Figuring out what copyright actually protects is truly a dizzying concept. The fact that copyright actually has traditionally covered a bundle of five exclusive rights makes matters more complicated. Things became even more confusing when Congress added a pseudo sixth exclusive right in 1995. These six rights are:
- The right to reproduce the copyrighted work
- The right to prepare derivative works based upon the work
- The right to distribute copies of the work to the public
- The right to publicly perform the copyrighted work
- The right to publicly display the copyrighted work
- (sound recording only) The right to digitally transmit to publicly perform the copyrighted work
To try to get behind the curtain of copyright, we’re going to individually explore each of these six rights. An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.
There are a couple words of caution. First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.). Second, these are exclusive rights. The law allows only the copyright holder to exercise these rights.
I. The Right to Reproduce
The exclusive right to reproduce your work is the core function of copyright and gives it its name. Reproduction is the act of producing physical objects that contain or embody the copyrighted work. Only the copyright owner can make or control reproduction of their work. Reproduction commonly occurs in the form of publishing books from a manuscript, pressing records from a musical work, and manufacturing DVD’s from a motion picture. Unauthorized reproduction occurs when someone photocopies that book, samples that music without permission, or pirates a copy of that film off the internet.
The general rule, as stated above, is only the copyright owner can control the reproduction of the work. There are, however, a couple important exceptions to this rule (aren’t there always exceptions to the rule?):
- “Fair Use” reproduction: This allows someone to make an authorized copy of the work if it’s for the purpose of education, commentary, criticism, parody of other similar reason. Keep in mind, though, that the copy is limited to only what is necessary for the goal of fair use. This means a critique of a music album can only fairly use samples of the music, not make an entire copy of the album.
- Libraries and educational institutions can make a limited number of copies as provided by law.
An issue of Fair Use is the most common exception that people cite to when making unauthorized copies. Many defendants claim Fair Use when copyright owners sue them for copyright infringement.
Reproduction of musical works also has its own separate, unique rule from other types of copyrighted work. Anyone can make their own copies without permission and distribute them once a copyright owner records and makes first distribution of their audio only works (think CDs, not music added to film or TV). This is a compulsory license. The copies are legal, even though they are made without permission, but a royalty (9.1 cents per song or 1.75 cents per minute) must be paid to the copyright owner for each copy distributed. This system is not very practical, however, so different agreements are commonly made. The Harry Fox Agency is well known for arranging deals between copyright owners and third party distributors.
As a final note, copyright infringement can occur even when someone doesn’t make a complete copy of the work. The copy need only be substantial and material. Chopping off parts of a song or omitting a few tracks from an album can still be a violation of the law.
The right to reproduce, of course, would be of little economic value if not paired with the exclusive right to distribute. Follow along as we next explore that particular right.
Chime in with any questions or comments that you may have about the right to reproduce.
– Ari Good, Esq.
Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.