Copyright Law FAQ (3/6): Common miscellaneous questions
Terry Carroll
Archive-name: law/Copyright-FAQ/part3
FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3)
Part 3 - Common miscellaneous questions.
Copyright 1994 Terry Carroll
(c) 1994 Terry Carroll
Last update: January 6, 1994.
This article is the third in a series of six articles that contains
frequently asked questions (FAQ) with answers relating to copyright law,
particularly that of the United States. It is posted to the Usenet
misc.legal, misc.legal.computing, misc.int-property, comp.patents,
misc.answers, comp.answers, and news.answers newsgroups monthly, on or
near the 17th of each month.
This FAQ is available for anonymous FTP from rtfm.mit.edu [18.70.0.209],
in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 -
part6. If you do not have direct access by FTP, you can obtain a copy
via email: send a message to mail-...@rtfm.mit.edu with the following
lines in it:
send usenet/news.answers/law/Copyright-FAQ/part1
send usenet/news.answers/law/Copyright-FAQ/part2
send usenet/news.answers/law/Copyright-FAQ/part3
send usenet/news.answers/law/Copyright-FAQ/part4
send usenet/news.answers/law/Copyright-FAQ/part5
send usenet/news.answers/law/Copyright-FAQ/part6
quit
DISCLAIMER - PLEASE READ.
This article is Copyright 1994 by Terry Carroll. It may be freely
redistributed in its entirety provided that this copyright notice is not
removed. It may not be sold for profit or incorporated in commercial
documents without the written permission of the copyright holder.
Permission is expressly granted for this document to be made available
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Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and
the Ideas, Invention & Innovation Forum. This article is provided as is
without any express or implied warranty. Nothing in this article
represents the views of Santa Clara University or of the Santa Clara
Computer and High Technology Law Journal.
While all information in this article is believed to be correct at the
time of writing, this article is for educational purposes only and does
not purport to provide legal advice. If you require legal advice, you
should consult with a legal practitioner licensed to practice in your
jurisdiction.
Terry Carroll, the FAQ-maintainer, is a computer professional, and is
currently (January 1994) a student in his final semester at Santa Clara
University School of Law, is currently Editor-in-Chief of the Santa Clara
Computer and High Technology Law Journal, and is seeking employment as an
attorney.
If you have any additions, corrections, or suggestions for improvement to
this FAQ, please send them to one of the following addresses, in order of
preference:
7155...@compuserve.com
tcar...@scuacc.scu.edu
I will accept suggestions for questions to be added to the FAQ, but
please be aware that I will be more receptive to questions that are
accompanied by answers. :-)
FAQ ORGANIZATION.
The following table indicates the contents of each of the parts of the
FAQ.
Part 1 - Introduction (including full table of contents).
Part 2 - Copyright basics.
Part 3 - Common miscellaneous questions.
Part 4 - International aspects.
Part 5 - Further copyright resources.
Part 6 - Appendix: A note about legal citation form, or, "What's
all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"
TABLE OF CONTENTS (for this part).
Part 3 - Common miscellaneous questions.
3.1) Who owns the copyright to something I wrote at work, me or my
company?
3.2) [reserved.]
3.3) Is copyright infringement a crime, or a civil matter?
3.4) What is the statute of limitation for copyright infringement?
3.5) Can the government be sued for copyright infringement?
3.6) Can the government copyright its works?
3.7) Can I legally make a cassette copy of a musical CD for my own
use, so I can play it in my car?
3.8) Are Usenet postings and email messages copyrighted?
3.9) Are fonts copyrighted?
3.10) What does "All Rights Reserved" mean?
3.11) What's the difference between a copyright and a patent?
3.12) Why is there so little in this FAQ about patents?
3.13 - 3.18) [reserved.]
3.1) Who owns the copyright to something I wrote at work, me or my
company?
That depends on a lot of things. Normally, you are the author of the
work and own the copyright. There are two broad mechanisms by which your
company may own the copyright, though: assignment and the work-made-for-
hire doctrine.
ASSIGNMENT: Even if you are the author, and therefore the copyright is
initially yours, it may now belong to your company if you assigned the
copyright to them. A full assignment of copyright must be in writing,
and signed; it can't be implied. 17 U.S.C. 204. Therefore, if you're
the author in a copyright sense, and did not assign the copyright to your
company in writing, you still own it. Please note, however, that some
companies make it a practice to acquire a blanket assignment of copyright
in any works created on the job at time of hiring.
Note, though, that even in the absence of a written contract, your
actions might have been sufficient to grant the company an implied
license to the work. For example, in the case of Effects Associates v.
Cohen, 908 F.2d 555 (9th Cir., 1990), a film producer (Cohen) claimed
that he owned copyright in special effects film footage depicting "great
gobs of alien yogurt oozing out of a defunct factory." The footage was
produced by Effects Associates, a special effects company, and there was
no written assignment of copyright. The court ruled that Effects
retained ownership of the copyright, but that Cohen had an implied
license to use it in his horror film, "The Stuff," because Effects had
"created the work at [Cohen's] request and handed it over, intending that
[Cohen] copy and distribute it." Because the license was non-exclusive,
it wasn't a complete transfer of copyright, and did not need to be in
writing. Effects was free to sell the same footage to other moviemakers.
WORK MADE FOR HIRE: If a work qualifies as a work made for hire, the
company is the author for purposes of copyright, and copyright initially
vests in the company. A work is a work made for hire under either of two
circumstances. First, if it is a work prepared by an employee within the
scope of employment. Second, if the work was specially commissioned, is
one of a short list of relatively esoteric types (a contribution to a
collective work, a part of a motion picture or other audiovisual work, a
translation, a supplementary work, as a compilation, as an instructional
text, a test, answer material for a test, or an atlas), and the parties
agreed in writing that it was to be considered a work for hire. 17
U.S.C. 101.
To determine if a work is one prepared by an employee within the scope of
employment, there are two important considerations.
First, was the work prepared by an employee, or by an independent
contractor? Several facts, such as whether taxes were withheld, who
supervised the work, artistic control, setting of working hours, etc.,
will be examined to determine this factor. A good case discussing these
factors is CCNV v. Reid, 490 U.S. 730 (1989).
The second consideration is whether the work was within the scope of the
employment.
Unless these two considerations are met, the work will not be considered
one made for hire under the employee test, and the "employee" will retain
copyright. Of course, the same considerations discussed above regarding
an implied license might exist, even in cases where the work-made-for-
hire doctrine does not apply.
3.2) [reserved.]
3.3) Is copyright infringement a crime, or a civil matter?
It's always at least a civil matter (a tort). 17 U.S.C. 501(b) details
the mechanisms by which an owner of a copyright may file a civil suit,
and 28 U.S.C. 1338 expressly refers to civil actions arising under the
copyright act.
However, under certain circumstances, it may also be a federal crime. A
copyright infringement is subject to criminal prosecution if infringement
is willful and for purposes of commercial advantage or private financial
gain. 17 U.S.C. 506(a). If the offense consists of the reproduction or
distribution, during any 180-day period, of 10 or more copies having a
retail value of more than $2,500, the offense is a felony; otherwise, the
offense is a misdemeanor. 18 U.S.C. 2319.
As a side note, although 18 U.S.C. 2319 purports to prescribe the
penalties for criminal infringement, all crimes covered by Title 18 have
their penalties determined by the U.S. Sentencing Guidelines, another
part of Title 18.
3.4) What is the statute of limitation for copyright infringement?
For both civil suits and criminal prosecutions, the statute of
limitations for copyright infringement is three years. 17 U.S.C. 507.
3.5) Can the government be sued for copyright infringement?
Yes. The United States has expressly waived its immunity to suit for
copyright infringement. 28 U.S.C. 1498.
For some time, it was unclear whether the Eleventh Amendment of the U.S.
Constitution operated to make a state immune from suit for copyright
infringement. In BV Engineering v. University of California at Los
Angeles, 858 F.2d 1394 (9th Cir., 1988), UCLA successfully defended a
copyright infringement suit on the ground that it had such immunity.
Although UCLA won that suit, Congress responded by passing the Copyright
Remedy Clarification Act, PL 101-553, in 1990. This law added section
511 to the Copyright Act, which had the effect of removing the immunity
defense. It became effective June 1, 1991.
Today the law is very clear: the United States government and the
governments of each state may be sued for copyright infringement, and may
not plead immunity as a defense.
3.6) Can the government copyright its works?
This one has to be taken slowly, and we'll look at federal and state
governments separately, because the rules are different.
With one exception, works of the United States government are public
domain. 17 U.S.C. 105. The only exception is for standard reference
data produced by the U.S. Secretary of Commerce under the Standard
Reference Data Act, 15 U.S.C. 290e.
However, there's a big loophole here: while the U.S government can't get
copyright for its own works, it can have an existing copyright assigned
to it. So if the U.S. government produces a work, it's not copyrighted.
But if an independent contractor working for the government produces a
work, it is copyrighted, and nothing prevents that contractor from
assigning the copyright back to the government. This reconciles the fact
that the U.S. government can't copyright its works with the fact that if
you stay up late on weekends, you'll see Public Service Announcements
against drunk driving that say "Copyright U.S. Department of
Transportation."
Also, there are some entities that might seem to be part of the U.S.
government, but are not. For example, the U.S. Postal Service is no
longer a branch of the U.S. government. In addition, while under U.S.
control, the District of Columbia, Puerto Rico, and organized territories
of the U.S. are not considered to be part of the U.S. government for
purposes of copyright law.
Whether a state can copyright its works is a different matter. Unlike
the U.S. government, a state government's works are subject to copyright.
It is up to each state to decide whether to retain the copyright or
whether such works are to be automatically made public domain.
A related question that sometimes comes up is whether a government may
copyright its laws. In the case of the federal government, because of
the factors discussed above, the answer is clearly that it cannot. With
state governments, it's a little less clear. There is no statute, case,
or regulation that indicates that a state cannot copyright its laws.
However, it is the position of the U.S. Copyright Office that a state's
laws may not be copyrighted. The Compendium of Copyright Office
Practices (Compendium II) section 206.01 states, "Edicts of government,
such as judicial opinions, administrative rulings, legislative
enactments, public ordinances, and similar official legal documents are
not copyrightable for reasons of public policy. This applies to such
works whether they are Federal, State, or local as well as to those of
foreign governments."
Now, the Compendium II does not have force of law. But this does
indicate that any state trying to register a copyright in its laws would
be refused registration by the Copyright Office. As a result, it would
either have to successfully sue the Office to force registration, or it
would bear the burden of establishing that its work was indeed
copyrighted in the event of an infringement suit (normally, a
registration fulfills that burden). It's a safe bet that any state or
city trying to assert a copyright in its laws would have an uphill battle
ahead of it.
3.7) Can I legally make a cassette copy of a musical CD for my own use,
so I can play it in my car?
This issue has been argued back and forth for many years, with consumers
groups arguing that this was a fair use (see sections 2.8 and 2.9), and
the recording industry arguing that it was not. The issue was finally
settled by Congress when the Audio Home Recording Act (AHRA) (P.L. 102-
563, 106 Stat. 4237, codified at 17 U.S.C. 1001 - 1010) was passed in
October 1992. This Act added ten sections to Title 17, one of which
provided an alternative to the fair use analysis for musical recordings.
The new section states:
No action may be brought under this title alleging infringement
of copyright based on the manufacture, importation, or
distribution of a digital audio recording device, a digital
audio recording medium, an analog recording device, or an
analog recording medium, or based on the noncommercial use by a
consumer of such a device or medium for making digital musical
recordings or analog musical recordings.
17 U.S.C. 1008.
As the legislative history to this statute noted, "In short, the reported
legislation would clearly establish that consumers cannot be sued for
making analog or digital audio copies for private noncommercial use."
H.R. Rep. 102-780(I).
Does this mean you can make copies for your family and friends, as long
as it's not "commercial?" A strict reading of the words in the statute
would seem to say that you may. This is not as outrageous as it sounds.
Part of the impetus behind the AHRA was the perception that blank tapes
were being used mostly to copy commercial musical sound recordings. As a
result, the AHRA provided that a royalty payment (referred to as a "DAT
tax" by its detractors) be paid for each sale of digital audio tape to
compensate authors of musical works and sound recordings for the profits
lost due to these copies. See 17 U.S.C. 1003, 1004. Arguably, the AHRA
anticipates and allows exactly this type of copying, and a literal
reading of section 1008 would tend to support this position. But the
AHRA is still sufficiently new this hasn't been tested in court yet.
Note, also, that this section applies only to musical recordings; it
clearly does not include spoken word recordings. Of course, it is still
possible that such a use of a spoken word recording might still be
considered a section 107 fair use (see sections 2.8 and 2.9), even though
section 1008 does not apply to provide a clear exemption.
3.8) Are Usenet postings and email messages copyrighted?
Almost certainly. They meet the requirement of being original works of
authorship fixed in a tangible medium of expression (see section 2.3).
They haven't been put in the public domain; generally, only an expiration
of copyright or an unambiguous declaration by an author is sufficient to
place a work into public domain.
However, at least with Usenet postings, there are two doctrines which
probably allow at least some copying: fair use (see sections 2.8 and 2.9)
and implied license.
Whether a particular use of a Usenet posting is a fair use is, as always,
a very fact-specific determination. However, it's probably safe to say
that it's a fair use if the use was not commercial in nature, the posting
was not an artistic or dramatic work (e.g.,, it was the writer's opinion,
or a declaration of facts, and not something like a poem or short story),
only as much of the posting was copied as was necessary (e.g., a short
quotation for purposes of criticism and comment), and there was little or
no impact on any market for the posting.
A similar argument can be made for quoting of private email messages. Of
course, revealing the contents of a private email message could run afoul
of any of a number of non-copyright laws: defamation, invasion of
privacy, and trade secrecy, to name a few. So even if you won't be
violating any copyright laws, you should consider other factors that may
expose you to legal liability before revealing a private message's
contents.
Proponents of the implied license idea point out that Usenet postings are
routinely copied and quoted, and anyone posting to Usenet is granting an
implied license for others to similarly copy or quote that posting, too.
It's not clear whether such implied license extends beyond Usenet, or
indeed, what "Usenet" really means (does it include, for example,
Internet mailing lists? Does it include netnews on CD-ROM?). If a
posting includes an express limitation on the right to copy or quote,
it's not at all certain whether the express limitation or the implied
license will control. No doubt it depends on the specific facts. For
example, was the limitation clearly visible to the person who did the
copying? Was the limitation placed such that it would be visible only
after the person who did the copying invested time and money to get the
posting, believing it to be without any limitation?
With private email messages, a copier who relies solely on the implied
license argument will probably lose, since it's hard to argue that by
sending the private message to a limited audience, the sender intended
for it to be copied and quoted. For email messages to a public mailing
list, the implied license argument may still be sound.
These theories are largely speculative, because there has been little
litigation to test them in the courts. As a practical matter, most
postings, with a small number of notable exceptions, are not registered
with the Copyright Office. As such, to prevail in court, the copyright
holder would need to show actual damages (see section 2.5). Since most
of these cases will result in little or no actual damage, no cases have
been be brought; it's simply too expensive to sue for negligible damages.
3.9) Are fonts copyrighted?
First, let's distinguish between a font and a typeface. A typeface is
the scheme of letterforms (which is really what you're probably talking
about), and the font is the computer file or program (or for that matter,
a chunk of metal) which physically embodies the typeface.
A font may be the proper subject of copyright, but the generally accepted
rule is that a typeface embodied in the font is not (see Eltra Corp. v.
Ringer, 579 F.2d 294, 208 U.S.P.Q. 1 (4th Cir., 1978), and the House of
Representatives Report on the Copyright Law Revision, 94-1476, 94th
Congress, 2d Session at 55 (1976), reprinted in 1978 U.S. Cong. and
Admin. News 5659, 5668).
The letterforms themselves are not copyrightable under U.S. law as a
typeface. 37 CFR 202.1(e). A font is copyrightable if it adds some
level of protectable expression to the typeface, but that protection does
not extend to the underlying uncopyrightable typeface itself (see 17
U.S.C. 102(b)).
In essence, a font will be protectable only if it rises to the level of a
computer program. Truetype and other scalable fonts will therefore be
protected as computer programs, a particular species of literary works.
Bitmapped fonts are not copyrightable, because in the opinion of the
Copyright Office, the bitmap does not add the requisite level of
originality to satisfy the requirement for copyright.
So, to summarize this point, a typeface is not copyrightable. While a
scalable font might be copyrightable as a program, merely copied the
uncopyrightable typeface, and creating your own font, either scalable or
bitmapped, is probably not an infringement, assuming you did not copy any
of the scalable font's code.
Two warnings:
First, even if typefaces can't be copyrighted, they can be patented under
existing design patent laws. 35 U.S.C. 171. Copying a typeface and
distributing such a font, while not a violation of copyright, might be an
infringement of the patent.
Second, Congress has been considering design protection legislation for
many years (most recently, the 102nd Congress' H.R. 1790) which, if
passed, would protect typeface design. If such a bill is enacted, the
above opinion will be obsolete and incorrect.
3.10) What does "All Rights Reserved" mean?
One of the earliest international copyright treaties to which the U.S.
was a member was the 1911 Buenos Aires Convention on Literary and
Artistic Copyrights (see section 4.1 for more information). This treaty
provided that, once copyright was obtained for a work in one signatory
country, all other signatories accorded protection as well without
requiring any further formalities (i.e., notice or registration),
provided that the work contained a notice reserving these rights. The
typical notice complying with Buenos Aires was "All Rights Reserved."
As noted in section 4.1, the Buenos Aires Convention is essentially dead
today, and the "All Rights Reserved" notice no longer serves much useful
purpose. It lives on mostly as a testament to inertia on the part of
U.S. publishers.
3.11) What's the difference between a copyright and a patent?
This answer is included in both the Copyright and Patents FAQs.
There are basically five major legal differences between a copyright and
a patent in the United States: subject matter protected, requirement for
protection, when protection begins, duration, and infringement. There's
also a sixth practical one: cost.
Subject matter: A copyright covers "works of authorship," which
essentially means literary, dramatic, and musical works, pictorial,
graphic, and sculptural works, audio-visual works, sound recordings,
pantomimes and choreography. A patent covers an invention, which
essentially means a new and non-obvious useful and functional feature of
a product or process.
Requirement for protection: In order for a work to be copyrighted, it
must be original and fixed in a tangible medium of expression; no
formalities are required (see section 2.3). In order for an invention to
be patented, it must be novel (i.e., new), non-obvious, and useful and a
patent must be issued by the United States Patent and Trademark Office.
Start of protection: Copyright protection begins as soon as a work is
created. Patent protection does not begin until the patent is issued.
Duration: A copyright generally lasts for the life of the author, plus 50
years (see section 2.4). In the U.S., a patent lasts for 17 years from
the date granted (in some nations, particularly Japan and most European
nations, the duration is 20 years, and is measured from date of
application).
Infringement: For a copyright to be infringed, the work itself must have
actually been copied from (either wholly or to create a derivative work),
distributed, performed, or displayed. If a person other than the
copyright owner independently comes up with the same or a similar work,
there is no infringement. In contrast, a patent confers a statutory
monopoly that prevents anyone other than the patent holder from making,
using, or selling the patented invention. This is true even if that
person independently invents the patented invention.
Cost: A copyright is essentially free. Even if you want to register the
copyright, the cost is only $20, and the paperwork is much less
complicated than the 1040A short form for filing your income tax, well
within the capabilities of the person registering the copyright. A
patent, on the other hand, is much more costly; there are fees to the
Patent and Trademark Office, and the patent application process is much
more complex, usually requiring the services of a registered patent agent
(and perhaps a lawyer) to draft and prosecute the application, adding to
the cost.
Philosophically, you can look at a copyright as protecting the author's
rights that are inherent in the work; in contrast, a patent is a reward
of a statutory monopoly to an inventor in exchange for providing the
details of the invention to the public.
3.12) Why is there so little in this FAQ about patents?
Peter Treloar, the moderator of comp.patents, currently maintains a FAQ
devoted exclusively to patents, and duplicating his effort here would be
needlessly redundant.
The comp.patents FAQ is periodically posted to the Usenet comp.patents
newsgroup. A current copy is available by anonymous FTP from
ftp.su.oz.au, in directory /pub/patents/incoming, and from
ftp.uni-stuttgart.de [129.69.8.13], in directory /pub/doc/comp.patents.
The comp.patents FAQ (or "The Internet Patent Book") is available in two
versions. The file named "internet_patents.txt" is a plain ascii text;
"internet_patents.ps" is a PostScript version. The PostScript version is
by far the more readable of the two.
For further information regarding the comp.patents FAQ, please correspond
with Peter directly, at p...@research.canon.oz.au.
3.13 - 3.18) [reserved.]