“The Congress shall have the 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.”
United States Constitution, Article I, Section 8, Clause 8.
Copyright law is a federal body of law enshrined in Title 17 of the United States Code. The law protects the original works of authors, artists, performers, and entrepreneurs by allowing them to profit from their creative efforts for a limited time, in exchange for the eventual release of the work into the “public domain.” Everyone who creates an original work of authorship should have a basic understanding of copyright law and the requirements necessary to protect their intellectual property.
Subject Matter
Copyright law protects “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. Original works are protectable under copyright law only if they can be categorized as either “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; [or] architectural works.” 17 U.S.C. § 102(a).
Copyright protections do not extend to “any idea, procedures, 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.” 17 U.S.C. § 102(b).
Authorship and Fixation
Original works categorized as protectable under § 102(a) of the Copyright Act must also satisfy two fundamental elements: (1) authorship and (2) fixation.
“Authorship” (sometimes referred to as “originality”) requires that the work be created by a human and contain at least “a modicum” or “minimal degree of creativity.” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991); see also Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (holding animals do not have statutory standing to sue under the Copyright Act); Urantia Found. v. Maaherra, 114 F.3d 955 (9th Cir. 1997) (rejecting contention that copyright protections extend to celestial beings); Thaler v. Perlmutter, No. CV 22-1564 (BAH), 2023 WL 5333236 (D.D.C. Aug. 18, 2023), appeal filed, Thaler v. Perlmutter, No. CV 23-5233, (D.C. Cir. Oct. 18, 2023) (affirming the Copyright Office’s denial of a copyright registration to an artificial intelligence-generated image because the creation of the image lacked human involvement); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 306 (3d ed. 2021) (“The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.”).
The Supreme Court has held that “the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
“Fixation” is satisfied when a work is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” 17 U.S.C. § 101. A classic example of fixation is when a painter puts the image they have in their mind into a painting. The definition and application of the fixation requirement becomes more nuanced with more complex and dynamic forms of technology. See Cartoon Network v. CSC Holdings, 536 F.3d 121 (2d Cir. 2008). Copyright ownership exists from the moment the work is “fixed.” See Montgomery v. Noga, 168 F.3d 1282, 1288 (11th Cir. 1999); 17 U.S.C. § 102(a).
Term
As of January 1, 1978, the copyright term for a work created on or after January 1, 1978, lasts for “the life of the author and 70 years after the author’s death.” 17 U.S.C. § 302(a). Different copyright terms exist for unpublished works, works created before January 1, 1978, works made for hire, works created by two or more authors, and anonymous or pseudonymous works.
Exclusive Rights
The Copyright Act grants copyright owners exclusive rights they may exercise to protect their copyrighted works. These exclusive rights include the right:
- 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.
Limitations on Exclusive Rights
Although broad, a copyright owner’s exclusive rights are not absolute. Chapter 1 of the Copyright Act includes multiple limitations on a copyright owner’s exclusive rights. The most well-known limitation is the “fair use” exception in § 107, which states:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
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- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
17 U.S.C. § 107 (emphasis added).
Other limitations under Chapter 1 of the Copyright Act include, “reproduction by libraries and archives” (§ 108), the first sale doctrine (§ 109), “exemption of certain performances and displays” (§ 110), “secondary transmissions of broadcast programming by cable” (§ 111), “ephemeral recordings” (§ 112), certain exceptions regarding “computer programs” (§ 117), “secondary transmissions of distant television programming by satellite” (§ 119), “reproduction for blind or other people with disabilities” (§ 121) or the same in Marrakesh Treaty countries (§ 121A), and “secondary transmission of local television programming by satellite (§ 122).
Protection for Minnesota Copyrights
Minnesota does not have its own copyright statute because the area of copyright law is preempted by federal law. 17 U.S.C. § 301(a). (“[N]o person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”) However, Minnesota artists and businesspeople who wish to protect their intellectual property can file for a copyright registration with the United States Copyright Office.
Additionally, the ownership of a copyright is considered property that can be transferred, sold, inherited, and licensed under the Copyright Act and Minnesota law. However, copyright owners should be aware that, “[o]wnership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” 17 U.S.C. § 202 (emphasis added).
Conclusion
Original works that fall within the limited copyrightable subject matters are eligible for protection if they are original works of human authorship that are fixed in a tangible medium of expression. In most cases, copyright protections last for the life of the author, plus 70 years; and they provide the author with certain enumerated and exclusive rights. An author’s exclusive rights are subject to certain exceptions listed in the Copyright Act, most commonly the “fair use” exception. Although copyright ownership exists automatically upon fixation of the work, in most cases registration is a prerequisite for filing a civil action for infringement. 17 U.S. Code § 411(a). Authors, painters, content creators, musicians, producers, performers, and other artists who wish to protect their creations should contact a copyright attorney for assistance registering their copyrights and enforcing their exclusive rights.
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About the Author:
Christopher T. Porter is a Minnesota copyright attorney located in Minneapolis, Minnesota who handles disputes and registrations under the Copyright Act. He can be reached at cporter@trepanierlaw.com or at 612.455.6218. Trepanier MacGillis Battina P.A. is a Minnesota business law firm located in Minneapolis, Minnesota that handles Minnesota copyright law and Minnesota trademark law.