Cameron Miranda
Common law copyright is a legal doctrine that grants copyright protection based on common law in various jurisdictions. In the United States, common law copyright refers to most state law copyright claims. Despite Congress's efforts to abolish common law copyrights through the 1976 amendments to the Copyright Act, common law copyright infringement cases continue to be filed, and there is still legal room for state and common law copyright laws to operate. This is because the 1976 amendments did not explicitly annul or preempt state statutes or the common law for works not eligible for copyright protection under the Copyright Act. The enactment of the Music Modernization Act in 2018 also made major changes to federal copyright law for pre-1972 sound recordings. So, does common law copyright still exist?
| Characteristics | Values |
|---|---|
| Definition | Legal doctrine that grants copyright protection based on common law of various jurisdictions |
| Basis | The contention that copyright is a natural right, so creators are entitled to the same protections anyone would have in regard to tangible and real property |
| Jurisdiction | United Kingdom and United States |
| Examples | Donaldson v Beckett (1774), Wheaton v. Peters (1834), Hemlock Hat Company, Inc. v. Diesel Power Gear, LLC (2020), Capitol Records v. Naxos of America (2005), Flo & Eddie v. Sirius XM Radio (2016) |
| Current Status | Abolished in 1976 in the United States with the enactment of the Copyright Act, but some common law protections may still exist in certain states and for specific categories of works, such as pre-1972 sound recordings |
| Registration | Not mandatory, but registration is necessary to enforce exclusive rights through litigation and seek monetary damages and attorney fees |
| Duration | Works created on or after January 1, 1978, have a copyright term of the life of the author plus seventy years after their death |
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What You'll Learn
Common law copyright in the US
In the United States, common law copyright refers to most state law copyright claims. It is a legal doctrine that grants copyright protection based on common law in various jurisdictions, instead of through statutory law. The doctrine is based on the idea that copyright is a natural right, and creators are entitled to the same protections as those for tangible and real property.
The concept of common law copyright has been addressed in the US court case Wheaton v. Peters (1834), which found that copyright is a limited right under statutes and subject to the conditions and terms imposed by the legislature. In 1976, Congress amended the Copyright Act, abolishing 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, irrespective of whether the works are published or unpublished.
Despite this, some state statutes continue to provide broader protections than federal law. For example, in California, artistic works are protected even if they are not fixed in a tangible medium. Common law copyright infringement cases are still filed, as Congress did not explicitly extinguish common law copyright protections. These cases are often difficult to win, as they depend on whether the work was published or not.
In 1978, Section 301 came into effect, which preempted all state common law copyright claims that fall under the subject matter in Section 102 or Section 103, except for sound recordings. This section applies to all works created after its effective date, irrespective of publication or dissemination.
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Common law copyright in the UK
Common law copyright is a legal doctrine that grants copyright protection based on the common law of various jurisdictions, instead of through statutory law. It is based on the belief that copyright is a natural right, and creators are entitled to the same protections anyone would have regarding tangible and real property.
In the United Kingdom, the courts addressed the "natural right" aspect of the doctrine in the Donaldson v. Beckett case in 1774, which was a dispute over common law. The House of Lords ruled that copyright in published works was subject to the durational limits of the statute. However, they did not directly rule on whether copyright was a common-law right. The Lords agreed that an author had a pre-existing right "to dispose of his manuscript ... until he parts with it".
In the United States, common law copyright also refers to state-level copyrights. Most state-law copyright claims are preempted by federal copyright law, but for some categories of works, common law (state) copyright may be available. For example, in the 2005 Capitol Records v. Naxos of America case, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights.
In the UK, copyright protection is governed by the Copyright, Designs and Patents Act 1988, which was updated by the Copyright and Related Right Regulations 2003. This implements international and EU rules on copyright in the digital environment. The 1911 Act also provides that an individual's work is automatically under copyright as soon as it is embodied in some physical form.
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Common law copyright and federal preemption
Common law copyright is a legal doctrine that grants copyright protection based on the common law of various jurisdictions. It is based on the idea that copyright is a natural right, so creators are entitled to the same protections as anyone else with respect to tangible and real property. In the United States, common law copyright refers to state-level copyrights.
Historically, copyright protection was provided through a dual system where the federal government, by statute, provided limited monopolies for intellectual property, and state statutory and common laws established roughly equivalent protections. In 1976, Congress introduced a single, preemptive federal statutory scheme, which came into effect on January 1, 1978. This federal preemption provision abolished and preempted the common law and most state laws with respect to copyrights.
The federal preemption provision states that no person is entitled to any right within the general scope of copyright as specified by Section 106, in works of authorship that are fixed in a tangible medium of expression, under the common law or statutes of any state. However, Section 301(b) of the provision explicitly preserves common law copyright protection for works that have not been "fixed in any tangible medium of expression." Examples include unrecorded choreography, extemporaneous speeches, and original works of authorship communicated solely through conversations or live broadcasts.
Despite the federal preemption provision, there is still legal "room" for state and common law copyright laws to operate. Occasionally, copyright infringement cases are brought based on a state statute or the common law. However, as the Hemlock Hat case demonstrates, such cases are difficult to win since they depend on whether the work was published or not. In that case, the federal court decided that the plaintiff had no common law copyright for the design affixed to a straw hat, as common law copyrights only offer protection up to the point of first publication.
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Common law copyright infringement cases
Common law copyright is the legal doctrine that grants copyright protection based on common law in various jurisdictions, instead of statutory law. It is based on the idea that copyright is a natural right, so creators are entitled to the same protections as anyone else in regard to tangible and real property.
Common law copyright has been addressed in the United Kingdom and the United States in Donaldson v. Beckett (1774) and Wheaton v. Peters (1834), respectively. In both cases, the courts ruled that copyright is a limited right under statutes and subject to the conditions and terms imposed by the legislature. The UK case did not directly rule on whether copyright was a common-law right, but the US case rejected "common law copyright" for published works.
Despite Congress's efforts to abolish common law copyrights, common law copyright infringement cases are still filed. This is because Congress did not explicitly extinguish common law copyright protections. For example, the Hemlock Hat case claimed infringement of an alleged common law copyright related to a design affixed to a straw hat. The federal court decided that the plaintiff had no common law copyright for the design since common law copyrights only offer protection until the first publication.
Another example is Capitol Records v. Naxos of America, where the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights. This was clarified in 2016 with Flo & Eddie v. Sirius XM Radio.
In summary, while common law copyright has been addressed and limited by courts, it still exists and can be the basis for copyright infringement cases, especially in the United States. However, it is important to note that federal registration of common law copyright is required before a suit can be instituted to enforce it.
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Common law copyright and registration
Common law copyright is a legal doctrine that grants copyright protection based on the common law of various jurisdictions, rather than through statutory law. It is based on the idea that copyright is a natural right, so creators are entitled to the same protections as anyone else in regard to tangible and real property.
In the United States, common law copyright refers to most state law copyright claims and state-level copyrights. Until the 1976 amendments to the Copyright Act, common law copyrights protected unpublished works of authorship. The 1976 amendments abolished and preempted the common law and most state laws with respect to copyrights. However, despite these amendments, there are still cases brought for common law copyright infringement, as Congress did not explicitly extinguish common law copyright protections. For example, in the 2005 case Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may receive state common law copyrights.
In the United Kingdom, the courts have found that copyright is a limited right under statutes and subject to the conditions and terms the legislature sees fit to impose. The Statute of Anne superseded any common law rights of the author that may have existed prior to the statute.
Copyright is a type of intellectual property that protects original works of authorship once they are fixed in a tangible form of expression. Registration of a copyright is not mandatory but is important for enhancing protections and enforcing exclusive rights. For example, timely registration 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 the legal doctrine that grants copyright protection based on common law in various jurisdictions, rather than through statutory law.
Common law copyright has been abolished in the US since the 1976 amendments to the Copyright Act. However, there is still legal "room" for state and common law copyright laws to operate, and occasionally, infringement cases are brought based on a state statute or the common law.
The two essential protections offered by common law copyright were the right to prevent others from copying or using unpublished works, and the right to control the first publication of the work.
Before common law rights can be enforced, they must be federally registered with the United States Copyright Office. This is because federal registration is required before an author can bring a suit to enforce their copyright.
