An “author” is not defined by the Act. However, the implication of the Act is that an author is a human that is able to bring about a creative work that can be protected by the Act. This definition also implies that a non-human author, for example, a computer program, could not create copyrightable works on its own; only people can own copyrights.

An author need not directly make the thing to be copyrighted to be the copyright holder. For example, in Lindsay, the plaintiff director had created detailed instructions for an underwater crew to make video footage of the salvage of the Titanic. The plaintiff himself did not travel, for safety reasons, with the underwater crew, and did not personally operate the video equipment to make the footage. However, he did retain authority over what footage was acceptable and what was not, and consistently exercised a directorial role over the film crew. The plaintiff won his claim of authorship to the film and movie rights.

The Act also recognizes works that have joint authors, when the court is able to determine that parties collaborated with the intent of creating a unitary work, and treated each other as authors. For example, the two parties exercised joint say over the final work, and otherwise acted as equals in the work. However, a court will not view a mere contributor to a film as an author for purposes of copyright ownership, even if that contributor’s efforts are important to the film and substantial in nature. This is especially true where the contributor signs a contract acknowledging that he is not an author and does not exercise dominion or control over the final product. See Aalmuhammed v. Lee.

Fixation Issues

When is a thing “fixed” for purposes of the copyright act? Section 101 provides a definition of “fixed:” when a work is embodied in an embodiment that is “sufficiently permanent or stable to permit it to be perceived, reproduced or otherwise communicated for a period of more than transitory duration.”

Within the context of technology, this question is raised when something is presented to an end user in the working memory of a computer – is this sufficiently fixed for protection under the Act, even though it may never be saved to the hard drive or to a network storage device? What parts of video games are fixed, in light of the fact that the audio visual presentation on screen to the user may vary based on the input of the user? Fixation is also a question when a party argues that a work is a derivative of another’s work. For example, in Lewis Galoob Toys, the court was faced with the question of whether the defendant’s product created a derivative work when used in conjunction with plaintiff Nintendo’s game system. Here, the court ultimately held that the defendant’s product did not create derivative works when it allowed video game users to alter their character’s statistics or vulnerability to harm within the video game. The court reasoned that the product did not incorporate a portion of the copyrighted work in a concrete or permanent form – there was not fixation in the manner in which the Act intended.

Copyright Basics

17 U.S.C. et. seq. is the statutory scheme the implements the constitutional protection of intellectual property in Article I section 8 clause 8: “[t]o 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.” Copyright creates exclusive ownership of a wide variety of intangible matters, but the statutory scheme also creates counter-balances to those rights for the general public, all in the interest of furthering the discovery and creation of useful things.

Section 102 of the Act describes the general subject matter of copyright, and the requirement that protected works be original and fixed in a tangible medium of expression. “Original” works of authorship need not be terribly original in the dictionary sense – but the Supreme Court has interpreted this language to be a modicum more than just rote copying of the same content of others. In any case, ideas, principles or concepts cannot enjoy the monopoly protection of the copyright act. Section 102(b) both carves out things from copyright protection that are dedicated to the public and things that should be protected by patent law.

Section 106 of the Act spells out the six general areas of exclusive rights in copyrighted works: (1) reproduction, (2) derivative works, (3) distribution, (4) “public” performance, (5) “public” display, and (6) the public performance of sound recordings in a digital audio transmission. These exclusive rights have garnered special meaning over time as the result of various court opinions, and changes to the statutory scheme itself. For example, sound recordings did not enjoy federal protection until the early 1970’s.

Sections 107-122 of the Act describe the various statutory limitations on the exclusive rights described in section 106. “Fair use” described in section 107 has been the subject of a number of Supreme Court opinions that have broadened and narrowed the protection this section has granted to copyright infringers. In addition, the copyright act rights have gone through some changes as a result of the technology boom that began in the 1980’s and continues today in such mediums as the world wide web, Napster and other music sharing services, and other technology changes in audio and video display and performance (like youtube, for example).

Chapter 2 of the Act discusses the copyright ownership and transfer. Chapter 3 provides for the complex durational rules for the exclusive rights (which can survive the author and pass to his or her heirs). Chapter 4 describes the notice, deposit and registration requirements for copyright. Chapter 5, supplemented by extensive case law, covers copyright infringement. For more details, see other posts or check out the Copyright Office’s website for more information.  Chapters 6 through 13 cover more detailed or sophisticated sections of the copyright act, and other related acts.