The Scope of Statutory Copyright Protection – generally

© 2011 Gena Simon

A statutory copyright is a bundle of exclusive rights granted by the federal government to the author of an original work for a limited period of time. Exclusive rights include the right of reproduction, adaptation, public distribution, public performance and public display. During this period, the copyright owner may exercise exclusive control over the work and other exploitations of the work. These rights, however, are not infinite and are limited by the fair use doctrine and other provisions specifically stated within the copyright laws.

Typically, statutory copyright protection is awarded to an original work of authorship fixed in a tangible medium of expression. Work is defined to include any of the following: literary, musical, dramatic, pantomimes and choreographic, pictorial graphic and sculptural, motion pictures and audiovisual and sound recordings and architectural. Furthermore, filing a copyright application is not a prerequisite for receiving copyright protection.

The originality standard is extremely low and demands only that the work be an independent creation of the author and exhibit a modest quantum of creativity. Independent creation is found when the author creates or originates the work, not merely records it. This is true even if the author is the first to publish the work. Novelty is not required and the originality standard does not necessitate that a work be unique or different from its predecessors. Creativity is found when the author demonstrates even the slightest trace of originality. The author need not show that he engaged in a lengthy creative process, made notably creative decisions or satisfied any standard of artistic creation. The United States Supreme Court defines “creativity” in the negative as to what is not sufficient: works which are mechanical, routine, typical, inevitable, obvious, dictated by law, garden variety, industry standards, regulation requirements and ideas, systems or concepts.

Fixation in a tangible medium of expression is the second requirement of copyright protection. Fixation is found when the work is sufficiently permanent or stable to permit it to be received, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. For example, a song is fixed the moment it is written down on a piece of paper. The paper is the medium on which the song can be perceived, reproduced or communicated. Likewise, a song is fixed when the author records into onto a cassette tape or other digital format. The cassette tape or other digital format is the medium on which the song can be perceived, reproduced or communicated.

The fixation definition excludes purely evanescent or transient reproductions, such as those projected briefly on a screen, shown electronically on a television or other cathode ray tube, or captured momentarily in the “memory” of a computer. The definition, however, does not exclude the content of a live transmission if the content is being recorded simultaneously with its transmission. For example, by definition, a live performance is not “fixed” and therefore not awarded copyright protection because it is evanescent in nature. But, if the artist made a contemporaneous copy of the live performance, the work is protected under the copyright laws.

Derivative works are those based upon one or more preexisting works. Examples include a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction or any other form of editorial revisions, annotations, elaborations or other medications which represent an original work of authorship. Derivative works are afforded statutory copyright protection if the work derived from the original copyright is substantially different from the underlying work and satisfies the originality and fixation requirements. The rationale holds that if a derivative work closely resembles the original, the court will have difficulty determining whether the later work was copied from the first derivative work or based upon the original. The court will therefore deny copyright to the first derivative work if the author fails to exhibit a sufficiently gross difference between the underlying work and the derivative work.

Two or more people may share a copyright in a joint work. A work is considered joint if the authors collaborate with each other, or if the authors prepared their own contributions with the knowledge and intention that it would merge with the other contributions as an inseparable or independent part of a unitary whole. Authors need not complete their works during the same time period, or even know one another. The sole requirement is the intent that each author will contribute his work to a joint work. If there is no intent, each author will retain ownership of his separate work.

Copyright infringement occurs when another party violates one or more of the exclusive rights and does so without first obtaining the owner’s permission. A prima facie case requires the author: (1) to demonstrate ownership of a valid copyright; (2) to prove that his work was actually copied by proving access and substantial similarity between the two works; and (3) to show that the copying amounts to an improper or unlawful appropriation. The final prong necessitates a showing that the substantial similarities relate to protectable material and that the amount copied is more than de minimus. If infringement is found, the copyright owner is entitled to his actual damages, which include those damages suffered as a result of the infringement and any profits incurred as a result of the infringement. In lieu of his actual damages, however, the copyright owner may elect to receive statutory damages in the amount of $750-$30,000 per work (as decided by the court). It is also important to note that filing a copyright application is a prerequisite to filing a copyright infringement suit.

A party may also be secondarily liable for copyright infringement. Secondary liability occurs when one party assumes legal responsibility for the actions of another party. The two types of secondary liability are contributory liability and vicarious liability. Contributory liability requires (1) knowledge of the infringing activity and (2) material contribution to the infringing conduct of another. Vicarious liability requires (1) the right and ability to control the infringing activity and (2) direct financial interest in the infringing activity.

The fair use doctrine permits another to use a copyrighted work without first obtaining the author’s permission. It specifically protects the use of copyrighted works for criticism, news reporting, teaching, scholarship or research. For all other uses, including parody, the court is required to consider four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantability of the portion taken; and (4) the effect of the use on the potential market. Per the instructions of the court, these factors are not to be treated in isolation, one from the other. All are to be explored, and the results weighed together. If fair use is found, there is no copyright infringement.

Under the current Copyright Act of 1976, copyright protection is awarded for the following terms: For works of a known author, the life of the author plus seventy years. For anonymous, pseudonymous and works for hire, seventy-five years from publication or one-hundred years from creation, whichever is less. At the conclusion of the statutory term, previously protected works enter the public domain. This is extremely significant because public domain works may be freely used by third-parties without permission of the original author.

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