PACA

COPYRIGHT PROTECTION OF PHOTOGRAPHS

I. Copyright: An Overview

The Copyright Act (Title 17 of the United States Code) protects original works of authorship. It is derived from the Constitution of the United States under Article 8 which provides that "Congress has the power to promote the progress of Science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective Writings and discoveries." Copyright is essentially an economic property right, owned initially by the author. It serves to provide an incentive to artists to pursue their art and derive economic benefit for a limited period.

Since the Constitution was written, the Copyright Act has been amended many times. The most dramatic change in recent times was the Copyright Revision Act of 1976 (effective 1978), which revised the 1909 Act that had unsurprisingly failed to foresee the invention of radio broadcasts, television, movie, videos or computer programs. The 1976 Act was intended to be technology neutral and evolve with advances in technology. Since then, the Act has been amended several times, primarily to eliminate some formalities imposed in order to permit the United States to join international copyright conventions, such as the Berne Convention. Under the Berne Convention, effective March 1, 1989, no formal notice requirement or © is mandatory for works to be copyrighted. Failure to use a notice after that date does not place the work in the public domain (free to use without permission).

In October, 1998, Congress enacted the Digital Millennium Copyright Act (the DMCA) to implement various World Intellectual Property Organization (WIPO) treaties. The WIPO Copyright Treaties require member countries to enact laws to prevent anti-circumvention of technology and prevent tampering with copyright management information.

II. The History of Copyright Protection

A. How long is a work protected?

Because copyright duration in the United States is complex, the following chart is useful to describe the term of protection for works under the different schemes.

Date of Work
Protected From
Term
Created on or after January 1, 1978
Original work fixed in a tangible medium of expression
Life of the author, plus 70 years. For works made for hire, anonymous & pseudonymous works, 95 years from publication, or 120 from creation, whichever is shorter.
Registered between January 1, 1964 and December 31, 1977
Publication with Notice
28 year original term, plus 67-year renewal term, which vests automatically without registering the renewal
Registered between January 1, 1950 and December 31, 1963
Publication with Notice, and works still in the first term had to be renewed in order to be protected for the second term
28-year original term, plus 67 years if properly renewed. Otherwise, no protection after the 28th year (latest date December 31, 1991)
In the second (renewal) term between 1950 and 1978
Properly renewed for second term
Automatic extension for a total of 95 years (28 + 67)

C. What works are protected?

The Act protects “original works of authorship fixed in any tangible medium of expression” including the visual arts, (pictorial, graphic, sculpture), writings, music, dramatic works, motion picture, audio visual, choreography, sound recordings and architecture. Even though the word “fixed” is used, the Act has been interpreted to give protection to works on computers, which cannot be read without the aid of a machine. In order to be considered “original,” the work must demonstrate a minimal level of creativity.

D. What is not protected?

The Act does not offer protection to ideas, concepts, words or short phrases, facts or utilitarian works. For example, if there is only a limited number of ways to express an idea, such as an accounting form or contest rules, protection will not be granted. Short phrases are not protected by copyright, but may be protected by