Cameron Miranda
Copyright is a form of intellectual property protection that grants creators exclusive rights to their original works. While copyright laws vary by country, common law copyright refers to a legal doctrine that provides copyright protection based on traditional English law and state-level copyright laws. In the United States, the Copyright Act of 1976 and subsequent amendments significantly altered the landscape of copyright protection, preempting most state-level laws and common law provisions. However, common law copyright still applies in certain scenarios, particularly for works that do not meet the eligibility criteria for federal copyright protection. This dual system of copyright protection, with federal statutory copyright and residual common law copyright, presents both opportunities and challenges for creators and small businesses seeking to protect their intellectual property.
| Characteristics | Values |
|---|---|
| Basis | Old English law and copyright laws enacted in various states |
| Applicability | Any original work from the moment it's created |
| Protection | Right to prevent others from copying or using the works while unpublished and right to control the first publication of the work |
| Registration | Not required but recommended |
| Federal registration | Required before an author can bring a suit |
| Preemption | All state common law copyright claims that fall under subject matter in Section 102 or Section 103 except for sound recordings fixed before February 15, 1972 |
| State statutes | May be available for some categories of works |
| State law copyright claims | Preempted by federal copyright law |
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What You'll Learn
Common law copyright in the US
In the United States, copyright protections are primarily defined and governed by the federal Copyright Act. This Act was first enacted in 1976 and provided a comprehensive framework for copyright law, abolishing and pre-empting most state laws and common-law rights with respect to copyrights.
Prior to the 1976 Act, there existed a legal doctrine known as common law copyright law, rooted in old English law and various state copyright laws. Common law copyright provided two essential protections: the right to prevent others from copying or using unpublished works, and the right to control the first publication of the work.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, once a work was published, common law copyright protections ended, and statutory protections for published works applied.
The 1976 Act abolished common law copyright for unpublished works, stating that exclusive rights regarding original works of authorship are "governed exclusively" by the Act, regardless of publication status. Despite this, Congress did not explicitly extinguish all common law copyright protections, and some 'room' remains for state and common law copyright laws to operate. This is because the 1976 Act amendments did not annul or pre-empt state statutes or common law for works that were not eligible for protection under the Act. For example, the federal Act only protects works fixed in a tangible medium, whereas some state laws, like California's, protect artistic works even if they are not fixed in a tangible medium.
As a result, some copyright infringement cases continue to be brought based on state statutes or common law. For instance, in the 2005 case of Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings could receive state common law copyrights, even if they did not qualify for federal copyrights.
In summary, while federal copyright law in the US has largely superseded common law copyright, some elements of common law copyright persist at the state level, particularly for works that fall outside the scope of the federal Copyright Act.
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Common law copyright protections
- The right to prevent others from copying or using the works while they are unpublished.
- The right to control the first publication of the work, including deciding when and by whom it will be published.
However, once a work is published, common law copyright protections end, and statutory protections for published works come into force. 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. Despite this, common law copyright infringement cases are still filed because Congress did not explicitly extinguish common law copyright protections. Some states, like California, have their own copyright statutes, and in certain cases, state common law copyrights may be available.
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Common law copyright infringement cases
Common law copyright provides protection for "original works of authorship", including literary, musical, and artistic works, as long as they are fixed in a tangible medium. Two essential protections provided by common law copyrights are:
- The right to prevent others from copying or using the works while unpublished
- The right to control the first publication of the work, including deciding when and by whom it will be published
In the United States, copyright protections are primarily defined and governed by the federal Copyright Act. The 1976 amendments to the Copyright Act abolished and preempted common law and most state laws regarding copyrights. However, the amendments did not annul or preempt state statutes or common law for works that are not eligible for copyright protection under the Act. As a result, some categories of works may still fall under a mixture of state statutes and common law copyright. 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 be protected by state common law copyrights.
It is important to note that copyright infringement may extend beyond mere copying or reproduction of a copyrighted work. For example, in the Feist case, the Court held that while a telephone directory was protected by copyright, using names and addresses from the directory did not constitute copyright infringement. To establish criminal copyright infringement, prosecutors must demonstrate that the defendant intended to make money or obtain a gain from their infringement. This can 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 on a computer network, knowing that the copyright owner intends to distribute it commercially.
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Common law copyright registration
Common law copyright is a term used in the United States to refer to most state law copyright claims. 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. 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.
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 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. For example, the federal Copyright Act defines a copyright as an original work in a fixed tangible medium, but some states, like California, have their own copyright statutes that provide broader protections. In California, artistic works are protected even if they are not fixed in a tangible medium.
In 1978, Section 301 took effect, preempting all state common law copyright claims that fall under subject matter in Section 102 (Subject matter of copyright: In general) or Section 103 (Subject matter of copyright: Compilations and derivative works) except for sound recordings fixed before February 15, 1972. This means that 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. For example, in the 2005 New York State 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.
To register a common law copyright, it must be federally registered with the United States Copyright Office. Registering a work is not mandatory, but for U.S. works, registration is necessary to enforce exclusive rights through litigation. Timely registration allows copyright owners to seek certain types of monetary damages and attorney fees if there is a lawsuit, and it provides a presumption that the information on the registration certificate is correct. It also facilitates the licensing marketplace by allowing people to find copyright ownership information, and it provides the public with notice that someone is claiming copyright protection.
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Common law copyright and federal copyright law
In the US, copyright protections are mostly defined and exist by virtue of the federal Copyright Act. Congress passed the first federal copyright law in 1790 and has updated it throughout the years. In 1976, Congress amended the Copyright Act, abolishing and preempting common law and most state laws with respect to copyrights. The Act states that the exclusive rights with respect to original works of authorship shall be “governed exclusively by” the Copyright Act whether the works are published or unpublished.
However, 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, some states, like California, have their own copyright statutes that provide broader protections. For example, artistic works in California are protected even if they are not fixed in a tangible medium. Because 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.
In 1978, Section 301 took effect, preempting all state common-law copyright claims that fall under subject matter in Section 102 or Section 103 except for sound recordings fixed before February 15, 1972. This leaves a sizable amount of work that 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. For example, in the New York State 2005 case Capitol Records v. Naxos of America, the court held that pre-1972 sound recordings, which do not receive federal copyrights, may nevertheless receive state common-law copyrights. This precedent was partially overruled in 2016 in Flo & Eddie, Inc. v. Sirius XM Radio Inc.
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