Amazon Sellers’ Guide: Copyright Law

By: CJ Rosenbaum Esq., Anthony Famularo Esq., Levi Stewart, and RJ Cherpak

Chapter 2: Outline of Copyright Law ……….. 19

I. Legal Framework ……….. 20

II. Works Eligible for Copyright Protection ……….. 21

III. Copyright Ownership ……….. 22

IV. Copyright Formalities ……….. 22

V. Copyright Duration ……….. 28

VI. Licensing Requirements ……….. 29

VII. Exclusive Rights ……….. 30

VIII. Statutory Exceptions ……….. 32

Chapter 2: Outline of Copyright Law

Amazon sellers’ main copyright concerns are generally with images and verbiage. This issue most often arises when it is claimed sellers have used copywritten images for their product pages or used copywritten text to describe their product. Before we delve into the specifics of copyright law as it pertains to Amazon sellers, we will examine copyright law more generally.

Copyright infringement is defined as a violation of a holder’s exclusive right to a work of art, protected by the copyright act, using a protected work without permission of the owner. This chapter provides an overview of US copyright law and copyright registration with the U.S. Copyright Office that can be applied to all types of protected works of art both online and offline. It covers copyright’s legal framework, what works are eligible for copyright protection, the requirements for copyright protection, exclusive rights of copyright owners, moral rights and the Visual Artists Rights Act of 1990, copyright duration, copyright ownership and copyright formalities.

I. Legal Framework

Copyright protection in the US is governed primarily by federal statute. As explained in the previous chapter, the current law for copyright protections is the Copyright Act of 1976. The US Copyright Office oversees copyrights. Its primary functions include administrative rulemaking, reviewing and processing applications for copyright registration, enforcing mandatory deposit requirements and administering statutory and compulsory licenses. The Copyright Office also provides legal and regulatory information as well as limited procedural guidance on its website.

Copyright protection is authorized by Article 1 Section 8 of the U.S.C. The copyright clause empowers Congress “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”[1] This clause is the basis for most of the intellectual property law in the United States.

II. Works Eligible for Copyright Protection

The U.S. Code specifies eight categories that may apply as “works of authorship” for purposes of copyright protection: As per the United States Code:

1. literary works;
2. musical works; including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings;
8. architectural works. [2]

The categories are interpreted broadly for registration purposes. For example, images can be registered as “pictorial, graphic, and sculptural works;” drawings and fashion designs can be registered as “pictorial, graphic and sculptural works.”

The owner of a copyright has the exclusive right to use the copyright in various ways. Copyright can be used to protect rights to: (1) reproduce the work in copies or phonorecords; (2) prepare derivative works based upon the work; (3) distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease or lending; and (4) perform the work publicly if it is a literary, musical, dramatic or choreographic work; a pantomime; or a motion picture or other audiovisual work.[3] Registered copyrights also provide copyright owners the exclusive right to authorize others to use these rights, as within the limits of certain statutory exceptions.

III. Copyright Ownership

Generally, the author of a work is the original owner of the copyright in a protected work. For works created by a single author and made as works for hire, the author is a person that transforms an idea to original expression and brings that expression into tangible form.[4]

IV. Copyright Formalities

The formalities to obtain a copyright include: publication, notice, registration, deposit, and renewal. As per the Copyright Act, none of these formalities are requirements for copyright protection in a work, with limited exceptions for works created before March 1, 1989. Failing to observe them does not result in loss of copyright. However:

·       Registration and notice provide substantial benefits (see Registration and Notice).

·       Failing to make any required deposits may result in fines (see Deposit).

·       Renewal provides certain benefits for works that were copyrighted under the 1909 Copyright Act (see Renewal).

Publication

As per the Copyright Act, a work is published by either:

·       Distributing copies or phonorecords of the work to the public by transfer of ownership, rental, lease or lending.

·       Offering a group of persons to distribute copies or phonorecords of the work for further distribution, public performance, or public display.[5]

While publication is not a requirement for copyright protection, when a work was published can significantly affect the duration of the copyright protections. For example, whether a work was published on or before January 1, 1978 will have a significant effect upon the duration of that copyright’s protection as per the 1976 Copyright Act.

Notice

Notice of copyright is not required for protection for works published after March 1, 1989, when the Berne Convention Implementation went into effect.

However, notice still provides considerable benefits, including that proper notice of copyright:

·       May disqualify an innocent copyright infringement defense. [6]

·       Notifies the public of the claim of ownership, which may prevent infringement.

·       Can help others locate the copyright owner to obtain permission for reuse.

The 1909 Copyright Act required proper notice for published works to be protected by federal statutory copyright. [7] Failure to provide notice on a published work caused the work to fall into the public domain.

The Copyright Act recognized the notice requirement until the Berne Convention Implementation Act. Works first published between January 1, 1978 and February 28, 1989 must display proper notice, and publishing a work publishing a work during that period without proper notice may have caused the work to lose copyright protection.

However, leaving out notice did not negate the copyright if the copyright owner both:

·       Registered the work before or within five years after publication without notice, and;

·       Made reasonable efforts to add notice to all copies distributed after learning of the omission.[8]

Publication without notice also did not cause the copyright owner to lose copyright protection if the publication was made without the copyright owner’s permission, or notice was omitted from only a relatively small number of copies. [9]

Elements of Proper Notice

Proper notice as per the Copyright Act must include all three of the following elements:

• Any of the following:
  • The symbol © for visual or observable copies, or the symbol ℗ for phonorecords of protected sound recordings
  • The abbreviation “Copr.”; or
  • The word “Copyright.”
• The year of first publication.
• The name of the copyright owner, which may include an abbreviation or alternate designation that is generally known. [10]

Furthermore, the size and position of the copyright must provide clear notice of the claim of the copyright to the viewer. [11]

Effect of Defective Notice

Defective notice does not affect copyright protection or duration for works created on or after March 1, 1989. For works created before then, defective notice may cause the work to lose copyright protection, including if the notice contains the wrong or no name, or a date that is later than when the work was created. Defective notice may also shorten the duration of the copyright in the work, if the date included in the notice is earlier than the actual date the work was created. [12]

Registration

Registration is not required by the Copyright Act for federal copyright protection. [13] However registration may have been required to fix certain defective notices on works published between January 1, 1978 and February 28, 1989.

Additionally, registration provides several benefits to the registrant, including:

·       In most cases, a copyright owner must register its copyright in a work before suing for infringement. [14]

·       A copyright owner may recover statutory damages and attorneys’ fees in an infringement action, only if the work was registered prior to the start of the infringement action or within three months after first publication. [15]

·       A copyright that is registered within five years of the work’s first publication is prima facie evidence of the copyright’s legitimacy. [16]

·       Registration may disqualify an innocent infringement defense.

·       The copyright owner may record the registration with the US Customs Service to prevent the importation of infringing copies.

Registration of Works Published Between January 1, 1978 and February 28, 1989

Registration may have been necessary to maintain the copyright in works first published with defective notice between January 1, 1978 and February 28, 1989. This includes works first created on or after January 1, 1978 and works created but not registered or published before that date. [17]

Until the Berne Convention, the Copyright Act retained the notice requirement for published works as a requirement for copyright protection.

Publication without notice caused the work to fall into the public domain unless either:

·       A relatively small number of copies were published without notice

·       The work was registered either before or within five years after the publication without notice, and the owner made reasonable efforts to include notice after discovering its absence.[18]

Deposit

The Copyright Act requires that each copyrighted work published in the US, with limited exceptions, must be deposited with the Library of Congress. Registration must always include a deposit, but a deposit may be made without registration. Failing to make a deposit will not result in the loss of a copyright but may result in a number of fines. Unpublished works do not require a deposit. [19]

V. Copyright Duration

Generally, the term of the copyright for a work created on or after January 1, 1978 starts when the work was created and expires 70 years after the life of the author. For works created by joint authors, the copyright expires 70 years after the last author’s death.

For works made for hire, or anonymous works, or works bearing an assumed pen name, the copyright expires 120 years after creation, or 95 years after first publication, whichever comes first. [20] However, publishing a work without proper notice, or registration, before March 1, 1989, may have caused the work to lose copyright protection. [21]

CJ’s Note: A “work made for hire” is a work created by an employee, or it is a commissioned work. A work by an employee must be created during the scope of his/her employment to be considered a work for hire. Whereas a commissioned work is often specified by a contract.

VI. Licensing Requirements

The Copyright Act sets out several statutory and compulsory licensing requirements. These provisions allow certain specified use if the user pays required royalties as per the relevant statutory provision and complies with other statutory and administrative requirements.

The Copyright Act imposes licensing requirements for among other things:

·       Making and distributing phonorecords of any published, non-dramatic, musical work. [22]

·       Certain noncommercial broadcasts of non-dramatic, musical works and pictorial, graphic and sculptural works. [23]

·       Certain secondary transmissions of cable and television systems. [24]

·       Certain digital audio transmissions of sounds recordings. [25]

The Copyright Office’s Licensing Division enforces the Copyright Acts various statutory and compulsory licenses discussed here.

VII. Exclusive Rights

Registering for a copyright provides its owner with a bundle of exclusive rights. The primary benefits granted to a copyright holder are reproduction, adaptation, distribution, public performance and public display.

Reproduction:

The exclusive right to reproduce a work allows the copyright holder to prevent others from copying her work through recordings or any other format or by any other means. This reproduction right generally covers any work that is fixed in a tangible form.

Right to Create Derivative Works

A copyright holder has the exclusive right to make adaptations, or derivative works of the copyrighted work.[26] This can include translation, musical arrangement, dramatization, fictionalization, motion picture making, sound recording, art reproduction, abridgement and condensation. For example, the writer of a non-fictional book about World War II can sell the rights to create a movie from her book.

Distribution:

A copyright owner has the exclusive right to distribute to the public copies or phonorecords of the original protected work.

Distribution, as defined by statute, includes both:

i. The transferring of ownership of tangible copies of the practiced work by any means, and;

ii. Physically transferring custody, but not ownership, of tangible copies, such as rental, lease, and lending. [27]

Payment or other consideration is not required for a transfer to be a distribution. The distribution right prevents others from distributing the work to the public. In addition, as with the reproduction right, distribution only deals with tangible copies.

The U.S. Supreme Court held that delivering electronic copies online constitutes distribution. [28]

The distribution right is limited by the First Sale Doctrine. [29] The copyright owner has the right to control the first sale of the protected work. Once the copy is lawfully sold, the new owner has the right to distribute the title by sale, rental or any other means.

Public Performance:

The copyright owner has the right to allow or restrict the public performances of the work. Copies that are lawfully obtained of a work may be privately performed by the owner of that copy. As per the Copyright Act, performing a work means “to recite, render, play, dance or act it. In addition to live performances, a work may be performed by television, radio or audio player. Only public performances infringe on this right. A public performance is defined as a performance that is made in person at, or transmitted or communicated to, either a place that is open to the public, or a gathering of a substantial number of persons other than family members and acquaintances. [30]

In addition, a performance is considered public regardless of whether the members of the public are in the same place or able to receive it at the same time. For example, an on-demand video stream is a public performance even though it may never be viewed by more than one person at the same time. [31] Downloads have been held not to be performances by the U.S. Court of Appeals but may constitute reproduction and distribution. [32]

Public Display:

The copyright owner’s exclusive right to public display extends to: literary works, musical works, dramatic works, choreographic works and pantomimes and pictorial graphic and sculptural works. [33] Like the right to public performance, only displays that are public constitute infringement. The determination of what is considered public is the same as those for performance. While limited by the first sale doctrine, however, the lawful owner of a copyright may make use of a copyright in some cases without express permission from the copyright holder or the payment of royalties.

VII. Statutory Exceptions

The Copyright Act includes express limits on the creators’ exclusive rights. The main limitations, also called exceptions, include: fair use, the first sale doctrine, archival reproductions and distributions and statutory or compulsory licenses that allow other make certain limited uses of the work in exchange for the payment of a royalty.

Fair Use:

Fair Use is a widely applied limitation on a copyright-owners’ rights. The Copyright Act provides a list of purposes that are permitted as fair use, including: criticism, commentary, news reporting, teaching, scholarship and research.[34] In essence, if a claimed-infringer’s use of a copyright falls into any of the exceptions that constitute “fair use,” there is no infringement. The Copyright Act provides four factors that are considered when determining whether the use of someone else’s copyright is fair. This copyright limitation is a powerful defensive tool that an Amazon Seller could potentially use in a legal proceeding. For more details on the exact inner-workings of this type of defense, see Chapter 6: Defenses to Copyright Infringement on the Amazon Platform.

[1] U.S. Const. art. I § 8, cl. 8.
[2] 17 U.S.C. § 102.
[3] Id.
[4] 17 U.S.C. § 201(a).
[5] 17 U.S.C. § 101.
[6] 17 U.S.C. §§ 401(d), 402(d).
[7] Copyright Act of 1909, supra 10.
[8] Practical Law Intellectual Property & Technology, supra note 41 (quoting 17 U.S.C. § 405).
[9] 17 U.S.C. § 405.
[10] Id.
[11] 17 U.S.C. §§ 401(c), 402(c).
[12] 17 U.S.C. §§ 402(b), 405.
[13] 17 U.S.C. § 408(a).
[14] 17 U.S.C. § 411.
[15] 17 U.S.C. § 412.
[16] 17 U.S.C. § 410 (c).
[17] Practical Law Intellectual Property & Technology, supra note 41.
[18]Id. (quoting 17 U.S.C § 4045(a)).
[19] 17 U.S.C. § 407.
[20] 17 U.S.C. § 302.
[21] 17 U.S.C. § 405(a).
[22] 17 U.S.C. § 115.
[23] 17 U.S.C. § 118.
[24] 17 U.S.C. § 119.
[25] 17 U.S.C. § 114(d)(2).
[26] Practical Law Intellectual Property & Technology, supra note 41 (quoting 17 U.S.C. § 106(3)).
[27] 17 U.S.C. § 106(3).
[28] New York Times Co. v. Tasini, 533 U.S. 482 (2001).
[29] The First Sale Doctrine permits people to buy and re-sell property without permission of the original owner as long as the consumer receives a product that is not materially different from the product delivered by the original owner.
[30]  17 U.S.C. § 101.
[31] Practical Law Intellectual Property & Technology, supra note Error! Bookmark not defined. (quoting U.S. v. Am. Soc. of Composers, Authors, & Publishers, 627 F.3d 64, 74 (2d. Cir. 2010)).
[32] Id. (quoting Am. Soc. of Composers, 627 F.3d at 74-75).
[33] Id.
[34] Id.