Copyright Law

Protection, Enforcement, and Infringement

An Introduction to Copyright Law

The founding fathers considered the creative expression of ideas to be of such monumental importance to our constitutional democracy that they included a provision in Article I, Section 8, Clause 8 of the United Constitution giving Congress the power “[t]o promote the … useful arts, by securing for limited times to authors … the exclusive right to their respective writings….” The term “copyright” is an apt one, for it grants the holder the exclusive right to control the use or copying of protected materials.

Though the scope of copyright originally extended almost exclusively to literature and written texts, it has been significantly expanded to cover a wide range of “works of authorship,” including plays, music, movies, choreography, visual arts, sculpture, computer software, designs, and architecture. Additionally, the holders of certain types of copyrights, such as music and drama copyrights, have the exclusive right to control both the copying of the work and any performance. There are some exceptions to copyright protection, such as fair use.

How Is Copyright Protected in the United States?

Copyright in the United States is currently governed exclusive by a federal law known as the Copyright Act of 1976. Additional laws have been enacted since that date, including the Copyright Term Extension Act of 1998 and the Music Modernization Act of 2018.

The Purpose of a Copyright

The founding fathers believed that copyright was absolutely essential to provide the necessary incentive for people to exercise creativity. It is believed that if the authors of creative works are not allowed the right of exclusive use of (and profit from) their works, they may be disinclined to engage in creative endeavors and the American people (and the economy) would suffer as a result.

An Overview of the U.S. Copyright Law

Under the Copyright Act of 1976, a person or organization is entitled to protection for any “original works of authorship fixed in a tangible medium of expression.” Perhaps the most important aspect of copyright is that it does not protect ideas in and of themselves—it only protects the expression of an idea. That is what is meant by “fixing a work in a tangible medium.” A tangible medium is one that can be communicated, reproduced, or perceived through a writing, performance, or oral representation.

A work may be considered original, even if the idea for it previously existed, if it can be proved that the author neither knew of the existence of the idea nor borrowed the idea before it was fixed in a tangible medium.

For works created after 1978, a copyright affords protection for the life of the author plus 70 years. Accordingly, if a person obtains a copyright at the age of 20 and lives to be 90, the term of copyright protection will be 140 years. If the protected material is considered “work for hire,” created while in someone else’s employ, the copyright lasts for 120 years from creation or 95 years from first publication, whichever is shorter.

Federal copyright law provides specific remedies to anyone who can prove infringement:

• Payment of profits received by the infringer and losses incurred by the copyright holder as a consequence of the infringement
• As an alternative, “statutory damages” of $750 to $30,000 per work, as determined by the court
• A cease-and-desist order prohibiting any further infringement
• Confiscation and/or destruction of any materials that violate the copyright
• Legal fees

The Exclusive Rights Granted Under a Copyright

Under the Copyright Act, the owner of a copyright has the sole right to engage in or authorize others to engage in the:

• Reproduction of any protected work
• Preparation of derivative works using the protected work
• Distribution of copies of the protected work
• Public performance of any protected work
• Public display of any protected work
• Digital transmission of any protected work

A History of Copyright Law in the United States

Pursuant to the powers granted in the U.S. Constitution, Congress enacted the first copyright statute in 1790, giving authors the right to protection for 14 years and allowing them to extend for another 14 years, provided they were still alive when it came time for renewal. The Copyright Act of 1790 gave authors the exclusive right to print, publish, or reprint their own works.

In 1831, Congress amended the Copyright Act to create an initial period of 28 years, with a subsequent right to one 14-year extension. It extended the original period of copyright on all works currently under protection, as well as future works.

In 1870, Congress transferred the administration of copyrights from U.S. District Courts to the Library of Congress’s Copyright Office.

In 1909, as many new technologies (such as film and sound recordings) came under the scope of copyright, Congress passed a major overhaul of the U.S. Copyright Act, substantially expanding the definition of “works of authorship” and extending the renewal period for copyright to 28 years (the same as the original period of protection).

The next major changes to the American copyright law are found in the 1976 revisions to the statute. The primary factors contributing to the amendments were developing technologies and the increasing globalization of commerce. The 1976 provisions also extended the period of protection to 50 years after the death of the creator (75 years for works of hire). The Act also sets forth the conditions for fair use of a copyright, including photocopying for scholarship and preservation purposes. The Copyright Term Extension Act of 1998 extended the duration of copyright protection for works created after 1978 to the current terms given in the Overview section above.