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COPYRITE.TXT
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1994-07-17
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Part 1: What Copyright Is
-------------------------
On January 1, 1978, the Copyright Act of 1976 (title 17 of the
United States Code) came into effect. This general revision of the
copyright law of the United States, the first such revision since
1909, made important changes in our copyright system and
superseded the previous federal copyright statute.
Copyright is a form of protection provided by the laws of the
United States (title 17, U.S. Code) to the authors of "original works
of authorship" including literary, dramatic, musical, artistic, and
certain other intellectual works. This protection is available to both
published and unpublished works. Section 106 of the Copyright Act
generally gives the owner of copyright the exclusive right to do and
to authorize others to do 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;
- To perform the copyrighted work publically, in the case of
literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audivisual
works, and
- To display the copyrighted work publically, 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.
It is illegal for anyone to violate any of the rights provided by the
Act to the owner of copyright. These rights, however, are not
unlimited in scope. Sections 107 through 118 of the Copyright Act
establish limitations on these rights. In some cases, these
limitations are specified exemptions from copyright liability. One
major limitation is the doctrine of "fair use," which is given a
statutory basis by Section 107 of the Act. In other instances, the
limitation takes the form of a "compulsory license" under which
certain limited uses of copyrighted works are permitted upon payment
of specified royalties and compliance with statutory conditions.
Part 2: Who Can Claim Copyright
-------------------------------
Copyright protection subsists from the time the work is created
in fixed form: that is, it is incident of the process of authorship. The
copyright in the work of authorship IMMEDIATELY becomes the property of
the author who created it. Only the author or those deriving their
rights through the author can rightfully claim copyright.
In the case of works made for hire, the employer and not the
employee is presumptively considered the author. Section 101 of the
Copyright Act defines a "work made for hire" as:
(1) a work prepared by an employee within the scope
of his or her employment; or
(2) a work specially ordered or commissioned for use
as a contribution to a collective work, as part
of a motion picture or other audiovisual work,
as a translation, as a supplementary work, as a
compilation, as an instructional text, as a test,
as answer material for a test, or as an atlas,
if the parties expressly agree in a written
instrument signed by them that the work will be
considered a work made for hire....
The authors of a joint work are co-owners of the copyright in
the work, unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical or other
collective work is distinct from copyright in the collective work as a
whole and vests initially with the author of the contribution.
Two General Principles
----------------------
- Mere ownership of a book, manuscript, painting, or any other
copy or phonorecord does not give the possessor the copyright. The
law provides that transfer of ownership of any material object that
embodies a protected work does not of itself convey any rights in the
copyright.
- Minors may claim copyright, but state laws may regulate the
business dealings involving copyrights owned by minors. For information
on relevant state laws, consult an attorney in your state.
AUTHOR'S ADDENDUM
The determination of what constitutes a "work for hire" under the
Copyright Act is based upon common law agency principles, and not upon
who has the right to control the product or has actual control of the
product, a unanimous U.S. Supreme Court ruled on June 5 (COMMUNITY FOR
CREATIVE NON-VIOLENCE v. REID).
The court, in an opinion by Justice Marshall, ruled that a
statue, dramatizing the plight of the homeless, which was commissioned
by the Community for Creative Non-Violence, a non-profit group whose
mission is to eradicate homelessness, is not a work for hire, although
the court noted that CCNV could still be found to be a joint author.
Section 101 of the Copuright Act, 17 USC 101, provides that a
work is "for hire" under two possible circumstances: first, a work can
be "prepared by an employee within the scope of his or her employment,"
17 USE 101(1), or, as specified in 17 USC 101(2), a work can be
specially ordered or commissioned as part of a collective work, a movie
or other audiovisual work, a translation, a supplementary work, a
compilation, an isstructional text, a test, or an atlas. The parties
agreed that the statue did not satisfy the requirements of 17 USE
101(2), so the only issue was whether it could be considered a "work
prepared by an employee within the scope of his or her employment."
CCNV, supported by amicus briefs filed by publishers, asserted
that a work created by an independent contractor can be a work for hire
under 17 USC 101(1) if the employer retains the right to control the
product, or if the employer has actually wielded control with respect to
the creation of a particular work. In a joint brief, the Magazine
Publishers of America Inc., the Hearst Corp., The New York Times Co.,
Playboy Enterprises, and Time Inc. said that magazine and newspaper
publishers "shape and direct" the creative process, and that they must
be able to rely upon work for hire relationships with contributors they
supervise and direct.
Neither of the "control" tests "is consistent with the text of
the act," the court said. "Section 101 clearly delineates between works
prepared by an employee and commissioned works. Sound though other
distinctions might be as a matter of copyright policy, there is no
statutory support for an additional dichotomy between commissioned works
that are actually controlled and supervised by the hiring party and
those that are not." The hiring party's right to control the product
"simply is not determinative," the court said.
The term "employee" as used in 17 USC 101(1) "should be
understood in light of the general common law of agency," the court
said. Using that criterion, the court found that the sculptor, James
Earl Reid, was not a CCNV employee, noting that Reid supplied his own
tools, worked in his own studio, was retained by CCNV for only two
months, and was paid a specific sum contingent upon completion of the
specific job. CCNV paid no payroll or social security taxes for Reid,
provided no employee benefits, and did not contribute to any
unemployment insurance or workers' compensation funds, the court said.
Part 3: Copyright and National Origin of the Work
-------------------------------------------------
Copyright protection is available for all unpublished works,
regardless of the nationality or domicile of the author.
Published works are eligible for copyright