I. The rights of a copyright owner are found in section 106 and are referred to as exclusive rights.

A. General Comments

1. A copyright does not confer an absolute monopoly in the patent sense. A copyright owner’s rights are not infringed if a subsequent work thought substantially similar has been independently created.

a. Thus, absent copying, there can be no copyright infringement regardless of the extent of similarity.

b. The requirement of copying sets out what may be called an external limitation, in that it confines the exercise of copyright to works which emanate directly or indirectly from the copyright owner.

2. There is also an internal limitation which says that not every use of a copyright work is necessarily an infringement of copyright.

a. A use of a copyrighted work is not an infringing act if it does not fall within the scope of the the bundle of rights expressly granted to the copyright proprietor.

b. Thus, privately reading a copyrighted work or privately performing a dramatic or musical work is not in infringement.

B. The rights of the copyright owner are cumulative and divisible.

1. By exercising or granting one of these rights to another, the copyright owner does not lose the other rights associated with the copyright.

2. The nature of the right enjoyed does not depend to any extent on the type of material copyrighted.

3. A negative right is also implied - the right not to exercise one or all of the rights.

A. Reproduction - The copyright owner has the exclusive right to reproduce the copyrighted work or to authorize its reproduction.

1. Reproduction is actually producing books from literary words, phonorecords from sound recordings, etc.

2. The Act covers reproduction in any form, printing, microform, etc.

3. In the case of a literary work, this is the right usually granted to a publisher along with the right to distribute copies.

B. Distribution - The copyright owner has the exclusive right to distribute to the public copies or phonorecords of the copyrighted work by sale or other transfer of ownership or by rental, lease or lending.

1. The owner of a copyright has the right to give away, sell, or withhold any material embodiment of his or her work.

2. In essence, this is the right to control publication of a work because publication without distribution of copies is meaningless.

C. Adaptation - The holder of a copyright has the exclusive right to prepare derivative works based on the original work.

1. Under the adaptation right, the copyright owner may prevent any unauthorized translation, musical arrangement, dramatization, etc.

2. A translation of the work into any language without the consent of the copyright owner is an infringement of that copyright.

3. The adaptation right is a means of prohibiting any unauthorized changes in the work and is especially helpful in case of musical arrangements.

D. Performance - The owner of a copyright has the exclusive right to perform publicly a literary, musical, dramatic or choreographic work, a pantomime, motion picture or other audio-visual work.

1. In terms of the language of section 106, excluded from the performance right are pictorial, graphic and sculptural works and sound recordings.

2. This should be distinguished from the performance right in musical works which may be claimed by the owner regardless of whether the performance is live or by the performance of a phonorecord of such work.

a. Thus when a disc jockey plays a record on the radio, the owner of the musical composition is entitled to be paid for such a performance, but the copyright owner of the sound recording has no such claim by virtue of performance.

b. There have been several bills introduced in Congress to provide for performance rights in sound recordings which would result in the payment of two royalties for playing a record in public, i.e., on the radio - one to the owner of the underlying music and one to the owner of the copyright in the record.

3. To perform a work means "to recite, render, dance, play or act it either directly or by means of any device or process."

a. Such devices or processes may include all kinds of equipment for reproducing or amplifying sound or visual images, any sort of transmitting apparatus, electronic retrieval system and any other techniques and systems not yet in use or even invented.

b. Thus broadcasting of a work is performance of that work.

c. In the case of any audiovisual work, a performance occurs by the act of showing its images sequentially or making the sounds accompanying it audible.

d. If images are shown in non-sequential order, then a display occurs rather than a performance.

4. Only public performances are included in the Act’s performance right.

a. A work is performed publicly if it is performed at 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.

b. However, failure at the box office (small attendance) does not eliminate liability.

c. It is not necessary that persons all be gathered in the same place for the performance to be public. T.V. and radio broadcasts received in public homes and music transmitted by telephone wires to private customers who purchase the service, are nonetheless public performances.

5. Performing rights societies were created since an individual copyright holder could scarcely police unauthorized performances of his or her works.

a. In 1914 ASCAP, the American Society of Composers, Authors and Publishers was formed to collectively enforce the rights of song writers, publisher, etc.

b. Lesser known performing rights societies are Broadcast Music Inc. (BMI) and SEASAC, the Society of European State Authors and Composers.

c. The societies function in a similar manner, ASCAP will be used as an example.

1. ASCAP is the transferee if its members which in turn licenses the performance of these works.

2. ASCAP grants two types of licenses:

a. The blanket license permits the licensee to publicly perform for profit in a non-dramatic manner any song in the ASCAP repertory in return for either a flat fee or a percentage of gross receipt fee.

b. The type of license provides for payment of a specified fee for each program in which any such music is so performed.

3. The money collected by ASCAP is pooled in a common fund and thereafter divided equally between publisher members and writer members. Individual allocations within the two groups is set by a complex formula.

E. Display - The Act confers upon copyright owners the right to publicly display certain types of works.

1. Such right may be claimed in literary, musical, dramatic and choreographic works and in pantomimes, pictorial, graphic and sculptural works, and in the individual images of motion pictures and other audiovisual works.

2. By definition, to display a work means to show a copy of it, either directly or by means of a film, slide, television image or any other device or process.

a. To constitute an infringement, any display must be done publicly.

b. Normal, one thinks of the display right as associated with works of fine art.

F.    Digital transmission of sound recordings

       1.    There are no performance rights for sound recordings except in this narrow instance which was added to the statute in 1995.

        2.    It is one of the rights involved in the Napster litigation.
 

A. In 1990 the Visual Artists Rights Act (VARA) was passed as an amendment to § 106(A) of the Act.

1. The VARA added moral rights to the law for works of visual art created after December 1, 1990. Moral rights are in independent of and in addition to traditional copyright.

2. Works of visual art are defined as works of painting, sculpture or photography which exist in a single copy or a limited number of signed, numbered reproductions (200).

B. Creators of visual art now have two additional rights against third parties who have purchased the work and even if they also purchased the copyright in the work.

1. The right of attribution (also called the right of paternity) allows the artist to:

a. Claim authorship of the work,

b. Prevent the use of his name in connection with a work he did not create, and

c. Prevent the use of her name in connection with a work that has been mutilated or distorted in any way prejudicial to the artist’s honor or reputation.

2. The right of integrity provides the artist with the right to prevent intentional distortions, mutilations or other modifications of his work that are prejudicial to his honor or reputation.

a. Further she may prevent destruction of works of "recognized stature."

b. This is subject to an exception for changes that are the result of conservation or preservation.