright Hassle

A controversy arose about the copyright status of the famous Martin Luther King “I Have A Dream” speech, delivered on the steps of the Lincoln Memorial on August 28, 1963 and reaching a large audience, both live and televised. About a month after the speech, Dr. King took steps to secure federal copyright protection under the provisions of the law that were in effect at the time (the Copyright Act of 1909), and he later filed suit to prevent the unauthorized sale of recordings of his speech. In 1996, CBS produced a video documentary that used, without authorization, major portions of the speech. CBS argued that by performing his speech in public Dr King had effectively granted it to the public domain, and that Dr. King’s attempt to obtain statutory copyright protection a month later was ineffective because the speech had already been forfeited to the public domain. The King estate disagreed and immediately filed a lawsuit.

The lawsuit hinged on the precise legal meaning of “publication”. The 1909 Copyright Act had not actually formally defined the term “publication”, and it was left to the courts to figure out what it actually meant. Over the years, state and federal courts had devised a number of rules to handle cases involving disputes over when publication had actually taken place. One of the more important rules was a stipulation that an author received state common law protection upon creation of their work—this protection forbade anyone else from publishing the work or publicly distributing it without the author’s consent. This common law protection persisted until the moment of “general publication” by the author. Once general publication takes place, state common law protection is lost and the work is automatically forfeited to the public domain unless the author conforms to federal copyright requirements by either registering the work or attaching the required copyright notice. Over the years, the courts developed a distinction between a general publication and a “limited publication”--a general publication takes place when a work is made available to the public at large without restriction, and a limited publication takes place when the work is communicated to only a select group for a limited purpose and without the right of reproduction, distribution, or sale. Only a general publication without a copyright notice attached resulted in a forfeiture of common law copyright.

The 11^th Circuit Court of the US Court of Appeals[114] ruled that the public performance of the King speech did not in and of itself constitute a “general publication” and by giving this speech in public he did not forfeit his copyright on it. A public performance, no matter how broad the audience, does not count as a general publication. Even Dr. King’s distribution of written copies of his speech (without a copyright notice) to the news media was merely a “limited publication” because it was for the purpose of enabling the reporting of newsworthy event and was not a distribution to the general public. So the King estate can still charge a license fee for redistribution of his speech, whether in a TV program, a history book or in a dramatic re-enactment.

Copyright Expiration and the Sonny Bono Copyright Term Extension Act

The Framers deliberately wanted copyrights to expire after a relatively short time, since they were afraid that eternal copyright terms might result in the publishing trade ending up as a system of hereditary privilege, somewhat like the printers guilds of seventeenth-century England, who tied up the rights to authors long dead and tightly controlled what could or could not be printed. An infinitely long copyright was a powerful tool of censorship and they certainly didn’t want such a system here.

The lifetime of copyright was originally set to 14 years in 1790, extendable by application for another 14 years. Congress has generally increased the copyright expiration time over the years. The 1908 Copyright Act extended the life of copyrights to 28 years, renewable just once for another 28 years. In 1978, the law was changed to provide for protection lasting 50 years after the death of the creator of an individual work. Works for hire had their lifetimes extended to 75 years.

The Sonny Bono Copyright Term Extension Act of 1998 was a law designed to bring US copyright terms in harmony with those of Europe. In 1996, the European Union had extended copyright terms from life plus 50 years to life plus 70 years. Proponents of the law argued that a difference in the length of copyright terms between the USA and Europe would have an adverse effect on the international operations of the entertainment industry—works that are protected by copyright in one country might be in the public domain in others.

The proponents of the law also believed that extending the duration of copyright protection would help American copyright owners protect their works in foreign countries and would provide more incentive for owners to digitize and preserve older works. In addition, the Copyright Clause of the US Constitution was not considered to be an impediment, since even an absurdly long, but nevertheless finite, duration would still meet the letter of the Copyright Clause, so long as Congress was actually setting this new limit in order to promote the progress of the sciences and the useful arts. Since people live longer nowadays, it was argued that an increase in copyright duration might provide an extra incentive for more works to be created.

Several large media corporations also lobbied for the law. Under the copyright expiration terms set by the 1976 Copyright Act, in the late 1990s several large publishers and movie studios were faced with the imminent expiration of some of their copyrights on works that originated back in the 1920s and 1930s. Some of these copyrighted works still remained quite profitable for their owners. Prominent among these was the Disney Corporation, which was faced with the imminent expiration on some of its early copyrights on Mickey Mouse. If this were allowed to happen, Mickey Mouse would gradually move into the public domain and anyone would be free to sell Mickey Mouse T-shirts, mugs, cartoons, books, and other paraphernalia without having to pay the Disney organization a single dime, and the Disney organization would lose access to a revenue stream worth millions of dollars. The Disney organization’s intense lobbying effort for the copyright extension law inspired the derisive nickname The Mickey Mouse Protection Act.

The law’s chief sponsor was Sonny Bono, who was formerly a member of a husband-and-wife singing duet known as Sonny and Cher. The two had a popular TV show back in the 1960s, and were the singers on several Top-40 hit records. After the two split up, Cher went on to become an internationally famous movie star, and Sonny went on to become mayor of Pasadena and in 1995 he became a Republican congressman from California. As a songwriter and filmmaker, he had favored increasing the copyright term even before his entry into politics. Sonny Bono was killed in a skiing accident 9 months before the law was passed, and the law was named in his honor. Mary Bono, Sonny Bono’s widow and successor in his House seat, was an enthusiastic supporter of the act, and noted that Sonny had actually wanted copyright terms to last forever, but was informed by his staff that this would be unconstitutional.

The estate of the late composer George Gershwin also supported the act. Another powerful supporter was Jack Valenti, president of the Motion Picture Association of America, the lobbying arm of the motion picture industry. At the time, the entire country was distracted by the Bill Clinton/Monica Lewinsky matter, and there was little public debate or discussion of the legislation, and the bill was passed by both houses of Congress by a voice vote on October 7, 1998. The President signed the act into law on October 27, 1998.

The Sonny Bono Copyright Term Extension Act of 1998[115] [116] [117] extended copyright protection for another 20 years for all copyrights. The details of the law are fairly complex:

For works created on or after January 1, 1978, the new copyright term is life plus 70 years for individual authors of works. If the work is a joint work, the term is measured by the life of the last surviving author, plus 70 years. “Works for hire” now enjoy protection for 95 years from date of publication or 120 years from date of creation, whichever is shorter

Works that were created before January 1, 1978 but not published or registered for copyright are now automatically protected, and the duration of copyright on these works is the same as it is for works created after 1978—life of the author plus 70 years for individual works or 95/120 year terms for works-for-hire.

For those works published or registered before January 1, 1978 and still under copyright at the time the Sonny Bono law went into effect, the law extended the duration of their copyright terms by 20 more years.

If these copyrighted works happened to be in their renewal terms at the time the Sonny Bono law went into effect, the renewal terms were extended to 67 years, making these works eligible for protection as long as 95 years following the date the copyright was initially secured.

Works published or registered before January 1, 1978 that were still in their original term of copyright when the Sonny Bono law went into effect also had their terms extended to 95 years. There is no longer any need to file any sort of renewal request in order to extend the original term to the full 95 years.

A 1992 amendment to the copyright law made renewals automatic for works published from 1964 through December 31, 1977.

For works that had been published or registered for copyright on or before January 1, 1978, but whose copyrights had already expired under the law in effect at the time, the Sonny Bono law did not revive the copyright for these expired works.

Works published or registered for copyright before 1923 are in the public domain, and the Sonny Bono law does not bring them back under copyright. The law does not restore copyrights for works that are already in the public domain.

So copyright now lasts an obscenely long time, and you should probably assume that just about everything created after 1923 is still under copyright. A summary of the current system for determining copyright durations is displayed in a flow chart on the Cornell University website.

Critics of the law regarded the legislation as little more than corporate welfare for powerful interests in the entertainment and content industries. The law did little to protect individual artists, but it did a lot to enrich powerful media companies that hold the rights to their creations. Very few works retain any commercial value after the first few years, and are usually pulled off the market by their owners after that. Extending the copyright terms does little to enhance the value of these works, but for those few works that have retained their commercial value after half a century, extending their copyright terms can have great economic value.

The granting of two successive 20-year copyright extensions (one in 1976 and another in 1998) sets a precedent for the granting of infinite copyright terms “on the installment plan”—sometime in the next 20 years you can bet that the Disney organization’s lobbyists will be back before Congress, asking for yet another extension. This nullifies the spirit if not the letter of the Constitutional requirement for limited copyright terms. In addition, it is difficult to see how a retroactive copyright term extension will inspire any new creativity— George Gershwin certainly isn’t going to be writing any more music, no matter how often his copyright terms get extended. Retroactive copyright extension is more likely to favor the creation of a wealthy parasitic class, living off the proceeds of the original creation, with children, grandchildren and even great-grandchildren still reaping the rewards from the work’s creator, now long since dead.

Eric Eldred[118], a retired computer programmer from New Hampshire, has as a hobby the online posting of works that have recently entered the public domain. He got his start when he put up a website on the Internet for his teenage daughters, on which he posted copies of classic public domain literary texts such as those by Nathaniel Hawthorne, hoping that they would get interested in them. His site eventually became popular for students around the world and he received a commendation for his work from the National Endowment for the Humanities. Robert Frost’s poetry collection New Hampshire was slated to enter the public domain in 1998, and Eldred was anxious to post it on his website. However, the Sonny Bono Copyright Term Extension Act had the effect of extending the copyright on the Frost poetry collection for another 20 years, which meant that it would not become available until 2019 at the earliest.

Eldred decided to fight this law. He first thought about performing an act of civil disobedience, by going ahead and publishing the Frost collection on his website anyway. However, it was pointed out to him that the No Electronic Theft Act of 1998 would have made such an action a federal crime. Since the prospect of doing time in a federal prison was not all that attractive to him, he decided instead to challenge the retroactive copyright extension in court. He claimed that this retroactive extension deprived him of his First Amendment rights and also abandoned the Constitution’s clear intention of allowing only “limited” copyright terms.

Lawrence Lessig, a Stanford University law professor, represented Eldred. Eldred was joined in his action by a group of commercial and nonprofit interests who rely on access to the public domain for their work. Examples were Dover Publications, a publisher of scientific and academic paperback books, most of which have recently entered the public domain, as well as restorers of films from the 1920s and the 1930s, and publishers of orchestral sheet music. Arguing in favor of the law was the US government, represented by the Attorney General, supported by powerful interests in the motion picture and recording industries.

The case was Eldred vs. Ashcroft[119]. The United States District Court for the District of Columbia heard the case. The plaintiffs argued that by retroactively extending copyright terms, Congress had violated the intent of the Copyright Clause in the Constitution, since by allowing any number of retroactive extensions, Congress could in practice guarantee an unlimited period of copyright protection. The plaintiffs also argued that any copyright law must be subject to scrutiny under the First Amendment in order to insure a balance between freedom of speech and the interests of copyright—the law violates the First Amendment by continuing to prevent published material from entering the public domain. In addition, the plaintiffs argued that the doctrine of public trust requires that the government must show that any transfer of public property into private hands benefits the public in some manner.

In response, the government argued that Congress can retroactively extend terms as often as it likes so long as the individual extensions are all for limited times. Also, the original copyright law of 1790 had applied copyright protection to existing works. Furthermore, the government argued that neither the First Amendment nor the doctrine of public trust is applicable to copyright law.

On October 28, 1998, the District Court judge rejected all of the plaintiffs’ arguments. The judge concluded that Congress had the power to extend copyright terms however it liked, so long as the terms themselves were of limited duration. The judge also rejected the notion of any First Amendment scrutiny in copyright cases. This rejection was based on the Harper and Row vs Nation case, the notion being that copyright law does not attempt to regulate ideas, only the specific expression of ideas. Also, the judge ruled that the public trust doctrine was not applicable to copyright law.

The plaintiffs appealed to the Court of Appeals of the District of Columbia. The plaintiffs extended their argument to point out that the Copyright Clause in the Constitution requires that copyright must promote the progress of science and useful arts, and argued that retroactive extensions do not directly serve this purpose. The Appeals Court upheld the district court decision in a 2 to 1 opinion. The court concluded that Congress had used its powers to extend the duration of existing copyrights several times since 1831, and none of the previous extensions had been challenged in court.

The plaintiffs then appealed to the Supreme Court, and the Court agreed to hear the case. Lawrence Lessig was Eldred’s lawyer, and Solicitor General Theodore Olson argued the government’s case. Lessig refocused the case on the limited times aspect of the Copyright Clause, plus the first Amendment argument.

On January 15, 2003, the Supreme Court ruled[120] 7 to 2 that the copyright extension act is constitutional. The majority opinion argued that retroactive extensions had been done in 1790, 1831, 1909, and in 1976, so there was plenty of precedent. The majority opinion was that Congress has the right to determine exactly what the word “limited” means in the copyright clause. The Court also held that the extension of existing and future copyrights does not violate the First Amendment, since copyright can only be used to restrict the particular expression of an idea, not to restrict the idea itself.

Lessig later wrote[121] that he regretted basing his case on rather narrow legal arguments rather than attempting to demonstrate that weakening the public domain would cause economic harm to the country. However, even the majority opinion conceded that an excessively-long copyright did not necessarily serve the interest of science and the useful arts, only that Congress had the right to set the expiration term to anything it desired.

The public has a vital interest in seeing that creative works eventually enter the public domain, with no need to pay royalties or obtain permissions. Contemporary authors then become free to borrow from these older works, which is a creative tradition that dates back to the ancients. In the arts and sciences, there is very little that is truly original—just about every creative work ever written or composed has built on and extended the work of others. In his plays, Shakespeare borrowed extensively from existing stories and legends—Julius Caesar, The Merchant of Venice, Hamlet, and Othello are obvious examples. Shakespeare’s Romeo and Juliet was an adaptation of Ovid’s story of Pyramus and Thisbe, as told in his Metamorphoses[122]. The musical West Side Story recasted the famous story of the star-crossed lovers into a contemporary context of New York City street gangs. Andrew Lloyd Webber’s Phantom of the Opera was a musical adaptation of Gaston Leroux’s novel of the same name. Walt Disney borrowed extensively from the public domain fairy tales of the Grimm Brothers in the creation of many of his classic cartoon films such as Snow White and the 7 Dwarves and Cinderella. In fact, one can argue that much of the success of the Disney organization lies primarily in its ability to borrow extensively from works in the public domain. Even Mickey Mouse was lifted from somewhere else--the first commercially successful Disney Mickey Mouse cartoon, Steamboat Willie, was a parody of the Buster Keaton film Steamboat Bill, Jr. The Mickey Mouse character itself was based on actors and singers who appeared in old-time minstrel shows. The history of music is replete with wholesale borrowing or appropriations of chords and melodies from earlier works. Music composers such as Beethoven, Mozart, Charles Ives, and Bartok repeatedly recycled themes, motifs, and segments of music borrowed from prior works[123]. Aaron Copland’s Appalachian Spring ballet uses a tune borrowed from an old Shaker hymn. The 1965 pop hit A Lover’s Concerto[124] by the Toys was an adaptation of The Minuet in G by Johann Sebastian Bach.

A rich and expanding public domain is essential for creativity, and there is a danger that excessively-long copyright terms will lock up more and more of our culture under the control of large for-profit corporations, in which each new work that is created will require an expanding number of clearances, permissions and payments. The progressive extension of the lengths of copyright terms will steadily diminish the amount of material in the public domain, so that eventually virtually nothing will be free to be used by others without requiring someone’s permission or a payment to someone. Lengthening the term of copyright increases the cost to non-copyright holders of producing new works. It helps the big studios, the large record labels, and the major publishers to maintain a virtual monopoly in selecting and rewarding new talent.

Orphan Works

“Orphan” works[125] [126] [127] are those works of art which still fall under copyright, but for which the copyright owner no longer exists or is hard or impossible to find. Examples might be works whose authors have moved somewhere else and left no forwarding address, works by authors who died a long time ago and which are now owned by heirs or estates, or works owned by corporations that went out of business many years ago or by organizations that no longer exist. In any case, these works no longer retain any commercial value and were withdrawn from the marketplace long ago by their owners, and are no longer available in any form. Nevertheless, copyright protection may still be applicable to these orphan works, and you could still be sued by an irate rightsholder if you re-use these works without obtaining permission. Unfortunately, one sure way to find a missing copyright owner might be to go ahead and infringe on their work, and then first find out that they still exist when they sue you in court.

But it is often quite difficult and expensive to locate the copyright holders of some of these older works. Because the cost of finding the owner is so high, creators can’t build on orphan works, and can’t run the risk of converting them to new formats. Prime examples of orphan works are old movies from the 1920s and the 1930s, many of which are sitting in a can somewhere, slowly crumbling away. Noone dares save these movies in digital form for fear of violating someone’s copyright and getting sued, and it costs too much to find out whom if anyone owns the copyright. These old movies are frozen into a sort of legal limbo until they finally enter the public domain, and recent extensions of the copyright expiration term have greatly lengthened this period. By the time that their copyrights finally do expire, these films will likely have turned to dust and be lost forever. Archivists, historians, and others interested in preserving these works for posterity are locked out for no good reason. The high cost of locating the owner of these abandoned works is contrary to the Constitutional intent of copyright; it decreases the incentive to create derivative works, and prevents historians and artists from being able to exploit them.

The Public Domain Enhancement Act [128] [129] was a proposed law introduced before Congress by Zoe Lofgren (D-CA) and John Doolittle (R-CA) in 2003 to modify the Sonny Bono Copyright Term Extension Act so that any work over 50 years old would have to have its copyright renewed once a year by paying a small fee. This renewal procedure would make it a lot easier for potential users to find the owners of these older works. Any work over 50 years old that is not renewed would then automatically pass into the public domain, and would be free for anyone to use. While imposing essentially no cost on the owners of commercially valuable copyrights, it would reclaim for the public domain the vast majority of works that have retained no commercial value after 50 years. The bill was introduced in the House as H.R.2601, but got bottled up in committee and did not pass. It was reintroduced as H.R.2048 in 2005, but developed no traction and died again. One of the problems with the bill was the reintroduction of registration requirements, which would run afoul of the Berne Convention, which prohibits formalities such as registration or the inclusion of copyright notices as requirements for copyright protection.

The US Copyright Office began studying the whole “orphan works” issue, acting on a request from Senators Orrin Hatch and Patrick Leahy of the Senate Judiciary Committee. In January of 2006 the Copyright Office issued its report[130] to the Committee. The report was a long and comprehensive document that clearly confirmed that there is indeed a problem with orphan works and that something should be done to make them more accessible for preservation. The report also issued some proposals for legislation that would correct the problem.

In May of 2006 Congressman Lamar Smith (R-TX) introduced HR.5439, the Orphan Works Act of 2006[131], which incorporated many of the Copyright Office’s recommendations. The Act recommended that a copyrighted work be deemed an orphan if the copyright owner cannot be located after a “reasonably diligent search”. If the rightsholder can’t be found, then the copyright owner’s rights will be curtailed and the user will be free to do as they please with the work. The Copyright Office would be charged with the task of developing procedures and protocols for the establishment of some sort of registry of copyrighted material, one that would be easily searchable by people trying to locate copyright owners. The bill sought to limit the liability for artists who made a “reasonably diligent search” in their attempt to find the copyright owner but were unsuccessful in doing so. Under the provisions of the bill, the artist who goes ahead and re-uses an orphan work after performing such a “reasonably diligent search” without finding the copyright owner can avoid the payment of statutory damages or attorney’s fees should the rightsholder subsequently emerge and file a lawsuit. However, the user should be required to pay a “reasonable compensation” to the orphan work’s owner.

Unlike the Loftgren/Doolittle bill, the orphan works proposal would apply to all copyrighted works foreign and domestic, as well as published and unpublished works. The proposal has been criticized[132] on the basis that it applies to all copyrighted works, not just those deemed to be “older” than a certain number of years. The Act might be particularly unfair to authors whose works were produced after 1978, when the requirement for formal copyright registration was eliminated and copyright protection became automatic as soon as a work was fixed into some definitive form. Currently, authors and artists don’t have to be concerned very much about formalities, since copyright protection is automatic and a copyright cannot be lost simply because a rightsholder missed a deadline or filled out a form incorrectly. Under the current system, an author certainly doesn’t have to worry about whether or not they can be located by people who want to obtain their permission to quote, copy, or reuse their work--whether or not someone can find you does not matter, since they are still not allowed to use your work without your permission. The new system would impose an additional formality on copyright owners that they did not anticipate when they first created their works. A copyright owner will have to take additional steps to make sure that potential users will be able to contact them to request permission--how is it possible for a copyright owner to make absolutely sure that they can be found after a “reasonably diligent search” and that they won’t lose their copyright because they have omitted some obscure but important step in the process? This new system will add new costs and new hassles to the creative process and will probably be a full-employment act for copyright lawyers, since they will have to be consulted by artists and authors at all steps in the process.

In September of 2006, the Smith bill was withdrawn, but in April of 2008 a broadly similar bill, HR.5889, the Orphan Works Act of 2008[133], was introduced in the House by Rep. Howard Berman (D-CA). A similar bill was introduced by Sen. Patrick Leahy (D-VT) in the Senate: S.2913, which was later renamed the Shawn Bentley Orphan Works Act of 2008[134]. Both these bills proposed that the Copyright Office create and maintain an electronic database of pictorial, graphic, and sculptural works, and post the list on the Internet where it could be easily searched. The owners of all copyrighted works would be encouraged to register their works with this database, so that they could be easily found if an artist wanted to get permission to use their works. The House version of the bill requires that those seeking to re-use a work whose owner cannot be found must first file a “Notice of Use” with the Copyright Office. The Senate version adds a requirement that re-users of orphan works will have to attach a special symbol to their works. This symbol will be created by the Copyright Office. Both of these bills were strongly supported by libraries, but created a storm of protest from artists’ rights societies, which claimed that the proposed laws would have a negative effect on the ability of painters and illustrators to make a living from selling copies of their works[135].

The Senate version passed on September 26, 2008 and was referred to the House. It now sits in committee, awaiting action. However, the bill has aroused strong opposition from visual artists as well from some copyright reformists such as Professor Lawrence Lessig. A lot of artists denounced the bill as nothing less than a legalization of the theft of their works by large corporations. They worry that if they put their works up on the Internet or make them generally available, unscrupulous individuals or corporations will reuse them without permission, and would be able to avoid an infringement action by simply claiming that the copyright owner “couldn’t be found”. A lot of people think that this proposed law adds a lot of extra hassles for copyright holders, without providing much if any benefit to those who want to reuse orphan works. For example, artists would have to take additional steps to make sure that they could actually be found after a “reasonably diligent search”, so that their works wouldn’t fall onto an orphan list if the search failed and couldn’t be appropriated by others without their permission. In order to protect themselves, artists would probably need to register their works with the proposed electronic database of works, and would probably have to pay a fee to do so, adding an extra hassle that they did not anticipate when they originally created their works. Does an artist who fails to list their work in this database somehow lose their full rights under copyright if someone else goes ahead and reuses their work without permission? There is also the potential for a large amount of legal confusion--the person attempting to make use of an orphan work would have to be prepared to prove in court that they had indeed made a “reasonably diligent search’ and that their copying was not an infringement. We shall see what happens.

Limitations on Exclusive Rights--First Sale[136]

The legal principle of first sale means that once a customer has legally acquired or purchased a copy of a copyrighted work, they can do whatever they please with the item, so long as what they do with the work does not step on any of the copyright owner’s exclusive rights. You can do just about anything you