Anaya Nolan
Common law copyright is a legal doctrine that provided copyright protection based on old English law and various state copyright laws. In the United States, common law copyright is used to refer to most state law copyright claims. Before the 1976 amendments to the Copyright Act, common law copyrights protected unpublished works of authorship. The amendments abolished common law and most state laws with respect to copyrights, stating that original works of authorship shall be governed exclusively by the Copyright Act. Despite this, common law copyright infringement cases continue to be filed, and some categories of works may still be covered by common law copyright. In the context of purchase agreements, copyright law allows ownership through works made for hire, where works created by an employee are owned by the employer. This doctrine also applies to certain independent contractor relationships and commissioned works. To enforce common law rights, federal registration with the United States Copyright Office is generally required.
| Characteristics | Values |
|---|---|
| Common law copyright | A legal doctrine that provided copyright protection based on old English law and state copyright laws |
| Common law copyright protection | Applies to unpublished works of authorship |
| Common law copyright protection | Does not apply to published works |
| Common law copyright protection | Ended after the first publication of a work |
| Common law copyright protection | Converted to new protections provided by the amended Copyright Act after 1976 |
| Common law copyright protection | Still applicable in some cases, such as pre-1972 sound recordings in New York State |
| Common law copyright enforcement | Requires federal registration with the United States Copyright Office |
| Common law copyright registration | Necessary for enforcing rights through monetary remedies in litigation |
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What You'll Learn
Common law copyright protections for published vs. unpublished works
Common law copyright provides two essential protections: the right to prevent others from copying or using unpublished works, and the right to control the first publication of the work. In the United States, copyright protections are defined by the federal Copyright Act, which was amended in 1976 to abolish and preempt most state laws and common law with respect to copyrights. Despite these amendments, common law copyright infringement cases continue to be filed because Congress did not explicitly extinguish common law copyright protections.
The 1976 amendments abolished common law and most state laws regarding copyrights, stating that exclusive rights over original works of authorship are now "governed exclusively" by the Copyright Act, regardless of publication status. However, once a work is published, common law copyright protections end, and statutory protections for published works come into force.
Unpublished works are eligible for protection without regard to the nationality or where the author lives; certain limitations on the rights of a author are applicable only to published works. Copyright in an unpublished work lasts for the life of the author plus 70 years. If the author (or the author’s death date) is unknown or if the author is a corporate body, then the term is 120 years from the creation date for the work.
U.S. Copyright Law defines publication as: "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental lease or lending". The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not itself constitute publication. Generally, material is considered unpublished if it was not intended for public distribution or if only a few copies were created and distribution was limited.
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Common law copyright and federal preemption
In the United States, common law copyright is a term used to refer to most state law copyright claims. It is based on old English law and copyright laws enacted in various states. Common law copyright protected unpublished works of authorship, while published works were protected by the Copyright Act.
The 1976 amendments to the Copyright Act abolished and preempted the common law and most state laws with respect to copyrights. The Act states that the exclusive rights with respect to original works of authorship are governed exclusively by the Copyright Act, whether the works are published or unpublished. However, Congress did not explicitly extinguish common law copyright protections, and there are still cases brought for common law copyright infringement.
Federal preemption over state common law implies that federal copyright for those works will have a definite scope and duration, as specified in federal statutes. Section 301 of the Copyright Act intends to preempt and abolish any rights under the common law or statutes of a state that are equivalent to copyright and that extend to works within the scope of federal copyright law.
Despite federal preemption, there are still some categories of works for which common law (state) copyright may be available. For example, in a 2005 New York State case, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights. This ruling was later clarified and limited in 2016. Additionally, Section 301(b) explicitly preserves common law copyright protection for works that have not been "fixed in any tangible medium of expression," such as unrecorded or improvised dramatic sketches or musical compositions.
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Common law copyright infringement cases
Common law copyright refers to copyright protections based on old English law and state-level copyright laws in the United States. Prior to the 1976 amendments to the US Copyright Act, common law copyrights protected unpublished works of authorship, while published works were protected by the earlier versions of the Act. The 1976 amendments abolished common law copyrights for works eligible for protection under the Copyright Act, but some works remain protected by a mixture of state statutes and common law copyright. For example, pre-1972 sound recordings are not eligible for federal copyright but may receive state common law copyright, as in Capitol Records v. Naxos of America.
Copyright infringement can be a criminal offense if the alleged infringer's actions were willful, meaning they acted intentionally to violate the law. Federal law requires proof that the defendant intended to infringe the copyright, rather than merely copying the work. Additionally, prosecutors must show that the defendant intended to make money or obtain some other gain from their infringement. This could include making copies of copyrighted works with a combined retail value of at least $1,000 within 180 days or making the work available to the public online, knowing that the copyright owner plans to distribute it commercially soon.
Some famous copyright infringement cases include Warner Brothers being sued by tattoo artist S. Victor Whitmill for using his uncredited tattoo design in "The Hangover 2", Metallica's drummer Lars Ulrich suing the developer of Napster for copyright infringement, and PETA suing a photographer, Wildlife Personalities Ltd., and Blurb for copyright infringement of "monkey selfies".
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State law copyright claims
In the United States, the term "common law copyright" is used to refer to most state law copyright claims. Before the 1976 amendments to the Copyright Act, common law copyright provided protection based on old English law and state copyright laws. This legal doctrine protected unpublished works of authorship, while published works were protected by the earlier Copyright Act. Common law copyright provided two essential protections: the right to prevent others from copying or using unpublished works, and the right to control the first publication of the work.
However, the 1976 amendments abolished and preempted common law and most state laws regarding copyrights. The Act states that original works of authorship are "governed exclusively by" the Copyright Act, regardless of publication status. Despite these amendments, common law copyright infringement cases are still filed because Congress did not explicitly extinguish common law copyright protections. The amendments also did not annul or preempt state statutes or common law for works ineligible for copyright protection under the Copyright Act. As a result, some states, like California, have broader copyright protections than federal law.
Most state-law copyright claims are preempted by federal copyright law. However, for certain categories of works, common law (state) copyright may still be available. For example, in the 2005 New York State case Capitol Records v. Naxos of America, the court ruled that pre-1972 sound recordings could receive state common law copyrights, even if they did not qualify for federal copyrights. This ruling was later clarified and limited by the 2016 case Flo & Eddie v. Sirius XM Radio, which determined that the extent of common law copyright in New York did not cover the performance of a sound recording.
In summary, while common law copyright has been largely superseded by federal copyright law, it still plays a role in certain situations, particularly for works that fall outside the scope of federal copyright protection. State law copyright claims can provide broader protections than federal law in specific instances, as demonstrated by the New York State case.
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Common law copyright registration
Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. Works are original when they are independently created by a human author and have a minimal degree of creativity. Copyright law allows ownership through "works made for hire", which establishes that works created by an employee within the scope of employment are owned by the employer. The work made for hire doctrine also applies to certain independent contractor relationships, for certain types of commissioned works.
Prior to the enactment of the 1976 amendments to the Copyright Act, there was a legal doctrine called common law copyright law that provided copyright protection based on old English law and copyright laws enacted in various states. Until the 1976 amendments, common law copyrights protected unpublished works of authorship. Two essential protections were provided by common law copyrights: the right to prevent others from copying or using the works while unpublished, and the right to control the first publication of the work. However, after the first publication, common law copyright protections ended and the statutory protections for published works became applicable.
Despite the efforts of Congress to abolish common law copyrights, there are still cases brought for common law copyright infringement. This is because Congress did not explicitly and completely extinguish common law copyright protections. The 1976 amendments to the Copyright Act did not annul or preempt state statutes or the common law with respect to works that were not eligible for copyright protection under the Copyright Act. As a result, a sizable amount of work still falls under a mixture of state statutes and common law copyright. Most state-law copyright claims are preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available.
To register a common law copyright, it must be federally registered with the United States Copyright Office. This is not mandatory, but for U.S. works, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation. Timely registration also allows copyright owners to seek certain types of monetary damages and attorney fees if there is a lawsuit.
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Frequently asked questions
Common law copyright is a legal doctrine that provided copyright protection based on old English law and copyright laws enacted in various states.
Common law copyright was abolished in 1976 when the Copyright Act was amended. However, some sources note that common law copyright infringement cases are still filed because Congress did not explicitly extinguish common law copyright protections.
The amendments abolished common law and most state laws with respect to copyrights. The Act states that exclusive rights with respect to original works of authorship are "governed exclusively by" the Copyright Act, whether the works are published or unpublished.
Common law copyright provides the right to prevent others from copying or using unpublished works, and the right to control the first publication of the work.
Common law copyright applies to certain categories of works, such as pre-1972 sound recordings. However, it is unclear if it specifically applies to purchase agreements. To enforce your common law rights, you must federally register your common law copyright with the United States Copyright Office.
