Copyrights: Exclusive Right to Reproduce the Work

Rights under the Copyright Act Generally

Under the Copyright Act of 1976 there are exclusive rights provided to the owner of a copyright. The owner of the copyright has the exclusive right to the following:

Right to reproduce the copyrighted work in copies or phonorecords;

• To prepare derivative works based upon the copyrighted work;
• To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
• In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. § 106.

Moral Rights

With regards to works of visual arts, the author of the visual arts are granted what are called “moral rights,” which are the rights of attribution (also called the right of paternity) and the right of integrity

The Copyright Act defines “visual arts,” as

[A] painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of the sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or a still photographic image produced for exhibition purposes only, existing in the single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed in consecutively numbered by the author.

Id. at § 101. Section 106A of the copyright act states specifically that these rights include:

• To claim ownership of the work,
• To prevent the use of his or her name as the author of any work of visual art which he or she did not create,
• Shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, other modification of the work which would the prejudicial to his or her honor reputation, and
• To prevent any intentional distortion, mutilation, or other modification of that work which will be prejudicial to his or her honor reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
• To prevent any destruction of a worker recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

These “moral rights” are not given to other authors of copyrighted works, such as literary or musical works. Moral rights are rarely asserted in the U.S. because most contracts regarding copyright licenses have a waiver of moral rights.

Reproduction Rights

What does it mean to reproduce? To be considered a copy, a non-author must duplicate, transcribe, imitate, or simulate some substantial part of the work in a fixed form in a material object.

The owner of the copyright is the right to make their own copies or phonorecords and can stop others from doing so as well. However, the right to reproduce the work cannot prevent a non-owner of the copyright from reading the work out loud or creating a choreographed dance from the work, if of course reading the work out loud are creating a choreographed dance was not a public performance, which therefore could violate another right under the act.

In order for a non-author to infringe on the authors write to reproduce the work, the work reproduced must actually be the copyrighted work. In other words, it must appear that the non-author’s work (1) was copied from the author’s work, and (2) the reproduced work was “substantially similar” to the copyrighted work. In Arnstein v. Porter, the seminal case that developed this two part test states specifically,

As to the first—copying—the evidence may consist (a) of defendant’s admission that he copied or (b) of circumstantial evidence—usually evidence of access—from which the trier of the facts may reasonably infer copying. Of course, if there are no similarities, no amount of evidence of access will suffice to prove copying. If there is evidence of access and similarities exist, then the trier of the facts must determine whether the similarities are sufficient to prove copying. On this issue, analysis (‘dissection’) is relevant, and the testimony of experts may be received to aid the trier of the facts. If evidence of access is absent, the similarities must be so striking as to preclude the possibility that plaintiff and defendant independently arrived at the same result. If copying is established, then only does there arise the second issue, that of illicit copying (unlawful appropriation).^4b On that issue (as noted more in detail below) the test is the response of the ordinary lay hearer; accordingly, on that issue, ‘dissection’ and expert testimony are irrelevant.

154 F.2d 464, 468 (2d Cir. 1946).

An author/plaintiff can prove that the non-author copied their work by providing direct evidence, circumstantial evidence that the non-author had access to the work and there are similarities, or circumstantial evidence that there are striking similarities between the authors work and the non-authors work.

Once copying has been established, a plaintiff must prove that the copying was “unlawful appropriation.” The key is that there must be a showing that there was a taking of copyrightable expression that would create substantial similarities to a subjective audience.

The Sound Recording Owner’s Limitation on Right to Reproduce

Section 114 of the copyright act limits a sound recording copyright owner’s right to reproduce his or her work. The right is limited to “the right to duplicate sound recording in the form of phonorecords or copies that directly or indirectly recapture the actual sounds fixed in the recording. The exclusive right of the owner of copyright in a sound recording… Is limited to the right to prepare a derivative work in which the actual sounds fixed in the sound recording are rearranged, remixed, or otherwise altered in sequence or quality.”17 U.S.C. § 114