• Rights of a Copyright Holder: Distribution, Display, Performance

    Copyrights allow an author to control their intellectual property. This control is exercised by the enforcement of five rights:

    1) Reproduction;
    2) Distribution;
    3) Performance;
    4) Display;
    5) Derivative Works.

    The copyright holder may license any or all of these rights, in whole or in part, and for any duration of time, or limitation on instances of use. Violation of any of these rights gives rise to a cause of action for infringement. It is possible that a single act of infringement might violate more than one of these protected rights. The extent and manner in which these rights are enforced are highly dependent upon the nature of the protected work, be it a pictorial, graphic, sculptural or literary work. Copyrights expire at the end of a given term, the duration of which depends on when the work was made and who made it.

    Protected Rights of a Copyright

    The reproduction right is the right to exclude others from making copies of the protected work. Reproduction occurs any time that a copy is made. The minimum requirement of the reproduction right is that the copyrighted material must be fixed, i.e. it must exist in more than a transient state, such that it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

    Copying the whole of the work is not necessary to violate the reproduction right. Even a small amount could be considered a copy depending upon the nature of the work taken and the nature of the infringing work. Music sampling (without permission) is an example of actionable reproduction despite not taking the whole of the work; this infringes on the reproduction rights of the copyright holders of both the sound recording and the underlying composition. De minimis copying may not be actionable in some instances, but is dependant on the nature of the copyrighted work and the nature of the taking. The reproduction right also covers copying from one medium to another, such as from analog to digital formats.

    Copyright Distribution

    The distribution right is the right to disseminate the work. Distribution occurs whenever the work is disseminated to a party. Actual distribution is usually required to make a claim, making the work available does not rise to distribution until the work is actually taken by a party. Some circuit courts disagree and have found that merely making available, or offering to distribute, is actionable. Each act of distribution is a violation, so illegally selling 100 copies of a movie would be 100 separate violations, each with its own minimum statutory damages.

    Copyright Display Rights

    The display right is the right to place the work in public view. This right is implicated whenever copyrighted material is available for viewing by the public. For instance, placing images on a web site is a display.

    It is important to note that there is an exception to the distribution and display rights called the first sale doctrine. Once a particular copy of a work has been sold, the owner of that particular copy may distribute or display that particular copy. This exception allows for such things as used book and record stores, e-Bay, and movie rental services. The first sale doctrine does not extend to the copyrighted material contained in the particular copy; it does not give the owner of the particular copy any other rights, such as the right to make reproductions, or the right to publicly perform the copyrighted work. For instance, person may sell a DVD, but may not publicly perform the movie contained on a particular DVD. The owner may only distribute and display the particular copy, e.g. the DVD itself.

    Copyright Performance Rights

    The performance right applies to when a sound recording, movie, or other like work is performed publicly. A public performance occurs when it is a transmission to the public, or it is a performance in a public place. Whether a transmission to the public has occurred depends not on whether it is received in different times or places, but merely that it was available in one or more transmissions. Whether a performance occurs in a public place is determined by the potential audience of the performance; family and close social atmospheres are not public. It is not a violation to show a rented movie to your family, but it is a violation to project it in a public square. This also applies to sound recordings.

    There are a vast number of statutory exceptions and restrictions on the performance right, especially in regard to sound recordings and musicians covering protected works. Generally speaking, if a performance, like playing music from a radio in a store or restaurant is not serving as a draw to potential customers, then the use is probably not a violation. If the performance could be construed as a way to draw in customers, like having a live band play copyrighted works, then the performance is probably a violation. It is possible to obtain blanket licenses to perform covers of copyrighted music.

    Derivate Works of a Copyright

    The derivative work right allows an author to retain control over such things as sequels, spin-offs, or works that mimic the protected work. The derivative work right also extends to control over transformation of a work from one medium to another, such as from a book to a movie to a screen play. The creator of a derivative work only holds the copyright to those parts of the derivative that are an original contribution. Such contributions must be more than trivial variations, and must rise to the level of an independent original work. This restriction allows the original copyright holder to continue exploiting the original work. For instance, if a studio makes a movie from a book, it may not use its copyright in the derivative movie to prevent the original author from writing a sequel, or authorizing the creation of another movie. The original author retains a copyright in the derivative elements that are not original departures from their work.

    A person who wishes to make use of a copyrighted derivative work must seek permission from the copyright holders of both the derivative and underlying works. For instance, if a person wants to make a movie based on a screen-play which is based on a book, the person must seek permission from the copyright holders of both the screen-play and the book. This chain of permissions is not finite; a person wanting to make an action figure based on the aforementioned movie would have to seek permission from the copyright holders of the movie, screen-play, and book. Fan fiction is a form of derivative work; it is sometimes looked over by copyright holders, but is an infringement on the derivative work right nonetheless.

    Duration of a Copyright

    Copyrights do not last forever. Currently, for works created by an individual author in or after 1978, the copyright term is the life of the author plus 70 years. If the work is a ‘work for hire,’ the copyright term is for 95 years from the first publication or 120 years from its first creation, whichever is earlier. Due to a series of amendments to the copyright laws, determining the term of a copyright for a work made after 1923 but prior to 1978 is an incredibly complex affair. Some of these works are already in the public domain, but others are not. All works made prior to 1923 are in the public domain. At the latest, every work made in 1923 will have entered the public domain by 2018.
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