You might wonder “What can I copyright?” There are several restrictions on individual works, but copyright protections for compilations of multiple individual works have been controversial, even among courts and agencies that regularly deal with copyright law and policy. Compilations have always been considered copyrightable, but recently, the requirements for a compilation to be copyrightable have been under question. Effective June 22, 2012, the U.S. Copyright Office issued a statement of policy clarifying copyrightable compilations. While it also clarifies the wider policy of the U.S. Copyright Office pertaining to compilations, the statement specifically addresses the controversy over whether sequences of exercises, such as yoga poses, are copyrightable.
The statement by the Copyright Office was issued as a result of pending litigation in a California District Court over the use of a company’s yoga methods by former instructors. The lawyers for the former instructors pointed to a previous statement by the office that yoga routines were ineligible for copyright, and the office decided to issue a complete and detailed statement of their policy toward compilations, such as yoga pose routines.
Compilations have been recognized as copyrightable in the past, but the U.S. Copyright Office issued the current policy statement to clarify a number of previous theories on compilation copyrights. The Copyright Act itself includes compilations as a copyrightable authorship. The act defines a compilation as “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. 101. This definition extends copyright protection to some otherwise unacceptable elements if they are arranged as an original work.
Furthermore, The Supreme Court has offered some insight into this definition of compilation. In Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991), the Supreme Court concluded that not all groupings of facts or uncopyrightable material are eligible for protection as compilations. The court interpreted the statutory definition to include three requirements for a copyright registration as a compilation:
The collection and assembly of pre-existing material, facts, or data
The selection, coordination, or arrangement of those materials
The creation, by virtue of the particular selection, coordination, or arrangement , of an “original” work of authorship.
In Feist, the court decided that works needed sufficient originality or creativity to be copyrighted as compilations of otherwise ineligible materials.
In their June 22 statement, the U.S. Copyright Office further restricts the compilations eligible for protection to those works that fall under at least one of the categories listed in 17 U.S.C. 102(a). The U.S. Copyright Office will refuse registration of a work unless it falls under one of the following 102(a) categories:
Literary works
Musical works, including any accompanying words,
Dramatic works, including any accompanying music,
Pantomimes and choreographic works,
Pictorial, graphic, and other audiovisual works
Sound recordings,
Architectural works
Since section 103 of the code restricts the protection available to compilations if the pieces themselves are unlawfully used, the Copyright Office considers compilations as a subcategory also subject to the above statutory categories from section 102(a). Although these categories are explicitly qualified as not limiting, the Copyright Office’s statement concluded that this is not a grant of power to the court or the Copyright Office to create new categories. Instead, the categories are left open to extension to further categories by Congress itself. Therefore, courts are granted flexibility in determining the scope of these categories but cannot create novel ones. The U.S. Copyright Office interpreted this to extend to their power and concluded that they also cannot create new copyrightable categories.
Ultimately, the U.S. Copyright Office issued the statement to definitively state that the office will refuse registration to compilations of materials that do not fall within the statutory categories.
As applied to yoga routines specifically, the U.S. Copyright Office concluded copyright protection is available only to specific photographs, drawings, or representations of a group of yoga poses under one of the statutory categories from 17 U.S.C. 102. Under the office’s policy, a request to register a yoga pose routine will be refused since the poses themselves are public domain and exercises are not considered an acceptable category under 102. Additionally, the office refuses to register any grouping of functional physical movements under the choreography category, including sports movements, exercises, and routine motor activities.
The U.S. Copyright Office further restricts registration to compilations that are not precluded under one of the categories of unacceptable work under 17 U.S.C. 102(b). Under 102(b) copyright protection is refused for:
Ideas
Procedures
Processes
Systems
Methods of operation
Concepts
Principles
Discoveries
The U.S. Copyright Office applied this to yoga routines and concluded that such compilations are ineligible for copyright protection since they are functional systems or processes under 102(b) regardless of any other aesthetic or artistic elements or value. The only copyright protection available for registration with the office is distinct, expressive descriptions, illustrations, or instructions under one of the 102(a) categories. This makes things like yoga pose instructional videos or books copyrightable, but the routines contained therein are still ineligible for copyright protection.
The U.S. Copyright Office recognized that this relationship between the 17 U.S.C. 101 definition of compilation and the categories and restrictions in 17 U.S.C. 102 was previously overlooked. Since this distinction was previously unenforced, the office recognized that some compilations or arrangements of exercises were issued copyright registrations in error.
The U.S. Copyright Office’s statement has immediate impact on pending litigation, since a U.S. District Court in Los Angeles, CA. is currently hearing suits by Bikram Choudhury, the owner of Bikram’s Yoga College of India, to prevent former instructors from using his methods. The pending case is Bikram’s Yoga College of India L.P. v. Yoga to the People Inc., 11-cv-07998, U.S. District Court, Central District of California (Los Angeles). In the litigation, the lawyers representing Yoga to the People presented a previous statement by the U.S. Copyright Office that yoga routines were ineligible for copyright protection. As a result, the U.S. Copyright Office issued this new statement to clarify the previous, incomplete information on the issue. The new statement will most likely favor the former instructors’ ability to continue to use yoga routines under the copyright claims, but other claims in that trial may be a different story.
As a result of The U.S. Copyright Office’s new statement, copyright registration is restricted to the 102(a) categories established by Congress for both individual works and compilations.
While the current Supreme Court term will undoubtedly be remembered for the recent ruling on the Affordable Care Act, the court also issued an important ruling on Congress’ ability to reissue copyright protections for works currently in the public domain. The case, Golan v. Holder (132 S.Ct. 873), was decided in January and offers copyrights to previously unprotected foreign works. The dissent expressed concerns about the use of public domain works online and the spread of public domain knowledge across the world.
The Supreme Court’s ruling comes as a result of efforts to synchronize U.S. copyright law with a variety of international laws and agreements. In 1994, the U.S. passed a federal law to implement a global trade agreement, the Uruguay Round Agreement. The court ruled 6-2 against a constitutional challenge of the law with Justice Elena Kagan not taking part. The challenge was based largely on an argument that placing public domain works back under protection violates the first amendment free-speech rights of individuals who used the work when it was unprotected in the public domain.
The public domain includes works like books, songs, movies, and art that are no longer protected under intellectual property laws and are available for use without permission. Generally, works enter the public domain when their protection expires, but sometimes an author will place works in the public domain to make them available for use by the public. There are a variety of rules for public domain status.
The majority opinion, written by Justice Ruth Bader Ginsburg, held that there is no personal right to use, copy, or perform a work without copyright protection under the Constitution. Rejecting the challengers’ argument, the court stated that only the creator or author holds legal rights pertaining to copyrighted materials. Since there is no right to access or use materials that have lost copyright protection, there is no right to protest if any protections are restored. If a copyright is restored, the work can still be used, the court argued, but like any other copyrighted material, any use must be approved by the copyright holder.
Alternatively, the challengers argued that the Copyright Clause did not give Congress the authority to restore copyright protections to works that have entered the public domain. The court rejected this argument and stated that nothing in the Copyright Clause itself or the body of U.S. copyright law supported this reading of the Copyright Clause.
The majority also noted that Congress decided to adopt the law in question to bring U.S. copyright policies into harmony with foreign ones and, as a result, obtain increased protection for U.S. copyright holders in other countries. The majority stressed that the law merely offered foreign creators the same protections for their hard work as U.S. ones. The 1994 law guarantees protection under U.S. copyright laws to works with foreign protection for the duration of their protection in their home country. Since these works were unprotected in the U.S., they were previously available for use or copy for free. While the law allowed for a grace period, it discontinued any free use and instated protection for the foreign works. While the law would now require payment for the performance of some previously unprotected works, the court argued that many other protected works requiring payment are still routinely performed without difficulty. In addition, the majority pointed out that the previously unprotected works are not given any recompense for their past use. The copyright holders are only afforded protection against future use.
The majority opinion relied on a previous opinion also written by Justice Ginsburg, Eldred v. Ashcroft (123 S. Ct. 769). In that case, the court upheld Congress’ power to lengthen the protection of copyrights that are already in effect. The majority in Golan extended Congress’ power further by holding Congress could extend copyright protection to works that never received protection; however, they insisted that the same constitutional principles applied in both cases.
The dissenting opinion, written by Justice Stephen G. Breyer and joined by Justice Samuel A. Alito, Jr., focused on the unorthodox nature of the decision by Congress to remove work from the public domain. Although reinstating protections is not unprecedented, the dissent believed that this was reserved for rare situations. The dissent also argued that the 1994 law did not satisfy the Copyright Clause since it provided protection to work created previously and failed to encourage any new work. Justice Breyer expressed concerns that the 1994 law frustrated efforts to make a variety of public domain material available online. The law disrupts the spread of knowledge across the world and does not provide any offsetting benefit by encouraging the production of any new work. The dissent also contended that the 1994 law unfairly requires performers to hunt down the copyright holder for old works that had uncertain or unknown ownership. Finding the owners for such orphaned works, the dissent agued, is a difficult task. Justice Breyer criticized the 1994 law as removing much of the freedom available through the public domain without offering any countervailing benefit to the deprived artists and creators.
In her majority opinion, Justice Ginsberg rejected the dissent’s orphaned works argument. While this is certainly a difficulty, the majority did not believe it was fatal to the 1994 law. The hardship in finding the copyright holder should be left to Congress’ consideration. In addition, the law allowed for parties who were using the public domain works to continue their use until or unless they received a complaint from the copyright holder.
Overall, the majority claims that the 1994 law only extends existing copyright protections to foreign artists, writers, and creators. The treaty, implemented by the law, also ensures robust protection for U.S. copyright holders abroad. The dissent, however, raises legitimate concerns about the precedent that is set by the decision, especially in light of recent copyright controversies like SOPA.
The answer to the questions “Who owns my copyright?” and “Who holds the copyright to a work I created?” are far more complex than you might think. Copyrights are created when an original work becomes fixed in a tangible form, but sometimes it can be unclear who holds a given copyright. Usually, the person who generates the work is the copyright holder, but one exception to this rule is works made for hire or under a commission. If a work is created for hire, then it is the employer, be it a corporation or an individual, who holds the copyright rather than the employed creator. Under copyright law, work for hire generally includes:
Work created within the scope of employment OR
Work created under order or commission, including a variety of collaborative or collective works, if there is an express, written agreement between the parties.
Copyright law also includes a variety of case law beyond merely the statutory language, and Stone Law can help you determine whether your work falls under the “for hire” exception. The statutory definition is not suitable to all situations, and yours may be unique. Whether you are an employee or an employer, Stone Law can help you gain control of your work or draft an agreement for copyright licensing or copyrighted work for hire.
Just because you’ve paid to have a work created does not mean you hold the work’s copyright. No matter what you believe a contract says, if you have not consulted a skilled attorney, your copyright may be in jeopardy. A mere mutual agreement that a work is for hire is often not enough. As a result, you may only have an implied license to the work, and the creator may hold the copyright. In order to avoid this, you can have an attorney draft a suitable agreement between the parties. Alternatively, if you are creating work for others, an attorney can help you draft an agreement that will maintain your copyright while granting a license to another party. If you are looking to avoid being categorized as a work for hire, a skilled attorney can help determine if your agreement is binding. Some common mistakes can weaken or destroy a copyright agreement; for example, if your agreement was signed after the work began, it may not be valid. If you believe you may have a claim to a copyright created under employment, Stone Law is available to advocate for you in a copyright dispute, whether you are an employer or an employee.
Copyrights do not automatically transfer in every case if you are working for someone else. In the statute, the term employee differs from the common understanding. In CCNV v. Reid, 490 U.S. 730 (1989), the Supreme Court analyzed the employer-employee relationship under several factors, including:
The type of control an employer has over a work, including both physical and creative control
The type of control an employer has over an employee
The type of employer in question
These factors alone are not determinative, and the law is unclear which factors are required for an employer-employee relationship to result in works for hire.
If work is commissioned to an independent contractor, a written agreement is required and the work must fall under one of the statutory categories. If an independent contractor’s work does not fall within one of the nine categories in the statute, the work is not for hire and the contractor holds the copyright. What kinds of work by independent contractors are considered for hire? The nine categories covered by the statute include:
Contributions to a collaborative work
Parts of an audiovisual work (films, video games, etc.)
Translations
Supplemental works
Compilations
Instructional texts
Tests
Answer materials for tests
Atlases
Additionally, an independent contractor’s work must be specially commissioned and the parties must have a written agreement specifying expressly that the work is for hire. Given all these requirements, it is difficult to create an adequate written agreement for copyrights of for hire work, and skilled counsel can help you determine if you are bound by a given agreement. While standard, salaried employment is usually considered work for hire, your situation may be different. Consulting with an attorney, like the experienced copyright attorneys at Stone Law, can safeguard your interests as either an employer or an employee. Who holds the copyright to a given work depends on the circumstances, and it can be difficult to protect your rights without the help of an attorney. Contact us for copyright services including drafting for hire agreements.
If a work does not qualify as being for hire, then certain rights may still be granted to the hiring party. These granted rights can vary and may or may not be exclusive. Licenses can vary and cover a variety of situations and factors. If you want a license to cover a specific circumstance, you should consult an attorney. Stone Law can help you draft an express license to limit the rights granted for a given work.
If you are an employer under a for hire agreement, you may have special concerns, including certain obligations to your employee. You may be obligated to provide benefits or unemployment compensation to someone you hire to create a copyrighted work. Alternatively, if the creator you hired holds the copyright to a work, they may be able to revoke a license given to you even if you paid for it. It is also important to remember that the other party to your agreement may infringe on copyrighted material without your knowledge and expose you to litigation. An attorney can help you limit your risks when drafting an agreement for commissioned works tailored to your needs. Consulting with an attorney can be valuable to protect yourself and determine what rights and obligations you have under a given agreement.
This page is not intended as legal advice, and if you have a legal question, you should consult an attorney. Stone Law’s attorneys are available to help; contact us through this website or call us at 732-444-6303.
Many people wonder how do I get a copyright? The dirty little secret of copyright law is that you do not really need to do anything to obtain a copyright. Once you take that thought in your head and put it to paper you have already obtained a copyright in what you have written. It is not the legal process to register a copyright which gives the author the copyright but the process of creating the work in the first place. Granted, the protections offered from registering your copyright are much greater than the protection which is afforded to unregistered copyrights, however, unregistered copyrights are still able to be protected.
I have this great idea, how do I protect it?
In order to reap the benefits of a copyright you must take the idea and fix it in a tangible medium of expression which is a round about way of saying that you cannot protect what you have created until you take it out of your brain and bring it into the physical world. The way in which you express your idea is what is protected by copyright, not the idea itself. The originality that comes from any intellectual pursuit is that which copyright protection is meant to protect.
Ok, I have written my idea, now no one can use it, right?
Well, yes, and no. Once you have written your work down, no one can directly copy your idea. If someone comes happens to stumble across your writing, and he decides that he is going to claim it as his own, he will not be able to within the bounds of the law. If, however, someone comes up with the same idea without ever seeing your writing then there is nothing which will stop him from writing based on the same idea. Copyright protects original works of authorship but does not prevent two authors from having the same idea.
How do I stop someone from copying something which I have written?
If you choose not to register your work, and you would like to stop someone from copying it, you need to register it. That’s right, although you have a copyright in your work just by fixing it in a tangible medium of expression, you cannot actually sue for copyright infringement if you do not register the work.
So I can wait to register my copyright until someone starts infringing it?
If you can register after you discover infringement why would you pay to register beforehand? Well, this is another facet of copyright law, you can only get statutory damages if you have a registered copyright of a United States’ authored work, which is later infringed, You cannot get statutory damages if you register after the alleged infringement. In order to recover under a suit for Copyright infringement you would need to prove actual damages which can be very difficult and costly. Not only does later registration affect your ability to collect statutory damages, if you don’t register within 5 years of publication the court will no longer accept your registration as prima facie evidence of the validity of the copyright registration.
So in the end, you can have a copyright without going through the registration process but that unregistered copyright may not be of much use to you. It is necessary to register in order to get the protection which most authors believe is given by copyright laws. The fees for registration are minimal, especially when compared to the possible losses in the event that your work is infringed.
If you have any interest in protecting something which you have undoubtedly spent a great deal of time creating then the only prudent action is to register for the protection which you need and deserve as an author. It is exponentially easier to protect your rights before your copyright is infringement than it is after you discover an infringement. You can never have too much protection or too much evidence on your side that you are the true owner and creator of a piece of authorship. The process of registration and the protections of registering a copyright will be covered in a future post.
Do yourself a favor and contact an attorney to find out how to protect your rights by registering a copyright. It is never too early to investigate the best way to keep your creations under your control. We always offer a free initial consultation to anyone that is interested, call us now to start the process of protecting yourself 732-444-6303 (Stone Law, P.C.).
Today is the first day our blog, NewYorkCopyrightAttorney.com is online. We hope to use this site as an informational page which will help guide our clients and the public through the intricacies of copyright law. Hopefully you will find what follows to be both informative and entertaining.
Our goal is to provide ourselves as a resource that will help educate anyone that comes across it. This page is not legal advice, it is just our personal opinions about copyright law and how we at Stone Law, P.C. believe copyright law should be. If you would like legal advice, we offer free consultations and can be reached at 732-444-6303.
We look forward to being your source for copyright law and welcome any questions or comments which you may have.
In 1998, Congress passed the Digital Millennium Copyright Act, which includes a variety of provisions to address intellectual property concerns including things like digital material and the Internet. In addition, the DMCA updated U.S. law to implement two World Intellectual Property Organization treaties from 1996. The DMCA strengthens penalties for digital piracy, including criminal penalties for tampering with anti-piracy measures in software. The manufacture of software or devices to circumvent copyright protection measures is also prohibited. There are several exceptions to these penalties, including law enforcement, libraries, and educational institutions, as well as a temporary exception for copying data while repairing your computer. Although it includes these new penalties, Title 1 of the DMCA specifies that there are no changes to the existing copyright infringement rights, remedies, or defenses. The DMCA also exempts foreign copyright holders from the U.S. law that requires copyrights to be registered with the U.S. Copyright Office before an infringement lawsuit can be filed. Stone Law can help you navigate the DMCA’s technological provisions and penalties and protect your rights.
The DMCA makes a special provision for internet service providers that absolves them of copyright infringement liability provided they follow specified guidelines. ISPs can avoid liability if they follow the Act’s guidelines. One requirement is that ISPs block access to any infringing material after they receive notice of an infringement claim from a copyright holder. Additionally, ISPs are required to implement a policy for terminating repeat infringers. ISPs can neither benefit directly from infringement nor have knowledge that would make infringement apparent. Once they are notified of infringing material, ISPs must remove the offending material promptly. If they comply with the DMCA, ISPs are immune from monetary damages, but may be ordered by a court to take action, including blocking infringing content. Not only do ISPs benefit by avoiding liability, but also the notification system allows them to rely on others to determine whether material is infringing. It can be unclear whether material infringes on a copyright, and the DMCA allows ISPs to avoid making that complex decision. Copyright holders are also given the right to subpoena ISPs for the identification of copyright infringers. If you believe your copyright has been infringed upon by someone, Stone Law’s experienced intellectual property attorneys can help you subpoena the necessary records to determine the best way to protect your rights.
While copyright holders can benefit from the DMCA, there are several requirements for the notice they give to ISPs to be adequate. If you believe that information online infringes on your copyright, Stone Law can help you draft and send notification to have it removed. A copyright holder’s notification to an ISP must include:
– A signature of an authorized agent of the copyright holder
– Identification of the copyrighted work(s)
– Information on the infringing materials or activity and how the ISP can locate it.
– Contact information for the party alleging infringement
– A good faith statement that the material is not authorized by the copyright holder, an agent, or the law.
– A statement that the information in the notification is accurate and the party filing it is authorized to do so under penalty of perjury.
Adequate notice is required before an ISP can take action to remove infringing content. It can be difficult to compile the notice required before an ISP can remove infringing content. In order to ensure that removal is not delayed, Stone Law can help you prepare and send adequate notice to an ISP.
If you believe your content has been unnecessarily taken down by an ISP, you can file a counter-notice, stating a good faith belief the material should not have been taken down. Stone Law can help you prepare an adequate counter-notice and navigate any following lawsuit.
The DMCA is part of the body of digital copyright law that is still developing, and, as a result, the rights and remedies available to you can be confusing. Contact us for help if you have concerns about your rights as a copyright holder or if you believe your content has been mistakenly removed.
On January 18, 2012 the supreme court upheld the Uruguay Round Agreements Act (URAA). The decision was made 6-2 (with Justice Kagan taking no part in the decision).
The URAA extends copyright protection to works which were once part of the public domain. The musical works at issue in this case, having been in the public domain, were performed freely around the United States. With the passage of the URAA orchestras must pay for something which they had enjoyed freely for many years; an “orchestra that once could perform ‘Peter and the Wolf . . . free of charge'” now much pay for such a privilege. The act has had far reaching consequences within the orchestral community and has caused prices on some compositions to increase seven-times.
It is feared (as mentioned in the dissenting opinion) that these restored copyrights will effect efforts of historical societies to gather and catalog aging films.