Copyright Basics

Economic rights form the bulk of a copyright holder’s rights under US law. They stand in contrast to moral rights, which are less recognized under US law.

In US law, the economic rights of copyright holders are listed in Section 106 of the Copyright Act:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

1. to reproduce the copyrighted work in copies or phonorecords;
2. to prepare derivative works based upon the copyrighted work;
3. 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;
4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

The right of reproduction is implicated if:

1. The user copies the original work (rather arriving at the same work independently);
2. What the user creates qualifies as a copy (it must be tangible, fixed, and intelligible); AND
3. The user either copied the original work literally or by created a substantially similar work.

If one of these conditions is not met, the reproduction right is not implicated. In addition, if the user’s new work is not literally or substantially similar to the original, creating it does not implicate the derivative works right, distributing it does not implicate the distribution right, and performing and displaying it does not implicate the rights of public performance and display.

For example, suppose Sarah holds the copyright in a photograph of Sleeping Bear Dunes. She has the right to control reproduction of her work. However, copying the photograph does not implicate Sarah’s reproduction right unless the copy is substantially similar to the original. If you photocopy or scan the original, you will likely produce a copy that is substantially similar to the original, implicating the reproduction right. If you post that copy to a website, you will also likely implicate the rights of public distribution and public display.

Suppose instead that you use Sarah’s photograph as a reference work while creating a painting of the dunes. In that case, you will only implicate the reproduction right if your painting is substantially similar to the photograph. If your painting is not substantially similar, you will not implicate the reproduction right. You can also distribute and display your painting without implicating Sarah’s rights of public distribution and public display.

Courts disagree on how to assess substantial similarity, so the rules in this area vary from one part of the United States to another. The following example illustrates the law of the Second Circuit. In the 2001 case Boisson v. Banian, the Second Circuit held that the defendant’s quilt "ABC Green II" (pictured in the middle below), was substantially similar to the plaintiff’s quilt, "School Days I" (pictured at top below). The court also held that "ABC Navy," another quilt of the defendant’s (pictured at bottom below), was not substantially similar to "School Days I."

Under U.S. law, public performance and public display are among the rights of the copyright holder. If a performance or display of a work does not qualify as public, it does not implicate any rights of the copyright holder. The U.S. Copyright Act defines "public" as follows:

To perform or display a work ‘publicly’ means—

1. to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
2. to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The legal doctrine of moral rights recognizes the personal reputation of an artist or creator. Moral rights include the right of attribution and the right of integrity. The right of attribution means that that the creator has the right to have her name associated with her work -- or disassociated if the work is damaged or modified in a way that leads the artist to feel that the work is no longer an embodiment of her intended expression. The right of integrity means that the work may not be changed, altered, distorted, or mutilated. In 1928, these concepts were included in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Work, which governs international copyright.

Moral rights stand in contrast to the economic rights that are more broadly protected under US copyright law, such as the right of reproduction and the right of distribution. The US Copyright Act recognizes moral rights in a very limited way in Section 106A, the Visual Artists Rights Act. This provision was passed in 1990 as part of the United States’ entry into the Berne Convention. It applies only to "works of visual art,” either a painting, drawing, print, or sculpture, or a photograph produced for exhibition purposes only, where the work exists in a single copy or in 200 or fewer copies signed and numbered by the artist. Many types of works are specifically excluded from this protection, including works made for hire. The provision allows artists to waive these rights under contract.