Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

US copyright law protects any qualifying ‘original works of authorship’ that are fixed in a tangible medium of expression so as to be perceptible for more than a transitory duration. The fixation need not be directly perceptible, so long as it may be perceived with the aid of a machine or device. Protected works include the following categories:

  • literary works, including characters;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • pictorial, graphic and sculptural works;
  • motion pictures and other audiovisual works;
  • sound recordings created on or after 15 February 1972, as well as certain earlier foreign sound recordings entitled to US protection under international treaties; and
  • architectural works created on or after 1 December 1990 (or created but not published or constructed prior to that date, and constructed by 31 December 2002).

 

Sound recordings created before 15 February 1972 have specialised protection pursuant to section 1401 of Title 17 of the United States Code. This specialised protection largely mirrors copyright protection for later recordings, but there are important differences. For example, formalities such as registration do not apply, but there is a special statutory process for rights owners to record claims to works to be eligible to recover statutory damages. There is also a special statutory process for seeking permission for non-commercial uses of pre-1972 recordings that are not being commercially exploited.

Rights covered

What types of rights are covered by copyright?

The Copyright Act generally gives the owner of a copyright the exclusive right to:

  • reproduce the work in copies or phonographic records;
  • prepare derivative works based upon the work;
  • distribute copies or phonographic records of the work to the public by sale or other transfer of ownership, or by rental, lease or lending;
  • perform the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes and motion pictures, and other audiovisual works;
  • display the copyrighted work publicly, 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; and
  • perform the work publicly by means of a digital audio transmission, in the case of sound recordings.

 

Excluded works

What may not be protected by copyright?

The following may not be protected by copyright:

  • works that have not been fixed in a tangible form of expression;
  • words and short phrases such as names, titles and slogans;
  • familiar symbols or designs;
  • mere variations of typographic ornamentation, lettering or colouring;
  • mere listings of ingredients or contents;
  • facts, ideas, procedures, processes, systems, methods, concepts, principles, discoveries, as distinguished from descriptions, explanations or illustrations;
  • blank forms that are designed for recording information and do not themselves convey information; and
  • works containing no original authorship.
Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

US law recognises the doctrine of fair use, which is codified in section 107 of the Copyright Act. Under section 107, courts are to consider four non-exclusive factors in determining whether a particular use is fair usage. These are:

  • the purpose and character of the use, especially whether the use is ‘transformative’ in nature and, to some extent, whether it is for commercial or for non-profit educational purposes (a use is considered ‘transformative’ if it does not merely supersede the original work, but instead adds new expression, meaning or message with a further purpose or different character);
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion taken; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

 

Courts have suggested additional non-statutory factors that may bear on a fair use analysis, such as whether an alleged infringer acted in good faith. Courts apply these factors to particular situations on a case-by-case basis, weighing the factors in light of the purposes of copyright. The outcome of any given question of fair use can therefore be difficult to predict.

Architectural works

Are architectural works protected by copyright? How?

Architectural works are protected by copyright. For this purpose, an architectural work is defined as ‘the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings’. Protection extends to ‘the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features’. Protection for architectural works is generally provided on the same basis as for other types of works, except that pictorial representations of constructed buildings are permitted, and building owners are permitted to alter or destroy their buildings without the consent of the author or copyright owner.

Protection is available for any architectural work created on or after 1 December 1990. In addition, any architectural works that on 1 December 1990 were not constructed, but were embodied in unpublished plans or drawings, and were constructed by 31 December 2002, are eligible for protection. Architectural works embodied in plans published or buildings constructed prior to 1 December 1990 are not protected by copyright.

Performance rights

Are performance rights covered by copyright? How?

The US Copyright Act provides a general right of public performance for literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works. The Act also provides a public performance right for sound recordings, but it is limited to performances by means of digital audio transmission.

To be a ‘public’ performance, the work must be performed in a place open to the public or to a ‘substantial number’ of people outside of a family and its social acquaintances, or be transmitted in such a way that members of the public are capable of receiving it. Thus, a public performance may be accomplished by rendering a work to an audience present in a public or semi-public place or by transmitting a work by radio, television, internet or other means.

Exemptions are provided for various kinds of performances in specialised circumstances. For example, performances of non-dramatic literary or musical works to an audience present where the performance occurs (not performances by means of transmission) are exempted if the performances are not for commercial advantage, no compensation is paid to the performers or organisers, and admission is free (or where the copyright owner has not objected, any proceeds are used for charitable purposes).

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

While US law does not use the term ‘neighbouring rights’, it recognises various rights similar to ones covered by that term in other countries. Rights of performers and producers of audiovisual works and of sound recordings created on and after 15 February 1972, as well as broadcasters and creators of photographs and many databases, are protected in the US as a matter of federal copyright law. In addition, other enactments codified in Title 17 of the United States Code provide specialised copyright-like protection:

  • Integrated circuit layouts (called ‘mask works’) are protected under specialised provisions in Chapter 9 of Title 17.
  • Unauthorised fixation and trafficking in live musical performances are prohibited by Chapter 11 of Title 17.
  • Designs of boat hulls and decks are protected under specialised provisions in Chapter 13 of Title 17.
  • Sound recordings created before 15 February 1972 are protected under specialised provisions in Chapter 14 of Title 17.
Moral rights

Are moral rights recognised?

Moral rights are protected to some extent, but they are more narrowly defined and of less practical effect in the US than in many other jurisdictions.

The Copyright Act provides only limited moral rights of attribution and integrity to authors of a narrowly defined class of works of visual art, under the Visual Artists Rights Act (VARA). VARA provides authors of limited edition works of the fine arts and exhibition photographs the right to claim or disclaim authorship in a work; limited rights to prevent distortion, mutilation or modification of a work; and the right, under some circumstances, to prevent destruction of a work that is incorporated into a building. The legislation provides for waiver of these moral rights, but only by a signed, written agreement specifically identifying the work and the uses of the work to which the waiver applies. The Copyright Act’s exclusive right to prepare derivative works protects all types of works against modification, but is freely assignable and also subject to limitations such as fair use. The Copyright Act also prohibits providing false copyright management information (CMI), including the name and identifying information of the author, and removing or altering CMI in certain circumstances.

State laws relating to privacy, publicity, contracts, fraud, misrepresentation, unfair competition and defamation, and the federal Lanham Act also provide certain protections consistent with the concept of ‘moral rights’.

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These contents have been verified between March and May 2020.