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Copyright Law Second Edition Copyright Law Second Edition Robert A. Gorman Kenneth W. Gemmill Professor Emeritus University of Pennsylvania Law School Federal Judicial Center 2006 This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop and conduct education programs for the judicial branch. The views expressed are those of the author and not necessarily those of the Federal Judicial Center. Dedication To the Honorable Edward R. Becker— a distinguished jurist in his case opinions and in chambers, an inspiring teacher an innovative judicial administrator piano player extraordinaire a generous friend Contents Bibliographic Note, vii Chapter 1: History and Background, 1 The Copyright Statutes, 1 British antecedents and the 1790 Act, 1 The Copyright Act of 1909, 2 The Copyright Act of 1976 and its frequent amendments, 3 Copyright as an Element of Intellectual Property Law, 5 Patents, 6 Trademarks, 7 Copyright and property law, 8 Copyright Office and Judicial Review, 10 Chapter 2: The Subject Matter of Copyright, 13 General Principles, 13 Original authorship, 13 Tangible medium of expression, 18 Categories of works, 22 The Distinction Between Idea and Expression, 23 Copyrightability of computer materials, 29 Compilations and Derivative Works, 32 Compilations, 35 Derivative works, 40 Pictorial, Graphic, and Sculptural Works, 42 Useful articles, 43 Architectural works, 47 Works of visual art, 48 Pictorial and Literary Characters, 50 Government Works, 52 Chapter 3: Duration and Renewal, 55 The Renewal Format, 56 Derivative works prepared during the initial term, 60 Duration of Copyright Under the 1976 Act, 62 Table: Duration and Renewal: The Transition from the 1909 Act to the 1976 Act, 67 iii Copyright Law Chapter 4: Ownership of Copyright, 69 Initial Ownership of Copyright, 69 Joint works, 69 Works made for hire, 72 Collective works, 75 Transfer of Copyright Ownership, 76 Termination of Transfers, 80 Chapter 5: Copyright Formalities, 85 Formalities Under the 1909 Copyright Act, 85 “Publication,” 86 Copyright Notice Under the 1976 Act, 89 “Publication,” 90 The notice requirement, 90 Effect of noncompliance for 1978–1989 publications, 92 Deposit and Registration, 93 Table: Formalities Under the 1909 Act and Under the 1976 Act Before and After Berne Convention Implementation Act, 97 Chapter 6: Exclusive Rights of the Copyright Owner (herein of Infringement), 99 The Right of Reproduction, 101 Reproduction in copies or phonorecords, 101 Proving copying and infringement, 102 Idea versus expression, 106 Reproduction of Music and Sound Recordings, 110 Reproducing musical works in phonorecords, 111 Reproducing sound recordings in phonorecords, 114 The Right to Prepare Derivative Works, 116 The Right of Public Distribution, 118 First-sale doctrine, 119 The Right of Public Performance, 121 Performance, 122 Public performance, 124 Performing rights societies, 126 The Right of Public Display, 127 Visual Artists’ Rights, 129 Secondary Liability: Contributory and Vicarious Infringement, 131 iv Contents Chapter 7: Fair Use and Other Exemptions from the Exclusive Rights of the Copyright Owner, 139 Fair Use, 139 Statutory uses and factors, 141 Supreme Court fair use jurisprudence, 143 Fair use and the creation of new works, 148 Fair use and new technologies of copying and dissemination, 151 Exemptions and Compulsory Licenses, 156 Library copying, 156 First-sale doctrine and direct displays, 157 Educational, nonprofit and other performances and displays, 157 Cable television and other retransmissions, 161 Musical compulsory licenses: recordings and jukeboxes, 162 Sound-recording performance and digital-transmission rights, 164 Other exempted uses, 165 Chapter 8: Enforcement of Copyright, 167 Jurisdictional and Procedural Issues, 167 Jurisdiction, 167 Who may sue, 170 Registration as a prerequisite to suit, 171 Limitations on liability: statute of limitations and sovereign immunity, 172 Remedies, 175 Technological Protection Measures, 181 Chapter 9: State Law and Its Preemption, 185 State Anti-Copying Laws, 185 Federal Preemption, 187 Glossary, 197 Table of Cases, 203 Index, 217 v Blank pages inserted to preserve pagination when printing double-sided copies. Bibliographic Note The purpose of this monograph is to serve as an introduction to, and a starting point for research about, the law of copyright. It cannot feasi- bly be minutely detailed in its text or heavily annotated in its footnotes. Fortunately, there are a number of longer works of high quality that can be recommended to serve those latter purposes. For over forty years, the masterful multi-volume treatise, constantly cited by the courts, has been that of the late Professor Melville Nimmer: Melville & David Nimmer, Nimmer on Copyright. It has now been joined by an equally outstanding multi-volume treatise by Professor Paul Goldstein, titled simply Copyright. Both works are regularly updated. A single- volume treatise that can be recommended, and that is somewhat more detailed than this monograph, is Understanding Copyright Law (4th ed. 2005), by Marshall Leaffer. There are two research services that provide current updates on copyright developments and decisions. These are published by Com- merce Clearing House and by the Bureau of National Affairs (BNA Patent, Trademark & Copyright Journal). The United States Patent Quar- terly also publishes advance sheets containing decisions in the fields of patents, trademarks, and copyright. The relatively few federal district court copyright decisions that are not published in the Federal Supple- ment can usually be found in full text in either the CCH or USPQ re- ports. The Copyright Office website contains a wealth of information about the substance and administration of the Copyright Act (http://www.copyright.gov). One can find there not only the text of the Act (not always up-to-the-minute, however), but also pending copy- right bills, the rules and regulations promulgated by the Copyright Office, news of the activities of the Office, its very useful reports and studies, speeches and statements by the Register of Copyrights, the various application forms, informational circulars, and access to regis- tration records. The law journal articles written about copyright have vastly prolif- erated over the past decade, and are published in general law reviews as well as in an increasing number of specialty journals devoted to vii Copyright Law intellectual property or to allied fields (such as computer law and en- tertainment law). Throughout this monograph, the provisions of the copyright stat- ute now in effect—the Copyright Act, most of the provisions of which went into effect on January 1, 1978—are referred to by their section numbers within title 17 of the U.S. Code. Pertinent definitions from section 101 of the Act are set forth in a glossary at the end of this monograph. Many courts and scholars have come to regard the report of the House Committee on the Judiciary, H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976), as the most comprehensive, exhaustive, and authorita- tive legislative source of the history and purposes of the Copyright Act. This monograph makes frequent reference to this significant docu- ment, which is denoted simply as “House Report.” Excerpts from most of the cases discussed in this book, and from the House Report, can conveniently be found in Robert Gorman & Jane Ginsburg, Copyright: Cases and Materials (7th ed. 2006). The chapters in this monograph are organized to correspond with that book. The coverage of this monograph is complete as of May 1, 2006. viii Chapter 1 History and Background Copyright is the body of law that deals with the ownership and use of works of literature, music and art. The basic purpose of copyright is to enrich our society’s wealth of culture and information. The means for doing so is to grant exclusive rights in the exploitation and marketing of a work as an incentive to those who create it. The Founding Fathers phrased this more elegantly—and provided the constitutional source for Congress’s power to enact copyright laws—in Article I, section 8, clause 8 of the Constitution: “The Congress shall have 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 provision is both a source of and a limitation on Congress’s power to enact copyright and patent statutes. The Copyright Statutes British antecedents and the 1790 Act Oddly, U.S. copyright law traces its source to British censorship laws of the sixteenth century. In 1556, the King granted to the Stationers’ Com- pany, made up of the leading publishers of London, a monopoly over book publication, so as better to control the publication of seditious or heretical works. Publishers were given an exclusive and perpetual right of publication of works that passed muster with the Government and the Church (by way of the Star Chamber); there was no intention to protect or reward authors. After nearly a century and a half, licensing laws were left to expire and publishers sprang up independent of the Stationers’ Company. The Company turned to Parliament for protec- tive legislation and in 1710 the Statute of Anne was enacted. The basic philosophy and contours of that statute have dominated the U.S. law of copyright for most of our history as a nation. Its purpose was stated to be “for the Encouragement of Learning,” which was threatened by the damage done to authors and their families by unauthorized copying of their books. This purpose was to be promoted by granting to authors 1 Copyright Law an exclusive right of publication to last for 21 years for existing works and for 14 years (subject to renewal by a living author for an additional 14 years) for works published in the future. A condition of copyright was the registration of the title at Stationers’ Hall and the deposit of nine copies at official libraries. The Statute of Anne, and the copyright laws later adopted in the former Colonies, set the stage for the Copyright and Patent Clause of the Constitution and for the enactment by the first Congress in 1790 of the first federal statutes governing copyrights and patents.
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