Chapter 1: Introduction to Copyright
The Intellectual Property (IP) Clause of the U.S. Constitution authorizes Congress “To promote the Progress of Science … by securing for limited Times to Authors … the exclusive Right to their … Writings.”1 Congress has exercised its authority under the IP Clause and enacted copyright law that provide the “authors” of creative “works” exclusive rights in those works.2 Congress enacted the first copyright statute in 1790. Over the centuries, copyright has evolved substantially, and continues to evolve. The current Copyright Act was passed by Congress in 1976, and generally applies to any work that was created after the 1976 Act went into effect on January 1, 1978. Prior to the 1976 Act, some unpublished works were protected by a patchwork of state common law copyright regimes, but the 1976 Act explicitly preempts state copyright protection,3 so that copyright in newly created works is governed solely by federal statute, i.e., 17 U.S.C. § 101 et seq.4
Federal copyright in works created prior to the effective date of the 1976 Act is generally governed by the Copyright Act of 1909, which was the copyright statute in force prior to the 1976 Act. As a consequence, much of the law set forth in the 1909 Act, which is fundamentally different from the law under the 1976 Act, is still relevant for older works. Copyright lasts a long time—some works created in 1929 are still covered by copyright as this edition of the book is being updated in 2024—and many of the works that are subject to litigation today are governed by the 1909 Act. For example, in a recent highly publicized case, Led Zeppelin was sued for copyright infringement based on the opening guitar section of Stairway to Heaven (often cited as the best rock song of all time). The allegedly infringed song, Taurus, recorded by the band Spirit in the 1960s, was created prior to 1978, and thus its copyright was governed by the law as set forth in the 1909 Act. The difference between the two statutes had a dramatic effect on the outcome of the case (to the benefit of Led Zeppelin).5
In the U.S., the primary objective of, and justification for, copyright law is utilitarian. Copyright is intended to incentivize the creation, publication, and distribution of creative works, such as literature, art, photographs, music, audiovisual works, and even computer programs. Significantly, the protection of copyright is limited to creative expression—it does not extend to the idea being expressed. This is probably the single most important principle of copyright law for students to learn and understand, and is often referred to as the idea-expression dichotomy. For example, the stories and characters of JK Rowling’s Harry Potter series are protected by copyright as the creative expression of their author, but the ideas underlying these expressions, such as the idea of a school of wizardry, fall outside the scope of the copyright, and are freely available for anyone to use. Similarly, the specific narrative of a book on the Civil War can be copyrighted, but the underlying historical facts fall into the “idea” category, and are thus free of any copyright restrictions. A newly devised cookie recipe cannot be copyrighted, since that would restrict access to the “idea” of the recipe. But a particularly creative way of explaining the recipe might be copyrightable, so long as the copyright does not extend to the recipe itself. Facts, ideas, and some useful articles cannot be copyrighted, irrespective of creative merit, or the amount of time that went into creating or discovering the idea or fact.6
The copyright is a property right that initially belongs to the author of the creative work, but which can be assigned or licensed to others. Copyright provides its owner with a number of exclusive rights to the copyrighted work, the most fundamental of which is the reproduction right, i.e., the right to make copies of the work. Other exclusive rights include the rights to distribute the work, to make derivatives of the work, and to publicly perform or display the work. For example, it can be an act of copyright infringement to publicly perform a copyrighted musical work, or to sell unauthorized copies of a movie DVD.
In order to be copyrightable, an author’s expressive work must be original, and it must be fixed in some tangible medium of expression. Only a minimal degree of originality is required, and fixation can come in many forms. For example, writing a course outline on a piece of paper using a pen, or by typing it into a Word document and saving it in digital form, will result in a copyright for that outline, so long as it bears at least a “modicum” of creativity. Significantly, no other actions are required for copyright protection. While it is possible to register a copyrighted work with the Copyright Office,7 registration is not required for copyright protection (although there are some very good and practical reasons to register, as will be discussed later in this casebook), nor is publication or notice.
FOOTNOTES:
1 U.S. Const. art. 1, § 8, cl. 8.
2 Specifically, Article I, Section 8, Clause 8 of the Constitution states that “[Congress shall have 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.”
3 See 17 U.S.C. § 301.
4 The U.S. Copyright Office provides a copy of the Copyright Act at https://www.copyright.gov/title17/.
5 The decision, Skidmore v. Led Zeppelin, appears later in this casebook.
6 See 17 U.S.C. § 102(b).
7 The U.S. Copyright Office is the federal agency that administers much of copyright law in the U.S., including copyright registration, rulemaking, and administrative adjudication.
