Archive for June, 2020

Copyright and Fair Use

Monday, June 29th, 2020

Previous posts on the subject of copyright have discussed who the author of a work is, what is protected by copyright, what is not protected by copyright and the benefits of copyright notice.

This post will take a look at the Doctrine of Fair Use. This is a widely important section of copyright law because it helps to shield an original author of a work fixed in a tangible medium from copyright infringement.

According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” As stated in 17 USC §§107 – 120, the circumstances include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research. It is, however, important to note that there are certain provisions in §106 and §106A that may preclude the Fair Use Doctrine.

When discussing fair use, §107 sets forth a set of four criteria that are to be evaluated when determining whether or not a certain use is fair or not. The four criteria are as follows:

  • Purpose and character of use: This factor considers whether the use is commercial versus non-commercial (such as nonprofit and/ or education purposes). When examining this first criterion, the court studies how the third party is using the copyrighted work. Often, the courts are more likely to find fair use if the work is being used in nonprofit, educational and other non-commercial settings. That being said, this does not automatically mean that fair use in one of these settings will automatically be found without first balancing the other three factors listed below. Moreover, when examining this factor, courts look at whether a work is being used in a “transformative” manner. When referring to “transformative” use, this means that the third-party user of the copyrighted work has added to or further developed the original work.
  • Nature of the copyrighted work: When looking at the nature of the copyrighted work, the courts assess the level of creativity or originality of the copyrighted work. This means that the more unique a work is, the less likely the courts are to find fair use. Therefore, courts may be less likely to find fair use for the unauthorized use of a one-of-a-kind novel, movie or book versus a technical manual or news article. As was explained in a previous post, certain things, such as instructions, may not be copyrighted, but the elements that make it unique may be. In this way, it is more likely for a court to find fair use for a work that is less unique.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Courts consider both the quantity of the work being used and the quality as well. On the surface, a court is less likely to find fair use if a large portion of the copyrighted material is used, versus a small portion. However, in some situations, a court may find fair use if a third-party uses the entire copyrighted text, but it may not find fair use of even the smallest portion of the section is determined to be the “heart” of the work. In short, this factor works to protect the essence of a copyrighted work.
  • Effect of the use upon the potential market for or value of the copyrighted work: The fourth and final criterion for determining fair use steps away from the work itself, and it looks outward into the marketplace. As explained in an early post, one of the benefits of copyright notice is that it acts as notice of ownership to the public. This means that if a work is unlawfully reproduced or copied, the original owner may claim copyright infringement. So, the courts use this factor to determine how the third-party user is using the copyrighted work, and if there is a chance that it may encroach upon the original author’s rights, such as monetary sales from the work. Aside from the effect on the marketplace in a monetary manner, the courts also must look at the safety of the widespread public. If there is a chance that the unauthorized use of the work could cause substantial harm to the public, the courts would be less likely to find fair use.

Though these are the four factors courts use to determine fair use, these criteria are not the only information used in every case. Because each case has a different set of facts, the courts must look at each case on a case-by-case basis. There is no set amount of work that determines fair use. This is also mentioned in the third factor of the test regarding the amount and substantiality of the work being used. The courts may find fair use of 100 hundred pages in one case but may not find fair use of one page in another. The intent of the Fair Use Doctrine is to protect the rights of the original author, while not restraining the public from learning or benefitting from a previously copyrighted work. A later post will delve into the TEACH Act, which is an extension of fair use in an educational setting.

Copyright Notice

Monday, June 22nd, 2020

On the topic of copyrights, many of the basics have been covered, including the benefits of copyright registration and the duration of copyright registration. However, this post will discuss copyright notice, which is distinct from copyright registration. While copyright registration validates an author’s claim to a work with the U.S. Copyright Office, a copyright notice validates an author’s claim to a work with the public.

The following will detail the elements of copyright notice, when it’s required and when it’s optional, the legal formalities that surround copyright notice and the advantages of including a notice on a work. Before delving too far into this post, it is important to note that for works created after March 1, 1989, copyright notice is optional, but for works created prior to that date, it is generally required.

Copyright notice is a statement put on copies of a work to inform the public that the author is claiming ownership. There are three elements to a notice, and they most often occur as a single continuous statement: (1) The copyright symbol ©; the word “copyright” or the abbreviation “copr.” (2) The year of first publication of the work and (3) The name of the copyright owner. The use of a copyright notice is the responsibility of the copyright owner and does not require permission from the Copyright Office, nor does it require registration.

For works published prior to March 1, 1989, the copyright owner was required to place an effective notice on all publicly distributed “visually perceptible” copies. Visually perceptible copies are those that can be seen or read, either directly or with the help of a machine, such as a film. For works published before the above date, the copyright notice had to be placed on copies in a permanent way that was legible to an ordinary user of the work and could not be concealed from view upon reasonable examination.

As described above, there are three general elements of a copyright notice and form a single continuous statement. However, for works that required copyright notice, it was acceptable to omit the year of publication for works reproduced on greeting cards, postcards, stationery, jewelry, dolls, toys or any “useful” article. Information regarding the specifics of elements of notice can be found in the Compendium on the Copyright Office’s website.

Copyright notice is optional for unpublished works, foreign works or works published on or after March 1, 1989. Although copyright notice is optional for these works, there are several advantages to using a copyright notice: notice makes potential users aware that copyright is claimed in the work; in the case of a published work, a notice may prevent a defendant in a copyright infringement action from attempting to limit his or her liability for damages or injunctive relief based on an “innocent infringement defense”; notice identifies the copyright owner at the work was first published for parties seeking permission to use the work; notice identifies the year of first publication, which may be used to determine the term of copyright protection in the case of an anonymous work, a pseudonymous work or a work made for hire; and notice may prevent the work from becoming an orphan work by identifying the copyright owner and specifying the term of the copyright.

In sum, although copyright notice is optional for works created after March 1, 1989, the notice has several advantages that can be extremely beneficial to an author in multiple circumstances. Notice does not need to be registered or approved with the Copyright Office. For works created prior to March 1, 1989, copyright notice is mandatory and there are several formats in which it can be used depending on practicality.

Works Made for Hire

Monday, June 15th, 2020

An earlier post discussing copyright ownership briefly went into the rights and authorship associated with a “work made for hire.” This type of authorship is the exception to general rules of copyright ownership, and the original creator is not the author of the work, nor is he the owner of the copyrighted work. Whether a work is made for hire is decided by the facts that exist during the time the work was created.

The post also discussed the two situations in which this type of copyright ownership may arise. In the first situation, a work may be made for hire when the work is created by an employee in the course of his or her regular duties. Second, a work may be made for hire when a third-party contributor and a hiring party enter into a written contract that clearly states that the work is to be considered a “work made for hire” and the work is commissioned or specially ordered for use as a compilation, a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, an instructional text, a test, answer material for a test or an atlas.  This post will take a closer look at each of the two situations.

The first situation deals with works made for hire within the scope of employment. In this situation, for an employee’s work to be considered a work made for hire, it must fall within the employee’s scope of employment.  However, the Copyright Act does not define the terms “employee,” “employer” or “scope of employment.” Instead, in Community for Creative Non-Violence v. Reed (1989), the U.S. Supreme Court stated that Congress meant for these terms “to be understood in light of agency law.” This is the law that reigns over employer-employee relationships, and when determining if a work was made for hire, the courts should rely on the general common law of agency and not on particular state laws, as their meanings for these terms may differ.

In accordance with this decision, the Copyright Office set forth a series of questions that may be pertinent to consider: What skill was required to create the work? Where was the work created, and did the hiring party provide space, material or tools to create the work? How long was the relationship between the parties, and did the hiring party have the right to assign other projects besides the one under review? Could the hiring party direct the creator on when and how long to work? How was the creator paid, and did the hiring party offer employee benefits? Did the hiring party remove taxes from the creator’s pay? Does the creator have his or her own business, and was the creator able to hire and pay assistants? Was the work created as part of the regular business hours of the hiring party, and was the work created pursuant to the creator’s usual tasks? And finally, was the work created during the creator’s authorized work time?

The second situation handles scenarios involving a third-party contributor and a hiring party. In such situations, a work is considered a work made for hire if it meets the following four criteria: (1) The work must fall within the nine categories of works listed above that are eligible to be specially ordered or commissioned as works made for hire. (2) There must be a written agreement between the party that ordered or commissioned the work and individual(s) who actually created the work. (3) In the written agreement, the parties must expressly agree that the work is to be considered a work made for hire. (4) The agreement must be signed by all parties. If the work in question fails to satisfy any of the above criteria, it is not considered a work made for hire.

Copyright in works made for hire is different than in other copyrighted works, where the creator of an original work fixed in a tangible medium is automatically granted copyright under U.S. law.

Starting with the authorship of the work, as mentioned earlier, the authorship of a work made for hire is granted to the employer or hiring party of the commissioned work. Much like the authorship, copyright ownership of a work made for hire is instilled in the party that commissioned or special-ordered the work in question. However, this may not always be the case if the hiring party has entered into and signed a written agreement with the work’s creator stating the contrary. As discussed in the previous post, the duration of copyright for works made for hire is 95 years from the date of publication, or 120 years from the date of creation, whichever is shorter.

When registering a work made for hire with the Copyright Office, it is not the Office’s job to decide whether a work was made for hire. That responsibility falls on the registrant, who must make that decision based on the facts that existed during the time the work was created. Though the Copyright Office cannot provide legal advice about the status of a work, a questionnaire was created to help registrants decide whether or not a work that was created under the Copyright Act of 1976 qualifies as a work made for hire. The questionnaire can be found on the Copyright Office website along with the Compendium of U.S. Copyright Office Practices, from which the questions were derived.

Works made for hire are an exception to the general copyright rules, and there are two instances in which a work may be considered a work made for hire, either an employer-employee situation or in instances in which a third-party employer commissions or specifically orders a work to be created. In either scenario, there are certain criteria that must be met in order for a work to be considered made for hire. It is important to make an accurate decision in determining whether a work is a work made for hire because there may be unintended consequences associated with such a work. When a work is given this status, it affects its authorship, copyright ownership, duration, registration and termination.

Copyright Duration

Tuesday, June 9th, 2020

As discussed in the last post, Copyright exists automatically in an original work of authorship as soon as it is fixed in a tangible medium.

Copyright refers to the six exclusive rights granted to the author of an original work, which are protected by U.S. law. However, again, as discussed, those rights can be enhanced and there are many benefits to registering a copyright with the U.S. Copyright Office. This post will discuss the duration of copyright registration, and the various amendments which have been made regarding a copyright’s duration, given the time of publication.

The first post covering copyrights briefly went through the duration of copyright protection for works created on or after Jan. 1, 1978, which encompasses all works registered under the current law, the Copyright Act of 1976. This post will take a closer look at how copyright registrations are affected given their registration date, and what amendments have been enacted since the current law took effect.

There are two separate Copyright Acts, the Act of 1909 and the Act of 1976. While the current law, the Act of 1976, retains the same system as the previous one, there are certain changes. This discussion will begin with the current Act for the sake of relevancy.

There are two separate categories for works that secured federal statutory protection on or after Jan. 1, 1978, which is the date that the current Act was amended. The first category is for works that were created on or after Jan. 1, 1978, and the second category is for works that were in existence but not published or copyrighted on Jan. 1, 1978. The amendment establishes a single copyright term and distinguishes different methods for calculating the duration of copyright. Starting with the first category, for a single author, the Act automatically protects a work that is created and fixed in a tangible medium of expression on or after Jan. 1, 1978, from the moment of creation through the author’s life, plus an additional 70 years. For a “joint work prepared by two or more authors who did not work for hire,” the protection lasts for 70 years after the last surviving author’s death. The duration of copyright protection for works made for hire, anonymous and pseudonymous is the same. The duration of the protection in all three cases is 95 years from first publication, or 120 years from creation, whichever length of time is shorter. However, if the author’s identity of an anonymous work is later revealed in Copyright Office records, the term of protection is the author’s life plus 70 years, similar to a single-author work.

The works in the secondary category, which pertains to those that were in existence but not published or copyrighted prior to the amendment, are intrinsically protected by federal copyright protection. For these works, the protection is calculated the same as for those in the first category. The difference is that works in this category are guaranteed at least 25 years of statutory protection. The law specifically states that “in no case would a copyright in a work in this category have expired before Dec. 31, 2002.” Moreover, if a work in this category was published before Dec. 31, 2002 term is extended another 45 years, or through the end of 2047.

Focusing now on the Copyright Act of 1909, the federal standards for copyright duration are very different than in the current Act because of the renewal term within the 1909 Act. During this Act, federal copyright protection began on the date that a work was published, or for unpublished works, on the date of registration. Unlike the current Act which guarantees protection for an author’s life plus 70 years, or 95 or 120, depending on the authorship, the earlier Act provided protection for a term of 28 years from the date it was first secured. During the final year of the term, the copyright was eligible for renewal. If renewed, it was extended for a second term of 28 years. If a copyright was not renewed, its federal copyright protection would expire during the first term, at the end of the 28th and final year.

For copyrights that were still in existence when the current Act came to be, the 1998 Copyright Term Extension Act increased the previous renewal term by 20 years. Therefore, protection for works secured during the Copyright Act of 1909 has been increased from 56 years, two terms of 28 years, to 95 years, which is a first-term plus a renewal term of 67 years. Therefore, when applying the standards set forth in the Extension Act, all works published in the U.S. before Jan. 1, 1923, are in the public domain.

In conclusion, under the current Copyright Act of 1976, all registered works created on or after Jan. 1, 1978, are protected for the duration of the author’s life plus 70 years, 95 years or 120 years depending on the authorship. Therefore, unlike the rules set forth in the previous Copyright Act of 1909, there is no need to renew a copyright term after 28 years. However, the current Act states that all terms of copyright will run the end of the calendar year in which they expire. For more information regarding the specifics of the amendments made to the 1909 Act, visit

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