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.