United States Copyright Law
Works That Are Protected
Copyright law protects original intellectual works expressed in tangible form. This is called a work of authorship, which means that the work meets the threshold of originality and is therefore protectable by copyright law. The Copyright Act of 1976 does not limit the definition of a work of authorship because authors are always finding new methods of tangible expression. There are two standards for protection under copyright law: the work must be original and the work must be in tangible form. According to section 102(a), the subject matter of copyright is the following:
- Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, 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.
Original as it relates to copyright law does not require any work to be produced with a high degree of creativity. It means that a work is original to a specific author; in other words, it has not been done before. As a result, originally does not require a high degree of creativity or labor. Simply putting random notes on a page may not be altogether creative, but it is protected under copyright law.
Fixation is when a work of authorship is in a tangible form that can be perceived by humans. According to 17 U.S.C 101 - fixation:
- A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission.
Examples include an audio recording, novel, manuscript, and email messages stored on a computer. Works that are not fixed include impromptu speeches (not written), performance of a piece that is not engraved (either on paper or in a computer) and sports games that are not recorded. One case, National Basketball Association v. STATS ruled that a live basketball game (not recorded) was not protectable under copyright law. See the full details of the case here.
The United States Copyright Act of 1790 protected authors of books, maps, and charts. Congress has since passed several copyright acts in order to protect additional types of works, some of which came about thanks to new technologies and methods of expression. For example, photographs, recordings, motion picture, and computer programs were added. The Copyright Act of 1976 listed seven categories of works. An eighth category was included in 1990 - architectural works. However, if a work does not fit into one of these categories, that does not mean it cannot be protected. In summary, the question is whether the work satisfies the requirements of section 102. According to section (a) of the copyright act, the eight categories are as follows:
- literary works
- 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; and
- architectural works.
The six categories relevant to IMSLP will be discussed in detail:
- Literary works are important for IMSLP because lieder and songs often use text from literary sources. A literary work is defined as something expressed in words, numbers, or other verbal or numerical symbols or makings, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied, according to 17 U.S.C § 101.
- Musical Works hold the most importance for IMSLP because most of the contents of the site are musical works. A musical work is defined a musical composition that is written in a computer or in manuscript form. Words to songs in a musical work are also protected under copyright law. Music that accompanies a dramatic work is not protected in the musical works category; rather, the music is protected as a dramatic work.
- Dramatic works is something prepared for stage, cinema, radio, or television. A dramatic work does not need to have dialog, it must have directions for the performance.
- Choreography is the arrangement of dance movements and patterns. Popular and simple dance steps, such as the polka, are not copyrightable.
- Audiovisual works were not protected in the Copyright Act of 1909. Until 1912, filmmakers would print out photographic sheets of their film and copyright it as a regular still picture. In 1912, the Supreme Court ruled a case involving the silent film Ben Hur and the 1909 act was amended. The Copyright Act of 1976 defines audiovisual works as the following:
- Works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
- Sound Recordings are works that result from the fixation of sounds. The Copyright Act of 1976 defines sound records as the following:
- Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.
US copyright law did not protect sound recordings until 1972. Sound recordings released before this date are protected under state law, not federal law. This is sometimes known as "state common law copyright.” California has passed specific laws about the protection of sound recordings before February 15, 1972. The full details can be found here.
The federal government of the United States is authorized, according to Article 1, Section 8, of the Constitution
- 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;
Since 1790, there have been five major copyright acts, but only two of them are still effective today:
- The Copyright Act of 1909
- The Copyright Act of 1976
The Copyright Act of 1909
The act governs all works published between 1909 and 1978. The 1909 act protects works that are published with copyright notices and unpublished works registered with the US Copyright Office. Unpublished works that were not registered with the United States Copyright Office were protected by the common law of copyright, which was established by various court decisions. By this act, the copyright was made to begin at date of publication and not date of filing.
The Copyright Act of 1976
- Effective date: January 1, 1978.
This act protects works that were published from 1978 on, which is when the law took effect. This act also protects some unpublished works created before 1978. The difference between this act and other copyright acts two-fold:
- The work is protected after it is created in a tangible form
- The copyright of the work does not need to be renewed
The Copyright Act of 1909 only protected a work after it was published. In addition, the author was required to file a renewal after a certain number of years.
One important clause for IMSLP is § 405b. If a copy of a work scanned to IMSLP has no notice marked and copyright is accidentally infringed due to an assumption of the work's being Public Domain, this clause protects the infringer as long as infringement stops upon notification of the copyright status of the work.
The Berne Convention Implementation Act (1988)
- Effective date: March 1, 1989.
The Berne Convention for the Protection of Literary and Artistic Works has been signed by 164 different nations. The treaty established a number of specific copyright rules that the laws of all signatory countries would have in common. Parts of the Copyright Act of 1976 conflicted with the Berne Treaty, so the United States could not fully join the convention until certain laws were revised. The United States Congress amended the act in 1989 and 1990. The United States became a member of the Berne convention, which included several changes to the Copyright Act of 1976:
- A copyright notice is no longer required. Works published after March 1st, 1989, do not need a copyright notice.
- Architectural works are eligible for copyright protection.
- Moral rights are recognized for a works of fine art: individual paintings, sculptures, or editions of 200 or less prints / photographs.
These rights include those of claiming authorship and objecting to "any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." They are to be maintained after the death of the author.
The GATT Amendments (1994)
- Effective date: January 1, 1996.
These came into effect when President Clinton signed the Uruguay Round Agreement Act (URAA). Included in the GATT amendments is the Trade Related Aspects of Intellectual Property Rights (TRIPS). This amendment has two clauses important to IMSLP, which do the following:
- It restores copyright for works published outside the United States that have lost protection for technical reasons. For example, a German author whose copyright protection failed in the United States due to the absence of a copyright notice would be granted copyright.
- It also prohibits piracy of live music performances.
The Sonny Bono Copyright Term Extension Act (1998)
- Effective date: January 1, 1999.
This act extended the time period that works were protected by copyright law. The official rationale for doing this was to harmonize the duration of copyright under US law with those laws of many European countries where copyright owners had longer protection. There are four main points to this extension act:
- Works created after 1977 have the copyright term life of author + 70 years (the EU standard term).
- Works for hire, and works anonymously or pseudonymously published, protection is extended to 95 years from publication.
- The renewal term of existing copyrights first published before 1978 was extended 20 years from 47 to 67 years, for a total term of 95 years from date of publication. The 95-year term applied only to works first published in 1923 and later, which means nothing will enter the public domain until Jan. 1, 2019.
The Digital Millennium Copyright Act (1998)
This act relates to the Internet and transmission of information in a digital form. There are three provisions important for IMSLP:
- Prohibition of the removal of watermarks from digital files protected by copyright.
- Limited liability for ISPs if copyright is infringed online
- Licensing standards by which providers can broadcast music
The Code of Federal Regulations expands on copyright statuses and standardizes the copyright application process.
Duration of US Copyright
Copyright Act of 1909
Under this copyright act, copyright owners' rights did not vest until a published work contained a copyright notice or the work was published. In other words, if a composer wrote a piece but failed to publish the work, it would not be protected under this copyright act. Instead, unpublished works were protected under the common law copyright. This differs from regular copyright legislation because it was a set of rules established only by judges.
The copyright term of the 1909 act is 28 years. This date runs through the end of the calendar year. Therefore, the last date any work is copyrighted is December 31st. If that work's copyright were renewed during the 28th year, it would receive an additional 28 years protection. This is commonly known as the renewal term. If the work was renewed, the total length of copyright was 56 years. Sometimes, however, the work was not renewed. If this was the case, the work fell into the public domain after the 28-year period.
Copyright Act of 1976
The Copyright Act of 1909 protected works for 56 years from publication or registration if the copyright was renewed. Under the new Copyright Act of 1976, the full term of protection for such works was extended for 75 years. While the new act was being written, protection for works still in their 28-year renewal term was extended every year starting in 1962. This extended renewal term is the term used to denote the additional 19-years of protection (for a total of 47 years) added to copyrights in their renewal term when proceedings started to revise the copyright law of 1909. Thus, works first published in 1907 were protected for an initial term of 28 years. If renewed by the end of 1935, the renewal term - which would have expired in 1963 under the 1909 law - was extended 19 years to 47 years for a total of 75 years from initial publication, only entering the public domain on 1/1/1982.
For works first registered or published after the effective date, the new law provided a term calculated upon the lifetime of the last surviving author plus 50 years (where author's identity is known), or 75 years from registration or publication (anonymous works, pseudonymous works, works made for hire).
The Sonny Bono Copyright Term Extension Act
The Sonny Bono Copyright Term Extension Act did several things, including extending the period by which copyrighted works were protected. An additional 20 years protection was granted to works in their extended renewal term (see above). Therefore, the total length of copyright became 95 years. For example, if a work were published in 1956 and renewed in 1984, the total length of copyright would be extended to 2051. This act prevented works of several composers, including many by George Gershwin, to enter the public domain - even though the works by Gershwin (alone) were in the public domain nearly worldwide on January 1, 2008 (70 years after the composer's death).
Works Made for Hire
A protection of 95 years after first publication or 120 years after creation is granted to work made for hire. Usually whichever term is shorter is the length the work is protected.
- Example: If a company created a work in 2005 but did not publish the work until 2010, the work would be protected until 2105.
Under the Copyright Act of 1976, the copyright term for one author is life plus 70 years. This does not apply, however, if the author was anonymous or if the work was made for hire. Special provisions exist for unpublished works (see below).
- example: If an author dies in 2001, the work is protected until 2071.
The same term applies for join authors as they do for single authors. The protection will exist for life of the last living author plus 70 years. The last living author is commonly known as the surviving author.
Anonymous and Pseudonymous Works
Like works for hire, the copyright protection for both anonymous and pseudonymous works is 95 years from first publication or 120 years from creation. If the author is disclosed, the copyright protection becomes life of the author plus 70 years.
US Copyright law did not cover recordings until 1972. All recordings made before that date - even those published before 1923 - are potentially under copyright until February 15, 2067. This is because such recordings might be protected under the common-law copyright (see above) and trade statutes of states. It is possible that recordings published without the required notice between February 15, 1972 and March 1, 1989 are in the public domain. It is especially likely for those issued between 1972 and 1977. After January 1, 1978, a notice omission or error was correctable if application was made to the copyright office within 5 years of the omission or error.
Chart: Duration of US Copyright
|Works published before 1923||Works are in the public domain|
|Works published between 1923 and 1963||Initial term of copyright is 28 years. If the work is renewed during the 28th year, copyright is extended for another 67-year period.|
|Works published between 1964 to 1977||95 years from first publication|
|Works created after December 31st, 1977|| One author: Life + 70 years|
Joint authors: Life of last surviving author + 70 years
|Works created before 1978 and unpublished as of December 31st, 2002|| Expires 70 years after the death of the author unless the author has been dead for more than 70 years. If this is the case, the protection ended on 1/1/2003.|
Thus, on 1/1/2011, all unpublished works of authors who died in 1940 entered the public domain.
|Works not registered by 1978 but published between 1978 and 2003||The copyright term expires 70 years after death of the author, but no earlier than December 31st, 2047.|
Compilations, Collections, and Derivatives
Compilations and Collective Works
When an author selects various pieces and groups them together in a unique way it can be protected under copyright law. For example, if an author selects and compiles quotes from various composers, it is protectable as a compilation. The definition of a compilation can be found here. However, not all compilations are protectable. In the case Feist Publications, Inc. v. Rural Telephone Service Co. the Supreme Court ruled that the names and telephone numbers in the directory were facts, and the method of arranging the names / numbers did satisfy the minimum standards of copyright protection. The question is the following: what is protectable after Feist?
- Under the Feist ruling, the owner of a compilation must demonstrate that the work deserves to be copyrighted as a result of selection, coordination, and arrangement of the data. While it is true that the Feist ruling did eliminate the protection of White pages, it did not eliminate the protection of the Yellow Pages.
- The Feist ruling has been applied in numerous other ways. For example, a real estate title commitment is not protected under copyright law. In a 1996 case, a system of codes and formulas developed by a company rating workers' compensation claims were not protected under copyright law due to a lack of originality.
A Collective work, is a "periodical issue, anthology, or encyclopedia in which independent works in themselves are assembled into a collective whole" (~ From the link above). Unlike other compilations, such as a directory, the pieces that make the whole can be separately protected. Like all compilations, it must meet the threshold of originality.
- Example: "Piano Concertos of the 20th Century"
Like compilations, derivative works use works that already existed. In derivative works, the author must modify the original works. In a compilation, the author puts various works together in a volume. The Copyright Act of 1976 defines a derivative work as the following:
- A work 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 a “derivative work”.
The copyright protection of a derivative work is limited to the material that meets the threshold of originality, according to 17 U.S.C. § 103(b):
- The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
|Music created from a given work||Duplication of a piece of music|
|Additional movements to the original piece of music||Reproduction of the original movements in digital format|
|Adding a piano part to a solo flute sonata||Correction of errors to an already existing piano part|
There are a variety of exclusive rights in section 106 of the Copyright Act of 1976. These rights include reproduction, adaptation, distribution, performance, and display. If any one of these is done without the explicit permission of the copyright owner, it is called an infringement. According to section 106:
- Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
- to reproduce the copyrighted work in copies or phonorecords;
- to prepare derivative works based upon the copyrighted work;
- 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;
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform 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, to display the copyrighted work publicly; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Reproduction means to copy either all or part of a given work in tangible form. For example, if Grove's dictionary of music were copied it would be reproduction. Computer scans, or any other form of digitization, are also a reproduction of a given work. Therefore, audio or video recordings of a given piece not in the public domain are a violation of the author’s rights.
Before the 20th century, securing adaptation rights was difficult. One well-known example was that an author could not prevent a dramatist from adapting a novel into a play. In 1870, the law was amended so that an author was allowed to prevent the adaptation of a work into a play, and prevent someone from translating the work into another language. This amendment was the origin of derivative rights. A derivative work is defined as a work based upon another work. The right to adapt a given work extends to abridgments, translations, and substantial modification.
Also known as publication right, the author of a given work controls the rights of its distribution. The Copyright Act of 1976 does not define distribution, however the most appropriate definition is the dissemination either to a substantial number of persons or to a substantial portion of the market for the work. In addition, the distribution of the work must be in a tangible form.
Under copyright law, to perform a work means to "recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible." (Section 101). Section 101 also defines "public" as a place where people are gathered or the work is transmitted or otherwise communicated to the public. The following are examples of a public performance under copyright law:
- A musician plays a recording during orchestra rehearsal
- A musicologist reads The Man and His Music by James Huneker to an audience
- A pianist performs a work in a concert hall
- A radio station plays a piece of copyrighted music
- A cellist plays a piece of copyrighted music that is performed on cable television
The formal definition, according to section 101 of the Copyright Act of 1976 is the following:
- To perform or display a work “publicly” means —
- 1. to perform or display it 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
- 2. to transmit or otherwise communicate 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.
Limitations on Exclusive Rights
An author's rights after the first sale of a piece are limited by section 109 of the Copyright Act of 1976. The limitation is also known as the first sale doctrine. The rental of a piece of music, the display of a painting, and the resell of a given work are all permitted under this doctrine, but there are various exceptions:
- Prohibition of the rental of computer programs or sound recordings
- Prohibition of the destruction of visual art
- A piece of visual art can only be displayed where it is located. It cannot be broadcast over the Internet or over television.
The first sale doctrine applies only to the owner of the copy, but not to the person to possesses the copy without ownership. For example, the owner of a copy of a given symphony by Dmitry Shostakovich can rent it to an individual. However, the person who is renting the piece of music cannot rent it to someone else.
Fair use is the right to use copyrighted material for limited purposes and without authorization of the author. The traditional definition was the right to comment upon, criticize, or parody any given work. The principle of fair use is intended to incorporate and balance the right the right of free speech granted under the United States Constitution. The Copyright Act of 1976 includes several provisions for fair use:
- The quotation of excerpts in review or criticism for the purpose of illustration of comment
- Use in parody
- Summary of an address or article, with brief quotations in a news report
- Reproduction by teacher or student of a small portion of the work to illustrate a lesson
- Reproduction of the work in legislative or judicial proceedings
There are four fair use factors codified in the Copyright Act of 1976. These are for use by judges as fair use is the most commonly used defense when copyright is infringed. The four factors are as follows:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purpose
- The nature of the copyrighted work
- The amount and substantiality of the portion taken in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for or value of the copyrighted work
Purpose and character of the use requires an analysis of whether the use is transformative. This question asks whether the defendant added original material to the copyrighted work. This can be in the form of insight, aesthetics, or understanding. For example, a parody changes the original work by holding it to ridicule. A copyrighted musical piece may be used for a brief amount of time because it creates a distinct mood.
The Nature of the copyrighted work is very important in determining whether something is fair use. The main question the prosecution will ask is whether the copyrighted work was informative or entertaining. The Supreme Court decided in Sony Cop. of America v. Universal City Studios that copying a news broadcast has more claim to fair use than copying a motion picture. The reason is that copying from informative sources promotes the exchange of scientific ideas, according to the Supreme Court ruling.
Amount and substantiality of portion used is also very important in determining whether a copyright infringement qualifies as fair use. This rule of thumb simply states that the more of a work is taken, the less likely it is to quality as fair use.
Effect of the use on the potential market is the final factor in determining whether or not something qualifies as fair use. It must be determined whether the copyright infringement affected the potential marketability of the given copyrighted work. However, this does not have to reflect any intention of the copyright holder. For example, in the case Rogers v. Koons, the infringement took place when a photograph was adapted into a wooden sculpture. Despite the fact that the copyright holder never intended to adapt the work into a wooden sculpture, the possibility still existed; therefore, it was ruled as a copyright infringement.
Works Made for Hire
A work for hire is a work where the copyright owner paid someone else to create the work for them. The reason this exception to the general rule that authors own the copyright of a work exists was so that businesses could control the rights over a given work that someone else created. There are two ways that a work would qualify as a work made for hire:
- The work was created by an employee within the scope of such employment
- The work is commissioned under a written agreement
If the work falls under one of these methods, the hiring party is the author and the copyright owner of the work. In addition, the person paying for the work will appear of the application for registration.
Within the scope of such employment does not mean that the work had to be created at a job or that the work was created at the given job. It means that it was within the scope of what is expected from an employee.
A commissioned work is a work that was created by an independent contractor. These works are not classified as works for hire unless the following three conditions are met:
- The work is specially ordered or commissioned
- The work is used in a group of special categories
- There is a written agreement signed by both parties indicating it is in fact a work made for hire.
The second condition is very important, and unless the work falls under one of the following eight categories, it cannot be considered a work made for hire:
- A contribution to a collective work (see above)
- As a compilation (see above)
- As a translation
- As a supplementary work
- As a part of a motion picture
- As an instructional text ("a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities."
- A test or answers for a test
- An atlas
This applies only to works created by independent contractors. A work made by an employee under the scope of employment is always a work for hire, regardless of whether it falls under one of the categories.
A copyright notice serves as the most forward sign that a work is copyrighted. Congress required every publication to have a copyright notice. There were drastic penalties if the copyright notice was missing. In fact, there are a great deal of works that fell into the public domain because the publisher or printer either neglected to include a copyright notice or issued the item with a defective notice. The reason Congress required the copyright notice was that it informed the public that a given work was not in the public domain.
This law changed in 1988 when the United States passed the Berne Convention Implementation Act. Congress amended the Copyright Act of 1976 so that works no longer were required to have a proper copyright notice. Therefore, anything published on or after March 1st, 1989, does no need to have a copyright notice. Even though it is not longer a requirement in any of the Berne signatory countries, it is still strongly encouraged to include a copyright notice because some countries do not belong to the convention. Therefore, a work would not be protected there.
Any given copyright notice must have three elements: the symbol © or the word "Copyright”; the year of first publication; and the name or abbreviation of the owner of copyright. The order does not legally matter, as it was never established by either the 1909 law or the Copyright Act of 1976. The law is set forth in 17 U.S.C § 401(b):
- Form of Notice. — If a notice appears on the copies, it shall consist of the following three elements:
- (1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and
- (2) the year of first publication of the work; in the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying text matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful articles; and
- (3) the name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
Although the term "Copyright" is acceptable, it is generally recommended to always use the copyright symbol ©. The reason is that this is the only accepted symbol of copyright protection under the Universal Copyright Convention (UCC). Phonorecords of sound recordings use the symbol ⓟ (the letter P in a circle).
Visually Perceptible Copies
A copyright notice is required on all visually perceptible copies, which is something that can be seen either directly or with the aid of a device. Some copies, such as a recording or film, are not visually perceptible. Therefore, a copyright notice is not required for these. According to 17 U.S.C 401(a):
- Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section may be placed on publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.
Any given copyright notice must include the date the work was first published. This can mean either when the copies were first distributed to the public or when the work was first offered for distribution, public performance, or public display under the authority of the author or copyright owner. With musical works, publication takes place when copies of a work are legally sold or distributed to the public or when they are offered for sale or distribution - as in advertisements, publisher catalogs, or listings on the backs of other scores. A musical work is not considered published if it was recorded and the recording was distributed to the public prior to 1978. If the recording was published after that date, however, the embodied musical work is considered as published at the same time the sound recording was. According to 17 U.S.C § 101, a publication is the following:
- The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.
Similar to the © symbol, which represents the word "copyright", the Ⓟ symbol used to protect sound recordings stands for the word "phonorecord". Unlike the copyright symbol, however, there is no legal substitution for the Ⓟ symbol. In other words, that symbol must appear on the work. This notice should appear on the packaging or the disc itself.
A derivative work's copyright notice should include the owner of the derivative and the year of first publication of the derivative. Some authors choose to indicate a range of years for a given work in order to indicate the original and derivative versions:
- Example: © 1990, 1992, 1998, 2001
A copyright notice for a collective work usually protects all the works within that collection. It is generally advised, however, for the copyright owner to have a copyright notice placed on each individual work. This prevents a copyright infringer from claiming that it was an innocent mistake.
The omission of a copyright notice can result in the loss of copyright ownership. This depends, however, on the date the work was published. This has no effect on works published on or after March 1, 1989. An omission of a copyright notice can occur under several conditions:
- The notice does not contain the copyright symbol, the word copyright, or the appropriate abbreviation.
- The notice is dated more than one year later than the date of the first publication.
- Location of the notice does not give a reasonable notice of the claim of copyright.
- If the notice lacks the name or date. This applies only if the date was required.
Copyright Act of 1909
In order for a work to be protected under the Copyright Act of 1909, it was required to have a valid copyright notice. If it were published without a notice or with a defective notice, it would fall into the public domain. Position of notice was also important under the 1909 statute. For music (Class E), the notice was required to appear on either the first music page or the title page (or both). Some foreign works published without a notice after 1922, however, can be restored for protection. They must meet all of the following conditions:
- The work is public domain in the United States only because the author failed to follow certain formalities.
- One author, when the work was created, was a member of an eligible country. An eligible country is any country that is a member of the Berne Convention or the World Trade Organization (WTO).
- The work must have been published in such a country.
- The work must still be under protection in the eligible country in which the work was published (the "country of origin").
Between January 1, 1978 and March 1, 1989
Under the Copyright Act of 1976, there are certain provisions where an omission of copyright notice may be excused. This is under section 405:
- The notice was omitted from no more than a relatively small number of copies or phonorecords
- After the error has been noticed, there is a reasonable effort to add the notice
- The notice is omitted in violation of a written agreement.
After March 1, 1989
The United States, in the 1980's, was the only country that still terminated protection due to the lack of a copyright notice. In order to become a signatory country of the Berne Convention, a copyright notice would not need to be required. If a work was published after March 1, 1989, it will not lose protection due to the lack of a copyright notice.
|Published before 1978||Determine if the omission was an accident or mistake under section 21 of the Copyright Act of 1909.|
|Between 1978 and 1989||Determine if omission can be corrected under section 405 of the Copyright Act.|
|Published after March 1, 1989||Copyright notice not required|
|Work was published outside the United States||See rules on restored copyrights, Circular 38b.|
Transfer of Copyright
Licensing and Assignments
According to 17 U.S.C. § 101:
- A transfer of copyright ownership is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.
In order for any author to transfer rights, he must use one of the following three methods:
- Nonexclusive license
- Exclusive License
A nonexclusive license allows a given company to public or perform a work for some period of time. The author receives, in return, periodic payments called royalties. The person granting the rights is the licensor and the person paying for the license is the licensee. When a license is nonexclusive, more than one licensee may acquire the same right.
Only one party acquires a right under an exclusive license. This arrangement may, however, be limited in time or location. For example, a music publisher may acquire the right to sell a foreign work for 6 years. In other words, after that time period the rights must return to the owner.
An assignment is any given transfer of ownership rights. The person assigning the rights is called the assignor, while the person receiving the rights is called the assignee. Once this transfer has occurred, the author no longer owns the copyright of a work. This does not mean, however, that the original author cannot still receive periodic payments.
Transfer of Copyright
A transfer of copyright may occur in other ways. The following are the three most common ways:
- Upon death
- By operation of law
- Involuntary transfer
Any given copyright owner should have a beneficiary in their will. In other words, someone to whom the copyright should be transferred upon the author’s death. If the author does not have a will, the way the rights are transferred vary by state. In most states, however, they are passed on to the significant other or children. This commonly results in co-ownership of copyright.
According to 17 U.S.C § 201(e):
- When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title except as provided under Title 11.
Under certain situations, copyright ownership can be transferred without the consent of an author. This most commonly occurs in a bankruptcy proceeding because the court must transfer copyright ownership to pay creditors. Sometimes this involuntary transfer of copyright is called a transfer under the "operation of law.”
Useful Chart: Methods of Transferring Copyright Ownership
|Assignment or exclusive license||An assignment is a transfer of ownership interest whereas an exclusive license is a grant of rights so that no one can be granted a similar right. Both require a written agreement.|
|Transfer upon death||Copyright can only be transferred to a beneficiary with a valid will. Otherwise, the transfer will depend upon interstate succession laws.|
|Involuntary transfers||In some situations, a court can order the transfer of copyright. This is sometimes called "under the operation of law.”|
Termination of Grants
Under sections 203 and 304 of the law, authors, heirs or assigns have the right to terminate "grants, transfers, or licenses" made for works previously exploited. There are certain works and grants which cannot be terminated under these provisions. They are the following, according to 17 U.S.C § 203:
- Works made for hire
- Works governed by foreign law
- Grants made in an author's will
Under both sections of the law, only the author, a designated person exercising his rights, or his heirs have the standing to terminate. The rules governing who is entitled to terminate grants, transfers and licenses is specified in section 203 (a) (2).
Grants made before 1978
Under the provisions of section 304 (c) of the law, there are two five-year windows of opportunity for authors or their heirs to take back works (referred to as 'termination of grants, transfers and licenses): Window 1 commences 56 years after the date of first publication or registration and Window 2 commences 75 years after first publication or registration. Since the initial 28-year term of all works published in 1977 (the last year of the publication-based copyright term) ended on December 31, 2005, all works assigned, published or registered before 1978 are in their 67-year renewal term.
|Assigned, published or registered 56-61 years ago|| Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not|
a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will.
|Assigned, published or registered 75-80 years ago|| Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not|
a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will.
Grants made after 1977
Under the provisions of section 203, termination may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.
|Work published before the date of grant|| Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not|
a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will.
|Work published after the date of grant|| Termination can be achieved by sending the assignees an advance notice of termination specifying the termination date, provided the work is not|
a) a "work made for hire"; b) governed by foreign law; or c) assigned in a will.
The termination prevents the creation of any new derivative works under license from the original assignee, but derivatives legally issued before termination may continue to be exploited by the previous assignee. In addition, the termination only applies to those grants made under the jurisdiction of US copyright law. Grants made in other jurisdictions are not likely to be subject to termination under these provisions, even if the author or the heirs relocated to US jurisdiction after the fact.
International Copyright Treaties
The Berne Convention
The Berne Convention for the Protection of Literary and Artistic Works was the first international copyright treaty. It was organized in 1886 and is still administered by the World Intellectual Property Organization (WIPO). There are three main provisions in the Berne treaty:
- The minimum copyright term of life of the author plus 50 years
- No formalities such as a copyright notice or registration are required for copyright protection
- Certain moral rights must be protected. Moral rights prevent someone from distorting, mutilating, or modifying the work.
The two provisions that prevented the United States from joining the treaty were the formalities and the moral rights. American copyright owners, however, wanted to benefit from the Berne protection. Therefore, congress modified the copyright act and the result was the Berne Convention Implementation Act, which was a series of amendments beginning in 1989.
The Universal Copyright Convention
This was created in 1952 under the direction of UNESCO. The United States became a signatory country in 1955. For IMSLP, there are two important provisions:
- Every UCC member nation must give national treatment to the authors of other UCC countries.
- If the copyright owner uses the copyright notice required by the UCC (©, name of owner, year), the owner is excused from any formal requirements by another UCC nation.
The UCC requires a copyright notice; however, the Berne Convention does not. United States authors, however, should still use a copyright notice. The reason is that several countries, such as Cambodia and Laos, belong to the UCC but do not belong to Berne. Therefore, the work will not be protected in these UCC countries.
The Buenos Aires Convention of 1910
This was ratified in 1911 and the United States joined in 1914. This treaty is between the United States and sixteen Central and South American Nations. The only formality required, under this treaty, is the phrase "All rights reserved.”
This treaty, signed in December of 1994 by President Bill Clinton, was intended to harmonize international trade. Over 100 countries signed the GATT agreement. This treaty also included an agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which is especially important for IMSLP. There are three important provisions:
- Each GATT signatory cannot require formalities, such as a copyright notice, and copyright must last for at least life of the author plus fifty years. The GATT/TRIPS agreement does not have a moral rights requirement.
- Every GATT member country must have penalties for copyright infringement. These include injunctions and monetary damages.
- Every GATT member country must provide a means to prevent infringing works at the border.
GATT also established the World Trade Organization (WTO) that supervises each country. The United States amended copyright law to permit automatic restoration of copyright for some works that were public domain in the United States.