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".
A "compilation" is formed by the collection and assembling of
preexisting materials or of data that are selected, coordinated, or arranged in
such a way that the resulting work as a whole constitutes an original work of
authorship. The term "compilation" includes collective works.
A “joint work” is one in which each
author has undivided ownership in the intellectual property of the whole. None can unilaterally sell or license the
work. To be considered "joint,"
a work must be prepared with the intent at the time of creation that all the
contributions be merged into a whole.
Each author's work must be both
§
independently copyrightable (editing creates a "derivative"
work, not a "joint" work)
§
inseparable from the whole (if it is separable, the work is
"collective.")
A “collective work” is a copyrightable collection made up of independently
copyrightable works. The archetypal
example of a collective work is an anthology; other examples include a series
of film shorts or a magazine containing articles by freelance authors.
A “work for hire” is one in which the
copyright belongs not to the creator, but to the creator's employer. A work is
"for hire" if it is
§
created "by an employee in the regular scope of
employment" or
§
one of 9 types of works created by an independent
contractor if the parties have agreed in writing that it is a work for hire:
(a) collective work
(b) motion picture or other audiovisual work
(c) translation
(d) supplementary work
(e) compilation
(f) instructional text
(g) test
(h) answer to a test
(i) atlas
Courts have not decided whether web
sites are section (b) "audiovisual works."
§
102. Copyright in general
Copyright
protects original works of authorship fixed in a tangible medium of
expression.
Copyright
protection does not extend to original ideas, procedures, processes, systems,
methods of operation, concepts, principles, or discoveries, regardless of form.
§ 103. Compilations and derivative works
Copyright
in a compilation or derivative work extends only to the material contributed by
the author, not preexisting materials.
Copyright in a compilation or derivative work is independent of, and does not
affect or change copyright protection in the preexisting materials.
§ 106. Exclusive rights
Subject
to a few exceptions, like fair use, a copyright owner has the exclusive rights
to
§
to reproduce
the work;
§
to prepare
derivative works;
§
to distribute
copies to the public by sale or other transfers, like rental or loan;
§
to perform
literary, musical, dramatic, and choreographic works, pantomimes, and motion
pictures and other audiovisual works publicly;
§
to display
literary, musical, dramatic, and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including motion picture images or
other audiovisual works, publicly;
§
to perform
sound recordings publicly by digital audio transmission
§ 107. Fair use
The
fair use of a copyrighted work, including any §106 use, for purposes such as
criticism, comment, news reporting, teaching, scholarship, or research, is not
infringement. In figuring whether a use is “fair,” the factors to be considered
include
§
the purpose
and character of the use, such as whether it is commercial, nonprofit or
educational;
§
the nature of
the work
§
the amount
used and its ratio to the whole work; and
§
the effect of
the use upon the work’s market or value
§ 201. Copyright ownership
Copyright
vests initially in the author of the work. The authors of a joint work are
co-owners.
An
employer or other person for whom a work is prepared is considered the author
for copyright purposes and owner of all the §106 exclusive rights, unless both
parties have expressly agreed otherwise in a signed, written agreement.
Copyright
in each separate contribution to a collective work is distinct from copyright
in the collective work as a whole.
Rights to each contribution remain in its author. Without an express transfer of the copyright
or rights under it, the owner of copyright in the collective work is presumed
to have acquired only the privilege of reproducing and distributing the
contribution as part of the collective work, its revisions, and a later
collective work in the same series.
Rules
for transfer of ownership:
§
copyright is
personal property and may be transferred in whole or in part by any legal
agreement, operation of law, or by will or intestate succession
§
any of the §106 exclusive rights, or a part of
one, may be transferred and owned separately. The owner of any exclusive right
is entitled, to the extent of that right, to all of the protection and remedies
of a copyright owner
§
no one may
seize, expropriate, or exercise rights of ownership over a copyright owner
except by bankruptcy.
§ 202. Ownership of copyright as
distinct from material object
Ownership
of a copyright or a §106 exclusive right is distinct from ownership of the
material object in which the work is embodied.
Transfer of ownership of the material object does not convey copyright.
The
reverse is also true. Transfer of
ownership of a copyright or a §106 exclusive right does not convey property
rights in the material object.
§ 204. Valid transfers of copyright
A
transfer of copyright ownership, other than by operation of law (e.g. divorce
decree), is not valid unless contained in a written agreement, note or
memorandum and signed by the owner or his or her authorized agent. Notarization
is not required.
§ 302. Duration of copyright
Copyright
in a work created on or after January 1, 1978, subsists from creation and, with
some exceptions, lasts for the life of the author plus fifty years.
For
joint works, copyright lasts for the life of the last surviving author plus
fifty years.
For
anonymous works, pseudonymous works, or works made for hire, copyright
lasts for 75 years from the year of
first publication, or 100 years from the year of creation, whichever expires
first. If an author is identified,
copyright lasts for the term specified above.
§ 401. Copyright notice
A
notice of copyright may be placed on publicly distributed copies of a work.
Notice on a copy shall consist of three elements:
§
the symbol ©,
the word "Copyright", or the abbreviation "Copr."; and
§
the year of
first publication of the work; for compilations or derivative works this is the
year of first publication of the compilation or derivative work; and
§
the owner’s
name.
If
a notice of copyright appears on a published copy to which a defendant in a
copyright infringement suit had access, the defendant may not claim innocent
infringement in mitigation of damages.