Tuesday, May 24, 2011

Public Performance of Copyrighted Work

"Life is like a public performance on the violin, in which you must learn the instrument as you go along"
— E.M. Forster

While life may share many characteristics with public performance, it is not part of the bundle of rights associated with copyright. The copyright owner has the exclusive right to public performance of the copyrighted work. Besides not applying to life in general, this right does not apply to several categories of copyrighted subject matter. As you would expect, it does not apply to certain works that are not "performed.". This includes pictorial, graphic, and sculptural works and architectural works. Interestingly, the exclusive right to public performance does not generally apply to sound recordings. This means that radio stations may broadcast copyrighted sound recordings with no liability to the owner of the sound recordings copyright. I'll discuss the rather unusual world of public performance of sound recordings tomorrow. For literary works, musical works, dramatic works, pantomimes and choreographic works, and motion pictures, the exclusive right to public performance applies.

The Copyright Act defines public performance as follows:

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.

It is important to note that there are often multiple incidents of "performances" of a copyrighted work. For example, a singer might sing a copyrighted song in public- a first performance. The performance might be recorded and broadcast by a television network- a second performance. The broadcast might be rerun later- a third performance. Each new rendition is a separate public performance.

But what is "public"? As the definition above states, it means a place open to the public or any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered. If the public is free to go to a place, it is considered a public place, even if the place is small and can host only a limited number of people. Hotel rooms are generally not considered public places, so viewing a rented video in a hotel room is not a public performance. Note, though, that even places generally not considered public, such as a home, may still host a public performance if there are a substantial number of folks present who are not friends and family. Finally, the transmission of a performance to the public is a public performance. Whether anyone sees the performance is not important.

A few exceptions to the exclusive right to public performance are worth noting. Non-profit performance of nondramatic literary or musical works are not covered. Stores may publicly play musical works on the premises in order to promote sales of the works. And nondramatic musical works may be performed in the course of fairs sponsored by government and nonprofit agricultural organizations.

I'll talk about the public performance of sound recordings tomorrow. Please let us know if you have any questions or comments. Email is at jdellinger@mainspringlaw.com.

Friday, May 20, 2011

The Right to Distribute Copyrighted Works and the First Sale Doctrine

Copyright owners have the exclusive right to distribute their copyrighted work to the public.  Distribution means the actual transfer of a material copy of the copyrighted material.  Simply offering to transfer is not distribution under copyright law.  Further, distribution includes a sale or other transfer of ownership, but also includes rental, lease, and lending of the copyrighted work.  As a distinct right, the right to distribute is separate from the other rights.  For example, a manufacture may have a license to reproduce a copyrighted work, with no mention of the right to distribute.  If he sells the copies he manufactured to the public, he would be infringing the right to distribute. 

The doctrine of first sale constitutes a significant exception to the exclusive right of distribution.  This doctrine provides that once there is an authorized transfer of a copyrighted work to another party, that party can transfer or dispose of his authorized copy freely.  This means that the copyright owner really only has the exclusive right to the initial distribution of a copy of his work, with few exceptions.  Obviously, the doctrine of first sale doesn't apply to unauthorized copies.  So if a merchant sales pirated copies of a copyrighted work, he is violating the exclusive right to distribute, with no protection from the first sale doctrine.  Another exception applies to audio works and computer programs.  Despite the initial sale of such works, even an authorized buyer does not generally have the freedom to rent the audio work or computer program out to the public. 

One interesting state law-based "exception" to the first sale doctrine is droit de suite, which literally translates as "piggyback".  This doctrine gives the creator of a work of fine arts the right to share in any appreciation in the value of his work if it is resold after his initial transfer of the work.   Droit de suite is recognized in some countries, but not recognized under U.S. copyright law.  However, California state law includes a droit de suite statute. 

I'll talk about the right of public performance next week.  Send us your questions or comments, or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Wednesday, May 18, 2011

What's A Derivative Work?

U.S. copyright law gives the copyright owner the exclusive right to prepare works derived from the copyrighted work, or adapt the copyrighted work.  But what is a derivative work or adaptation?  The statute has a definition:
A “derivative work” is 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”.
It is clear that changing the form of a work, such as rewriting a book as a play, is an adaptation, and consitutes infringement of the book copyright book.  As in the right to reproduce, the copyright owner still must prove that the accused infringer copied the work, and that the resultant work is substantially similar to the copyrighted work in its expression.  As before, the expression is protected, not the idea.  

Another form of impermissible adaptation of a copyrighted work is when the copyrighted work is altered even if the work is not, in fact, copied.  For example, if a person buys authorized copies of a book containing copyrighted photos or other graphic art, then cuts the art out of the book and treats them with shellac or laminates them, and then offers the changed graphic art to the public as wall decorations, they did not copy the work.  However, they very well might be found liable for infringing the copyright by by the unauthorized adaptation of the work.  

There are, of course, certain exclusions to the exclusive right to adapt copyrighted works.  For sound recordings, infringement is only found if the adapted work actually copies the copyrighted work-- there is no liability if the adaptation uses an independently recorded version.  For computer programs, an authorized user does not infrine the copyrighted work if utilizing the program requires making and adapting a copy of the program.  Finally, for architectural works, the owner of a building embodying a copyrighted architectural work can alter or destroy the building without the copyright owner's permission. 

Next we'll talk about the exclusive right to distribute copyrighted works to the public.  Let us know if you have any questions or comments.  Post them on the blog, or email me at JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Tuesday, May 17, 2011

Copyright: The Right To Reproduce

We were talking yesterday about the rights that authors and artists (or other copyright owners to whom the artist's or author's rights have been transferred) enjoy under U.S. copyright law.  The first is the exclusive right to reproduce the copyrighted work.  This right extends only to the making of a material copy of a work.  Reading a work out loud, or playing an audio recording of copyrighted music, are not considered reproduction. Under U.S. law, in order to be liable for infringing a copyright by reproducing the work, it must be shown that the accused both (1) copied the copyrighted work, and (2) that the accused copy is "substantially similar" to the copyrightable parts of the copyrighted work.  Copying can be shown by providing direct evidence of the copying, or by showing that the accused had acccess to the copyrighted work and that the accused product is sufficiently similar to the copyrighted work.  If copying can be shown, then infringement by reproduction will be found if the copyright owner can show that the intended audience of the work would find the accused product substantially similar to the copyrighted work.  Remember, copyright protects the expression, not the idea.  Thus, similarity to the idea is not copyright infringement. 

Liability for copying a copyrighted work in a website is a fairly actively litigated area of copyright law.  Downloading or uploading a file is making of a copy of the file.  However, current caselaw is that, if the user (and not the website) is downloading/uploading to the website’s server, the website is not liable for reproducing the copyrighted work.  But if a website reviews files uploaded by users before those files are made available, the website may be found liable. 

There are several important exceptions to the owner's exclusive right to reproduce a copyrighted work. 
(1) If the work is a computer program, the lawful owner of a copy of it can reproduce it if running the program requires making a copy, such as copying to the computer's hard drive.  The lawful owner of a computer program can also make a backup copy. 
(2) If a work is a pictorial, graphic, or sculptural work portraying a useful object, then the copyright owner cannot keep others from reproducing the displayed useful object.  For example, if a picture of a car is copyrighted, the photographer cannot keep others from making the car itself. 
(3) If the work is an architectural work, the copyright owner cannot keep others from making pictures or paintings of the copyrighted architecture. 
(4) Libraries and archives enjoy certain exceptions from copyright law, allowing them to reproduce and distribute copyrighted works for noncommercial use in certain circumstances.
(5) Copying of audio works for broadcast, or home recording of audio works for noncommercial use, is not considered reproduction for infringement determinations.
(6) Only reproduction of the actual recorded copyrighted audio is prohibited.  Reproduction of independently recorded imitations is not prohibited.
(7) Recorded nondramatic musical works may be subject to a compulsory license, allowing broadcast of the works.
(8) Certain works may be subject to an exclusion allowing copying in specialized formats for the disabled, such as in Braille. 

Tomorrow, we'll discuss the exclusive right to prepare works derived from the copyrighted work.  As always, we look forward to your questions or comments on the blog, or by email at JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.

Monday, May 16, 2011


Last week, we talked about the kinds of works original works of artistic expression fixed in a tangible medium are protected by U.S. copyright.  Today, we'll talk about the nature of the rights authors and artists have under copyright.   Just to clarify, these rights apply to the author or artist, or to another owner of the rights to whom the author or artist has transferred his rights.  The exclusive "economic rights" granted to the copyright owner include the right to do or authorize another to do the following:

(1) Reproduce the copyrighted work;
(2) Prepare works derived from the copyrighted work;
(3) Distribute copies of the copyrighted work to the public;
(4) Publicly perform the work;
(5) Publicly display the work; and
(6) Performing copyrighted sound recordings by means of digital audio transmission.

In addition to these economic rights, the artist of visual art works has certain "moral rights," including the rights:

(1) To claim authorship in the work;
(2) To prevent the use of his name as the creator of any work that he did not in fact create;
(3) To prevent the use of his name as the creator of a work that he did create if it has been distorted, mutilated, or modified in such a way as to harm his honor or reputation; and
(4) To prevent the intentional or negligent destruction  of any of his works that are of recognized importance.

Over time, copyright law has developed to clarify what, exactly, each of these rights actually encompass.  Tomorrow, we'll discuss what is meant by the right to reproduce a copyrighted work.

In the meantime, feel free to email us at JDellinger@mainspringlaw.com if you have any questions, or if you'd like a free copy of our pamphlet discussing copyright law as it effects small businesses and individuals.

Friday, May 13, 2011


Our lives are made more complete by the creations of gifted artists and authors. While artists and authors love their work, society has long recognized that there must be some mechanism for them to potentially reap the rewards for their work. This mechanism has generally included giving the exclusive rights to the copying and control of their work. In the United States, these rights are granted in the Constitution, which states that "The Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Constitution, Article I, § 8, cl. 8.

Under U.S. Law, copyright protects what are known as Original Works of Artistic Expression Fixed In A Tangible Medium . By statute, this includes the work itself, or anything derived from the work itself. It includes any tangible thing that can be perceived, reproduced, or communicated. Specifically covered by U.S. Law are works within the following categories:
(1) Literary works, including computer software,
(2) Musical works, including any accompanying words;
(3) Dramatic works, including any accompanying music;
(4) Pantomimes and choreographic works;
(5) Pictorial, graphic, sculptural work, jewelry, and body art;
(6) Motion pictures and other audiovisual works;
(7) Sound recordings; and
(8) Architectural works.

An important point to note is that copyright protects the expression of ideas, but does not protect the ideas themselves. Nor does the protection extend to any procedure, process, system, method of operation, concept, principle, or discovery. Copyright is limited to the tangible expression of the idea.

Next we'll talk about the precise rights authors and artists have under copyright, and more about how to perfect those rights. In the meantime, email us if you have any questions, or if you'd like a free copy of our pamphlet discussing copyright law as it effects small businesses and individuals.


Welcome to Mainspring Law's Blog! Mainspring is dedicated to providing intellectual property law services efficiently, while fostering the personal relationships that make this job worthwhile. This blog is an important part of our service. With this blog, we hope to provide interested readers with good information on topics in intellectual property law. Perhaps more importantly, we hope the comment process will allow readers to talk back to us so that we can provide better service.

We think the folks we are meant to serve are primarily small and mid-sized businesses and individuals. These folks may be less likeIy to have ready access to legal services and might have questions about exactly what is involved in the various types of intellectual property law, and how the different types of protection are important to them. So we thought a good place to start the conversation would be simply discussing some of the basics of intellectual property law. We'll start with a few posts about copyright law.