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Copyright: Subject Matter & Scope

    This page of the tutorial highlights key subsections from the respective section of the statute. The entire section can be found here.

    § 102. Subject matter of copyright: In general

    (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

    (1) literary works;
    (2) musical works, including any accompanying words;
    (3) dramatic works, including any accompanying music;
    (4) pantomimes and choreographic works;
    (5) pictorial, graphic, and sculptural works;
    (6) motion pictures and other audiovisual works;
    (7) sound recordings; and
    (8) architectural works.

    (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, 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.

    Comments: This is the universe of works that get copyright protection. The term "original" as used here means a work of independent creation that entails a "modicum of creativity." Courts have set the threshold for creativity to be quite low. The term "original" does not mean "new or artistic." A leading USSC case dealing with "originality" is Feist Publications v. Rural Telephone Service. This section also highlights the fact that ideas cannot be copyrighted, but rather it is the expression of ideas captured in a tangible medium that gets protection.

    106. Exclusive rights in copyrighted works

    Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

    (1) to reproduce the copyrighted work in copies or phonorecords;
    (2) to prepare derivative works based upon the copyrighted work;
    (3) 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;
    (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
    (5) 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
    (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

    Comments: This is the "bundle of rights" that an author obtains via copyright. When someone infringes on an author's copyright they have misappropriated one or more of these rights. For example, if someone has taken all or part your website (i.e. without your consent) then they have violated your right to make a copy of your work, unless they can make a prevailing argument using a legally recognized defense (e.g. see Fair Use below). These rights can be sold, licensed or assigned in whole or in part.

    § 107. Limitations on exclusive rights: Fair use

    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—

    (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
    (2) the nature of the copyrighted work;
    (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
    (4) the effect of the use upon the potential market for or value of the copyrighted work.
    The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

    Comments: As indicated above, courts recognize certain uses of a copyrighted work to be "fair." However, as a practical matter, prevailing with a fair use defense can be quite an expensive proposition, and it is usually simply more cost effective to be in compliance than it is to risk the litigation costs necessary to assert this defense, and worse yet the costs of not prevailing. There is the "rule" and then there is the "reality" of how it is applied. Certain uses will not prove problematic at all (e.g. most classroom uses), but other cases are not so clear. The factors are balanced and no one factor is controlling (see the Fair Use Doctrine for more information).

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