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rights of the author

Overview:

A copyright owner enjoys a number of specific rights in his or her intellectual property. These rights are specifically provided by statute which also provides some limitations on the copyright owner's exclusive control of his or her work.

Notes:
    As per s106, the copyright owner has the right to reproduce the work in copies, to prepare devirative works, to distribute the work to the public, to perform the work publicly, and the right to display the work publicly. The owner to not obligated to do any of these things and may transfer these rights to another.

    Because a copyright owner has several distinct exclusive rights, an infringing act can be characterized in different ways (e.g. as infringement on the owner's right to make derivative work, right to distribute, right to display).

    Copyright protects against reproduction, not independent creation of a similar work. An action for infringement requires proof that defendant came into contact with and copied the plaintiff's work.

    Different modes of expression afforded different protections. For example, sound recounding are protected less than sheet music. Two and three dimensional representations of architectual works are treated differently. The general statement of exclusive right in s106 is narrowed by specific provisions of the Copyright Act.

    "As a rule, a taking is considered de minimis only when it is so meager and fragmentary that the average audience would not recognize the appropriation." from FISHER v. DEES (9th Cir., 1986)

    The rights of attribution established in s106A are familiar to European authors, but relatively new concepts in U.S. Copyright law.

    One statutory remedy is book burning because publications aren't usually enjoined prior to release. This is an example of where Copyright law is shaped by the First Amendment.

    At common law, a copyright owner has protected against act of piracy and not much more. The scope of copyrights has expanded to include the right to make translations and derivative works.

    At one time, there was no protection in phonorecords; record stores could buy one copy and then press it themselves to sell to public at discount rates. This situation was changed by legislation in 1972.

    s114 and s115 specify the general rights of copyright owners that are set out in s106.

    Note that the copyright protection available to choreographed works requires fixation in tangible form, like film or a dance notation system.


Moral Rights Issue:
    Although moral rights are an accepted in other countries and by the Berne Convention, their presense in U.S. copyright law is limited to s106A. For example, French moral rights allow authors to buy back works that have gone out of style. Consider that it is customary for U.S. broadcasters to edit for commercials and content if kids might be watching. Recall the distinct economic and moral justifications for the protection of copyright.
    DZ: Underlying cultural differences are illustrated by the international variance of moral rights protection.

    Note rights of artistic integrity: protection against distortion and mutilation; false attributions; non-attribution; removal from works that diminish reputation.

    An artist may have other means available to protect his integrity under U.S. law: consider how the Lanthan Act or an action for defamation might be used by an author to protect his reputation.

    Only visual artists have recognized moral rights under U.S. law per the Visual Artists Rights Act (VARA). Not all visual works protected, the scope of protection is limited and enumerated by the statute; the emphasis is on fine art with recognized stature. Note that these rights do not apply to works-for-hire. These rights are not alienable, but the can be waived in writing.

    Note that proposals to amend the Visual Artists Rights Act to allow artists to capture a share of significant resale profits was defeated in fear such a provision would deter gallery investments.

    Should moral rights inhibit what a purchaser does with a work? If an artist transfers all economic rights, should courts allow him to assert moral rights to enjoin the exercise of the transferee's economic rights? Is there a First Amendment raised by this prospect?
    DZ: Moral rights illustrate the interaction of copyright and free expression.

    Should courts respect the eccentric visions of an artist? Consider how Samuel Beckett demanded his plays be staged before he would license dramatic productions.

    Pre-emption of state laws. Per s301, federal copyright law pre-empts interfering state laws. Is there room for state laws that offer broader protection of the artist's moral rights than available under federal copyright law? Similarly, does a decision, like Feist, limiting copyright protection to a phone directory pre-empt protection of these works under ancillary state laws like misappropriation?
    DZ: This is a hotly litigated topic; decision standards unclear; appellate courts divided.



Statutory References:
    s106: Exclusive rights in copyrighted works
    s106A: Rights of certain authors to attribution and integrity
    s107: Limitations on exclusive rights: Fair use
    s108: Limitations on exclusive rights: Reproduction by libraries and archives
    s109: Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord
    s110: Limitations on exclusive right: Exemption of certain performances and displays
    s114: Scope of exclusive rights in sound recordings
    s115: Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords
    s202: Ownership of copyright as distinct from ownership of material object
    s602: Infringing importation of copies or phonorecords