Cecily Zamora
Copyright law grants authors of original works of authorship a bundle of rights, including economic and moral rights. These rights include reproduction, preparation of derivative works, distribution, public performance, public display, and digital transmission. Licensing under copyright law allows a third party to reuse copyrighted material for specific use cases, such as printing, publishing, performing, filming, or recording literary, artistic, or musical material. The license agreement dictates the terms of the transfer of rights, including the rights licensed, the number of uses, the extent of use, and the license duration. This article will explore the relationship between licensing and publication under copyright law, including the rights granted, restrictions, and legal considerations.
| Characteristics | Values |
|---|---|
| Copyright licenses | Allow reuse of copyrighted material in specific use cases |
| Are ongoing legal agreements between a copyright holder and a third party | |
| Authorize the third party to print, publish, perform, film or record literary, artistic or musical material owned by the copyright holder | |
| Can be beneficial for teams that use copyrighted content regularly, saving time spent negotiating with publishers | |
| Can be obtained through content licensing companies | |
| Ensure legal rights to use someone else's intellectual property | |
| Require identification of permissions needed and contact with the copyright holder | |
| Can be terminated by authors or those inheriting their rights if certain conditions are met, except for works for hire | |
| Can be terminated within 5 years, starting at the end of 35 years from license execution or 40 years from execution, whichever is earlier | |
| Can have restrictions, requirements, or obligations placed on them by the copyright holder | |
| Can be transferred on an exclusive or non-exclusive basis | |
| Can be used to gain economic or other benefits by granting authority to exercise rights to another entity |
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What You'll Learn
Copyright licenses allow reuse of copyrighted material in specific cases
Copyright licenses allow the reuse of copyrighted material in specific cases. The license will dictate the terms of the transfer of rights, including which rights are being licensed, the number of uses, the extent of use, and the length of time until the license expires.
In most cases, permission is required to reuse copyrighted material. However, there are some exceptions where permission from the copyright owner is not needed. This includes when the conditions of fair use are met or when the reuse falls under a Creative Commons license. Fair use allows unlicensed use of copyrighted material in specific circumstances, such as criticism, comment, news reporting, teaching, scholarship, and research. It is important to note that fair use is quite subjective and depends on various factors, including the nature of the copyrighted work, the extent of use, and whether the reuse is for commercial purposes.
Creative Commons licenses allow copyright holders to make their protected work available to the public for limited-use cases while reserving other rights. These licenses vary in the rights they grant, but all require attribution. For example, a reviewer may quote from a book to criticize it, and a magazine may make copies of that review under the fair use doctrine.
Additionally, a transfer of rights in a copyrighted work can be accomplished through a copyright license or an assignment. A copyright license allows the copyright owner to retain the rights while granting someone else the right to exercise some of them. In contrast, an assignment results in a transfer of ownership of the rights.
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Termination of copyright licenses
The termination of copyright licenses is provided for in US copyright law, specifically under Section 203 of the Copyright Act. This section allows authors or their heirs to terminate the exclusive or nonexclusive grant of a transfer or license of their copyright in a work, under certain conditions. The right to terminate applies to transfers and licenses executed after January 1, 1978, and does not have retroactive effect. It also does not apply to "works made for hire".
To terminate a grant, a written and signed notice of termination must be served to the grantee or their successor. This notice must be served within a specified time frame, known as the "termination period," which is generally a five-year window. The effective date of termination must fall within this period and be recorded with the Copyright Office before it takes effect. The termination period depends on when the grant was made, who executed it, and when the copyright was originally secured.
In the case of grants made before January 1, 1978, for works created on or after that date (known as "gap grants"), termination is also permitted under Section 203. However, the notice of termination must state that the date of execution is the same as the date the work was created.
Notices of termination must comply with specific requirements in terms of form, content, and manner, as outlined in regulations issued by the Register of Copyrights. These regulations are designed to protect authors and their heirs from unremunerative agreements, allowing them to regain control of their copyrights and share in the later economic success of their works.
It's important to note that the termination of a grant does not affect derivative works prepared pursuant to the grant before its termination. Such works can continue to be utilized under the original grant terms. However, the rights to authorize new uses of the derivative work and to create new derivative works revert to the authors or their heirs upon termination.
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Moral rights vs. economic rights
Licensing under copyright law does not constitute publication. Copyright law grants authors of original works of authorship a bundle of rights, including economic and moral rights. While economic rights grant creators the exclusive right to exploit their works for financial gain, moral rights protect the non-economic interests of creators in their work.
Moral rights are a set of rights that safeguard the reputation, integrity, and personal connection that an author or creator has with their work. These rights are independent of economic rights and cannot be assigned or transferred. Even after transferring their economic rights to a third party, creators still maintain their moral rights to the work. Moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The right of attribution allows an author to enforce the attribution of their work and prevent misattribution to another author. The right to integrity prevents the distortion or modification of the work that could harm the author's reputation.
Economic rights, on the other hand, grant creators the exclusive right to exploit their works for financial gain. These rights include reproduction, preparation of derivative works, distribution, public performance, public display, and digitally transmitting sound recordings. Economic rights can be transferred or licensed to others, allowing them to exercise some of these rights. For example, a copyright holder may license a work to be distributed only in a particular geographic region.
Both sets of rights coexist and complement each other within the framework of intellectual property law. While economic rights provide control over the commercial exploitation of works, moral rights provide an additional layer of protection by preserving the personal and ethical connection between the creator and their work.
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First sale doctrine
The first-sale doctrine is a principle of US copyright law, codified at 17 U.S.C. § 109, that allows the resale, rental, lending, or giving away of a copyrighted work without the copyright owner's permission, as long as the person disposing of the work owns it. This doctrine only applies to the distribution right of the copyright holder and does not limit their reproduction rights. In other words, the doctrine applies to the "owner of a particular copy" of the work, not to someone who has a license to use that copy.
The first-sale doctrine was first recognised by the US Supreme Court in 1908 in Bobbs-Merrill Co. v. Straus and subsequently codified in the Copyright Act of 1909. In this case, the publisher, Bobbs-Merrill, had inserted a notice in its books stating that any retail sale at a price under $1 would infringe its copyright. Macy's department store disregarded this notice and sold the books at a lower price without the publisher's consent. The Supreme Court held that the exclusive statutory right to "vend" applied only to the first sale of the copyrighted work.
The first-sale doctrine has been applied to trademarks, allowing the resale of items bearing a trademark after the trademark owner has sold those items, unless this is likely to confuse or deceive consumers. However, the doctrine does not give merchants free rein to advertise name-brand items in the secondary market. In Chanel, Inc. v. WGACA, LLC, a federal jury found that WGACA, a reseller and marketer of Chanel products, infringed Chanel's trademark and engaged in false advertising by prominently featuring the Chanel brand in its stores, on its website, and on its social media pages.
The first-sale doctrine has also been applied to copyrighted products legally bought abroad and imported into the US, allowing their resale without any post-sale restrictions. However, the doctrine does not apply to digital transmissions of copyrighted works, as these create a new copy of the work, nor does it apply to the rental of software and sound recordings, as copyright owners retain the rental right for these types of works.
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Copyright law and protection
Copyright is a form of protection for original works of authorship that are fixed in a tangible medium of expression. It is a type of intellectual property law that covers both published and unpublished creative works, including literary, dramatic, musical, and artistic works. Copyright does not protect facts, ideas, procedures, methods, systems, processes, concepts, principles, or discoveries, but it may protect the way these things are expressed.
In the United States, copyright protection is automatic as soon as a work is created and fixed in a tangible form. This means that an author immediately gains exclusive rights to authorize certain uses of their work. However, registering a work with the U.S. Copyright Office is recommended for additional protection. Registration provides prima facie evidence in court, allows for the recovery of certain statutory damages and attorney's fees in successful litigation, and provides a public record of the copyright claim.
The length of copyright protection depends on when the work was created. Under current U.S. law, for works created by individual authors on or after January 1, 1978, copyright protection lasts for the life of the author plus 70 years. For anonymous, pseudonymous, or work-for-hire creations, the copyright lasts for 95 years from the date of first publication or 120 years from the date of creation, whichever comes first. For joint works, the term lasts for 70 years after the last surviving author's death.
Copyright licensing allows authors to grant others the right to exercise certain rights over their work while retaining ownership. Licenses typically specify which rights are being granted, the number of uses, the extent of use, and the length of time until expiration. Authors can also terminate grants of copyright licenses under certain conditions outlined in Section 203 of the Copyright Act.
It is important to note that copyright protection is territorial, and international protection depends on the national laws of each country. However, most countries are members of the Berne Convention and the TRIPS Agreement, which provide important protections for foreign authors, including the principle of "national treatment," where member countries must afford nationals of other member states the same copyright protections as their own.
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Frequently asked questions
A copyright license is a legal agreement between a copyright holder and a third party. It allows the third party to reuse the copyrighted material in specific use cases.
A copyright license authorises a third party to print, publish, perform, film or record literary, artistic or musical material that the copyright holder owns.
To get a copyright license, identify the permissions you need and contact the copyright holder. If your team plans on using copyrighted content regularly, buying a license through a content licensing company can save time spent negotiating with publishers.
Licenses allow a copyright owner to retain rights while giving someone else the right to exercise some of them. An assignment results in a transfer of copyright ownership.
Copyright protects creative works, such as books, drawings, photographs, songs, and movies. A utility patent protects new inventions or processes.
