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:
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:
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:
The six categories relevant to IMSLP will be discussed in detail:
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
Since 1790, there have been five major copyright acts, but only two of them are still effective today:
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.
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 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 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:
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.
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:
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:
This act relates to the Internet and transmission of information in a digital form. There are three provisions important for IMSLP:
The Code of Federal Regulations expands on copyright statuses and standardizes the copyright application process.
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.
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 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).
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.
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).
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.
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.
| Works published before 1925 | Works are in the public domain |
| Works published between 1925 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. |
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?
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.
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:
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):
| Protectable | Not protectable |
|---|---|
| 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:
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:
The formal definition, according to section 101 of the Copyright Act of 1976 is the following:
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:
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:
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:
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.
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:
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 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:
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):
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).
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):
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:
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:
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:
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:
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 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. |
According to 17 U.S.C. § 101:
In order for any author to transfer rights, he must use one of the following three methods:
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.
A transfer of copyright may occur in other ways. The following are the three most common ways:
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):
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.”
| 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.” |
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:
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).
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. |
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.
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 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.
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:
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.
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:
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.
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