Constitutional and Statutory Law

Case Law

Commentary

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Constitutional and Statutory Law

U.S. Const., Art. I, § 8, cl. 8. 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.

U.S. Copyright Law, 17 U.S.C. §§101 et seq

Case Law

The following three texts are syllabi of opinions of the Supreme Court of the United States (SCOTUS). Syllabi are prepared by the Reporter of Decisions of the SCOTUS and proceed the Court’s opinion. Syllabi are not an official part of the Court’s opinions; rather, they provide a summary of the facts of the case and the Court’s decision. In this chapter as several cases are used to outline key concepts of U.S. copyright law syllabi are used rather than the text of the opinions themselves. Readers are directed to the Oyez (pronounced OH-yay) web site, “a free law project from Cornell’s Legal Information Institute (LII), Justia, and Chicago-Kent College of Law. . . devoted to making the Supreme Court of the United States accessible to everyone” (About Oyez, n.d.), for the full text of each opinion and a recording of the oral arguments. Readers are strongly encouraged to engage with both.

Case 1: Feist Publications, Inc. v. Rural Telephone Service Company, Inc.

Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)

Syllabus

Respondent Rural Telephone Service Company is a certified public utility providing telephone service to several communities in Kansas. Pursuant to state regulation, Rural publishes a typical telephone directory, consisting of white pages and yellow pages. It obtains data for the directory from subscribers, who must provide their names and addresses to obtain telephone service. Petitioner Feist Publications, Inc., is a publishing company that specializes in area-wide telephone directories covering a much larger geographic range than directories such as Rural’s. When Rural refused to license its white pages listings to Feist for a directory covering 11 different telephone service areas, Feist extracted the listings it needed from Rural’s directory without Rural’s consent. Although Feist altered many of Rural’s listings, several were identical to listings in Rural’s white pages. The District Court granted summary judgment to Rural in its copyright infringement suit, holding that telephone directories are copyrightable. The Court of Appeals affirmed.

Held: Rural’s white pages are not entitled to copyright, and therefore Feist’s use of them does not constitute infringement. Pp. 499 U. S. 344-364.

(a) Article I, § 8, cl. 8, of the Constitution mandates originality as a prerequisite for copyright protection. The constitutional requirement necessitates independent creation plus a modicum of creativity. Since facts do not owe their origin to an act of authorship, they are not original, and thus are not copyrightable. Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not to the facts themselves. This fact/expression dichotomy severely limits the scope of protection in fact-based works. Pp. 499 U. S. 344-351.

(b) The Copyright Act of 1976 and its predecessor, the Copyright Act of 1909, leave no doubt that originality is the touchstone of copyright protection in directories and other fact-based works. The 1976 Act explains that copyright extends to “original works of authorship,” 17 U.S.C. § 102(a), and that there can be no copyright in facts, § 102(b).

A compilation is not copyrightable per se, but is copyrightable only if its facts have been “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” § 101 (emphasis added). Thus, the statute envisions that some ways of selecting, coordinating, and arranging data are not sufficiently original to trigger copyright protection. Even a compilation that is copyrightable receives only limited protection, for the copyright does not extend to facts contained in the compilation. § 103(b). Lower courts that adopted a “sweat of the brow” or “industrious collection” test — which extended a compilation’s copyright protection beyond selection and arrangement to the facts themselves — misconstrued the 1909 Act and eschewed the fundamental axiom of copyright law that no one may copyright facts or ideas. Pp. 499 U. S. 351-361.

(c) Rural’s white pages do not meet the constitutional or statutory requirements for copyright protection. While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural’s white pages. The raw data are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way. Rural’s selection of listings — subscribers’ names, towns, and telephone numbers — could not be more obvious, and lacks the modicum of creativity necessary to transform mere selection into copyrightable expression. In fact, it is plausible to conclude that Rural did not truly “select” to publish its subscribers’ names and telephone numbers, since it was required to do so by state law. Moreover, there is nothing remotely creative about arranging names alphabetically in a white pages directory. It is an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course. Pp. 499 U. S. 361-364.

916 F.2d 718 (CA 10 1990), reversed.

O’CONNOR J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, SCALIA, KENNEDY, and SOUTER, JJ., joined. BLACKMUN, J., concurred in the judgment.

Case 2: Community for Creative Non-Violence v. Reid

Commun. for Non-Violence v. Reid, 490 U.S. 730 (1989)

Syllabus

In the fall of 1985, petitioners — the Community for Creative Non-Violence (CCNV), a Washington, D.C. organization dedicated to eliminating homelessness, and one of its trustees — entered into an oral agreement with respondent Reid, a sculptor, to produce a statue dramatizing the plight of the homeless for display at a 1985 Christmas pageant in Washington. While Reid worked on the statue in his Baltimore, Md. studio, CCNV members visited him on a number of occasions to check on his progress and to coordinate CCNV’s construction of the sculpture’s base in accordance with the parties’ agreement. Reid accepted most of CCNV’s suggestions and directions as to the sculpture’s configuration and appearance. After the completed work was delivered to Washington, CCNV paid Reid the final installment of the agreed-upon price, joined the sculpture to its base, and displayed it. The parties, who had never discussed copyright in the sculpture, then filed competing copyright registration certificates. The District Court ruled for CCNV in its subsequent suit seeking, inter alia, a determination of copyright ownership, holding that the statue was a “work made for hire” as defined in the Copyright Act of 1976, 17 U.S.C. § 101, and was therefore owned exclusively by CCNV under § 201(b), which vests copyright ownership of works for hire in the employer or other person for whom the work is prepared, unless there is a written agreement to the contrary. The Court of Appeals reversed, holding that the sculpture was not a “work made for hire” under the first subsection of the § 101 definition (hereinafter § 101(1)), since it was not “prepared by an employee within the scope of his or her employment” in light of Reid’s status as an independent contractor under agency law. The court also ruled that the statue did not satisfy the second subsection of the § 101 definition (hereinafter § 101(2)), since sculpture is not one of the nine categories of “specially ordered or commissioned” works enumerated therein, and the parties had not agreed in writing that the sculpture would be a work for hire. However, the court remanded for a determination whether the statue was jointly authored by CCNV and Reid, such that they were co-owners of the copyright under § 201(a).

Held:

1.To determine whether a work is a “work made for hire” within the § 101 definition, a court should first apply general common law of agency principles to ascertain whether the work was prepared by an employee or an independent contractor, and, depending upon the outcome, should then apply either § 101(1) or § 101(2). Although the Act nowhere defines “employee,” “employment,” or related terms, it must be inferred that Congress meant them in their settled, common law sense, since nothing in the text of the work for hire provisions indicates that those terms are used to describe anything other than the conventional relation of employer and employee. On the contrary, Congress’ intent to incorporate agency law definitions is suggested by § 101(1)’s use of the term “scope of employment,” a widely used agency law term of art. Moreover, the general common law of agency must be relied on, rather than the law of any particular State, since the Act is expressly intended to create a federal law of uniform, nationwide application by broadly preempting state statutory and common law copyright regulation. Petitioners’ argument that a work is “prepared by an employee within the scope of his or her employment” whenever the hiring party retains the right to control, or actually controls, the work is inconsistent with the language and legislative history of the work for hire provisions, and would distort the provisions’ structure, which views works by employees and commissioned works by independent contractors as mutually exclusive entities. Pp. 490 U. S. 737-751.

2. The sculpture in question is not a “work made for hire” within the meaning of § 101. Reid was an independent contractor, rather than a § 101(1) “employee,” since, although CCNV members directed enough of the work to ensure that the statue met their specifications, all other relevant circumstances weigh heavily against finding an employment relationship. Reid engages in a skilled occupation; supplied his own tools; worked in Baltimore without daily supervision from Washington; was retained for a relatively short period of time; had absolute freedom to decide when and how long to work in order to meet his deadline; and had total discretion in hiring and paying assistants. Moreover, CCNV had no right to assign additional projects to Reid; paid him in a manner in which independent contractors are often compensated; did not engage regularly in the business of creating sculpture or, in fact, in any business; and did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds. Furthermore, as petitioners concede, the work in question does not satisfy the terms of § 101(2). Pp. 490 U. S. 751-753.

3. However, CCNV nevertheless may be a joint author of the sculpture and, thus, a co-owner of the copyright under § 201(a), if, on remand, the District Court determines that the parties prepared the work with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. P. 490 U. S. 753.

270 U.S.App.D.C. 26, 846 F.2d 1485, affirmed.

MARSHALL, J., delivered the opinion for a unanimous Court.

Case 3: Eldred et al. v. Ashcroft, Attorney General

Eldred v. Ashcroft, 537 U.S. 186 (2003)

Syllabus

The Copyright and Patent Clause, U. S. Const., Art. I, § 8, cl. 8, provides as to copyrights: “Congress shall have Power … [t]o promote the Progress of Science … by securing [to Authors] for limited Times … the exclusive Right to their … Writings.” In the 1998 Copyright Term Extension Act (CTEA), Congress enlarged the duration of copyrights by 20 years: Under the 1976 Copyright Act (1976 Act), copyright protection generally lasted from a work’s creation until 50 years after the author’s death; under the CTEA, most copyrights now run from creation until 70 years after the author’s death, 17 U. S. C. § 302(a). As in the case of prior copyright extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.

Petitioners, whose products or services build on copyrighted works that have gone into the public domain, brought this suit seeking a determination that the CTEA fails constitutional review under both the Copyright Clause’s “limited Times” prescription and the First Amendment’s free speech guarantee. Petitioners do not challenge the CTEA’s “life-plus-70-years” timespan itself. They maintain that Congress went awry not with respect to newly created works, but in enlarging the term for published works with existing copyrights. The “limited Tim[e]” in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend. As to the First Amendment, petitioners contend that the CTEA is a content-neutral regulation of speech that fails inspection under the heightened judicial scrutiny appropriate for such regulations. The District Court entered judgment on the pleadings for the Attorney General (respondent here), holding that the CTEA does not violate the Copyright Clause’s “limited Times” restriction because the CTEA’s terms, though longer than the 1976 Act’s terms, are still limited, not perpetual, and therefore fit within Congress’ discretion. The court also held that there are no First Amendment rights to use the copyrighted works of others. The District of Columbia Circuit affirmed. In that court’s unanimous view, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539, foreclosed petitioners’ First Amendment challenge to the CTEA. The appeals court reasoned that copyright does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for “fair use” even of the expression itself. A majority of the court also rejected petitioners’ Copyright Clause claim. The court ruled that Circuit precedent precluded petitioners’ plea for interpretation of the “limited Times” prescription with a view to the Clause’s preambular statement of purpose:

“To promote the Progress of Science.” The court found nothing in the constitutional text or history to suggest that a term of years for a copyright is not a “limited Tim[e]” if it may later be extended for another “limited Tim[e].” Recounting that the First Congress made the 1790 Copyright Act applicable to existing copyrights arising under state copyright laws, the court held that that construction by contemporaries of the Constitution’s formation merited almost conclusive weight under Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57. As early as McClurg v. Kingsland, 1 How. 202, the Court of Appeals recognized, this Court made it plain that the Copyright Clause permits Congress to amplify an existing patent’s terms. The court added that this Court has been similarly deferential to Congress’ judgment regarding copyright. E. g., Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417. Concerning petitioners’ assertion that Congress could evade the limitation on its authority by stringing together an unlimited number of “limited Times,” the court stated that such legislative misbehavior clearly was not before it. Rather, the court emphasized, the CTEA matched the baseline term for United States copyrights with the European Union term in order to meet contemporary circumstances.

Held: In placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress constitutional limitations. Pp. 199-222.

1. The CTEA’s extension of existing copyrights does not exceed Congress’ power under the Copyright Clause. Pp. 199-218.

(a) Guided by text, history, and precedent, this Court cannot agree with petitioners that extending the duration of existing copyrights is categorically beyond Congress’ Copyright Clause authority. Although conceding that the CTEA’s baseline term of life plus 70 years qualifies as a “limited Tim[e]” as applied to future copyrights, petitioners contend that existing copyrights extended to endure for that same term are not “limited.” In petitioners’ view, a time prescription, once set, becomes forever “fixed” or “inalterable.” The word “limited,” however, does not convey a meaning so constricted. At the time of the Framing, “limited” meant what it means today: confined within certain bounds, restrained, or circumscribed. Thus understood, a timespan appropriately “limited” as applied to future copyrights does not automatically cease to be “limited” when applied to existing copyrights. To comprehend the scope of Congress’ Copyright Clause power, “a page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U. S. 345, 349. History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. Moreover, because the Clause empowering Congress to confer copyrights also authorizes patents, the Court’s inquiry is significantly informed by the fact that early Congresses extended the duration of numerous individual patents as well as copyrights. Lower courts saw no “limited Times” impediment to such extensions. Further, although this Court never before has had occasion to decide whether extending existing copyrights complies with the “limited Times” prescription, the Court has found no constitutional barrier to the legislative expansion of existing patents. See, e. g., McClurg, 1 How., at 206. Congress’ consistent historical practice reflects a judgment that an author who sold his work a week before should not be placed in a worse situation than the author who sold his work the day after enactment of a copyright extension. The CTEA follows this historical practice by keeping the 1976 Act’s duration provisions largely in place and simply adding 20 years to each of them.

The CTEA is a rational exercise of the legislative authority conferred by the Copyright Clause. On this point, the Court defers substantially to Congress. Sony, 464 U. S., at 429. The CTEA reflects judgments of a kind Congress typically makes, judgments the Court cannot dismiss as outside the Legislature’s domain. A key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States. Additionally, Congress passed the CTEA in light of demographic, economic, and technological changes, and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works. Pp. 199-208.

(b) Petitioners’ Copyright Clause arguments, which rely on several novel readings of the Clause, are unpersuasive. Pp. 208-218.

(1) Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the “limited Times” constraint. Critically, petitioners fail to show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. Those earlier Acts did not create perpetual copyrights, and neither does the CTEA. Pp. 208-210.

(2) Petitioners’ dominant series of arguments, premised on the proposition that Congress may not extend an existing copyright absent new consideration from the author, are unavailing. The first such contention, that the CTEA’s extension of existing copyrights overlooks the requirement of “originality,” incorrectly relies on Feist Publications, Inc. v. Rural Telephone Service Co., 499 U. S. 340, 345, 359. That case did not touch on the duration of copyright protection. Rather, it addressed only the core question of copyright ability. Explaining the originality requirement, Feist trained on the Copyright Clause words “Authors” and “Writings,” id., at 346-347, and did not construe the “limited Times” prescription, as to which the originality requirement has no bearing. Also unavailing is petitioners’ second argument, that the CTEA’s extension of existing copyrights fails to “promote the Progress of Science” because it does not stimulate the creation of new works, but merely adds value to works already created. The justifications that motivated Congress to enact the CTEA, set forth supra, provide a rational basis for concluding that the CTEA “promote[s] the Progress of Science.” Moreover, Congress’ unbroken practice since the founding generation of applying new definitions or adjustments of the copyright term to both future works and existing works overwhelms petitioners’ argument. Also rejected is petitioners’ third contention, that the CTEA’s extension of existing copyrights without demanding additional consideration ignores copyright’s quid pro quo, whereby Congress grants the author of an original work an “exclusive Right” for a “limited Tim[e]” in exchange for a dedication to the public thereafter. Given Congress’ consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the protection offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225, 229, and Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 146, both of which involved the federal patent regime, are not to the contrary, since neither concerned the extension of a patent’s duration nor suggested that such an extension might be constitutionally infirm. Furthermore, given crucial distinctions between patents and copyrights, one cannot extract from language in the Court’s patent decisions-language not trained on a grant’s duration-genuine support for petitioners’ quid pro quo argument. Patents and copyrights do not entail the same exchange, since immediate disclosure is not the objective of, but is exacted from, the patentee, whereas disclosure is the desired objective of the author seeking copyright protection. Moreover, while copyright gives the holder no monopoly on any knowledge, fact, or idea, the grant of a patent prevents full use by others of the inventor’s knowledge. Pp.210-217.

(3) The “congruence and proportionality” standard of review described in cases evaluating exercises of Congress’ power under § 5 of the Fourteenth Amendment has never been applied outside the § 5 context. It does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization. Section 5 authorizes Congress to “enforce” commands contained in and incorporated into the Fourteenth Amendment. The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U. S., at 429. Judicial deference to such congressional definition is “but a corollary to the grant to Congress of any Article I power.” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 6. It would be no more appropriate for this Court to subject the CTEA to “congruence and proportionality” review than it would be to hold the Act unconstitutional per se. Pp.217-218.

2. The CTEA’s extension of existing and future copyrights does not violate the First Amendment. That Amendment and the Copyright Clause were adopted close in time. This proximity indicates the Framers’ view that copyright’s limited monopolies are compatible with free speech principles. In addition, copyright law contains built-in First Amendment accommodations. See Harper & Row, 471 U. S., at 560. First, 17 U. S. C. § 102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author’s expression. Harper & Row, 471 U. S., at 556. Second, the “fair use” defense codified at § 107 allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself for limited purposes. “Fair use” thereby affords considerable latitude for scholarship and comment, id., at 560, and even for parody, see Campbell v. Acuff-Rose Music, Inc., 510 U. S. 569. The CTEA itself supplements these traditional First Amendment safeguards in two prescriptions: The first allows libraries and similar institutions to reproduce and distribute copies of certain published works for scholarly purposes during the last 20 years of any copyright term, if the work is not already being exploited commercially and further copies are unavailable at a reasonable price, § 108(h); the second exempts small businesses from having to pay performance royalties on music played from licensed radio, television, and similar facilities, § 1l0(5)(B). Finally, petitioners’ reliance on Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 641, is misplaced. Turner Broadcasting involved a statute requiring cable television operators to carry and transmit broadcast stations through their proprietary cable systems. The CTEA, in contrast, does not oblige anyone to reproduce another’s speech against the carrier’s will. Instead, it protects authors’ original expression from unrestricted exploitation. The First Amendment securely protects the freedom to make–or decline to make–one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary. See, e. g., Harper & Row, 471 U. S., at 560. Pp. 218-222.

239 F.3d 372, affirmed.

GINSBURG, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O’CONNOR, SCALIA, KENNEDY, SOUTER, and THOMAS, JJ., joined. STEVENS, J., post, p. 222, and BREYER, J., post, p. 242, filed dissenting opinions.

Commentary

Introduction

In order to understand and effectively apply copyright law to situations encountered in day-to-day activities, library employees should have knowledge of the basics of U.S. copyright law. This includes how copyright is secured, categories of protectable works, copyright authorship and ownership, the duration of protection, and international treatment of copyright law. This chapter will also provide a brief introduction to permissions as obtaining authorization from the rightsholder to use a protected work can be required when a use does not fall within the scope of a license or within one of the user rights (exceptions) found in the law.

Securing Copyright

To secure copyright protection works must be original, fixed, and fall into one of the categories identified in Section 102 of U.S. copyright law (Title 17 U.S. Code). Originality “necessitates independent creation plus a modicum of creativity” (Feist v. Rural 1991, 340). Fixation can take on a variety of formats including those “now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” (17 U.S.C. § 102[a]). Crews provides the following examples of fixation: scribbles on paper; recordings of music; painting on canvas; documents on web servers; a snapshot on film or a digital camera; sandcastles and ice sculptures; and content stored on a computer, mobile phone, or camera (Crews 36).

Categories of copyrightable works identified in Section 102(a) are:

(1) “literary works;

(2) musical works, including any accompanying words;

(3) dramatic works, including any accompanying music;

(4) pantomimes and choreographic works;

(5) pictorial, graphic, and sculptural works;

(6) motion pictures and other audiovisual works;

(7) sound recordings; and

(8) architectural works.”

These categories are broad in scope, as evidenced by examples of these works provided by the U.S. Copyright Office (USCO) in Section 503.1(B) of the Compendium of U.S. Copyright Office Practices, Third Edition (2017).

Copyright protection is also available for compilations (17 U.S.C. § 103). These are works “formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship (17 U.S.C. § 101). Collective works are a subgroup of compilations and are defined as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole” (17 U.S.C. § 101).

Derivative works are also eligible for copyright protection (17 U.S.C. § 103). These are works “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is [also considered to be] a ‘derivative work’” (17 U.S.C. § 101).

It is a common misconception that works must be registered with the USCO and have a notice of copyright attached in order to receive copyright protection. Registration with the USCO has never been a requirement for securing protection, though it does secure certain benefits, including:

• Identifying the author of the work;
• Identifying the rightsholder of the work (as the author is not always the rightsholder, a topic discussed in the Authorship and Ownership section of this chapter); and
• Establishing the creation and/or publication date of the work.

Additional benefits of registration and an overview of the process can be found in Circular 2: Copyright Registration published by the USCO.

Generally, works first published on or before February 28, 1989 were required to have a copyright notice placed on them to have copyright protection. However, this requirement was eliminated as of March 1, 1989, and works published after this date are still fully protected by copyright even if there is no notice on them. In-depth information about notice requirements for works published on or before February 28, 1989 and the format and placement of notices can be found in the USCO’s Circular 3: Copyright Notice.

Works not Eligible for Copyright Protection

Section 102(b) tells us that “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” However, “a compilation of facts may possess the requisite originality [required for copyright protection] because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively (Feist v. Rural 1991, 340). It is noted though that in these situations the “copyright protection extends only to those components of the work that are original to the author, not to the facts themselves” (340). The decision in Feist v. Rural illustrates this concept well:

Rural’s white pages do not meet the constitutional or statutory requirements for copyright protection. While Rural has a valid copyright in the directory as a whole because it contains some forward text and some original material in the yellow pages, there is nothing original in Rural’s white pages. The raw data [subscribers’ names, towns, and telephone numbers ] are uncopyrightable facts, and the way in which Rural selected, coordinated, and arranged those facts is not original in any way. . . [as] there is nothing remotely creative about arranging names alphabetically in a white pages directory. (341)

The Compendium identifies other works that are not eligible for copyright protection (see Section 313). They include:

• Works that for not fixed, e.g. an impromptu speech;
• Works not authored by a human being, for example, works ‘authored by animals or a machine do not qualify for protection;
• Words and short phrases, though these may be eligible for trademark protection, (see Chapter 7 for more information);
• A mere listing of ingredients, such as a list of recipe agreements;
• A mere listing of instructions, such as basic instructions on how to make chocolate chip cookies;
• A mere listing of contents, e.g., the table of contents of this book; and,
• Familiar symbols and designs, such as punctuation or musical notes.

Works without copyright protection are said to be in the “public domain” and may be used freely by the public without fear of claims of infringement. In addition to the categories of works identified in this section that are not eligible for copyright protection, works will also pass into the public domain when their term of protection expires (see the Duration of Copyright section of this chapter for more information).

Works “prepared by an officer or employee of the U.S. Government as part of that person’s official duties” (17 U.S.C. § 101) are not eligible for copyright protection under Section 105(a). There are exceptions to this rule as well though. The U.S. Government “is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise” (17 U.S.C. § 105[a]). For example, an individual may transfer the copyright in a photograph or audiovisual work they created to the U.S. Government; this does not negate the copyright in the works under Section 105, rather it means that the U.S. Government is not the rightsholder.

When a covered work that is a “literary work [is] produced by a covered author in the course of employment at a covered institution for publication by a scholarly press or journal” (17 U.S.C. § 105[c][3]), then “the covered author of a covered work owns the copyright to that covered work” (17 U.S.C. § 105[b]). Here, the “term ‘covered author’ means a civilian member of the faculty of a covered institution” (17 U.S.C. § 105[c][1]). Covered institutions are identified in Section 105(c)(2) and include the:

(A) National Defense University.

(B) United States Military Academy.

(C) Army War College.

(D) United States Army Command and General Staff College.

(E) United States Naval Academy.

(F) Naval War College.

(G) Naval Post Graduate School.

(H) Marine Corps University.

(I) United States Air Force Academy.

(J) Air University.

(K) Defense Language Institute.

(L) United States Coast Guard Academy.

Authorship and Ownership

Initially, copyright ownership in a work “ vests initially in the author or authors of the work” (17 U.S.C. § 201[a]). A ‘joint work’ is created when a work is “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” (17 U.S.C. § 101). In these situations, “the authors of a joint work are coowners of copyright in the work” (17 U.S.C. § 201[a]).

When it comes to collective works, the “copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution” (17 U.S.C. § 201[c]). For example, if an editor was assembling monograph that included chapters each authored by a separate individual, then the editor would hold the copyright in the “select[ion], coordinat[ion], or arrange[ment]” of the edited volume if it was done “in such a way that the resulting work as a whole constitutes an original work of authorship (17 U.S.C. § 101)” and, under Section 201(c) each author would hold the copyright in the chapter they contributed. That is, unless, the author of each chapter transfers the copyright in their work to person creating the collective work. For example, the editor may require authors to transfer the copyright in their chapter to them as a condition of publication. In these situations, the editor would hold the copyright in the chapters and copyright in the collective work as a whole. “The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law” (17 U.S.C. § 201[d][1]). Transfers can be exclusive, in which part or all of the copyright held in a work is transferred to another. Exclusive transfers must be done in writing. Nonexclusive licenses to use a copyright work can also be granted. In these situations, the rightsholder may authorize multiple individuals or organizations (e.g., a publisher, an academic institution, or a library), to exercise one or more of the rights they possess in a work. Nonexclusive licenses can be granted in writing or verbally.

Some works are considered to be works made for hire. These include works “prepared by an employee within the scope of his or her employment” (17 U.S.C. § 101[1]). In these situations, “the employer or other person for whom the work was prepared is considered the author. . . unless the parties have expressly agreed otherwise in a written instrument signed by them (17 U.S.C. § 201[b]).

A work that is “specially ordered or commissioned for use” in one of the following categories can also be considered a work made for hire “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire” (17 U.S.C. § 101[2]):

• A contribution to a collective work
• A part of a motion picture or other audiovisual work
• A translation
• A supplementary work
• A compilation
• An instructional text
• A test
• Answer material for a test
• An atlas

In the case of a work made for hire “the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright” (17 U.S.C. § 201[b]).

Work made for hire situations can be complicated, as illustrated in the case of Community for Creative Non-Violence (CCNV) v. Reid. These situations can involve applying the “general common law of agency principles [employer/employee relationships] to ascertain whether the work was prepared by an employee or an independent contractor, and, depending upon the outcome, should then apply either § 101(1) or § 101(2)” (CCNV v. Reid 1989, 731). In CCNV v. Reid it was determined that Reid’s sculpture was not a work made for hire “within the meaning of § 101 [as] Reid was an independent contractor, rather than a § 101(1) ‘employee,’ since, although CCNV members directed enough of the work to ensure that the statue met their specifications, all other relevant circumstances weigh heavily against finding an employment relationship (731). This included the fact that:

• “Reid engage[d] in a skilled occupation;
• supplied his own tools;
• worked in Baltimore without daily supervision from Washington;
• was retained for a relatively short period of time;
• had absolute freedom to decide when and how long to work in order to meet his deadline;
• had total discretion in hiring and paying assistants;
• that CCNV had no right to assign additional projects to Reid;
• that CCNV paid him in a manner in which independent contractors are often compensated and did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds; and
• that CCNV did not engage regularly in the business of creating sculpture” (731).

The USCO’s Circular 30: Works Made for Hire, is a useful resource for those looking to learn more about work made for hire situations.

Duration of Copyright

Article 1, Section 8, Clause 8 of the U.S. Constitution states that “to promote the progress of science and useful arts” Congress can secure “for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (emphasis added). The duration of the term of copyright protection has varied over the years. As of the writing of this chapter (2021), U.S. copyright law is governed by the Copyright Act of 1976, as amended. Originally under the Copyright Act of 1976, “copyright protection generally lasted from a work’s creation until 50 years after the author’s death” (Eldred v. Ashcroft 2003, 186). This term was established to bring the term of protection in the U.S. inline with the international standard of ‘life plus 50 years’ adopted under the Berne Convention for the Protection of Literary and Artistic Works (readers can learn more about the Berne Convention in the International Treatment of Copyright section of this chapter). In 1998 Congress passed the Copyright Term Extension Act (CTEA), which is also sometimes referred to as the Sonny Bono Copyright Term Extension Act. The CETA extended the duration of copyright by 20 years, resulting in protectable works receiving the following terms:

• Works created by a single author are protected or the “life of the author and 70 years after the author’s death” (17 U.S.C. § 302[a]).
• “In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death” (17 U.S.C. § 302[b]).
• “In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first” (17 U.S.C. § 302[c]).

Justice Ginsburg, in writing the opinion of the Court for Eldred v. Ashcroft (joined by Justices Rehnquist, O’Connor, Scalia, Kennedy, Souter, and Thomas, Justices Stevens and Breyer dissented), noted that such extensions are not unusual as “Congress provided for application of the enlarged terms to existing and future copyrights alike” in revisions made to U.S. copyright law in 1831, 1909, and 1976 (Eldred v. Ashcroft 2003, 186). In Eldred v. Ashcroft the petitioners did “ not challenge the CTEA’s ‘life-plus-70-years’ timespan itself,” rather they argued that “Congress went awry not with respect to [expanding the term for] newly created works, but in enlarging the term for published works with existing copyrights” (186). They felt that extending the term of protection for works with existing copyrights violated “both the Copyright Clause’s ‘limited Times’ prescription and the First Amendment’s free speech guarantee” (186). The SCOTUS disagreed, stating that “at the time of the Framing, ‘limited’ meant what it means today: confined within certain bounds, restrained, or circumscribed. Thus understood, a timespan [of life plus 70 years] is] appropriately ‘limited’” (187). As such, additional extensions of the terms of protection granted to copyrightable works could be granted by Congress in the future.

The term of protection granted to works created prior to January 1, 1978 depends on the publication status of the work (published or unpublished) and the rightsholder’s compliance with formalities found in the law during this time. Readers seeking to determine the term of copyright protection for a work should consult the Copyright Term and the Public Domain in the United States charts created by Peter Hirtle. The resource, Is it in the Public Domain created by the Samuelson Law, Technology and Public Policy Clinic at the University of California, Berkeley, School of Law is another excellent resource readers can use to determine the copyright status of works created prior to January 1, 1978.

Exclusive Rights in Copyrighted Works

Under Section 106, “the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

• (1) to reproduce the copyrighted work in copies or phonorecords;
• (2) to prepare derivative works based upon the copyrighted work;
• (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
• (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
• (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

Section 101(1) tells us that ‘public’ performances and displays occur when a work is “perform[ed] or display[ed]. . . at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered’ or when a work is “transmit[ted] or otherwise communicate[d] a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times” (17 U.S.C. § 302[2]).

The use of the term ‘exclusive’ in Section 106 generally means that the rightsholder alone can exercise these rights, or authorize someone to exercise them on their behalf. Infringement lawsuits are often brought by rightsholders who feel that an individual or entity (e.g., a business or other organization) has taken advantage of one of these rights without their authorization.

However, these rights are not absolute. The rights granted to creators of copyrightable works in Section 106 are subject to user rights (also referred to as exceptions) set forth by Congress in Sections 107 through 122 of the Copyright Act. Examples include fair use (17 U.S.C. § 107), that is discussed in the Copyright and Libraries: Fair Use chapter of this book (mlpp.pressbooks.pub/librarylaw/chapter/copyright-fair-use/); the Limitations on exclusive rights: Reproduction by libraries and archives (17 U.S.C. § 108), that is discussed in the Copyright and Libraries: Resource Sharing chapter (mlpp.pressbooks.pub/librarylaw/chapter/copyright-ill/#commentary) ; and the Limitations on exclusive rights: Exemption of certain performances and displays (17 U.S.C. §§ 110[1], 110[2], and 112), that are discussed in the Copyright and Education: Public Performances and TEACH Act chapter (mlpp.pressbooks.pub/librarylaw/chapter/copyright-education/#commentary). These user rights were established by Congress to permit some “uses that would otherwise be infringements” (Crews 83) and help to ensure that the rights granted to the creators of copyrightable works in Section 106 do not impede the true intent of copyright law, which is the promotion of “the Progress of Science and useful Arts” (U.S. Const. art. I, § 8, cl. 8).

Permissions and Licensing

It is not uncommon for library staff to wish to take advantage of one of these rights when looking to provide services and resources to patrons. For example, a patron may ask library staff to make a copy of a copyrightable work for them, staff may wish to make a digital copy of a work and display it online as part of a preservation project, or staff may wish to include a protected image in an advertisement for an upcoming program via their social media sites. Library staff are free to do so when their use falls within the scope of one of the user rights found in the law (e.g., fair use). When a use does not fall within the scope of the exceptions library staff may consider:

• Obtaining permission for their use from the rightsholder. This often involves identifying the rightsholder, outlining the intended use to them and, in some situations, negotiating the conditions of the use. Permission for a use can be granted on a short-term basis or in perpetuity. Quality information about obtaining permission for a use and template letters can be found on the Asking for Permission webpage of the Columbia Copyright Advisory Services website. Readers may also find Circular 16a: How to Obtain Permission, a work published by the USCO to be a useful resource on this topic. See also the section on Permissions in the Commentary to the Copyright and Digitization chapter of this textbook (mlpp.pressbooks.pub/librarylaw/chapter/copyright-and-digitization/).
• Using a license. Some protected works are made available to the public under an open license that allows certain uses. For example, a Creative Commons Attribution (CC-BY) license “lets others distribute, remix, adapt, and build upon [a copyrighted] work, even commercially, as long as they credit [the rightsholder] for the original creation” (Creative Commons, n.d.). Many electronic library resources are obtained via licensing, a topic that is explored in-depth in the Licensing Electronic Resources chapter of this textbook (mlpp.pressbooks.pub/librarylaw/chapter/licensing-electronic-resources/). Library staff and patrons can use these resources in ways identified in the license.
• Obtaining a license that covers their use. Licenses can also be obtained for specific uses. For example, library staff may wish to host a summer film series that is open to all members of the public. Library staff can contact the rightsholder of a film (or a commercial licensor/distributor of films, e.g., Swank Motion Pictures, Inc), to obtain a license for each film they which to include in the series.

International Treatment of Copyright

The first U.S. Copyright Act was passed by Congress in 1790. At this time, it did not recognize the copyright of foreign authors. It was not until 1891 when the International Copyright Act (also called The Chace Act), was passed by Congress that copyright protection was extended across borders to certain foreign copyright holders. Today there are numerous international treaties, agreements, and conventions that have established between countries that provide copyright protection to the authors internationally. The Convention for the Protection of Literary and Artistic Works (frequently referred to as the Berne Convention as it was signed in Berne, Switzerland, in 1886), is one such treaty. This treaty:

• Required participating countries, who are members of the Berne Union (the U.S. joined the Berne Convention in 1989), to agree to set minimum standards of copyright protection in their law to ensure that the copyright of foreign authors is granted, at minimum, the same amount of protection as those authors of their country.
• Eliminated requirements or ‘formalities’ for securing rights. For example, requirements for formal registration requirements or the placement of a copyright notice on a work.

The U.S. is party to many other international treaties that address the international protection of copyright. These include the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, the World Trade Organization TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement, and the Universal Copyright Convention, among others. The USCO provides information about these on the International Issues page of their website. These treaties, conventions, and agreements are subject to revision, and new treaties, conventions, and agreements may be proposed by international agencies such as the World Intellectual Property Organization at any time, those who frequently engage with copyright law should periodically check this website to keep themselves up-to-date on the law and the ways in which such agreements may apply to their work. The USCO also publishes a Circular, 38A: International Copyright Relations of the United States that provides information about “international conventions, treaties, and other bilateral instruments that the United States has concluded with other countries” (USCO 2020).

Scenarios

The following scenarios are intended to help readers apply the knowledge they have gained in this chapter to real-world situations they may encounter when working in libraries.

Scenario 1

As part of a summer program, a library decides to host an art competition called Art-and-About that will feature art inspired by nature (paintings, sculpture, photographs, etc.). Library employees establish rules of the competition, instructions for submissions, and create posters and social media advertisements to promote the event. These promotional materials include drawing and photographs by library employees.

• What works identified in Scenario 1 are eligible for copyright protection?
• Who will hold the copyright in these works?

Scenario 2

Many patrons participate in the Art-and-About competition. Submitted works are displayed around the library and members of the public are invited to view them and vote on their favorites. Library staff also take photographs of each work and post them online, where members of the public can vote on their favorites as well.

• Who hold the copyright in the works of art submitted for the competition?
• Who holds the copyright in the photographs taken to post online?
• What rights are being exercised by taking the photographs and posting them online?

Scenario 3

The winning entries of the Art-and-About competition are:

1. Rebecca Buck, for her photograph of swans swimming on a lake.
2. Chris and Amy Myers for their painting of a sunset.
3. A sculpture of a flower, submitted anonymously by a member of the community.

What is the term of copyright protection for each of these works?

Works Consulted

“About Oyez.” Oyez, www.oyez.org.

“About the Licenses.” Creative Commons, creativecommons.org/licenses/.

Commun. for Non-Violence v. Reid, 490 U.S. 730 (1989)

Crews, Kenneth D. Copyright Law for Librarian and Educators: Creative Strategies and Practical Solutions, 4th ed. ALA Editions, 2020.

Eldred v. Ashcroft, 537 U.S. 186 (2003)

Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc., 499 U.S. 340 (1991)

U.S. Const. art. I, § 8, c8.

U.S. Copyright Office. Circular 38A: International Copyright Relations of the United States. Library of Congress. Aug. 2020. www.copyright.gov/circs/circ38a.pdf.

—. Compendium of U.S. Copyright Office Practices § 503.1(B), 3d ed. 2017.

Author

Carla Myers (she/her/hers) serves as Assistant Librarian and Coordinator of Scholarly Communications for the Miami University Libraries. She holds a B.A. in Psychology from the University of Akron and a Masters in Library and Information Science from Kent State University. She is the managing editor of the Journal of Copyright in Education and Librarianship and her first book, Copyright and Course Reserves Legal Issues and Best Practices for Academic Libraries, is being published by ABC-CLIO in 2021. Her professional presentations and publications focus on copyright, open educational resources, and affordable learning issues. She is also the coordinator of the Miami University Libraries annual copyright conference. Correspondence regarding this chapter can be sent to myersc2@miamioh.edu