The Licensing Act of 1662 established a publishing monopoly in England for the Stationers’ Company. It also established a register of licensed books and an attendant requirement to deposit one copy of the published book. Although the Act subsequently lapsed, the publishers continued to strictly regulate the publishing trade themselves.
The Statute of Anne was Parliament’s first true copyright law that put the rights of publication and control into the hands of the authors as opposed to the publishers. The Statute of Anne also established the custom of limiting the term of copyrights, in this case, for the period of 14 years, renewable for another 14 years if the author was still alive at the expiration of the initial term.
Originally submitted to the Constitutional Convention by James Madison, Article I, Section 8, Clause 8 of the United States Constitution provides Congress with the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
On May 31, 1790, the first copyright law under the new United States Constitution was enacted giving authors 14 years of copyright protection, with the right to renew the protection for an additional 14 years. Copyrights are to be registered in the United States District Court. On June 9, the first copyright is registered by John Barry in the United States District Court of Pennsylvania for his work, The Philadelphia Spelling Book.
An omnibus revision to the copyright law extends the initial term of protection to 28 years, with an option to renew protection for an additional 14 years. Copyright protection is also extended to musical works.
With this revision, administration of copyrights, including registration and deposit of works, is vested in the Library of Congress, and indexing the record of registrations begins. Copyright protection is extended to works of art, and authors are given more control over the right to create derivative works.
The Copyright Office is established as an independent department of The Library of Congress, and the position of the Register of Copyrights is created.
Under the Copyright Act of 1909, initial protection remains at 28 years, but the renewal period is extended to 28 years, as well. The term of protection is measured from the date of publication, and copyright protection for certain types of unpublished material is allowed.
Copyright law becomes part of the positive law of the United States with its codification in Title 17 of the United States Code.
The terms of the Universal Copyright Convention, signed at Geneva, Switzerland on September 6, 1952, come into force in the United States. Portions of Title 17 of the United States Code are amended to comply with the terms of the treaty.
On February 15, 1972, the Sound Recording Amendment comes into effect, providing limited federal copyright protection to fixed sound recordings fixed and first published after that date.
The 1976 Copyright Act comes into effect on January 1. The term of copyright protection is extended to the life of the author plus 50 years. The requirement to provide a copyright notice on the work is also removed, and fair use codified in the law.
The United States accedes to the terms of the Berne Convention, the other major copyright treaty in the world besides the Universal Copyright Convention.
Under VASA, visual artists are granted certain moral rights of attribution and integrity of the work. Copyright protection is also extended to architectural works.
Renewal registration is eliminated as a requirement for older works, and all works copyrighted from 1964 to 1977 are given an automatic renewal, even if registration was not made.
Codified the legality of home taping of sound recordings for private, noncommercial use.
The Sonny Bono Copyright Term Extension Act extended copyright protection to the life of the author plus 70 years.
The DMCA implemented provisions of the World Intellectual Property Organization Copyright Treaty and Performances and Phonograms Treaty. It also limited infringement liability for internet service providers under certain conditions.
The Technology, Education, and Copyright Harmonization Act allowed nonprofit educational institutions to use copyrighted works in distance education when certain conditions were met.
The House of Lords, sitting in their role as the court of last resort for the United Kingdom, first addressed copyright in this 1774 case, holding that, although copyright existed at common law as a right belonging to author, any such natural right was superseded by the Statute of Anne, and copyright questions had to be determined in accordance with the Statute of Anne.
In a dispute between the official reporter of the Supreme Court and the previous reporter, regarding the publication of case reports, the Supreme Court held that copyright is a limited right, to be interpreted in accordance with the Constitution, thereby disapproving the view of copyright as a natural, perpetual right belonging to the author. The Court also held that there can be no copyright in the decisions of the Court.
Justice William Story, in a case brought before the Massachusetts Circuit Court, developed the basis of the fair use doctrine. The case was brought by the editor and owner of a collection of George Washington’s letters against an author who used hundreds of pages of the letters, in their entirety, in a biography of Washington. Story noted that the question was whether the use of the letter was “a justifiable use of the original materials” and, in deciding that question the Court must “look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.”
Harriet Beecher Stowe sued the publisher of a German translation of Uncle Tom’s Cabin who sold copies overseas and in the United States. The Court held, contrary to current copyright law, that the translation was not a copy of the original, and the Stowe had no rights to control its publication. The outrage among authors over this decision, led in part to later revisions of the Copyright Act protecting derivative works.
A publisher of medical journals sued the National Library of Medicine and National Institutes of Health over the practice of photocopying journal articles and providing them to medical researchers. The Court of Claims found fair use, finding that medical research would be hampered if the practice were stopped. Further, the Court of Claims thought it best to maintain the status quo while Congress was in the process of revising the copyright laws. Compare the result here with the American Geophysical Union case, below.
In a 5-4 decision, the Supreme Court held that home videotaping of broadcast programs is a fair use, and that Sony was not liable for contributory infringement. The Court focused on the substantial non-infringing uses possible with a home video recorder, and found that a consumer’s taping a program to watch it at a different time was fair use.
The Second Circuit Court of Appeals found that quoting and paraphrasing the unpublished letters of J.D. Salinger was not a fair use of the material. Salinger’s biographer not only used a significant amount of Salinger’s letters but also used sections of the letters that were central to their composition.
A Federal District Court ruled that Kinko’s infringed on copyrights by copying and selling coursepacks for college courses. The Court found that the fair use factors generally weighed against Kinko’s, especially in light of their profit-making motives. The Court likewise ruled that the classroom guidelines for education did not apply to Kinko’s as a commercial business. The case was later followed in Princeton Univ. v. Michigan Document Servs., 99 F.3d 1381 (6th Cir. 1996).
The Supreme Court held that creative expression or originality is a necessary prerequisite to copyright protection, finding that an alphabetical arrangement of names in a telephone directory is neither creative nor original enough to qualify for copyright protection.
Texaco’s corporate library subscribed to a number of scientific journals and distributed photocopies of articles to its scientists to further their scientific research for the company. Publishers of the journals sued, and the court held that Texaco’s photocopying and distributing articles did not fall within the fair use exception. The court based its ruling on the availability of licensing, the amount of the copying by Texaco, and Texaco’s profit-making status.
The operator of an online bulletin board was held liable for copyright infringement when a third party uploaded a scanned picture to the bulletin board. The Court held that intent to infringe was not an element of infringement, and that the bulletin board owner could be held liable despite taking no affirmative steps to infringe. The holding in this case was later superseded by the provisions of the DMCA. Compare this case with the Religious Technology Center case, below.
The Supreme Court, in a unanimous decision, held that 2 Live Crew’s version of Roy Orbison’s “Pretty Woman” was a parody, protected under fair use. The Court focused on the transformative nature of the new lyrics. The Court also held that the commercial nature of the song did not eliminate any fair use rights, but was only one factor of many to weigh in the analysis.
Contrary to the Playboy Enterprises case, the Court here ruled that an internet service provider was not liable for direct infringement, but was liable for contributory copyright infringement for allowing copyrighted materials to remain posted on its service. The DMCA followed the reasoning in this case more than that of the Playboy Enterprises case when it limited the liability of ISPs in certain circumstances.
In this pair of cases, a publisher who marketed CD-ROM collections of legal cases, sought a declaratory judgment that certain portions of case law compilations—pagination, parallel citations, attorney information, and subsequent case history—prepared by West were not subject to copyright protection. The Court agreed, finding that the alterations made by West were simply rearrangements of facts and that, given conventions of legal citation and practice, were obvious and lacking minimal creativity.
A freelance photographer whose works had been featured in various issues of National Geographic Magazine alleged infringement when the magazines were included in a CD-ROM compilation of the entire magazine’s run. The Court agreed that the CD-ROM was a derivative work and unauthorized use of the photographs, and that fair use did not afford a defense to the infringement.
The Supreme Court ruled that the use of freelance authors’ works in CD-ROM compilations or electronic databases without the authors’ permission constituted an infringement of copyright. The Court held that the compilations and databases were not “revisions” to the original works, which would have allowed the publishers to use the material pursuant to 17 U.S.C. § 201. An effect of this ruling was to make electronic republication rights standard terms in publishing agreements.
The Supreme Court held that the use of material in the public domain without attribution is neither an infringement of copyright nor a violation of the Lanham Act provisions against unfair competition by way of false designations of origin or false descriptions. In essence, the Court reaffirmed that there is no legal cause of action for plagiarism, absent an infringement of copyright.
The Court ruled that the use of thumbnails to index online search results is a legitimate fair use of the images.
In a case very similar to the Greenberg case, above, the Court of Appeals for the Second Circuit disagreed with the Eleventh Circuit decision in Greenberg and held that the CD-ROM compilation of the National Geographic magazines was a revision of the originals and therefore was entitled to use all of the content in the original magazines without requiring additional permissions from the photographers. The split in the circuits still persists.
Grokster, a peer-to-peer file sharing company, claimed its activities were protected from secondary copyright infringement liability based on Sony Corp. v. Universal City Studios. The Supreme Court held that, although there was the possibility that Grokster could be used in a non-infringing manner, Grokster was liable due to its promoting its service for uses that would infringe copyright. The Supreme Court adopted an active inducement theory that would not shield third-parties who actively induce copyright infringement.
An advertisement for Coors Light was found to infringe on a photographer’s image of basketball player Kevin Garnett. Although the bulk of the elements in the photograph were in the public domain, the Court held that copying the composition and feel of the photograph was an infringement of copyright.
It is not infringing for Google to cache web pages and make those cached pages available to the public. The web page authors essentially grant an implied license for search engines to link to and cache pages where the web page authors take no steps to prevent such linking or caching.
The Court found copyright infringement where a company edited and distributed motion pictures with potentially offensive content removed. The work was not significantly transformative and affected the market for distribution of the films.
Images of Grateful Dead concert posters were reproduced in a coffee table book providing a cultural history of the band. The owner of the posters’ copyrights alleged infringement, but the Court of Appeals disagreed. The Court found that, although the posters were reproduced completely, the work was completely transformative as the use went from the original advertising purpose to one of historical reflection and documentation. The case strengthened the examination of transformative use as a cornerstone of fair use analysis.
2007 – PERFECT 10, INC. v. AMAZON.COM, INC.
508 F.3d 1146 (2007)
The court held that it is not infringing for Google to use thumbnails of photographs to index content on the web, as such use is highly transformative, regardless of whether the sites being indexed were themselves infringing. Likewise, it was not an infringing activity for Google to link to the images themselves and display them, as the images were not hosted on Google’s servers.
Cablevision sought to offer a remote DVR options to its customers, where programs, at the customers’ requests, would be recorded and stored on Cablevision’s servers and would be made available to the customers on demand. The Court made three key holdings in finding no infringement of copyright. First, storage of programs in an intermediate buffer for 1.2 seconds was transitory in nature and was therefore not “fixed in a tangible medium.” Second, although Cablevision’s system made copies of programs, the customers were ultimately the ones making the copies. Third, because the copies were viewable by only one customer, playback of the copies was not a public performance of the works.
The Plaintiff created a computer program for the control of model trains and made it available freely on the web subject to an open source license. Defendant used the code to make a competing program but did not follow the terms of the open source license with regards to such requirements as attribution and description of changes. The Court held that failing to abide by the terms of an open access license can result in a cause of action for copyright infringement.
The plaintiffs, music producers, sought to characterize the defendant’s webcasting service as an “interactive service” in order to trigger a requirement to pay individual licensing fees rather than statutory licensing fees. The Court held that the service was not an interactive service. Although the service’s users could customize their music channels by way of providing ratings to songs, artists, and albums, the users could not request certain songs be played on demand. This distinction was significant in determining that the service was not “interactive” within the meaning of the Copyright Act.
Plaintiff claimed that TurnItIn, an online plagiarism detection program, infringed upon his copyright in his schoolwork by uploading his papers into its database for comparison to other students’ work. The Court held that, despite the commercial nature of the enterprise and the use of the full content of the copyrighted work, the use was “highly transformative” and therefore entitled to fair use protection.
The Ninth Circuit Court of Appeals held that purchasers of software programs cannot use the first sale doctrine to resell the programs where the software distributors issued the programs with software license agreements to which the users had to agree before installing the programs.
In response to requirements from the Uruguay Round of trade negotiations and to perfect implementation of the Berne Convention in the United States, Congress passed legislation which, in part, caused a number of works in the public domain under United States law to revert back into copyright protection. The Supreme Court held that it was not an abuse of Congress’s power to remove works from the public domain and held that there is no prohibition against removing works from the public domain, generally.
Although YouTube complies with DMCA takedown notices regularly, the Plaintiffs sought to hold YouTube liable on the basis of, among other things, the “willful blindness” of YouTube to infringing activity on its site. The Court found for YouTube, holding that, although willful blindness to infringing activity may constitute a cause of action for copyright infringement, it does not impose an active requirement to search for infringing activity.
The Supreme Court ruled that the first sale doctrine applies to works first sold outside of the United States and then offered for sale in the United States. The case arose when the plaintiff purchased textbooks outside of the United States, at a significantly lower price than offered in the United States, and resold the books inside the United States. The Court held that this was not an infringing activity.
Richard Prince, a well-known appropriation artist, used a number of photographs of Jamaican Rastafarians, taken by Patrick Cariou, in an exhibition in New York. Although many of Prince’s works made minor alterations to Cariou’s photographs, the Court held that the majority of Prince’s work constituted fair use of the photographs. The Court heavily relied on the transformative use doctrine to determine that Prince’s use was fair.
The District Court held that Google Books’ Library Project, which scanned over twenty million books held in major research libraries, was significantly transformative of the original works and was therefore protected by fair use. Google but certain security measures in place to prevent users from downloading or accessing complete copies of copyrighted works, and used its digital scans to form the basis of an indexing and search system. The case is currently on appeal to the Second Circuit Court of Appeal with an oral argument scheduled for December 3, 2014.
The indexing and cataloging of a copyrighted work by an academic library constitutes “distribution” under the Copyright Act, regardless of whether any patrons actually access the material. This action is a separate act of infringement from any copying made of the copyrighted work.
Copying millions of text into a digital database by a consortium of research libraries was not infringing activity where the purpose of the scans were threefold: to enable full-text searching, to provide access to print-disable patrons, and to preserve copies of texts. The Court held that the uses were sufficient transformative and protected as fair use.
In a case arising out of challenges to electronic reserves at Georgia State University, the 11th Circuit Court of Appeals reversed a lower court’s determination that the vast majority of Georgia State’s use of excerpts and articles in its electronic reserves system was fair use. The Court found that the determinations by the trial court incorrectly relied on a formulaic and bright-line approach of fair use, and remanded the matter back for determinations in line with the Court’s more nuanced, case-by-case approach.