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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’ Company, 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 protective 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 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. In the handful of major copyright revisions over the past 200 years, Congress has gradually increased the kinds of works that are eligible for copyright and the kinds of exclusive rights afforded to the copyright owner. Congress has also gradually extended the period of copyright protection and reduced the significance of compliance with statutory formalities. It should be noted that Copyright protection is not limited to works of “high culture,” and that its coverage embraces such mundane works as business directories and such technologically oriented works as computer programs.
The Copyright Act of 1909
The Copyright Act that dominated the twentieth century was enacted in 1909. Inartfully drafted and lacking important definitions—and enacted before the invention or widespread commercial use of the phonograph, motion pictures, radio and television, the photocopy machine, the computer, and a wide array of communications media including, of course, the Internet—the 1909 Act was subjected to frequent ad hoc amendment and to unguided judicial interpretation.
A principal feature of the 1909 Act was the preservation of state copyright protection (known as common-law copyright) for unpublished works; once a work was published by dissemination to the public, however, either federal copyright formalities were satisfied or the work fell into the public domain. If the familiar copyright notice was placed on all copies of a published work, federal copyright protection attached, exclusively enforced in federal courts (provided the copyright owner registered the work in the Copyright Office prior to commencing suit). Such federal copyright lasted for 28 years and was subject to renewal upon timely registration for an additional 28 years. The most significant exclusive rights accorded to the copyright owner under the 1909 Act were those of printing or otherwise copying, of making adaptations or versions, of selling, and of publicly performing (for musical compositions, publicly performing for profit).
Although the 1909 Copyright Act is no longer in effect, it does govern important aspects of transactions that took place between 1909 and 1978, and many of those transactions continue to be a source of litigation today. Knowledge and application of the 1909 Act will therefore continue to be pertinent to resolve disputes concerning, for example, whether a work published prior to 1978 complied with statutory formalities or was thrust into the public domain, and who is the owner of copyright when claims are traced back to transfers that took place while the 1909 Act was in effect.
The Copyright Act of 1976 and its frequent amendments
After a major effort in the Copyright Office and the Congress to restudy and revise the law, an effort lasting more than 15 years, U.S. copyright law was drastically overhauled in the Copyright Act of 1976, which in most pertinent respects took effect on January 1, 1978. That statute abolished common-law copyright and made federal copyright exclusive from the moment a work is “created,” that is, “fixed in a tangible medium of expression,” whether in published or unpublished form. Works then in the first term or the renewal term of copyright under the 1909 Act had their term of protection potentially extended to 75 years. Works created on or after January 1, 1978, or first published thereafter, were to be protected for 50 years after the death of the author, and corporate works were to be protected for 75 years after publication. If a work was published after January 1, 1978, it was still required to bear a copyright notice, but failure to use the notice would be subject to cure and would not necessarily thrust the work into the public domain. Congress has since eliminated the notice requirement altogether for works published after March 1, 1989. In 1998 20 more years were added to the term of copyright for all works still under copyright protection. The exclusive rights accorded the copyright owner under the 1976 Act are essentially the same as those given by the 1909 Act, with the addition of the right of “public display” to take account of transmissions by television and computer. A host of intricately delineated exemptions are incorporated in the 1976 Act, so that a variety of uses of copyright-protected works may be made, without securing the authorization of the copyright owner, for certain nonprofit, charitable and educational purposes. The well-known doctrine of fair use, judicially devised in the middle of the nineteenth century, was expressly incorporated in the text of the statute.
In almost every year after the Copyright Act was amended in 1989 to eliminate the requirement of placing a notice on all publicly distributed copies, the statute has been amended further, principally in order to take account of new technological developments or to conform to the provisions of international treaties that have come increasingly to harmonize the copyright laws throughout the world. Only the most significant amendments are noted here.
In 1990 Congress granted to visual artists certain limited rights of attribution and integrity in the original physical copies of their works; expanded the rights of architects in their plans and buildings; and granted commercial-rental rights covering computer programs (as it had done in 1984 for musical recordings). In 1992 the Act was amended to provide for automatic renewal of the copyright terms of pre-1978 works then in their first term of copyright; and to ensure compensation to recording companies and performers in connection with the sale of digital recording machines and media (the Digital Audio Home Recording Act, which also expressly immunized home recording for noncommercial purposes). In 1994, Congress restored copyright protection to non-U.S. works from treaty-signatory nations (the Berne Convention and the World Trade Organization) if those works were still protected in their “countries of origin” but had lost their U.S. protection because they had been published here without the notice required under the 1909 Act or had not been timely renewed under that Act. In 1995 and again in 1998, Congress extended to sound recordings the exclusive right of digital public performance (e.g., by being played over the Internet), resulting in the copyright owner’s full rights over interactive digital transmissions and a compulsory-license regime for most other digital transmissions. In 1998, as noted above, the term of copyright protection was extended from 75 years to 95 years (for corporate works and for works still protected under the 1909 Act), and from “life plus 50” to “life plus 70” for other works created or published after January 1, 1978. In 2003 the Supreme Court sustained this “Sonny Bono Copyright Term Extension Act” against constitutional attack. In 1998 Congress took a significant step beyond conventional copyright in the provisions of the Digital Millennium Copyright Act that prevent the circumvention of technological protections (such as digital encryption) of copyrighted works.
Copyright as an Element of Intellectual Property Law
The general domain of copyright law is often misunderstood. In particular, its boundaries are often confused with those of the law of patents and trademarks. These three fields are commonly grouped together as “intellectual property,” but they are quite different in important respects, which are summarized here.
The purpose of copyright and patent is to provide incentives to “promote the progress of science and useful arts” and the constitutional source of Congress’s power to legislate is the Copyright and Patent Clause. The purpose of trademark law is to prevent confusion in the commercial marketplace—and thereby to ensure accurate information and the maintenance of quality of goods and services—and the constitutional source of Congress’s power to legislate is the Commerce Clause.
The law of patents embraces the subject matter of products and processes. To be eligible for protection, an invention must be useful, and novel, and—even though it might not have been known before—also “nonobvious,” that is, not reasonably anticipatable by a person versed in the current state of the pertinent art. Before a patent is issued by the Patent and Trademark Office, the invention must be determined by an examiner, after a detailed search of prior art, to satisfy these three statutory conditions. Patent protection begins only when the Office issues the patent at the end of the examining process, and the patent lasts for 20 years as measured from the date on which the patent application was initially filed.
The exclusive right granted by the patent law is much more powerful than that accorded by copyright, in two important respects. Copyright infringement requires that the work of the copyright owner have been copied, so independent origination of a similar or identical work is not an infringement; but patent infringement can arise even from a later independently created invention. Copyright gives the author exclusive rights to copy and otherwise exploit only the pattern of expression in the copyrighted work and not the underlying ideas, concepts or systems; patents protect against replication of chemical or mechanical processes as usefully embodied. For example, copyright in a book that describes a newly invented medical device will afford protection only against those who copy or closely paraphrase the author’s prose depiction. It will not prevent another person from manufacturing, selling, or using the medical device; only a patent can provide that protection to the inventor.
Similarly, copyright in a computer program protects only against copying or paraphrasing the sequence of commands (whether in “source code” intelligible to humans or in “object code” which directly operates the computer). It does not prevent a person from replicating the process that the computer program implements, provided there is no copying of the program. Thus, a computer program might be designed to run certain tests and move certain machinery components in the course of producing a particular product. Copyright will prevent another from copying the program, but anyone is free—even by means of decoding the program (which has been held to be a “fair use”)—to devise another method for running those tests and moving those components, perhaps manually or perhaps by devising another computer program that does not track the commands or structure of the first program. If, however, the production process (which incorporates the computer program) is one that meets the requirements of novelty and nonobviousness under the patent law, a process patent can be issued. This patent will preclude others who seek to use or to market the protected process, even by means of a computer program of altogether different configuration—and, indeed, even though the later program is independently originated.
In sum, copyright protection is much easier to secure and lasts much longer; patent protection is more powerful in curbing competitors. Both patent and copyright are enforced exclusively in the federal courts. Appeals in patent cases are centrally channeled to the Court of Appeals for the Federal Circuit, whereas the appellate channels in copyright cases are the usual, geographically dispersed ones.
The law of trademark protects words or pictures that identify the source of a product or service. Under state common law, a person commits the tort of unfair competition by “passing off” its product or service as that of another through deceptive or confusing use of words or pictures in identifying, advertising or packaging. The plaintiff must prove that its “mark” (or the shape or packaging of its product) has become “distinctive,” i.e., has come to be identified by the consuming public principally with that person as the source of the product, and that the defendant’s use of a similar mark on a similar product confuses a significant segment of the purchasing public. State and federal law permit owners of such marks to register them in a public record; such registration provides constructive notice and other advantages (typically evidentiary but some substantive). Suits under the federal Trademark Act (the Lanham Act) are brought in federal court, whereas suits to enforce state common-law or statutory trademark rights may be brought in state courts. In either forum, the fundamental issues are the same: identification by the public of the mark with the plaintiff as the source (known as secondary meaning), and confusing use of the mark by the defendant on similar products or services. Trademark rights generally begin when the mark is used in commerce (although a 1988 amendment of the Lanham Act made it possible to register a mark in the Patent and Trademark Office when there is merely “intent to use,” subject to other conditions); they last so long as the mark is used and retains its secondary meaning. Some graphic works, or words in conjunction with graphic works, that function as trademarks are also eligible for copyright protection, although many are not protectible for reasons that will be discussed in The Subject Matter of Copyright. The figure of Mickey Mouse is a particularly well-known example of an image that is protectible both by copyright and by trademark (as a symbol identifying Disney products and entertainment services). Copyright protection begins earlier, when a work is fixed in tangible form, and can be enforced against copiers even without proof of the plaintiff’s use in commerce or of secondary meaning and confusion. Trademark protection is available for a longer period of time (potentially forever) and even against persons whose confusingly similar mark
has been adopted independently and without copying from the plaintiff.
Copyright and property law
It is, finally, useful to draw a distinction between copyright law and the body of law that regulates the ownership of tangible personal property. Copyright is a form of “intangible” property. The subject of copyright—the words of a poem or the notes of a song—can exist in the mind of the poet or composer, or can be communicated orally, without being embodied in any tangible medium. Even when thus embodied, it is possible for persons to recite a poem, sing a song, perform a play, or view a painting without having physical possession of the original physical embodiment of the creative work. (The painting can be viewed by means of a reproduction or a television transmission.) The Copyright Act attempts to draw a clear distinction between the literary, musical or artistic “work” that is protected against unauthorized exploitation in various forms, and the physical object in which that work is embodied by the author. It is possible to be the owner of one without being the owner of the other.
Although, for example, earlier copyright statutes referred to a “book” as the focus of copyright protection, the 1976 Act makes it clear that protection is for the “literary work” (i.e., the sequence of words or symbols) regardless whether the tangible medium in which that work is embodied is a book, a magnetic audiotape or a computer disk. A sculptor may create a bronze statue and sell it to another, who may in turn keep others from touching it and can place it on the back porch or in the basement; but the buyer does not have the right, accorded by copyright, to make and sell photographs or three-dimensional replicas of the statue. Those latter rights are held initially by the sculptor (as “author” of the sculptural work, under section 201(a) of the Act) and they may be retained by the sculptor despite the transfer of ownership of the physical object to another.
Section 202 of the Copyright Act expressly provides for the separation of copyright and chattel ownership, and sets forth default rules in the event of transfers:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
There is, then, a presumption that the exclusive rights that make up the copyright are not transferred when the physical object—the manuscript, the canvas, the sculpture—is transferred. To have an effective transfer of the copyright, section 204(a) of the Copyright Act requires that there be “an instrument of conveyance, or a note or memorandum of the transfer, . . . in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” In sum, copyright is transferable intangible property, but an effective voluntary transfer requires clear and signed written evidence, and will not be inferred from an outright sale of the tangible object in which the work is fixed. All of the conventional state rules of chattel ownership are applicable with regard to that object, and are almost without exception not displaced by the federal Copyright Act.
Copyright Office and Judicial Review
Much of the work that is done in the administration of the Copyright Act is in the hands of the Copyright Office and its head, the Register of Copyrights. The Office, inter alia, handles applications for copyright registration, records transfers and other documents relating to copyright, and issues regulations (in volume 37 of the Code of Federal Regulations) about such matters as ineligibility for copyright, setting and distributing fees under the various statutory compulsory-license provisions, and the mechanics of registration and deposit.
Unlike most other federal administrative agencies, which are housed within the executive branch, the Copyright Office lies technically within the Library of Congress and is thus an arm of the legislative branch; the Register is appointed by the Librarian of Congress. Nonetheless, the Office operates very much as a typical federal administrative agency, most clearly in its promulgation of regulations that are designed to implement the Copyright Act. Section 702 of the Act expressly grants that power to the Register, and other provisions of Chapter 7 give the Register wide-ranging powers to run the Copyright Office and to be the voice of the U.S. Government in copyright matters. An important provision in the Copyright Act with respect to the federal courts is section 701(e), which provides that (with very limited exceptions) “[A]ll actions taken by the Register of Copyrights under this title are subject to the provisions of the Administrative Procedure Act of June 11, 1946 . . . .” As with respect to judicial review of administrative agencies generally under the APA, courts give considerable deference to the regulations and other decisions and practices of the Copyright Office. Perhaps the most pertinent provision of the APA is 5 U.S.C. § 706(2)(A), which provides: “The reviewing court shall . . . hold unlawful and set aside agency action, findings and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”
Thus, when the Register of Copyrights declines to register a submitted work, because the material deposited does not constitute copyrightable subject matter or because the claim is invalid for any other reason, this decision is subject to review in a federal court through application of the lenient “abuse of discretion” standard, a concession to the vast number of applications passed upon by the Copyright Office. When, however, the Office registers a work, and the defendant in an infringement action asserts that the copyright is invalid, the courts treat this not as a direct and deferential review of the agency, but as a matter of law which is for the court to determine de novo. This approach is buttressed by section 410(c) of the Copyright Act, which provides that a registration certificate issued within five years of first publication of a work (or before its publication) “shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” In other words, although the registration is helpful as an evidentiary matter in the presentation of the plaintiff’s case, it merely shifts the burden to the party challenging the validity of the copyright, an issue that then falls to the court to decide on its own.
On a wide range of issues, particularly when the application or interpretation of Copyright Office regulations or longstanding practices is called into play, courts quite uniformly give deference to the agency. This is generally viewed as dictated by the 1984 Supreme Court decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. Under the Chevron precedent, a court is to defer to an administrative agency whose interpretation of an ambivalent legislative provision is “reasonable” or “permissible.” Courts have, for example, invoked this standard in affirming the Register’s definition of terms within the complex statutory provisions delineating various compulsory licenses. Even before the development of the Chevron standard, the Supreme Court had made it clear that courts should give weight to the statutory interpretation given by the Copyright Office, particularly when manifested in “contemporaneous and long continued construction . . . by the agency charged to administer” the Act.
- E.g., Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999); Academy of Motion Picture Arts & Sciences v. Creative House Promotions, Inc., 944 F.2d 1446 (9th Cir. 1991).
- Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 380 F.3d 624 (2d Cir. 2004) (work made for hire); Forward v. Thorogood, 985 F.2d 604 (1st Cir. 1993) (transfer of physical object embodying musical work).
- Eldred v. Ashcroft, 537 U.S. 186 (2003).
- 35 U.S.C. §§ 101 et seq.
- 28 U.S.C. § 1338(a).
- See generally Herbert F. Schwartz, Patent Law and Practice (3d ed. Federal Judicial Center 2001).
- 15 U.S.C. §§ 1051 et seq.
- Atari Games Corp. v. Oman, 979 F.2d 242 (D.C. Cir. 1992).
- OddzOn Prods., Inc. v. Oman, 924 F.2d 346 (D.C. Cir. 1991); Coach, Inc. v. Peters, 386 F. Supp. 2d 495 (S.D.N.Y. 2005).
- 467 U.S. 837 (1984).
- Satellite Broad. & Commc’ns Ass’n of Am. v. Oman, 17 F.3d 344 (11th Cir. 1994) (court must defer even though Copyright Office interpretation disagrees with court’s own earlier interpretation; regulations may be struck down only if they contradict “clear meaning” or “plain language” of the Copyright Act). Cf. Bonneville Int’l Corp. v. Peters, 347 F.3d 485, 490 n.9 (3d Cir. 2003) (disagreement whether to apply Chevron deference or so-called Skidmore deference).
- Cablevision Sys. Dev. Co. v. Motion Picture Ass’n of Am., Inc., 836 F.2d 599 (D.C. Cir. 1988) (deference to “reasonable” agency interpretation is dictated both because of agency’s expertise in dealing with a recurrent problem and because it is proper to allow agency to import policy choices when there is a statutory ambiguity).
- Mazer v. Stein, 347 U.S. 201 (1954). See also De Sylva v. Ballentine, 351 U.S. 570 (1956) (dictum). See Morris v. Business Concepts, Inc., 283 F.3d 502, 505–06 (2d Cir. 2002) (agency’s “specialized experience and broader investigations and information” warrant deference, even if Chevron standard does not apply (quoting United States v. Mead Corp., 533 U.S. 218, 220 (2001))).