title 17 copyrights

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TITLE 17COPYRIGHTS

This title was enacted by act July 30, 1947, ch. 391, 61 Stat. 652, and was revised in its entirety by

Pub. L. 94553, title I, 101, Oct. 19, 1976, 90 Stat. 2541

Chap. Sec.

1. Subject Matter and Scope of Copy-right .................................................... 101

2. Copyright Ownership and Transfer 2013. Duration of Copyright ....................... 3014. Copyright Notice, Deposit, and

Registration ...................................... 4015. Copyright Infringement and Rem-

edies .................................................... 5016. Manufacturing Requirements and

Importation ....................................... 6017. Copyright Office .................................. 7018. Proceedings by Copyright Royalty

Judges ................................................ 8019. Protection of Semiconductor Chip

Products ............................................. 90110. Digital Audio Recording Devices

and Media .......................................... 100111. Sound Recordings and Music Vid-

eos ........................................................ 110112. Copyright Protection and Manage-

ment Systems .................................... 120113. Protection of Original Designs ........ 1301

AMENDMENTS

2004Pub. L. 108419, 3(b), Nov. 30, 2004, 118 Stat.2361, substituted Proceedings by Copyright RoyaltyJudges for Copyright Arbitration Royalty Panels initem relating to chapter 8.

1998Pub. L. 105304, title I, 103(b), title V, 503(a),Oct. 28, 1998, 112 Stat. 2876, 2916, added items relating tochapters 12 and 13.

1997Pub. L. 10580, 12(a)(1), Nov. 13, 1997, 111 Stat.1534, substituted Requirements for Requirement initem relating to chapter 6, Arbitration Royalty Pan-els for Royalty Tribunal in item relating to chapter8, and Semiconductor Chip Products for semi-conductor chip products in item relating to chapter 9,and added item relating to chapter 10.

1994Pub. L. 103465, title V, 512(b), Dec. 8, 1994, 108Stat. 4974, added item relating to chapter 11.

1984Pub. L. 98620, title III, 303, Nov. 8, 1984, 98Stat. 3356, added item relating to chapter 9.

TABLE I

This Table lists the sections of former Title 17, Copy-rights, and indicates the sections of Title 17, as en-acted in 1947, which covered similar and related sub-ject matter.

Title 17Former Sections

Title 171947 Revision Sections

1 .............................................. 12 .............................................. 23 .............................................. 34 .............................................. 45 .............................................. 56 .............................................. 77 .............................................. 88 .............................................. 99 .............................................. 1010 ............................................ 1111 ............................................ 12

TABLE ICONTINUED

Title 17Former Sections


12 ............................................ 1313 ............................................ 1414 ............................................ 1515 ............................................ 1616 ............................................ 1717 ............................................ 1818 ............................................ 1919 ............................................ 2020 ............................................ 2121 ............................................ 2222 ............................................ 2323 ............................................ 2424 ............................................ Rep.25 ............................................ 10126 ............................................ 10227 ............................................ 103

28 ............................................ 10429 ............................................ 10530 ............................................ 10631 ............................................ 10732 ............................................ 10833 ............................................ 10934 ............................................ 11035 ............................................ 11136 ............................................ 11237 ............................................ 11338 ............................................ 11439 ............................................ 11540 ............................................ 11641 ............................................ 2742 ............................................ 2843 ............................................ 2944 ............................................ 3045 ............................................ 3146 ............................................ 3247 ............................................ 20148 ............................................ 20249 ............................................ 20350 ............................................ 20451 ............................................ 20552 ............................................ 20653 ............................................ 207

54 ............................................ 20855 ............................................ 20956 ............................................ 21057 ............................................ 21158 ............................................ 21259 ............................................ 21360 ............................................ 21461 ............................................ 21562 ............................................ 2663 ............................................ 664 ............................................ 665 ............................................ 25

TABLE II

This Table lists the sections of former Title 17, Copy-rights, and indicates the sections of Title 17, as re-vised in 1976, which cover similar and related subjectmatter.


Title 17New Sections

1 .............................................. 106, 1162 .............................................. 3013 .............................................. 102, 1034 .............................................. 1025 .............................................. 1026 .............................................. 1027 .............................................. 1038 .............................................. 104, 105, 3039 .............................................. 10410 ............................................ 40111 ............................................ 41012 ............................................ 408


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Page 2TITLE 17COPYRIGHTS

TABLE IICONTINUED


Title 17New Sections

13 ............................................ 407, 41114 ............................................ 40715 ............................................ 40716 ............................................ 60117 ............................................ 40718 ............................................ 407, 50619 ............................................ 40120 ............................................ 401, 40221 ............................................ 40522 ............................................ 601

23 ............................................ 60124 ............................................ 203, 301 et seq.25 ............................................ 301 et seq.26 ............................................ 10127 ............................................ 109, 20228 ............................................ 201, 20429 ............................................ 20430 ............................................ 20531 ............................................ 20532 ............................................ 201101 ........................................... 412, 501504102 ........................................... Rep. See T. 28 1338103 ........................................... Rep. See F.R. Civ. Proc.104 ........................................... 110, 506105 ........................................... 506106 ........................................... 602107 ........................................... 602108 ........................................... 603109 ........................................... 603110 ........................................... Rep. See T. 28 1338111 ........................................... Rep. See T. 28 1400112 ........................................... 502113 ........................................... 502114 ........................................... 502115 ........................................... 507116 ........................................... 505

201 ........................................... 701(a)202 ........................................... 701(a)203 ........................................... 708(c)204 ........................................... Rep.205 ........................................... 701(c)206 ........................................... 701(b)207 ........................................... 702208 ........................................... 705209 ........................................... 407, 410210 ........................................... 707211 ........................................... 707212 ........................................... 705213 ........................................... 704214 ........................................... 704215 ........................................... 708(a), (b)216 ........................................... 703

PRIOR PROVISIONS

Title 17, as enacted by act July 30, 1947, ch. 391, 61Stat. 652, consisting of sections 1 to 32, 101 to 116, and201 to 216, as amended through 1976, and section 203, asamended by Pub. L. 9594, title IV, 406(a), Aug. 5, 1977,91 Stat. 682, terminated Jan. 1, 1978.

EFFECTIVE DATE

Section 102 of Pub. L. 94553, Oct. 19, 1976, 90 Stat.2598, provided that: This Act [enacting this title andsection 170 of Title 2, The Congress, amending section131 of Title 2, section 290e of Title 15, Commerce andTrade, section 2318 of Title 18, Crimes and CriminalProcedure, section 543 of Title 26, Internal RevenueCode, section 1498 of Title 28, Judiciary and JudicialProcedure, sections 3203 and 3206 of Title 39, PostalService, and sections 505 and 2117 of Title 44, PublicPrinting and Documents, and enacting provisions setout as notes below and under sections 104, 115, 304, 401,407, 410, and 501 of this title] becomes effective on Janu-ary 1, 1978, except as otherwise expressly provided bythis Act, including provisions of the first section of thisAct. The provisions of sections 118, 304(b), and chapter8 of title 17, as amended by the first section of this Act,take effect upon enactment of this Act [Oct. 19, 1976].

SEPARABILITY

Section 115 of Pub. L. 94553, Oct. 19, 1976, 90 Stat.2602, provided that: If any provision of title 17 [thistitle], as amended by the first section of this Act, is de-clared unconstitutional, the validity of the remainderof this title is not affected.

AUTHORIZATION OF APPROPRIATIONS

Section 114 of Pub. L. 94553, Oct. 19, 1976, 90 Stat.2602, provided that: There are hereby authorized to be

appropriated such funds as may be necessary to carryout the purposes of this Act [this title].

LOST AND EXPIRED COPYRIGHTS; RECORDING RIGHTS

Section 103 of Pub. L. 94553, Oct. 19, 1976, 90 Stat.2599, provided that: This Act [enacting this title] doesnot provide copyright protection for any work thatgoes into the public domain before January 1, 1978. Theexclusive rights, as provided by section 106 of title 17 asamended by the first section of this Act, to reproducea work in phonorecords and to distribute phonorecordsof the work, do not extend to any nondramatic musicalwork copyrighted before July 1, 1909.

CHAPTER 1SUBJECT MATTER AND SCOPEOF COPYRIGHT

Sec.

101. Definitions.102. Subject matter of copyright: In general.103. Subject matter of copyright: Compilations

and derivative works.104. Subject matter of copyright: National origin.104A. Copyright in restored works.105. Subject matter of copyright: United States

Government works.106. Exclusive rights in copyrighted works.106A. Rights of certain authors to attribution and

integrity.107. Limitations on exclusive rights: Fair use.108. Limitations on exclusive rights: Reproduc-

tion by libraries and archives.109. Limitations on exclusive rights: Effect of

transfer of particular copy or phonorecord.110. Limitations on exclusive rights: Exemption

of certain performances and displays.111. Limitations on exclusive rights: Secondary

transmissions.112. Limitations on exclusive rights: Ephemeral

recordings.113. Scope of exclusive rights in pictorial, graphic,

and sculptural works.114. Scope of exclusive rights in sound recordings.115. Scope of exclusive rights in nondramatic mu-

sical works: Compulsory license for makingand distributing phonorecords.

116. Negotiated licenses for public performancesby means of coin-operated phonorecordplayers.

[116A. Renumbered.]

117. Limitations on exclusive rights: Computerprograms.118. Scope of exclusive rights: Use of certain

works in connection with noncommercialbroadcasting.

119. Limitations on exclusive rights: Secondarytransmissions of superstations and networkstations for private home viewing.

120. Scope of exclusive rights in architecturalworks.

121. Limitations on exclusive rights: Reproduc-tion for blind or other people with disabil-ities.

122. Limitations on exclusive rights: Secondarytransmissions by satellite carriers withinlocal markets.

AMENDMENTS

2002Pub. L. 107273, div. C, title III, 13210(2)(B),

(3)(B), Nov. 2, 2002, 116 Stat. 1909, substituted Repro-duction for reproduction in item 121 and Limita-tions on exclusive rights: Secondary transmissions bysatellite carriers within local markets for Limita-tions on exclusive rights; secondary transmissions bysatellite carriers within local market in item 122.

1999Pub. L. 106113, div. B, 1000(a)(9) [title I, 1002(c)], Nov. 29, 1999, 113 Stat. 1536, 1501A527, addeditem 122.

1997Pub. L. 10580, 12(a)(2), Nov. 13, 1997, 111 Stat.1534, substituted Limitations on exclusive rights:


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Page 3 TITLE 17COPYRIGHTS 101

Computer programs for Scope of exclusive rights:Use in conjunction with computers and similar infor-mation systems in item 117.

1996Pub. L. 104197, title III, 316(b), Sept. 16, 1996,110 Stat. 2417, added item 121.

1994Pub. L. 103465, title V, 514(c), Dec. 8, 1994, 108Stat. 4981, substituted Copyright in restored worksfor Copyright in certain motion pictures in item104A.

1993Pub. L. 103198, 3(a), (b)(2), Dec. 17, 1993, 107Stat. 2309, renumbered item 116A as 116 and struck outformer item 116 Scope of exclusive rights in nondra-

matic musical works: Compulsory licenses for publicperformances by means of coin-operated phonorecordplayers.

Pub. L. 103182, title III, 334(b), Dec. 8, 1993, 107 Stat.2115, added item 104A.

1990Pub. L. 101650, title VI, 603(b), title VII, 704(b)(1), Dec. 1, 1990, 104 Stat. 5130, 5134, added items106A and 120.

1988Pub. L. 100667, title II, 202(6), Nov. 16, 1988, 102Stat. 3958, added item 119.

Pub. L. 100568, 4(b)(2), Oct. 31, 1988, 102 Stat. 2857,substituted Compulsory licenses for public perform-ances for Public performances in item 116 and addeditem 116A.

101. Definitions

Except as otherwise provided in this title, asused in this title, the following terms and their

variant forms mean the following:An anonymous work is a work on the cop-ies or phonorecords of which no natural personis identified as author.

An architectural work is the design of abuilding as embodied in any tangible mediumof expression, including a building, architec-tural plans, or drawings. The work includesthe overall form as well as the arrangementand composition of spaces and elements in thedesign, but does not include individual stand-ard features.

Audiovisual works are works that consistof a series of related images which are intrin-sically intended to be shown by the use of ma-chines, or devices such as projectors, viewers,or electronic equipment, together with accom-

panying sounds, if any, regardless of the na-ture of the material objects, such as films ortapes, in which the works are embodied.

The Berne Convention is the Conventionfor the Protection of Literary and ArtisticWorks, signed at Berne, Switzerland, on Sep-tember 9, 1886, and all acts, protocols, and re-visions thereto.

The best edition of a work is the edition,published in the United States at any time be-fore the date of deposit, that the Library ofCongress determines to be most suitable forits purposes.

A persons children are that persons im-mediate offspring, whether legitimate or not,and any children legally adopted by that per-son.

A collective work is a work, such as a pe-riodical issue, anthology, or encyclopedia, inwhich a number of contributions, constitutingseparate and independent works in them-selves, are assembled into a collective whole.

A compilation is a work formed by thecollection and assembling of preexisting mate-rials or of data that are selected, coordinated,or arranged in such a way that the resultingwork as a whole constitutes an original work

of authorship. The term compilation in-cludes collective works.

A computer program is a set of state-ments or instructions to be used directly or in-directly in a computer in order to bring abouta certain result.

Copies are material objects, other thanphonorecords, in which a work is fixed by anymethod now known or later developed, andfrom which the work can be perceived, repro-

duced, or otherwise communicated, either di-rectly or with the aid of a machine or device.The term copies includes the material ob-ject, other than a phonorecord, in which thework is first fixed.

A Copyright Royalty Judge is a CopyrightRoyalty Judge appointed under section 802 ofthis title, and includes any individual servingas an interim Copyright Royalty Judge undersuch section.

Copyright owner, with respect to any oneof the exclusive rights comprised in a copy-right, refers to the owner of that particularright.

A work is created when it is fixed in acopy or phonorecord for the first time; wherea work is prepared over a period of time, the

portion of it that has been fixed at any par-ticular time constitutes the work as of thattime, and where the work has been prepared indifferent versions, each version constitutes aseparate work.

A derivative work is a work based uponone or more preexisting works, such as atranslation, musical arrangement, dramatiza-tion, fictionalization, motion picture version,sound recording, art reproduction, abridg-ment, condensation, or any other form inwhich a work may be recast, transformed, oradapted. A work consisting of editorial revi-sions, annotations, elaborations, or othermodifications which, as a whole, represent anoriginal work of authorship, is a derivativework.

A device, machine, or process is onenow known or later developed.A digital transmission is a transmission

in whole or in part in a digital or other non-analog format.

To display a work means to show a copyof it, either directly or by means of a film,slide, television image, or any other device orprocess or, in the case of a motion picture orother audiovisual work, to show individual im-ages nonsequentially.

An establishment is a store, shop, or anysimilar place of business open to the generalpublic for the primary purpose of selling goodsor services in which the majority of the grosssquare feet of space that is nonresidential isused for that purpose, and in which nondra-matic musical works are performed publicly.

A food service or drinking establishmentis a restaurant, inn, bar, tavern, or any othersimilar place of business in which the publicor patrons assemble for the primary purpose ofbeing served food or drink, in which the ma-jority of the gross square feet of space that isnonresidential is used for that purpose, and inwhich nondramatic musical works are per-formed publicly.


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Page 4TITLE 17COPYRIGHTS101

The term financial gain includes receipt,or expectation of receipt, of anything of value,including the receipt of other copyrightedworks.

A work is fixed in a tangible medium ofexpression when its embodiment in a copy orphonorecord, by or under the authority of theauthor, is sufficiently permanent or stable topermit it to be perceived, reproduced, orotherwise communicated for a period of more

than transitory duration. A work consisting ofsounds, images, or both, that are being trans-mitted, is fixed for purposes of this title ifa fixation of the work is being made simulta-neously with its transmission.

The Geneva Phonograms Convention isthe Convention for the Protection of Produc-ers of Phonograms Against Unauthorized Du-plication of Their Phonograms, concluded atGeneva, Switzerland, on October 29, 1971.

The gross square feet of space of an estab-lishment means the entire interior space ofthat establishment, and any adjoining outdoorspace used to serve patrons, whether on a sea-sonal basis or otherwise.

The terms including and such as are il-lustrative and not limitative.

An international agreement is(1) the Universal Copyright Convention;(2) the Geneva Phonograms Convention;(3) the Berne Convention;(4) the WTO Agreement;(5) the WIPO Copyright Treaty;(6) the WIPO Performances and Phono-

grams Treaty; and(7) any other copyright treaty to which the

United States is a party.

A joint work is a work prepared by two ormore authors with the intention that theircontributions be merged into inseparable orinterdependent parts of a unitary whole.

Literary works are works, other thanaudiovisual works, expressed in words, num-bers, or other verbal or numerical symbols or

indicia, regardless of the nature of the mate-rial objects, such as books, periodicals, manu-scripts, phonorecords, film, tapes, disks, orcards, in which they are embodied.

Motion pictures are audiovisual worksconsisting of a series of related images which,when shown in succession, impart an impres-sion of motion, together with accompanyingsounds, if any.

The term motion picture exhibition facil-ity means a movie theater, screening room,or other venue that is being used primarily forthe exhibition of a copyrighted motion pic-ture, if such exhibition is open to the public oris made to an assembled group of viewers out-side of a normal circle of a family and its so-cial acquaintances.

To perform a work means to recite,render, play, dance, or act it, either directlyor by means of any device or process or, in thecase of a motion picture or other audiovisualwork, to show its images in any sequence or tomake the sounds accompanying it audible.

A performing rights society is an associa-tion, corporation, or other entity that licensesthe public performance of nondramatic musi-cal works on behalf of copyright owners of

such works, such as the American Society ofComposers, Authors and Publishers (ASCAP),Broadcast Music, Inc. (BMI), and SESAC, Inc.

Phonorecords are material objects inwhich sounds, other than those accompanyinga motion picture or other audiovisual work,are fixed by any method now known or laterdeveloped, and from which the sounds can beperceived, reproduced, or otherwise commu-nicated, either directly or with the aid of a

machine or device. The term phonorecordsincludes the material object in which thesounds are first fixed.

Pictorial, graphic, and sculptural worksinclude two-dimensional and three-dimen-sional works of fine, graphic, and applied art,photographs, prints and art reproductions,maps, globes, charts, diagrams, models, andtechnical drawings, including architecturalplans. Such works shall include works of artis-tic craftsmanship insofar as their form but nottheir mechanical or utilitarian aspects areconcerned; the design of a useful article, as de-fined in this section, shall be considered a pic-torial, graphic, or sculptural work only if, andonly to the extent that, such design incor-porates pictorial, graphic, or sculptural fea-

tures that can be identified separately from,and are capable of existing independently of,the utilitarian aspects of the article.

For purposes of section 513, a proprietor isan individual, corporation, partnership, orother entity, as the case may be, that owns anestablishment or a food service or drinking es-tablishment, except that no owner or operatorof a radio or television station licensed by theFederal Communications Commission, cablesystem or satellite carrier, cable or satellitecarrier service or programmer, provider of on-line services or network access or the operatorof facilities therefor, telecommunicationscompany, or any other such audio or audio-visual service or programmer now known or asmay be developed in the future, commercial

subscription music service, or owner or opera-tor of any other transmission service, shallunder any circumstances be deemed to be aproprietor.

A pseudonymous work is a work on thecopies or phonorecords of which the author isidentified under a fictitious name.

Publication is the distribution of copiesor phonorecords of a work to the public by saleor other transfer of ownership, or by rental,lease, or lending. The offering to distributecopies or phonorecords to a group of personsfor purposes of further distribution, publicperformance, or public display, constitutespublication. A public performance or displayof a work does not of itself constitute publica-tion.

To perform or display a work publiclymeans(1) to perform or display it at a place open

to the public or at any place where a sub-stantial number of persons outside of a nor-mal circle of a family and its social ac-quaintances is gathered; or

(2) to transmit or otherwise communicatea performance or display of the work to aplace specified by clause (1) or to the public,


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by means of any device or process, whetherthe members of the public capable of receiv-ing the performance or display receive it inthe same place or in separate places and atthe same time or at different times.

Registration, for purposes of sections205(c)(2), 405, 406, 410(d), 411, 412, and 506(e),means a registration of a claim in the originalor the renewed and extended term of copy-right.

Sound recordings are works that resultfrom the fixation of a series of musical, spo-ken, or other sounds, but not including thesounds accompanying a motion picture orother audiovisual work, regardless of the na-ture of the material objects, such as disks,tapes, or other phonorecords, in which theyare embodied.

State includes the District of Columbiaand the Commonwealth of Puerto Rico, andany territories to which this title is made ap-plicable by an Act of Congress.

A transfer of copyright ownership is anassignment, mortgage, exclusive license, orany other conveyance, alienation, or hypo-thecation of a copyright or of any of the exclu-sive rights comprised in a copyright, whether

or not it is limited in time or place of effect,but not including a nonexclusive license.

A transmission program is a body of ma-terial that, as an aggregate, has been producedfor the sole purpose of transmission to thepublic in sequence and as a unit.

To transmit a performance or display is tocommunicate it by any device or processwhereby images or sounds are received beyondthe place from which they are sent.

A treaty party is a country or intergov-ernmental organization other than the UnitedStates that is a party to an internationalagreement.

The United States, when used in a geo-graphical sense, comprises the several States,the District of Columbia and the Common-

wealth of Puerto Rico, and the organized terri-tories under the jurisdiction of the UnitedStates Government.

For purposes of section 411, a work is aUnited States work only if

(1) in the case of a published work, thework is first published

(A) in the United States;(B) simultaneously in the United States

and another treaty party or parties, whoselaw grants a term of copyright protectionthat is the same as or longer than theterm provided in the United States;

(C) simultaneously in the United Statesand a foreign nation that is not a treatyparty; or

(D) in a foreign nation that is not a trea-

ty party, and all of the authors of thework are nationals, domiciliaries, or ha-bitual residents of, or in the case of anaudiovisual work legal entities with head-quarters in, the United States;

(2) in the case of an unpublished work, allthe authors of the work are nationals, domi-ciliaries, or habitual residents of the UnitedStates, or, in the case of an unpublished

audiovisual work, all the authors are legalentities with headquarters in the UnitedStates; or

(3) in the case of a pictorial, graphic, orsculptural work incorporated in a buildingor structure, the building or structure is lo-cated in the United States.

A useful article is an article having an in-trinsic utilitarian function that is not merelyto portray the appearance of the article or to

convey information. An article that is nor-mally a part of a useful article is considered auseful article.

The authors widow or widower is theauthors surviving spouse under the law of theauthors domicile at the time of his or herdeath, whether or not the spouse has later re-married.

The WIPO Copyright Treaty is the WIPOCopyright Treaty concluded at Geneva, Swit-zerland, on December 20, 1996.

The WIPO Performances and PhonogramsTreaty is the WIPO Performances and Phono-grams Treaty concluded at Geneva, Switzer-land, on December 20, 1996.

A work of visual art is(1) a painting, drawing, print, or sculpture,

existing in a single copy, in a limited editionof 200 copies or fewer that are signed andconsecutively numbered by the author, or, inthe case of a sculpture, in multiple cast,carved, or fabricated sculptures of 200 orfewer that are consecutively numbered bythe author and bear the signature or otheridentifying mark of the author; or

(2) a still photographic image produced forexhibition purposes only, existing in a singlecopy that is signed by the author, or in alimited edition of 200 copies or fewer thatare signed and consecutively numbered bythe author.

A work of visual art does not include(A)(i) any poster, map, globe, chart, tech-

nical drawing, diagram, model, applied art,

motion picture or other audiovisual work,book, magazine, newspaper, periodical, database, electronic information service, elec-tronic publication, or similar publication;

(ii) any merchandising item or advertising,promotional, descriptive, covering, or pack-aging material or container;

(iii) any portion or part of any item de-scribed in clause (i) or (ii);

(B) any work made for hire; or(C) any work not subject to copyright pro-

tection under this title.

A work of the United States Governmentis a work prepared by an officer or employee ofthe United States Government as part of thatpersons official duties.

A work made for hire is(1) a work prepared by an employee within

the scope of his or her employment; or(2) a work specially ordered or commis-

sioned for use as a contribution to a collec-tive work, as a part of a motion picture orother audiovisual work, as a translation, asa supplementary work, as a compilation, asan instructional text, as a test, as answermaterial for a test, or as an atlas, if the par-


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ties expressly agree in a written instrumentsigned by them that the work shall be con-sidered a work made for hire. For the pur-pose of the foregoing sentence, a supple-mentary work is a work prepared for publi-cation as a secondary adjunct to a work byanother author for the purpose of introduc-ing, concluding, illustrating, explaining, re-vising, commenting upon, or assisting in theuse of the other work, such as forewords,

afterwords, pictorial illustrations, maps,charts, tables, editorial notes, musical ar-rangements, answer material for tests, bib-liographies, appendixes, and indexes, and aninstructional text is a literary, pictorial,or graphic work prepared for publication andwith the purpose of use in systematic in-structional activities.

In determining whether any work is eligible tobe considered a work made for hire underparagraph (2), neither the amendment con-tained in section 1011(d) of the IntellectualProperty and Communications Omnibus Re-form Act of 1999, as enacted by section1000(a)(9) of Public Law 106113, nor the dele-tion of the words added by that amendment

(A) shall be considered or otherwise givenany legal significance, or

(B) shall be interpreted to indicate con-gressional approval or disapproval of, or ac-quiescence in, any judicial determination,

by the courts or the Copyright Office. Para-graph (2) shall be interpreted as if both section2(a)(1) of the Work Made For Hire and Copy-right Corrections Act of 2000 and section1011(d) of the Intellectual Property and Com-munications Omnibus Reform Act of 1999, asenacted by section 1000(a)(9) of Public Law106113, were never enacted, and without re-gard to any inaction or awareness by the Con-gress at any time of any judicial determina-tions.

The terms WTO Agreement and WTOmember country have the meanings giventhose terms in paragraphs (9) and (10), respec-tively, of section 2 of the Uruguay RoundAgreements Act.

(Pub. L. 94553, title I, 101, Oct. 19, 1976, 90 Stat.2541; Pub. L. 96517, 10(a), Dec. 12, 1980, 94 Stat.3028; Pub. L. 100568, 4(a)(1), Oct. 31, 1988, 102Stat. 2854; Pub. L. 101650, title VI, 602, titleVII, 702, Dec. 1, 1990, 104 Stat. 5128, 5133; Pub. L.102307, title I, 102(b)(2), June 26, 1992, 106 Stat.266; Pub. L. 102563, 3(b), Oct. 28, 1992, 106 Stat.4248; Pub. L. 10439, 5(a), Nov. 1, 1995, 109 Stat.348; Pub. L. 10580, 12(a)(3), Nov. 13, 1997, 111Stat. 1534; Pub. L. 105147, 2(a), Dec. 16, 1997, 111Stat. 2678; Pub. L. 105298, title II, 205, Oct. 27,1998, 112 Stat. 2833; Pub. L. 105304, title I, 102(a), Oct. 28, 1998, 112 Stat. 2861; Pub. L.10644, 1(g)(1), Aug. 5, 1999, 113 Stat. 222; Pub. L.106113, div. B, 1000(a)(9) [title I, 1011(d)], Nov.29, 1999, 113 Stat. 1536, 1501A544; Pub. L. 106379, 2(a), Oct. 27, 2000, 114 Stat. 1444; Pub. L. 107273,div. C, title III, 13210(5), Nov. 2, 2002, 116 Stat.1909; Pub. L. 108419, 4, Nov. 30, 2004, 118 Stat.2361; Pub. L. 1099, title I, 102(c), Apr. 27, 2005,119 Stat. 220.)

HISTORICAL AND REVISION NOTES

HOUSE REPORT NO. 941476

The significant definitions in this section will bementioned or summarized in connection with the provi-sions to which they are most relevant.

REFERENCES IN TEXT

Section 1011(d) of the Intellectual Property and Com-munications Omnibus Reform Act of 1999, referred to indefinition of work made for hire, is section 1000(a)(9)[title I, 1011(d)] of Pub. L. 106113, which amended par.(2) of that definition. See 1999 Amendment note below.

Section 2(a)(1) of the Work Made For Hire and Copy-right Corrections Act of 2000, referred to in definitionof work made for hire, is section 2(a)(1) of Pub. L.106379, which amended par. (2) of that definition. See2000 Amendment note below.

Section 2 of the Uruguay Round Agreements Act, re-ferred to in definitions of WTO Agreement and WTOmember country, is classified to section 3501 of Title19, Customs Duties.

AMENDMENTS

2005Pub. L. 1099 inserted definition of motion pic-ture exhibition facility after definition of Motionpictures.

2004Pub. L. 108419 inserted definition of CopyrightRoyalty Judge after definition of Copies.

2002Pub. L. 107273, 13210(5)(B), transferred defini-tion of Registration to appear after definition of

publicly.Pub. L. 107273, 13210(5)(A), transferred definition of

computer program to appear after definition ofcompilation.

2000Pub. L. 106379, 2(a)(2), in definition of workmade for hire, inserted after par. (2) provisions relat-ing to considerations and interpretations to be used indetermining whether any work is eligible to be consid-ered a work made for hire under par. (2).

Pub. L. 106379, 2(a)(1), in definition of work madefor hire, struck out as a sound recording, after mo-tion picture or other audiovisual work, in par. (2).

1999Pub. L. 106113, which directed the insertion ofas a sound recording, after audiovisual work inpar. (2) of definition relating to work made for hire,was executed by making the insertion after audio-visual work, to reflect the probable intent of Con-gress.

Pub. L. 10644, 1(g)(1)(B), in definition of propri-

etor, substituted For purposes of section 513, a pro-prietor for A proprietor .

Pub. L. 10644, 1(g)(1)(A), transferred definition ofUnited States work to appear after definition ofUnited States.

1998Pub. L. 105304, 102(a)(1), struck out definitionof Berne Convention work.

Pub. L. 105304, 102(a)(2), in definition of country oforigin, substituted For purposes of section 411, awork is a United States work only if for The coun-try of origin of a Berne Convention work, for purposesof section 411, is the United States if in introductoryprovisions, substituted treaty party or parties fornation or nations adhering to the Berne Conventionin par. (1)(B) and is not a treaty party for does notadhere to the Berne Convention in par. (1)(C), (D), andstruck out at end For the purposes of section 411, thecountry of origin of any other Berne Convention workis not the United States.

Pub. L. 105298, 205(1), inserted definitions of estab-lishment and food service or drinking establish-ment.

Pub. L. 105304, 102(a)(3), inserted definition of Ge-neva Phonograms Convention.

Pub. L. 105298, 205(2), inserted definition of grosssquare feet of space.

Pub. L. 105304, 102(a)(4), inserted definition ofinternational agreement.

Pub. L. 105298, 205(3), (4), inserted definitions ofperforming rights society and proprietor.


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Pub. L. 105304, 102(a)(5), inserted definition of termtreaty party.

Pub. L. 105304, 102(a)(6), inserted definition of termWIPO Copyright Treaty.

Pub. L. 105304, 102(a)(7), inserted definition of termWIPO Performances and Phonograms Treaty.

Pub. L. 105304, 102(a)(8), inserted definitions ofterms WTO Agreement and WTO member country.

1997Pub. L. 105147 inserted definition of financialgain.

Pub. L. 10580, in definition of to perform or to dis-play a work publicly, substituted process forprocesss in par. (2).

1995Pub. L. 10439 inserted definition of digitaltransmission.

1992Pub. L. 102563 substituted Except as otherwiseprovided in this title, as used for As used in intro-ductory provisions.

Pub. L. 102307 inserted definition of registration.1990Pub. L. 101650, 702(a), inserted definition of

architectural work.Pub. L. 101650, 702(b), in definition of Berne Con-

vention work added par. (5).Pub. L. 101650, 602, inserted definition of work of

visual art.1988Pub. L. 100568, 4(a)(1)(B), inserted definitions

of The Berne Convention and Berne Conventionwork.

Pub. L. 100568, 4(a)(1)(C), inserted definition ofcountry of origin.

Pub. L. 100568, 4(a)(1)(A), in definition of Pictorial,graphic, and sculptural works substituted diagrams,models, and technical drawings, including architec-tural plans for technical drawings, diagrams, andmodels.

1980Pub. L. 96517 inserted definition of computerprogram.

EFFECTIVE DATE OF 2004 AMENDMENT

Amendment by Pub. L. 108419 effective 6 monthsafter Nov. 30, 2004, subject to transition provisions, seesection 6 of Pub. L. 108419, set out as an EffectiveDate; Transition Provisions note under section 801 ofthis title.


Pub. L. 106379, 2(b)(1), Oct. 27, 2000, 114 Stat. 1444,provided that: The amendments made by this section[amending this section] shall be effective as of Novem-ber 29, 1999.


Pub. L. 106113, div. B, 1000(a)(9) [title I, 1012], Nov.29, 1999, 113 Stat. 1536, 1501A544, provided that: Sec-tions 1001, 1003, 1005, 1007, 1008, 1009, 1010, and 1011 [en-acting sections 338 and 339 of Title 47, Telegraphs, Tele-phones, and Radiotelegraphs, amending this section,sections 111, 119, 501, and 510 of this title, and section325 of Title 47, enacting provisions set out as a noteunder this section and section 325 of Title 47, andamending provisions set out as a note under section 119of this title] (and the amendments made by such sec-tions) shall take effect on the date of the enactment ofthis Act [Nov. 29, 1999]. The amendments made by sec-tions 1002, 1004, and 1006 [enacting section 122 of thistitle and amending sections 119 and 501 of this title]shall be effective as of July 1, 1999.

EFFECTIVE DATE OF 1998 AMENDMENTS

Pub. L. 105304, title I, 105, Oct. 28, 1998, 112 Stat.2877, provided that:

(a) IN GENERAL.Except as otherwise provided inthis title [see section 101 of Pub. L. 105304, set out asa Short Title of 1998 Amendments note below], thistitle and the amendments made by this title shall takeeffect on the date of the enactment of this Act [Oct. 28,1998].

(b) AMENDMENTS RELATING TO CERTAIN INTER-

NATIONAL AGREEMENTS.(1) The following shall take ef-

fect upon the entry into force of the WIPO CopyrightTreaty with respect to the United States [Mar. 6, 2002]:

(A) Paragraph (5) of the definition of inter-national agreement contained in section 101 of title17, United States Code, as amended by section102(a)(4) of this Act.

(B) The amendment made by section 102(a)(6) ofthis Act [amending this section].

(C) Subparagraph (C) of section 104A(h)(1) of title17, United States Code, as amended by section102(c)(1) of this Act.

(D) Subparagraph (C) of section 104A(h)(3) of title17, United States Code, as amended by section102(c)(2) of this Act.(2) The following shall take effect upon the entry

into force of the WIPO Performances and PhonogramsTreaty with respect to the United States [May 20, 2002]:

(A) Paragraph (6) of the definition of inter-national agreement contained in section 101 of title17, United States Code, as amended by section102(a)(4) of this Act.

(B) The amendment made by section 102(a)(7) ofthis Act [amending this section].

(C) The amendment made by section 102(b)(2) ofthis Act [amending section 104 of this title].

(D) Subparagraph (D) of section 104A(h)(1) of title17, United States Code, as amended by section102(c)(1) of this Act.

(E) Subparagraph (D) of section 104A(h)(3) of title17, United States Code, as amended by section102(c)(2) of this Act.

(F) The amendments made by section 102(c)(3) ofthis Act [amending section 104A of this title].Pub. L. 105298, title II, 207, Oct. 27, 1998, 112 Stat.

2834, provided that: This title [enacting section 512 ofthis title, amending this section and sections 110 and504 of this title, and enacting provisions set out asnotes under this section] and the amendments made bythis title shall take effect 90 days after the date of theenactment of this Act [Oct. 27, 1998].


Section 6 of Pub. L. 10439 provided that: This Act[see Short Title of 1995 Amendment note below] and theamendments made by this Act shall take effect 3months after the date of enactment of this Act [Nov. 1,1995], except that the provisions of sections 114(e) and114(f) of title 17, United States Code (as added by sec-tion 3 of this Act) shall take effect immediately uponthe date of enactment of this Act.


Section 102(g) of Pub. L. 102307, as amended by Pub.L. 105298, title I, 102(d)(2)(B), Oct. 27, 1998, 112 Stat.2828, provided that:

(1) Subject to paragraphs (2) and (3), this section[amending this section and sections 304, 408, 409, and 708of this title and enacting provisions set out as a noteunder section 304 of this title] and the amendmentsmade by this section shall take effect on the date of theenactment of this Act [June 26, 1992].

(2) The amendments made by this section shallapply only to those copyrights secured between Janu-ary 1, 1964, and December 31, 1977. Copyrights securedbefore January 1, 1964, shall be governed by the provi-sions of section 304(a) of title 17, United States Code, asin effect on the day before the effective date of this sec-tion [June 26, 1992], except each reference to forty-seven years in such provisions shall be deemed to be 67years.

(3) This section and the amendments made by thissection shall not affect any court proceedings pendingon the effective date of this section.


Amendment by section 602 of Pub. L. 101650 effective6 months after Dec. 1, 1990, see section 610 of Pub. L.101650, set out as an Effective Date note under section106A of this title.


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this title and provisions set out as a note under section512 of this title] may be cited as the Online CopyrightInfringement Liability Limitation Act.

Pub. L. 105304, title III, 301, Oct. 28, 1998, 112 Stat.2886, provided that: This title [amending section 117 ofthis title] may be cited as the Computer MaintenanceCompetition Assurance Act.

Pub. L. 105304, title V, 501, Oct. 28, 1998, 112 Stat.2905, provided that: This Act [probably means thistitle, enacting chapter 13 of this title and amendingsections 1338, 1400, and 1498 of Title 28, Judiciary andJudicial Procedure] may be referred to as the Vessel

Hull Design Protection Act.Pub. L. 105298, title I, 101, Oct. 27, 1998, 112 Stat.

2827, provided that: This title [amending sections 108,203, and 301 to 304 of this title, enacting provisions setout as a note under section 108 of this title, and amend-ing provisions set out as notes under this section andsection 304 of this title] may be referred to as theSonny Bono Copyright Term Extension Act.

Pub. L. 105298, title II, 201, Oct. 27, 1998, 112 Stat.2830, provided that: This title [enacting section 512 ofthis title, amending this section and sections 110 and504 of this title, and enacting provisions set out asnotes under this section] may be cited as the FairnessIn Music Licensing Act of 1998.

SHORT TITLE OF 1995 AMENDMENT

Section 1 of Pub. L. 10439 provided that: This Act[amending this section and sections 106, 111, 114, 115,119, and 801 to 803 of this title and enacting provisions

set out as a note above] may be cited as the DigitalPerformance Right in Sound Recordings Act of 1995.


Pub. L. 103369, 1, Oct. 18, 1994, 108 Stat. 3477, pro-vided that: This Act [amending sections 111 and 119 ofthis title and enacting and repealing provisions set outas notes under section 119 of this title] may be cited asthe Satellite Home Viewer Act of 1994.


Pub. L. 103198, 1, Dec. 17, 1993, 107 Stat. 2304, pro-vided that: This Act [amending sections 111, 116, 118,119, 801 to 803, 1004 to 1007, and 1010 of this title and sec-tion 1288 of Title 8, Aliens and Nationality, renumber-ing sections 116A and 804 of this title as sections 116 and803, respectively, of this title, repealing sections 116,803, and 805 to 810 of this title, and enacting provisionsset out as notes under section 801 of this title and sec-

tion 1288 of Title 8] may be cited as the Copyright Roy-alty Tribunal Reform Act of 1993.

SHORT TITLE OF 1992 AMENDMENTS

Pub. L. 102563, 1, Oct. 28, 1992, 106 Stat. 4237, pro-vided that: This Act [enacting chapter 10 of this title,amending this section, sections 801, 804, and 912 of thistitle, and section 1337 of Title 19, Customs Duties, andenacting provisions set out as a note under section 1001of this title] may be cited as the Audio Home Record-ing Act of 1992.

Section 1 of Pub. L. 102307 provided that: This Act[enacting sections 179 to 179k of Title 2, The Congress,amending this section and sections 108, 304, 408, 409, and708 of this title, repealing sections 178 to 178l of Title 2,enacting provisions set out as notes under this section,section 304 of this title, and section 179 of Title 2, andrepealing provisions set out as a note under section 178of Title 2] may be cited as the Copyright Amendments

Act of 1992.Section 101 of title I of Pub. L. 102307 provided that:This title [amending this section and sections 304, 408,409, and 708 of this title and enacting provisions set outas notes under this section and section 304 of this title]may be referred to as the Copyright Renewal Act of1992.


Pub. L. 10264, 1, June 28, 1991, 105 Stat. 320, providedthat: This Act [amending section 914 of this title and

enacting provisions set out as a note under section 914of this title] may be cited as the Semiconductor Inter-national Protection Extension Act of 1991.


Section 601 of title VI of Pub. L. 101650 providedthat: This title [enacting section 106A of this title,amending this section and sections 107, 113, 301, 411, 412,501, and 506 of this title, and enacting provisions set outas notes under this section and section 106A of thistitle] may be cited as the Visual Artists Rights Act of1990.

Section 701 of title VII of Pub. L. 101650 providedthat: This title [enacting section 120 of this title,amending this section and sections 102, 106, and 301 ofthis title, and enacting provisions set out as a noteabove] may be cited as the Architectural Works Copy-right Protection Act.

Section 801 of title VIII of Pub. L. 101650 providedthat: This title [amending section 109 of this title andenacting provisions set out as notes under sections 109and 205 of this title] may be cited as the ComputerSoftware Rental Amendments Act of 1990.

Pub. L. 101553, 1, Nov. 15, 1990, 104 Stat. 2749, pro-vided that: This Act [enacting section 511 of this title,amending sections 501, 910, and 911 of this title, and en-acting provisions set out as a note under section 501 ofthis title] may be cited as the Copyright Remedy Clar-ification Act.

Pub. L. 101319, 1, July 3, 1990, 104 Stat. 290, providedthat: This Act [amending sections 701 and 802 of thistitle and sections 5315 and 5316 of Title 5, GovernmentOrganization and Employees, and enacting provisionsset out as a note under section 701 of this title] may becited as the Copyright Royalty Tribunal Reform andMiscellaneous Pay Act of 1989.

Pub. L. 101318, 1, July 3, 1990, 104 Stat. 287, providedthat: This Act [amending sections 106, 111, 704, 708, 801,and 804 of this title and enacting provisions set out asnotes under sections 106, 111, 708, and 804 of this title]may be cited as the Copyright Fees and TechnicalAmendments Act of 1989.


Pub. L. 100667, title II, 201, Nov. 16, 1988, 102 Stat.3949, provided that: This title [enacting section 119 ofthis title and sections 612 and 613 of Title 47, Tele-graphs, Telephones, and Radiotelegraphs, amendingsections 111, 501, 801, and 804 of this title and section 605of Title 47, and enacting provisions set out as notesunder section 119 of this title] may be cited as the Sat-ellite Home Viewer Act of 1988. [Section ceases to beeffective Dec. 31, 1994, see section 207 of Pub. L. 100667,set out as an Effective and Termination Dates noteunder section 119 of this title.]

Section 1(a) of Pub. L. 100568 provided that: ThisAct [enacting section 116A of this title, amending thissection and sections 104, 116, 205, 301, 401 to 408, 411, 501,504, 801, and 804 of this title, and enacting provisions setout as notes under this section] may be cited as theBerne Convention Implementation Act of 1988.


Pub. L. 98620, title III, 301, Nov. 8, 1984, 98 Stat. 3347,provided that: This title [enacting chapter 9 of thistitle] may be cited as the Semiconductor Chip Protec-tion Act of 1984.

Pub. L. 98450, 1, Oct. 4, 1984, 98 Stat. 1727, providedthat: This Act [amending sections 109 and 115 of thistitle and enacting provisions set out as a note undersection 109 of this title] may be cited as the RecordRental Amendment of 1984.

SEVERABILITY

Pub. L. 106379, 2(b)(2), Oct. 27, 2000, 114 Stat. 1444,provided that: If the provisions of paragraph (1) [seeEffective Date of 2000 Amendment note above], or anyapplication of such provisions to any person or circum-stance, is held to be invalid, the remainder of this sec-


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tion [amending this section and enacting provisions setout as a note above], the amendments made by this sec-tion, and the application of this section to any otherperson or circumstance shall not be affected by such in-validation.

CONSTRUCTION OF 1998 AMENDMENT

Pub. L. 105298, title II, 206, Oct. 27, 1998, 112 Stat.2834, provided that: Except as otherwise provided inthis title [enacting section 512 of this title, amendingthis section and sections 110 and 504 of this title, andenacting provisions set out as notes under this section],nothing in this title shall be construed to relieve anyperforming rights society of any obligation under anyState or local statute, ordinance, or law, or consent de-cree or other court order governing its operation, assuch statute, ordinance, law, decree, or order is in ef-fect on the date of the enactment of this Act [Oct. 27,1998], as it may be amended after such date, or as itmay be issued or agreed to after such date.

FIRST AMENDMENT APPLICATION

Section 609 of title VI of Pub. L. 101650 providedthat: This title [see Short Title of 1990 Amendmentsnote above] does not authorize any governmental en-tity to take any action or enforce restrictions prohib-ited by the First Amendment to the United States Con-stitution.

BERNE CONVENTION; CONGRESSIONAL DECLARATIONS

Section 2 of Pub. L. 100568 provided that: The Con-gress makes the following declarations:(1) The Convention for the Protection of Literary

and Artistic Works, signed at Berne, Switzerland, onSeptember 9, 1886, and all acts, protocols, and revi-sions thereto (hereafter in this Act [see Short Title of1988 Amendment note above] referred to as the BerneConvention) are not self-executing under the Con-stitution and laws of the United States.

(2) The obligations of the United States under theBerne Convention may be performed only pursuant toappropriate domestic law.

(3) The amendments made by this Act, togetherwith the law as it exists on the date of the enactmentof this Act [Oct. 31, 1988], satisfy the obligations ofthe United States in adhering to the Berne Conven-tion and no further rights or interests shall be recog-nized or created for that purpose.

BERNE CONVENTION; CONSTRUCTION

Section 3 of Pub. L. 100568 provided that:(a) RELATIONSHIP WITH DOMESTIC LAW.The provi-

sions of the Berne Convention(1) shall be given effect under title 17, as amended

by this Act [see Short Title of 1988 Amendment noteabove], and any other relevant provision of Federal orState law, including the common law; and

(2) shall not be enforceable in any action broughtpursuant to the provisions of the Berne Conventionitself.(b) CERTAIN RIGHTS NOT AFFECTED.The provisions

of the Berne Convention, the adherence of the UnitedStates thereto, and satisfaction of United States obli-gations thereunder, do not expand or reduce any rightof an author of a work, whether claimed under Federal,State, or the common law

(1) to claim authorship of the work; or(2) to object to any distortion, mutilation, or

other modification of, or other derogatory action inrelation to, the work, that would prejudice the au-thors honor or reputation.

WORKS IN PUBLIC DOMAIN WITHOUT COPYRIGHTPROTECTION

Section 12 of Pub. L. 100568 provided that: Title 17,United States Code, as amended by this Act [see ShortTitle of 1988 Amendment note above], does not providecopyright protection for any work that is in the publicdomain in the United States.

DEFINITIONS

Pub. L. 103465, title V, 501, Dec. 8, 1994, 108 Stat.4973, provided that: For purposes of this title [enact-ing section 1101 of this title and section 2319A of Title18, Crimes and Criminal Procedure, amending sections104A and 109 of this title, sections 1052 and 1127 of Title15, Commerce and Trade, and sections 41, 104, 111, 119,154, 156, 172, 173, 252, 262, 271, 272, 287, 292, 295, 307, 365,and 373 of Title 35, Patents, enacting provisions set outas notes under section 1052 of Title 15 and sections 104and 154 of Title 35, and amending provisions set out as

a note under section 109 of this title](1) the term WTO Agreement has the meaning

given that term in section 2(9) of the Uruguay RoundAgreements Act [19 U.S.C. 3501(9)]; and

(2) the term WTO member country has the mean-ing given that term in section 2(10) of the UruguayRound Agreements Act.

102. Subject matter of copyright: In general

(a) Copyright protection subsists, in accord-ance with this title, in original works of author-ship fixed in any tangible medium of expression,now known or later developed, from which theycan be perceived, reproduced, or otherwise com-municated, either directly or with the aid of amachine or device. Works of authorship includethe following categories:

(1) literary works;(2) musical works, including any accompany-

ing words;(3) dramatic works, including any accom-

panying music;(4) pantomimes and choreographic works;(5) pictorial, graphic, and sculptural works;(6) motion pictures and other audiovisual

works;(7) sound recordings; and(8) architectural works.

(b) In no case does copyright protection for anoriginal work of authorship extend to any idea,procedure, process, system, method of operation,concept, principle, or discovery, regardless ofthe form in which it is described, explained, il-lustrated, or embodied in such work.

(Pub. L. 94553, title I, 101, Oct. 19, 1976, 90 Stat.2544; Pub. L. 101650, title VII, 703, Dec. 1, 1990,104 Stat. 5133.)



Original Works of Authorship. The two fundamentalcriteria of copyright protectionoriginality and fixa-tion in tangible form are restated in the first sentenceof this cornerstone provision. The phrase originalworks or authorship, which is purposely left unde-fined, is intended to incorporate without change thestandard of originality established by the courts underthe present copyright statute. This standard does notinclude requirements of novelty, ingenuity, or estheticmerit, and there is no intention to enlarge the standardof copyright protection to require them.

In using the phrase original works of authorship,rather than all the writings of an author now in sec-tion 4 of the statute [section 4 of former title 17], thecommittees purpose is to avoid exhausting the con-stitutional power of Congress to legislate in this field,and to eliminate the uncertainties arising from the lat-ter phrase. Since the present statutory language is sub-stantially the same as the empowering language of theConstitution [Const. Art. I, 8, cl. 8], a recurring ques-tion has been whether the statutory and the constitu-tional provisions are coextensive. If so, the courts


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would be faced with the alternative of holding copy-rightable something that Congress clearly did not in-tend to protect, or of holding constitutionally incapa-ble of copyright something that Congress might oneday want to protect. To avoid these equally undesirableresults, the courts have indicated that all the writingsof an author under the present statute is narrower inscope than the writings of authors referred to inthe Constitution. The bill avoids this dilemma by usinga different phraseoriginal works of authorshipincharacterizing the general subject matter of statutorycopyright protection.

The history of copyright law has been one of gradualexpansion in the types of works accorded protection,and the subject matter affected by this expansion hasfallen into two general categories. In the first, sci-entific discoveries and technological developmentshave made possible new forms of creative expressionthat never existed before. In some of these cases thenew expressive formselectronic music, filmstrips, andcomputer programs, for examplecould be regarded asan extension of copyrightable subject matter Congresshad already intended to protect, and were thus consid-ered copyrightable from the outset without the need ofnew legislation. In other cases, such as photographs,sound recordings, and motion pictures, statutory en-actment was deemed necessary to give them full rec-ognition as copyrightable works.

Authors are continually finding new ways of express-ing themselves, but it is impossible to foresee theforms that these new expressive methods will take. The

bill does not intend either to freeze the scope of copy-rightable subject matter at the present stage of com-munications technology or to allow unlimited expan-sion into areas completely outside the present congres-sional intent. Section 102 implies neither that that sub-ject matter is unlimited nor that new forms of expres-sion within that general area of subject matter wouldnecessarily be unprotected.

The historic expansion of copyright has also appliedto forms of expression which, although in existence forgenerations or centuries, have only gradually come tobe recognized as creative and worthy of protection. Thefirst copyright statute in this country, enacted in 1790,designated only maps, charts, and books; majorforms of expression such as music, drama, and works ofart achieved specific statutory recognition only inlater enactments. Although the coverage of the presentstatute is very broad, and would be broadened furtherby the explicit recognition of all forms of choreog-

raphy, there are unquestionably other areas of existingsubject matter that this bill does not propose to pro-tect but that future Congresses may want to.

Fixation in Tangible Form. As a basic condition ofcopyright protection, the bill perpetuates the existingrequirement that a work be fixed in a tangible me-dium of expression, and adds that this medium may beone now known or later developed, and that the fixa-tion is sufficient if the work can be perceived, repro-duced, or otherwise communicated, either directly orwith the aid of a machine or device. This broad lan-guage is intended to avoid the artificial and largely un-justifiable distinctions, derived from cases such asWhite-Smith Publishing Co. v. Apollo Co., 209 U.S. 1 (1908)[28 S.Ct. 319, 52 L.Ed. 655], under which statutorycopyrightability in certain cases has been made to de-pend upon the form or medium in which the work isfixed. Under the bill it makes no difference what theform, manner, or medium of fixation may bewhether

it is in words, numbers, notes, sounds, pictures, or anyother graphic or symbolic indicia, whether embodied ina physical object in written, printed, photographic,sculptural, punched, magnetic, or any other stableform, and whether it is capable of perception directlyor by means of any machine or device now known orlater developed.

Under the bill, the concept of fixation is importantsince it not only determines whether the provisions ofthe statute apply to a work, but it also represents thedividing line between common law and statutory pro-

tection. As will be noted in more detail in connectionwith section 301, an unfixed work of authorship, such asan improvisation or an unrecorded choreographic work,performance, or broadcast, would continue to be sub-ject to protection under State common law or statute,but would not be eligible for Federal statutory protec-tion under section 102.

The bill seeks to resolve, through the definition offixation in section 101, the status of live broadcastssports, news coverage, live performances of music,etc.that are reaching the public in unfixed form butthat are simultaneously being recorded. When a foot-

ball game is being covered by four television cameras,with a director guiding the activities of the four cam-eramen and choosing which of their electronic imagesare sent out to the public and in what order, there islittle doubt that what the cameramen and the directorare doing constitutes authorship. The further ques-tion to be considered is whether there has been a fixa-tion. If the images and sounds to be broadcast are firstrecorded (on a video tape, film, etc.) and then transmit-ted, the recorded work would be considered a motionpicture subject to statutory protection against unau-thorized reproduction or retransmission of the broad-cast. If the program content is transmitted live to thepublic while being recorded at the same time, the casewould be treated the same; the copyright owner wouldnot be forced to rely on common law rather than statu-tory rights in proceeding against an infringing user ofthe live broadcast.

Thus, assuming it is copyrightableas a motion pic-

ture or sound recording, for examplethe contentof a live transmission should be regarded as fixed andshould be accorded statutory protection if it is beingrecorded simultaneously with its transmission. On theother hand, the definition of fixation would excludefrom the concept purely evanescent or transient repro-ductions such as those projected briefly on a screen,shown electronically on a television or other cathoderay tube, or captured momentarily in the memory ofa computer.

Under the first sentence of the definition of fixedin section 101, a work would be considered fixed in atangible medium of expression if there has been an au-thorized embodiment in a copy or phonorecord and ifthat embodiment is sufficiently permanent or stableto permit the work to be perceived, reproduced, orotherwise communicated for a period of more thantransitory duration. The second sentence makes clearthat, in the case of a work consisting of sounds, im-

ages, or both, that are being transmitted, the work isregarded as fixed if a fixation is being made at thesame time as the transmission.

Under this definition copies and phonorecordstogether will comprise all of the material objects inwhich copyrightable works are capable of being fixed.The definitions of these terms in section 101, togetherwith their usage in section 102 and throughout the bill,reflect a fundamental distinction between the originalwork which is the product of authorship and themultitude of material objects in which it can be em-bodied. Thus, in the sense of the bill, a book is nota work of authorship, but is a particular kind ofcopy. Instead, the author may write a literarywork, which in turn can be embodied in a wide rangeof copies and phonorecords, including books, peri-odicals, computer punch cards, microfilm, tape record-ings, and so forth. It is possible to have an originalwork of authorship without having a copy or

phonorecord embodying it, and it is also possible tohave a copy or phonorecord embodying somethingthat does not qualify as an original work of author-ship. The two essential elementsoriginal work andtangible objectmust merge through fixation in orderto produce subject matter copyrightable under thestatute.

Categories of Copyrightable Works. The second sen-tence of section 102 lists seven broad categories whichthe concept of works of authorship is said to in-clude. The use of the word include, as defined in


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section 101, makes clear that the listing is illustrativeand not limitative, and that the seven categories donot necessarily exhaust the scope of original works ofauthorship that the bill is intended to protect. Rath-er, the list sets out the general area of copyrightablesubject matter, but with sufficient flexibility to freethe courts from rigid or outmoded concepts of the scopeof particular categories. The items are also overlappingin the sense that a work falling within one class mayencompass works coming within some or all of theother categories. In the aggregate, the list covers allclasses of works now specified in section 5 of title 17

[section 5 of former title 17]; in addition, it specificallyenumerates pantomimes and choreographic works.

Of the seven items listed, four are defined in section101. The three undefined categoriesmusical works,dramatic works, and pantomimes and choreo-graphic workshave fairly settled meanings. There isno need, for example, to specify the copyrightability ofelectronic or concrete music in the statute since theform of a work would no longer be of any importance,nor is it necessary to specify that choreographicworks do not include social dance steps and simpleroutines.

The four items defined in section 101 are literaryworks, pictorial, graphic, and sculptural works,motion pictures and audiovisual works, and soundrecordings. In each of these cases, definitions areneeded not only because the meaning of the term itselfis unsettled but also because the distinction betweenwork and material object requires clarification.

The term literary works does not connote any cri-terion of literary merit or qualitative value: it includescatalogs, directories, and similar factual, reference, orinstructional works and compilations of data. It alsoincludes computer data bases, and computer programsto the extent that they incorporate authorship in theprogrammers expression of original ideas, as distin-guished from the ideas themselves.

Correspondingly, the definition of pictorial, graphic,and sculptural works carries with it no implied cri-terion of artistic taste, aesthetic value, or intrinsicquality. The term is intended to comprise not onlyworks of art in the traditional sense but also worksof graphic art and illustration, art reproductions, plansand drawings, photographs and reproductions of them,maps, charts, globes, and other cartographic works,works of these kinds intended for use in advertisingand commerce, and works of applied art. There is nointention whatever to narrow the scope of the subjectmatter now characterized in section 5(k) [section 5(k)

of former title 17] as prints or labels used for articlesof merchandise. However, since this terminology sug-gests the material object in which a work is embodiedrather than the work itself, the bill does not mentionthis category separately.

In accordance with the Supreme Courts decision inMazer v. Stein, 347 U.S. 201 (1954) [74 S.Ct. 460, 98 L. Ed.630, rehearing denied 74 S.Ct. 637, 347 U.S. 949, 98 L.Ed.1096], works of applied art encompass all original pic-torial, graphic, and sculptural works that are intendedto be or have been embodied in useful articles, regard-less of factors such as mass production, commercial ex-ploitation, and the potential availability of design pat-ent protection. The scope of exclusive rights in theseworks is given special treatment in section 113, to bediscussed below.

The Committee has added language to the definitionof pictorial, graphic, and sculptural works in an ef-fort to make clearer the distinction between works of

applied art protectable under the bill and industrial de-signs not subject to copyright protection. The declara-tion that pictorial, graphic, and sculptural works in-clude works of artistic craftsmanship insofar as theirform but not their mechanical or utilitarian aspectsare concerned is classic language; it is drawn fromCopyright Office regulations promulgated in the 1940sand expressly endorsed by the Supreme Court in theMazer case.

The second part of the amendment states that thedesign of a useful article * * * shall be considered a pic-

torial, graphic, or sculptural work only if, and only tothe extent that, such design incorporates pictorial,graphic, or sculptural features that can be identifiedseparately from, and are capable of existing independ-ently of, the utilitarian aspects of the article. A use-ful article is defined as an article having an intrinsicutilitarian function that is not merely to portray theappearance of the article or to convey information.This part of the amendment is an adaptation of lan-guage added to the Copyright Office Regulations in themid-1950s in an effort to implement the SupremeCourts decision in the Mazer case.

In adopting this amendatory language, the Commit-tee is seeking to draw as clear a line as possible be-tween copyrightable works of applied art and uncopy-righted works of industrial design. A two-dimensionalpainting, drawing, or graphic work is still capable ofbeing identified as such when it is printed on or appliedto utilitarian articles such as textile fabrics, wallpaper,containers, and the like. The same is true when a stat-ue or carving is used to embellish an industrial productor, as in the Mazer case, is incorporated into a productwithout losing its ability to exist independently as awork of art. On the other hand, although the shape ofan industrial product may be aesthetically satisfyingand valuable, the Committees intention is not to offerit copyright protection under the bill. Unless the shapeof an automobile, airplane, ladies dress, food proc-essor, television set, or any other industrial productcontains some element that, physically or concep-tually, can be identified as separable from the utilitar-

ian aspects of that article, the design would not becopyrighted under the bill. The test of separability andindependence from the utilitarian aspects of the arti-cle does not depend upon the nature of the designthat is, even if the appearance of an article is deter-mined by aesthetic (as opposed to functional) consider-ations, only elements, if any, which can be identifiedseparately from the useful article as such are copy-rightable. And, even if the three-dimensional designcontains some such element (for example, a carving onthe back of a chair or a floral relief design on silverflatware), copyright protection would extend only tothat element, and would not cover the over-all configu-ration of the utilitarian article as such.

A special situation is presented by architecturalworks. An architects plans and drawings would, ofcourse, be protected by copyright, but the extent towhich that protection would extend to the structuredepicted would depend on the circumstances. Purely

nonfunctional or monumental structures would be sub-ject to full copyright protection under the bill, and thesame would be true of artistic sculpture or decorativeornamentation or embellishment added to a structure.On the other hand, where the only elements of shape inan architectural design are conceptually inseparablefrom the utilitarian aspects of the structure, copyrightprotection for the design would not be available.

The Committee has considered, but chosen to defer,the possibility of protecting the design of typefaces. Atypeface can be defined as a set of letters, numbers,or other symbolic characters, whose forms are relatedby repeating design elements consistently applied in anotational system and are intended to be embodied inarticles whose intrinsic utilitarian function is for usein composing text or other cognizable combinations ofcharacters. The Committee does not regard the designof typeface, as thus defined, to be a copyrightable pic-torial, graphic, or sculptural work within the meaning

of this bill and the application of the dividing line insection 101.Enactment of Public Law 92140 in 1971 [Pub. L.

92140, Oct. 15, 1971, 85 Stat. 391, which amended sec-tions 1, 5, 19, 20, 26, and 101 of former title 17, and en-acted provisions set out as a note under section 1 offormer title 17] marked the first recognition in Amer-ican copyright law of sound recordings as copyrightableworks. As defined in section 101, copyrightable soundrecordings are original works of authorship compris-ing an aggregate of musical, spoken, or other sounds


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that have been fixed in tangible form. The copyright-able work comprises the aggregation of sounds and notthe tangible medium of fixation. Thus, sound record-ings as copyrightable subject matter are distinguishedfrom phonorecords, the latter being physical objectsin which sounds are fixed. They are also distinguishedfrom any copyrighted literary, dramatic, or musicalworks that may be reproduced on a phonorecord.

As a class of subject matter, sound recordings areclearly within the scope of the writings of an authorcapable of protection under the Constitution [Const.Art. I, 8, cl. 8], and the extension of limited statutory

protection to them was too long delayed. Aside fromcases in which sounds are fixed by some purely mechan-ical means without originality of any kind, the copy-right protection that would prevent the reproductionand distribution of unauthorized phonorecords of soundrecordings is clearly justified.

The copyrightable elements in a sound recording willusually, though not always, involve authorship bothon the part of the performers whose performance is cap-tured and on the part of the record producer respon-sible for setting up the recording session, capturing andelectronically processing the sounds, and compilingand editing them to make the final sound recording.There may, however, be cases where the record produc-ers contribution is so minimal that the performance isthe only copyrightable element in the work, and theremay be cases (for example, recordings of birdcalls,sounds of racing cars, et cetera) where only the recordproducers contribution is copyrightable.

Sound tracks of motion pictures, long a nebulousarea in American copyright law, are specifically in-cluded in the definition of motion pictures, and ex-cluded in the definition of sound recordings. To be amotion picture, as defined, requires three elements:(1) a series of images, (2) the capability of showing theimages in certain successive order, and (3) an impres-sion of motion when the images are thus shown. Cou-pled with the basic requirements of original authorshipand fixation in tangible form, this definition encom-passes a wide range of cinematographic works em-bodied in films, tapes, video disks, and other media.However, it would not include: (1) unauthorized fixa-tions of live performances or telecasts, (2) live telecaststhat are not fixed simultaneously with their trans-mission, or (3) filmstrips and slide sets which, althoughconsisting of a series of images intended to be shown insuccession, are not capable of conveying an impressionof motion.

On the other hand, the bill equates audiovisual mate-rials such as filmstrips, slide sets, and sets of trans-parencies with motion pictures rather than withpictorial, graphic, and sculptural works. Their se-quential showing is closer to a performance than toa display, and the definition of audiovisual works,which applies also to motion pictures, embracesworks consisting of a series of related images that areby their nature, intended for showing by means of pro-jectors or other devices.

Nature of Copyright. Copyright does not preclude oth-ers from using the ideas or information revealed by theauthors work. It pertains to the literary, musical,graphic, or artistic form in which the author expressedintellectual concepts. Section 102(b) makes clear thatcopyright protection does not extend to any idea, pro-cedure, process, system, method of operation, concept,principle, or discovery, regardless of the form in whichit is described, explained, illustrated, or embodied in

such work.Some concern has been expressed lest copyright incomputer programs should extend protection to themethodology or processes adopted by the programmer,rather than merely to the writing expressing hisideas. Section 102(b) is intended, among other things, tomake clear that the expression adopted by the pro-grammer is the copyrightable element in a computerprogram, and that the actual processes or methods em-bodied in the program are not within the scope of thecopyright law.

Section 102(b) in no way enlarges or contracts thescope of copyright protection under the present law. Itspurpose is to restate, in the context of the new singleFederal system of copyright, that the basic dichotomybetween expression and idea remains unchanged.

AMENDMENTS

1990Subsec. (a)(8). Pub. L. 101650 added par. (8).


Amendment by Pub. L. 101650 applicable to any ar-

chitectural work created on or after Dec. 1, 1990, andany architectural work, that, on Dec. 1, 1990, is uncon-structed and embodied in unpublished plans or draw-ings, except that protection for such architecturalwork under this title terminates on Dec. 31, 2002, unlessthe work is constructed by that date, see section 706 ofPub. L. 101650, set out as a note under section 101 ofthis title.

103. Subject matter of copyright: Compilationsand derivative works

(a) The subject matter of copyright as speci-fied by section 102 includes compilations and de-rivative works, but protection for a work em-ploying preexisting material in which copyrightsubsists does not extend to any part of the workin which such material has been used unlaw-fully.

(b) The copyright in a compilation or deriva-tive work extends only to the material contrib-uted by the author of such work, as distin-guished from the preexisting material employedin the work, and does not imply any exclusiveright in the preexisting material. The copyrightin such work is independent of, and does not af-fect or enlarge the scope, duration, ownership,or subsistence of, any copyright protection inthe preexisting material.

(Pub. L. 94553, title I, 101, Oct. 19, 1976, 90 Stat.2545.)



Section 103 complements section 102: A compilation

or derivative work is copyrightable if it represents anoriginal work of authorship and falls within one ormore of the categories listed in section 102. Read to-gether, the two sections make plain that the criteria ofcopyrightable subject matter stated in section 102apply with full force to works that are entirely originaland to those containing preexisting material. Section103(b) is also intended to define, more sharply andclearly than does section 7 of the present law [section7 of former title 17], the important interrelationshipand correlation between protection of preexisting andof new material in a particular work. The most im-portant point here is one that is commonly misunder-stood today: copyright in a new version covers onlythe material added by the later author, and has no ef-fect one way or the other on the copyright or public do-main status of the preexisting material.

Between them the terms compilations and deriva-tive works which are defined in section 101 com-prehend every copyrightable work that employs pre-existing material or data of any kind. There is nec-essarily some overlapping between the two, but theybasically represent different concepts. A compilationresults from a process of selecting, bringing together,organizing, and arranging previously existing materialof all kinds, regardless of whether the individual itemsin the material have been or ever could have been sub-ject to copyright. A derivative work, on the otherhand, requires a process of recasting, transforming, oradapting one or more preexisting works; the pre-


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existing work must come within the general subjectmatter of copyright set forth in section 102, regardlessof whether it is or was ever copyrighted.

The second part of the sentence that makes up sec-tion 103(a) deals with the status of a compilation or de-rivative work unlawfully employing preexisting copy-righted material. In providing that protection does notextend to any part of the work in which such materialhas been used unlawfully, the bill prevents an in-fringer from benefiting, through copyright protection,from committing an unlawful act, but preserves protec-tion for those parts of the work that do not employ thepreexisting work. Thus, an unauthorized translation ofa novel could not be copyrighted at all, but the ownerof copyright in an anthology of poetry could sue some-one who infringed the whole anthology, even thoughthe infringer proves that publication of one of thepoems was unauthorized. Under this provision, copy-right could be obtained as long as the use of the pre-existing work was not unlawful, even though theconsent of the copyright owner had not been obtained.For instance, the unauthorized reproduction of a workmight be lawful under the doctrine of fair use or anapplicable foreign law, and if so the work incorporatingit could be copyrighted.

104. Subject matter of copyright: National ori-gin

(a) UNPUBLISHED WORKS.The works specifiedby sections 102 and 103, while unpublished, aresubject to protection under this title without re-gard to the nationality or domicile of the au-thor.

(b) PUBLISHED WORKS.The works specified bysections 102 and 103, when published, are subjectto protection under this title if

(1) on the date of first publication, one ormore of the authors is a national or domi-ciliary of the United States, or is a national,domiciliary, or sovereign authority of a treatyparty, or is a stateless person, wherever thatperson may be domiciled; or

(2) the work is first published in the UnitedStates or in a foreign nation that, on the dateof first publication, is a treaty party; or

(3) the work is a sound recording that wasfirst fixed in a treaty party; or

(4) the work is a pictorial, graphic, or sculp-tural work that is incorporated in a buildingor other structure, or an architectural workthat is embodied in a building and the buildingor structure is located in the United States ora treaty party; or

(5) the work is first published by the UnitedNations or any of its specialized agencies, orby the Organization of American States; or

(6) the work comes within the scope of aPresidential proclamation. Whenever thePresident finds that a particular foreign na-tion extends, to works by authors who are na-tionals or domiciliaries of the United Statesor to works that are first published in theUnited States, copyright protection on sub-stantially the same basis as that on which theforeign nation extends protection to works ofits own nationals and domiciliaries and worksfirst published in that nation, the Presidentmay by proclamation extend protection underthis title to works of which one or more of theauthors is, on the date of first publication, anational, domiciliary, or sovereign authorityof that nation, or which was first published inthat nation. The President may revise, sus-

pend, or revoke any such proclamation or im-pose any conditions or limitations on protec-tion under a proclamation.

For purposes of paragraph (2), a work that ispublished in the United States or a treaty partywithin 30 days after publication in a foreign na-tion that is not a treaty party shall be consid-ered to be first published in the United States orsuch treaty party, as the case may be.

(c) EFFECT OF BERNE CONVENTION.No right or

interest in a work eligible for protection underthis title may be claimed by virtue of, or in reli-ance upon, the provisions of the Berne Conven-tion, or the adherence of the United Statesthereto. Any rights in a work eligible for protec-tion under this title that derive from this title,other Federal or State statutes, or the commonlaw, shall not be expanded or reduced by virtueof, or in reliance upon, the provisions of theBerne Convention, or the adherence of theUnited States thereto.

(d) EFFECT OF PHONOGRAMS TREATIES.Not-withstanding the provisions of subsection (b), noworks other than sound recordings shall be eli-gible for protection under this title so