13. Introduction to Copyright Infringement
Learning Objectives: Unit 13
Upon completion of this unit, you should be able to:
- Recall the statutory basis of copyright infringement.
- Recall the elements of copyright infringement.
- Explain the ways that copying can be established.
- Explain the way that improper appropriation is analyzed.
- Analyze copyright infringement when there is nonliteral copying.
To this point, we have studied questions relating to the existence and ownership of copyright. Now, we will turn to the right itself—in particular, the legal rights that it conveys to a copyright owner. The basic set of rights is set out in 17 U.S.C. § 106. We will primarily study the first right, the exclusive right to reproduce the copyrighted work in copies or phonorecords. Analyzing copyright infringement is, at heart, a difficult question—and is made more so by the proliferation of human-created works of creative expression, each of which is both a copyrighted work in itself and subject to copyrights in other works. The complexity of these interrelationships is, in short, staggering. Mostly, though, copyright infringement disputes tend to focus on economically significant activities. Although coming from a time that predates much of the proliferation of copyrighted works, Nichols v. Universal Pictures is frequently referred to for its description of an analytical framework to use for dealing with a common problem that arises in claims of copyright infringement: what to do about nonliteral copying? Nonliteral copying is copying that does not simply reproduce the work verbatim, such as on a photocopier, but instead copies only elements or pieces of the protected work. Nichols addresses two fundamental questions: (1) Can such conduct be considered copyright infringement, and (2) if so, at what point does nonliteral copying from a work cease to be copyright infringement?
17 U.S.C. §106. Exclusive rights in copyrighted works (2002)
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
1) to reproduce the copyrighted work in copies or phonorecords;
2) to prepare derivative works based upon the copyrighted work;
3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
