Preview
INDEX NO. 71167/2023
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Chapter 11
Subject Matter and Scope of Copyright
se c t ion page
101 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
102 Subject matter of copyright: In general . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
103 Subject matter of copyright: Compilations and derivative works. . . . . . . 9
104 Subject matter of copyright: National origin . . . . . . . . . . . . . . . . . . . . . . 9
104a Copyright in restored works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
105 Subject matter of copyright: United States Government works . . . . 16
106 Exclusive rights in copyrighted works . . . . . . . . . . . . . . . . . . . . . . . . . . 18
106a Rights of certain authors to attribution and integrity . . . . . . . . . . . . . . 18
107 Limitations on exclusive rights: Fair use . . . . . . . . . . . . . . . . . . . . . . . . . 20
108 Limitations on exclusive rights: Reproduction by libraries
and archives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
109 Limitations on exclusive rights: Effect of transfer of particular
copy or phonorecord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
110 Limitations on exclusive rights: Exemption of certain
performances and displays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
111 Limitations on exclusive rights: Secondary transmissions
of broadcast programming by cable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
112 Limitations on exclusive rights: Ephemeral recordings . . . . . . . . . . . . . 43
113 Scope of exclusive rights in pictorial, graphic, and sculptural works . . . 48
114 Scope of exclusive rights in sound recordings . . . . . . . . . . . . . . . . . . . . . 50
115 Scope of exclusive rights in nondramatic musical works:
Compulsory license for making and distributing phonorecords . . . . . . 68
116 Negotiated licenses for public performances by means of
coin-operated phonorecord players . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
117 Limitations on exclusive rights: Computer programs . . . . . . . . . . . . . 115
118 Scope of exclusive rights: Use of certain works in connection
with noncommercial broadcasting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
119 Limitations on exclusive rights: Secondary transmissions
of distant television programming by satellite . . . . . . . . . . . . . . . . . . . 119
120 Scope of exclusive rights in architectural works . . . . . . . . . . . . . . . . . . . 136
121 Limitations on exclusive rights: Reproduction for blind
or other people with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
121a Limitations on exclusive rights: Reproduction for blind
or other people with disabilities in Marrakesh Treaty countries . . . . . 137
122 Limitations on exclusive rights: Secondary transmissions
of local television programming by satellite . . . . . . . . . . . . . . . . . . . . . 139
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§101 Subject Matter and Scope of Copyright
§101 · Definitions2
Except as otherwise provided in this title, as used in this title, the following terms
and their variant forms mean the following:
An “anonymous work” is a work on the copies or phonorecords of which no
natural person is identified as author.
An “architectural work” is the design of a building as embodied in any tangible
medium of expression, including a building, architectural plans, or drawings. The
work includes the overall form as well as the arrangement and composition of spac-
es and elements in the design, but does not include individual standard features.3
“Audiovisual works” are works that consist of a series of related images which
are intrinsically intended to be shown by the use of machines or devices such as
projectors, viewers, or electronic equipment, together with accompanying sounds,
if any, regardless of the nature of the material objects, such as films or tapes, in
which the works are embodied.
The “Berne Convention” is the Convention for the Protection of Literary and
Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts,
protocols, and revisions thereto.4
The “best edition” of a work is the edition, published in the United States at
any time before the date of deposit, that the Library of Congress determines to
be most suitable for its purposes.
A person’s “children” are that person’s immediate offspring, whether legitimate
or not, and any children legally adopted by that person.
A “collective work” is a work, such as a periodical issue, anthology, or encyclo-
pedia, in which a number of contributions, constituting separate and indepen-
dent works in themselves, are assembled into a collective whole.
A “compilation” is a work formed by the collection and assembling of preexist-
ing materials or of data that are selected, coordinated, or arranged in such a way
that the resulting work as a whole constitutes an original work of authorship. The
term “compilation” includes collective works.
A “computer program” is a set of statements or instructions to be used directly
or indirectly in a computer in order to bring about a certain result.5
“Copies” are material objects, other than phonorecords, in which a work is
fixed by any method now known or later developed, and from which the work
can be perceived, reproduced, or otherwise communicated, either directly or with
the aid of a machine or device. The term “copies” includes the material object,
other than a phonorecord, in which the work is first fixed.
“Copyright owner”, with respect to any one of the exclusive rights comprised
in a copyright, refers to the owner of that particular right.
A “Copyright Royalty Judge” is a Copyright Royalty Judge appointed under
section 802 of this title, and includes any individual serving as an interim Copy-
right Royalty Judge under such section.6
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Subject Matter and Scope of Copyright §101
A work is “created” when it is fixed in a copy or phonorecord for the first time;
where a work is prepared over a period of time, the portion of it that has been
fixed at any particular time constitutes the work as of that time, and where the
work has been prepared in different versions, each version constitutes a separate
work.
A “derivative work” is a work based upon one or more preexisting works, such
as a translation, musical arrangement, dramatization, fictionalization, motion
picture version, sound recording, art reproduction, abridgment, condensation, or
any other form in which a work may be recast, transformed, or adapted. A work
consisting of editorial revisions, annotations, elaborations, or other modifica-
tions, which, as a whole, represent an original work of authorship, is a “derivative
work”.
A “device”, “machine”, or “process” is one now known or later developed.
A “digital transmission” is a transmission in whole or in part in a digital or
other nonanalog format.7
To “display” a work means to show a copy of it, either directly or by means
of a film, slide, television image, or any other device or process or, in the case
of a motion picture or other audiovisual work, to show individual images non-
sequentially.
An “establishment” is a store, shop, or any similar place of business open to
the general public for the primary purpose of selling goods or services in which
the majority of the gross square feet of space that is nonresidential is used for
that purpose, and in which nondramatic musical works are performed publicly.8
The term “financial gain” includes receipt, or expectation of receipt, of any-
thing of value, including the receipt of other copyrighted works.9
A work is “fixed” in a tangible medium of expression when its embodiment
in a copy or phonorecord, by or under the authority of the author, is sufficiently
permanent or stable to permit it to be perceived, reproduced, or otherwise com-
municated for a period of more than transitory duration. A work consisting of
sounds, images, or both, that are being transmitted, is “fixed” for purposes of this
title if a fixation of the work is being made simultaneously with its transmission.
A “food service or drinking establishment” is a restaurant, inn, bar, tavern, or
any other similar place of business in which the public or patrons assemble for
the primary purpose of being served food or drink, in which the majority of the
gross square feet of space that is nonresidential is used for that purpose, and in
which nondramatic musical works are performed publicly.10
The “Geneva Phonograms Convention” is the Convention for the Protection
of Producers of Phonograms Against Unauthorized Duplication of Their Phono-
grams, concluded at Geneva, Switzerland, on October 29, 1971.11
The “gross square feet of space” of an establishment means the entire interior
space of that establishment, and any adjoining outdoor space used to serve pa-
trons, whether on a seasonal basis or otherwise.12
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§101 Subject Matter and Scope of Copyright
The terms “including” and “such as” are illustrative 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;13
(6) the WIPO Performances and Phonograms Treaty;14 and
(7) any other copyright treaty to which the United States is a party.15
A “joint work” is a work prepared by two or more authors with the intention
that their contributions be merged into inseparable or interdependent parts of
a unitary whole.
“Literary works” are works, other than audiovisual works, expressed in words,
numbers, or other verbal or numerical symbols or indicia, regardless of the na-
ture of the material objects, such as books, periodicals, manuscripts, phonore-
cords, film, tapes, disks, or cards, in which they are embodied.
The term “motion picture exhibition facility’’ means a movie theater, screen-
ing room, or other venue that is being used primarily for the exhibition of a
copyrighted motion picture, if such exhibition is open to the public or is made
to an assembled group of viewers outside of a normal circle of a family and its
social acquaintances.16
“Motion pictures” are audiovisual works consisting of a series of related images
which, when shown in succession, impart an impression of motion, together with
accompanying sounds, if any.
To “perform” a work means to recite, render, play, dance, or act it, either di-
rectly or by means of any device or process or, in the case of a motion picture or
other audiovisual work, to show its images in any sequence or to make the sounds
accompanying it audible.
A “performing rights society” is an association, corporation, or other entity
that licenses the public performance of nondramatic musical works on behalf
of copyright owners of such works, such as the American Society of Composers,
Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.17
“Phonorecords” are material objects in which sounds, other than those accom-
panying a motion picture or other audiovisual work, are fixed by any method now
known or later developed, and from which the sounds can be perceived, repro-
duced, or otherwise communicated, either directly or with the aid of a machine
or device. The term “phonorecords” includes the material object in which the
sounds are first fixed.
“Pictorial, graphic, and sculptural works” include two-dimensional and three-
dimensional works of fine, graphic, and applied art, photographs, prints and
art reproductions, maps, globes, charts, diagrams, models, and technical draw-
ings, including architectural plans. Such works shall include works of artistic
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Subject Matter and Scope of Copyright §101
craftsmanship insofar as their form but not their mechanical or utilitarian as-
pects are concerned; the design of a useful article, as defined in this section, shall
be considered a pictorial, graphic, or sculptural work only if, and only to the
extent that, such design incorporates pictorial, graphic, or sculptural features
that can be identified separately from, and are capable of existing independently
of, the utilitarian aspects of the article.18
For purposes of section 513, a “proprietor” is an individual, corporation, part-
nership, or other entity, as the case may be, that owns an establishment or a food
service or drinking establishment, except that no owner or operator of a radio or
television station licensed by the Federal Communications Commission, cable
system or satellite carrier, cable or satellite carrier service or programmer, pro-
vider of online services or network access or the operator of facilities therefor,
telecommunications company, or any other such audio or audiovisual service or
programmer now known or as may be developed in the future, commercial sub-
scription music service, or owner or operator of any other transmission service,
shall under any circumstances be deemed to be a proprietor.19
A “pseudonymous work” is a work on the copies or phonorecords of which the
author is identified under a fictitious name.
“Publication” is the distribution of copies or phonorecords of a work to the
public by sale or other transfer of ownership, or by rental, lease, or lending. The
offering to distribute copies or phonorecords to a group of persons for purposes
of further distribution, public performance, or public display, constitutes pub-
lication. A public performance or display of a work does not of itself constitute
publication.
To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place
where a substantial number of persons outside of a normal circle of a family
and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the
work to a place specified by clause (1) or to the public, by means of any device
or process, whether the members of the public capable of receiving the per-
formance or display receive it in the same place or in separate places and at the
same time or at different times.
“Registration”, for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412,
and 506(e), means a registration of a claim in the original or the renewed and
extended term of copyright.20
“Sound recordings” are works that result from the fixation of a series of musical,
spoken, or other sounds, but not including the sounds accompanying a motion
picture or other audiovisual work, regardless of the nature of the material objects,
such as disks, tapes, or other phonorecords, in which they are embodied.
“State” includes the District of Columbia and the Commonwealth of Puerto Rico,
and any territories to which this title is made applicable by an Act of Congress.
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§101 Subject Matter and Scope of Copyright
A “transfer of copyright ownership” is an assignment, mortgage, exclusive li-
cense, or any other conveyance, alienation, or hypothecation of a copyright or of
any of the exclusive 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 material that, as an aggregate, has been
produced for the sole purpose of transmission to the public in sequence and as
a unit.
To “transmit” a performance or display is to communicate it by any device
or process whereby images or sounds are received beyond the place from which
they are sent.
A “treaty party” is a country or intergovernmental organization other than the
United States that is a party to an international agreement.21
The “United States”, when used in a geographical sense, comprises the several
States, the District of Columbia and the Commonwealth of Puerto Rico, and the
organized territories under the jurisdiction of the United States Government.
For purposes of section 411, a work is a “United States work” only if—
(1) in the case of a published work, the work is first published—
(A) in the United States;
(B) simultaneously in the United States and another treaty party or par-
ties, whose law grants a term of copyright protection that is the same as or
longer than the term provided in the United States;
(C) simultaneously in the United States and a foreign nation that is not
a treaty party; or
(D) in a foreign nation that is not a treaty party, and all of the authors
of the work are nationals, domiciliaries, or habitual residents of, or in the
case of an audiovisual work legal entities with headquarters in, the United
States;
(2) in the case of an unpublished work, all the authors of the work are
nationals, domiciliaries, or habitual residents of the United States, or, in the
case of an unpublished audiovisual work, all the authors are legal entities with
headquarters in the United States; or
(3) in the case of a pictorial, graphic, or sculptural work incorporated in
a building or structure, the building or structure is located in the United
States.22
A “useful article” is an article having an intrinsic utilitarian function that is
not merely to portray the appearance of the article or to convey information. An
article that is normally a part of a useful article is considered a “useful article”.
The author’s “widow” or “widower” is the author’s surviving spouse under the
law of the author’s domicile at the time of his or her death, whether or not the
spouse has later remarried.
The “WIPO Copyright Treaty” is the WIPO Copyright Treaty concluded at
Geneva, Switzerland, on December 20, 1996.23
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Subject Matter and Scope of Copyright §101
The “WIPO Performances and Phonograms Treaty” is the WIPO Performanc-
es and Phonograms Treaty concluded at Geneva, Switzerland, on December 20,
1996.24
A “work of visual art” is—
(1) a painting, drawing, print, or sculpture, existing in a single copy, in
a limited edition of 200 copies or fewer that are signed and consecutively
numbered by the author, or, in the case of a sculpture, in multiple cast, carved,
or fabricated sculptures of 200 or fewer that are consecutively numbered by
the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, ex-
isting in a single copy that is signed by the author, or in a limited edition
of 200 copies or fewer that are signed and consecutively numbered by the
author.
A work of visual art does not include—
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model,
applied art, motion picture or other audiovisual work, book, magazine,
newspaper, periodical, data base, electronic information service, electronic
publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive,
covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.25
A “work of the United States Government” is a work prepared by an officer or
employee of the United States Government as part of that person’s official duties.
A “work made for hire” is—
(1) a work prepared by an employee within the scope of his or her employ-
ment; or
(2) a work specially ordered or commissioned for use as a contribution to
a collective work, as a part of a motion picture or other audiovisual work, as
a translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties ex-
pressly agree in a written instrument signed by them that the work shall be
considered a work made for hire. For the purpose of the foregoing sentence,
a “supplementary work” is a work prepared for publication as a secondary
adjunct to a work by another author for the purpose of introducing, conclud-
ing, illustrating, explaining, revising, commenting upon, or assisting in the use
of the other work, such as forewords, afterwords, pictorial illustrations, maps,
charts, tables, editorial notes, musical arrangements, answer material for tests,
bibliographies, appendixes, and indexes, and an “instructional text” is a liter-
ary, pictorial, or graphic work prepared for publication and with the purpose
of use in systematic instructional activities.
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§102 Subject Matter and Scope of Copyright
In determining whether any work is eligible to be considered a work made for
hire under paragraph (2), neither the amendment contained in section 1011(d)
of the Intellectual Property and Communications Omnibus Reform Act of 1999,
as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the
words added by that amendment—
(A) shall be considered or otherwise given any legal significance, or
(B) shall be interpreted to indicate congressional approval or disapproval
of, or acquiescence in, any judicial determination,
by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if
both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act
of 2000 and section 1011(d) of the Intellectual Property and Communications
Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law
106-113, were never enacted, and without regard to any inaction or awareness by
the Congress at any time of any judicial determinations.26
The terms “WTO Agreement” and “WTO member country” have the mean-
ings given those terms in paragraphs (9) and (10), respectively, of section 2 of the
Uruguay Round Agreements Act.27
§ 102 · Subject matter of copyright: In general 28
(a) Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Works of
authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle, or discovery, regardless of the form in which it is described, explained,
illustrated, or embodied in such work.
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Subject Matter and Scope of Copyright §104
§ 103 · Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes com-
pilations and derivative works, but protection for a work employing preexisting
material in which copyright subsists does not extend to any part of the work in
which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the pre-
existing material employed in the work, and does not imply any exclusive right
in the preexisting material. The copyright in such work is independent of, and
does not affect or enlarge the scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.
§ 104 · Subject matter of copyright: National origin29
(a) Unpublished Works.—The works specified by sections 102 and 103,
while unpublished, are subject to protection under this title without regard to
the nationality or domicile of the author.
(b) Published Works.—The works specified by sections 102 and 103, when
published, are subject to protection under this title if—
(1) on the date of first publication, one or more of the authors is a national
or domiciliary of the United States, or is a national, domiciliary, or sovereign
authority of a treaty party, or is a stateless person, wherever that person may
be domiciled; or
(2) the work is first published in the United States or in a foreign nation that,
on the date of first publication, is a treaty party; or
(3) the work is a sound recording that was first fixed in a treaty party; or
(4) the work is a pictorial, graphic, or sculptural work that is incorporated
in a building or other structure, or an architectural work that is embodied in
a building and the building or structure is located in the United States or a
treaty party; or
(5) the work is first published by the United Nations or any of its specialized
agencies, or by the Organization of American States; or
(6) the work comes within the scope of a Presidential proclamation. When-
ever the President finds that a particular foreign nation extends, to works by
authors who are nationals or domiciliaries of the United States or to works that
are first published in the United States, copyright protection on substantially the
same basis as that on which the foreign nation extends protection to works of
its own nationals and domiciliaries and works first published in that nation, the
President may by proclamation extend protection under this title to works of
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§104A Subject Matter and Scope of Copyright
which one or more of the authors is, on the date of first publication, a national,
domiciliary, or sovereign authority of that nation, or which was first published in
that nation. The President may revise, suspend, or revoke any such proclamation
or impose any conditions or limitations on protection under a proclamation.
For purposes of paragraph (2), a work that is published in the United States
or a treaty party within 30 days after publication in a foreign nation that is not a
treaty party shall be considered to be first published in the United States or such
treaty party, as the case may be.
(c) Effect of Berne Convention.—No right or interest in a work eligible
for protection under this title may be claimed by virtue of, or in reliance upon, the
provisions of the Berne Convention, or the adherence of the United States thereto.
Any rights in a work eligible for protection under this title that derive from this
title, other Federal or State statutes, or the common law, shall not be expanded or
reduced by virtue of, or in reliance upon, the provisions of the Berne Convention,
or the adherence of the United States thereto.
(d) Effect of Phonograms Treaties.—Notwithstanding the provisions
of subsection (b), no works other than sound recordings shall be eligible for
protection under this title solely by virtue of the adherence of the United States
to the Geneva Phonograms Convention or the WIPO Performances and Pho-
nograms Treaty.30
§104A · Copyright in restored works 31
(a) Automatic Protection and Term.—
(1) Term.—
(A) Copyright subsists, in accordance with this section, in restored works,
and vests automatically on the date of restoration.
(B) Any work in which copyright is restored under this section shall
subsist for the remainder of the term of copyright that the work would have
otherwise been granted in the United States if the work never entered the
public domain in the United States.
(2) Exception.—Any work in which the copyright was ever owned or
administered by the Alien Property Custodian and in which the restored copy-
right would be owned by a government or instrumentality thereof, is not a
restored work.
(b) Ownership of Restored Copyright.—A restored work vests initially
in the author or initial rightholder of the work as determined by the law of the
source country of the work.
(c) Filing of Notice of Intent to Enforce Restored Copyright
Against Reliance Parties.—On or after the date of restoration, any person
who owns a copyright in a restored work or an exclusive right therein may file
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Subject Matter and Scope of Copyright §104A
with the Copyright Office a notice of intent to enforce that person’s copyright or
exclusive right or may serve such a notice directly on a reliance party. Acceptance
of a notice by the Copyright Office is effective as to any reliance parties but shall
not create a presumption of the validity of any of the facts stated therein. Service
on a reliance party is effective as to that reliance party and any other reliance
parties with actual knowledge of such service and of the contents of that notice.
(d) Remedies for Infringement of Restored Copyrights.—
(1) Enforcement of copyright in restored works in the absence
of a reliance party.—As against any party who is not a reliance party, the
remedies provided in chapter 5 of this title shall be available on or after the
date of restoration of a restored copyright with respect to an act of infringe-
ment of the restored copyright that is commenced on or after the date of
restoration.
(2) Enforcement of copyright in restored works as against re-
liance parties.—As against a reliance party, except to the extent provided
in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall
be available, with respect to an act of infringement of a restored copyright, on
or after the date of restoration of the restored copyright if the requirements
of either of the following subparagraphs are met:
(A)(i) The owner of the restored copyright (or such owner’s agent) or the
owner of an exclusive right therein (or such owner’s agent) files with the
Copyright Office, during the 24-month period beginning on the date of
restoration, a notice of intent to enforce the restored copyright; and
(ii)(I) the act of infringement commenced after the end of the 12-
month period beginning on the date of publication of the notice in the
Federal Register;
(II) the act of infringement commenced before the end of the
12-month period described in subclause (I) and continued after the
end of that 12-month period, in which case remedies shall be avail-
able only for infringement occurring after the end of that 12-month
period; or
(III) copies or phonorecords of a work in which copyright has
been restored under this section are made after publication of the
notice of intent in the Federal Register.
(B)(i) The owner of the restored copyright (or such owner’s agent) or the
owner of an exclusive right therein (or such owner’s agent) serves upon a
reliance party a notice of intent to enforce a restored copyright; and
(ii)(I) the act of infringement commenced after the end of the 12-
month period beginning on the date the notice of intent is received;
(II) the act of infringement commenced before the end of the 12-
month period described in subclause (I) and continued after the end
of that 12-month period, in which case remedies shall be available
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§104A Subject Matter and Scope of Copyright
only for the infringement occurring after the end of that 12-month
period; or
(III) copies or phonorecords of a work in which copyright has
been restored under this section are made after receipt of the notice
of intent.
In the event that notice is provided under both subparagraphs (A) and (B), the
12-month period referred to in such subparagraphs shall run from the earlier of
publication or service of notice.
(3) Existing derivative works.—
(A) In the case of a derivative work that is based upon a restored work
and is created—
(i) before the date of the enactment of the Uruguay Round Agree-
ments Act, if the source country of the restored work is an eligible coun-
try on such date, or
(ii) before the date on which the source country of the restored work
becomes an eligible country, if that country is not an eligible country
on such date of enactment,
a reliance party may continue to exploit that derivative work for the
duration of the restored copyright if the reliance party pays to the owner
of the restored copyright reasonable compensation for conduct which
would be subject to a remedy for infringement but for the provisions of
this paragraph.
(B) In the absence of an agreement between the parties, the amount of
such compensation shall be determined by an action in United States dis-
trict court, and shall reflect any harm to the actual or potential market for
or value of the restored work from the reliance party’s continued exploita-
tion of the work, as well as compensation for the relative contributions of
expression of the author of the restored work and the reliance party to the
derivative work.
(4) Commencement of infringement for reliance parties.—For
purposes of section 412, in the case of reliance parties, infringement shall be
deemed to have commenced before registration when acts which would have
constituted infringement had the restored work been subject to copyright were
commenced before the date of restoration.
(e) Notices of Intent to Enforce a Restored Copyright.—
(1) Notices of intent filed with the Copyright Office.—
(A)(i) A notice of intent filed with the Copyright Office to enforce a re-
stored copyright shall be signed by the owner of the restored copyright or
the owner of an exclusive right therein, who files the notice under subsec-
tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or
by the owner’s agent, shall identify the title of the restored work, and shall
include an English translation of the title and any other alternative titles
12 Copyright Law of the United States
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Subject Matter and Scope of Copyright §104A
known to the owner by which the restored work may be identified, and an
address and telephone number at which the owner may be contacted. If the
notice is signed by an agent, the agency relationship must have been consti-
tuted in a writing signed by the owner before the filing of the notice. The
Copyright Office may specifically require in regulations other information
to be included in the notice, but failure to provide such other information
shall not invalidate the notice or be a basis for refusal to list the restored
work in the Federal Register.
(ii) If a work in which copyright is restored has no formal title, it shall
be described in the notice of intent in detail sufficient to identify it.
(iii) Minor errors or omissions may be corrected by further notice at
any time after the notice of intent is filed. Notices of corrections for such
minor errors or omissions shall be accepted after the period established
in subsection (d)(2)(A)(i). Notices shall be published in the Federal Reg-
ister pursuant to subparagraph (B).
(B)(i) The Register of Copyrights shall publish in the Federal Register,
commencing not later than 4 months after the date of restoration for a
particular nation and every 4 months thereafter for a period of 2 years, lists
identifying restored works and the ownership thereof if a notice of intent
to enforce a restored copyright has been filed.
(ii) Not less than 1 list containing all notices of intent to enforce shall
be maintained in the Public Information Office of the Copyright Office
and shall be available for public inspection and copying during regular
business hours pursuant to sections 705 and 708.
(C) The Register of Copyrights is authorized to fix reasonable fees based
on the costs of receipt, processing, recording, and publication of notices of
intent to enforce a restored copyright and corrections thereto.
(D)(i) Not later than 90 days before the date the Agreement on Trade-
Related Aspects of Intellectual Property referred to in section 101(d)(15) of
the Uruguay Round Agreements Act enters into force with respect to the
United States, the Copyright Office shall issue and publish in the Federal
Register regulations governing the filing under this subsection of notices of
intent to enforce a restored copyright.
(ii) Such regulations shall permit owners of restored copyrights to file
simultaneously for registration of the restored copyright.
(2) Notices of intent served on a reliance party.—
(A) Notices of intent to enforce a restored copyright may be served on
a reliance party at any time after the date of restoration of the restored
copyright.
(B) Notices of intent to enforce a restored copyright served on a reliance
party shall be signed by the owner or the owner’s agent, shall identify the
restored work and the work in which the restored work is used, if any, in
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§104A Subject Matter and Scope of Copyright
detail sufficient to identify them, and shall include an English translation of
the title, any other alternative titles known to the owner by which the work
may be identified, the use or uses to which the owner objects, and an address
and telephone number at which the reliance party may contact the owner.
If the notice is signed by an agent, the agency relationship must have been
constituted in writing and signed by the owner before service of the notice.
(3) Effect of material false statements.—Any material false state-
ment knowingly made with respect to any restored copyright identified in any
notice of intent shall make void all claims and assertions made with respect
to such restored copyright.
(f) Immunity from Warranty and Related Liability.—
(1) In general.—Any person who warrants, promises, or guarantees that
a work does not violate an exclusive right granted in section 106 shall not
be liable for legal, equitable, arbitral, or administrative relief if the warranty,
promise, or guarantee is breached by virtue of the restoration of copyright
under this section, if such warranty, promise, or guarantee is made before
January 1, 1995.
(2) Performances.—No person shall be required to perform any act if
such performance is made infringing by virtue of the restoration of copyright
under the provisions of this section, if the obligation to perform was under-
taken before January 1, 1995.
(g) Proclamation of Copyright Restoration.—Whenever the Presi-
dent finds that a particular foreign nation extends, to works by authors who are
nationals or domiciliaries of the United States, restored copyright protection on
substantially the same basis as provided under this section, the President may
by proclamation extend restored protection provided under this section to any
work—
(1) of which one or more of the authors is, on the date of first publication,
a national, domiciliary, or sovereign authority of that nation; or
(2) which was first published in that nation.
The President may revise, suspend, or revoke any such proclamation or impose
any conditions or limitations on protection under such a proclamation.
(h) Definitions.—For purposes of this section and section 109(a):
(1) The term “date of adherence or proclamation” means the earlier of the
date on which a foreign nation which, as of the date the WTO Agreement
enters into force with respect to the United States, is not a nation adhering to
the Berne Convention or a WTO member country, becomes—
(A) a nation adhering to the Berne Convention;
(B) a WTO member country;
(C) a nation adhering to the WIPO Copyright Treaty;32
(D) a nation adhering to the WIPO Performances and Phonograms
Treaty;33 or
14 Copyright Law
Preview
INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 Chapter 11 Subject Matter and Scope of Copyright se c t ion page 101 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 102 Subject matter of copyright: In general . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 103 Subject matter of copyright: Compilations and derivative works. . . . . . . 9 104 Subject matter of copyright: National origin . . . . . . . . . . . . . . . . . . . . . . 9 104a Copyright in restored works . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 105 Subject matter of copyright: United States Government works . . . . 16 106 Exclusive rights in copyrighted works . . . . . . . . . . . . . . . . . . . . . . . . . . 18 106a Rights of certain authors to attribution and integrity . . . . . . . . . . . . . . 18 107 Limitations on exclusive rights: Fair use . . . . . . . . . . . . . . . . . . . . . . . . . 20 108 Limitations on exclusive rights: Reproduction by libraries and archives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 109 Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 110 Limitations on exclusive rights: Exemption of certain performances and displays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 111 Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 112 Limitations on exclusive rights: Ephemeral recordings . . . . . . . . . . . . . 43 113 Scope of exclusive rights in pictorial, graphic, and sculptural works . . . 48 114 Scope of exclusive rights in sound recordings . . . . . . . . . . . . . . . . . . . . . 50 115 Scope of exclusive rights in nondramatic musical works: Compulsory license for making and distributing phonorecords . . . . . . 68 116 Negotiated licenses for public performances by means of coin-operated phonorecord players . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 117 Limitations on exclusive rights: Computer programs . . . . . . . . . . . . . 115 118 Scope of exclusive rights: Use of certain works in connection with noncommercial broadcasting . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116 119 Limitations on exclusive rights: Secondary transmissions of distant television programming by satellite . . . . . . . . . . . . . . . . . . . 119 120 Scope of exclusive rights in architectural works . . . . . . . . . . . . . . . . . . . 136 121 Limitations on exclusive rights: Reproduction for blind or other people with disabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 121a Limitations on exclusive rights: Reproduction for blind or other people with disabilities in Marrakesh Treaty countries . . . . . 137 122 Limitations on exclusive rights: Secondary transmissions of local television programming by satellite . . . . . . . . . . . . . . . . . . . . . 139 INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 §101 Subject Matter and Scope of Copyright §101 · Definitions2 Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following: An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author. An “architectural work” is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings. The work includes the overall form as well as the arrangement and composition of spac- es and elements in the design, but does not include individual standard features.3 “Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied. The “Berne Convention” is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto.4 The “best edition” of a work is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes. A person’s “children” are that person’s immediate offspring, whether legitimate or not, and any children legally adopted by that person. A “collective work” is a work, such as a periodical issue, anthology, or encyclo- pedia, in which a number of contributions, constituting separate and indepen- dent works in themselves, are assembled into a collective whole. A “compilation” is a work formed by the collection and assembling of preexist- ing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works. A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.5 “Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. “Copyright owner”, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right. A “Copyright Royalty Judge” is a Copyright Royalty Judge appointed under section 802 of this title, and includes any individual serving as an interim Copy- right Royalty Judge under such section.6 2 Copyright Law of the United States INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 Subject Matter and Scope of Copyright §101 A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work. A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifica- tions, which, as a whole, represent an original work of authorship, is a “derivative work”. A “device”, “machine”, or “process” is one now known or later developed. A “digital transmission” is a transmission in whole or in part in a digital or other nonanalog format.7 To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images non- sequentially. An “establishment” is a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.8 The term “financial gain” includes receipt, or expectation of receipt, of any- thing of value, including the receipt of other copyrighted works.9 A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise com- municated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is “fixed” for purposes of this title if a fixation of the work is being made simultaneously with its transmission. A “food service or drinking establishment” is a restaurant, inn, bar, tavern, or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.10 The “Geneva Phonograms Convention” is the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phono- grams, concluded at Geneva, Switzerland, on October 29, 1971.11 The “gross square feet of space” of an establishment means the entire interior space of that establishment, and any adjoining outdoor space used to serve pa- trons, whether on a seasonal basis or otherwise.12 Copyright Law of the United States 3 INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 §101 Subject Matter and Scope of Copyright The terms “including” and “such as” are illustrative 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;13 (6) the WIPO Performances and Phonograms Treaty;14 and (7) any other copyright treaty to which the United States is a party.15 A “joint work” is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. “Literary works” are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the na- ture of the material objects, such as books, periodicals, manuscripts, phonore- cords, film, tapes, disks, or cards, in which they are embodied. The term “motion picture exhibition facility’’ means a movie theater, screen- ing room, or other venue that is being used primarily for the exhibition of a copyrighted motion picture, if such exhibition is open to the public or is made to an assembled group of viewers outside of a normal circle of a family and its social acquaintances.16 “Motion pictures” are audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any. To “perform” a work means to recite, render, play, dance, or act it, either di- rectly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible. A “performing rights society” is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.17 “Phonorecords” are material objects in which sounds, other than those accom- panying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, repro- duced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed. “Pictorial, graphic, and sculptural works” include two-dimensional and three- dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical draw- ings, including architectural plans. Such works shall include works of artistic 4 Copyright Law of the United States INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 Subject Matter and Scope of Copyright §101 craftsmanship insofar as their form but not their mechanical or utilitarian as- pects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.18 For purposes of section 513, a “proprietor” is an individual, corporation, part- nership, or other entity, as the case may be, that owns an establishment or a food service or drinking establishment, except that no owner or operator of a radio or television station licensed by the Federal Communications Commission, cable system or satellite carrier, cable or satellite carrier service or programmer, pro- vider of online services or network access or the operator of facilities therefor, telecommunications company, or any other such audio or audiovisual service or programmer now known or as may be developed in the future, commercial sub- scription music service, or owner or operator of any other transmission service, shall under any circumstances be deemed to be a proprietor.19 A “pseudonymous work” is a work on the copies or phonorecords of which the author is identified under a fictitious name. “Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes pub- lication. A public performance or display of a work does not of itself constitute publication. To perform or display a work “publicly” means— (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the per- formance or display receive it in the same place or in separate places and at the same time or at different times. “Registration”, for purposes of sections 205(c)(2), 405, 406, 410(d), 411, 412, and 506(e), means a registration of a claim in the original or the renewed and extended term of copyright.20 “Sound recordings” are works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied. “State” includes the District of Columbia and the Commonwealth of Puerto Rico, and any territories to which this title is made applicable by an Act of Congress. Copyright Law of the United States 5 INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 §101 Subject Matter and Scope of Copyright A “transfer of copyright ownership” is an assignment, mortgage, exclusive li- cense, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive 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 material that, as an aggregate, has been produced for the sole purpose of transmission to the public in sequence and as a unit. To “transmit” a performance or display is to communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent. A “treaty party” is a country or intergovernmental organization other than the United States that is a party to an international agreement.21 The “United States”, when used in a geographical sense, comprises the several States, the District of Columbia and the Commonwealth of Puerto Rico, and the organized territories under the jurisdiction of the United States Government. For purposes of section 411, a work is a “United States work” only if— (1) in the case of a published work, the work is first published— (A) in the United States; (B) simultaneously in the United States and another treaty party or par- ties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States; (C) simultaneously in the United States and a foreign nation that is not a treaty party; or (D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States; (2) in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or (3) in the case of a pictorial, graphic, or sculptural work incorporated in a building or structure, the building or structure is located in the United States.22 A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”. The author’s “widow” or “widower” is the author’s surviving spouse under the law of the author’s domicile at the time of his or her death, whether or not the spouse has later remarried. The “WIPO Copyright Treaty” is the WIPO Copyright Treaty concluded at Geneva, Switzerland, on December 20, 1996.23 6 Copyright Law of the United States INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 Subject Matter and Scope of Copyright §101 The “WIPO Performances and Phonograms Treaty” is the WIPO Performanc- es and Phonograms Treaty concluded at Geneva, Switzerland, on December 20, 1996.24 A “work of visual art” is— (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, ex- isting in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. A work of visual art does not include— (A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; (ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; (iii) any portion or part of any item described in clause (i) or (ii); (B) any work made for hire; or (C) any work not subject to copyright protection under this title.25 A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties. A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employ- ment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties ex- pressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, conclud- ing, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a liter- ary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. Copyright Law of the United States 7 INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 §102 Subject Matter and Scope of Copyright In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment— (A) shall be considered or otherwise given any legal significance, or (B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination, by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made for Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.26 The terms “WTO Agreement” and “WTO member country” have the mean- ings given those terms in paragraphs (9) and (10), respectively, of section 2 of the Uruguay Round Agreements Act.27 § 102 · Subject matter of copyright: In general 28 (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 8 Copyright Law of the United States INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 Subject Matter and Scope of Copyright §104 § 103 · Subject matter of copyright: Compilations and derivative works (a) The subject matter of copyright as specified by section 102 includes com- pilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully. (b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the pre- existing material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. § 104 · Subject matter of copyright: National origin29 (a) Unpublished Works.—The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author. (b) Published Works.—The works specified by sections 102 and 103, when published, are subject to protection under this title if— (1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled; or (2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or (3) the work is a sound recording that was first fixed in a treaty party; or (4) the work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or (5) the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or (6) the work comes within the scope of a Presidential proclamation. When- ever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States or to works that are first published in the United States, copyright protection on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation, the President may by proclamation extend protection under this title to works of Copyright Law of the United States 9 INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 §104A Subject Matter and Scope of Copyright which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation, or which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation. For purposes of paragraph (2), a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be. (c) Effect of Berne Convention.—No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. (d) Effect of Phonograms Treaties.—Notwithstanding the provisions of subsection (b), no works other than sound recordings shall be eligible for protection under this title solely by virtue of the adherence of the United States to the Geneva Phonograms Convention or the WIPO Performances and Pho- nograms Treaty.30 §104A · Copyright in restored works 31 (a) Automatic Protection and Term.— (1) Term.— (A) Copyright subsists, in accordance with this section, in restored works, and vests automatically on the date of restoration. (B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been granted in the United States if the work never entered the public domain in the United States. (2) Exception.—Any work in which the copyright was ever owned or administered by the Alien Property Custodian and in which the restored copy- right would be owned by a government or instrumentality thereof, is not a restored work. (b) Ownership of Restored Copyright.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. (c) Filing of Notice of Intent to Enforce Restored Copyright Against Reliance Parties.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file 10 Copyright Law of the United States INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 Subject Matter and Scope of Copyright §104A with the Copyright Office a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright Office is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. (d) Remedies for Infringement of Restored Copyrights.— (1) Enforcement of copyright in restored works in the absence of a reliance party.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringe- ment of the restored copyright that is commenced on or after the date of restoration. (2) Enforcement of copyright in restored works as against re- liance parties.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a restored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: (A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright Office, during the 24-month period beginning on the date of restoration, a notice of intent to enforce the restored copyright; and (ii)(I) the act of infringement commenced after the end of the 12- month period beginning on the date of publication of the notice in the Federal Register; (II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be avail- able only for infringement occurring after the end of that 12-month period; or (III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. (B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a notice of intent to enforce a restored copyright; and (ii)(I) the act of infringement commenced after the end of the 12- month period beginning on the date the notice of intent is received; (II) the act of infringement commenced before the end of the 12- month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available Copyright Law of the United States 11 INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 §104A Subject Matter and Scope of Copyright only for the infringement occurring after the end of that 12-month period; or (III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. In the event that notice is provided under both subparagraphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publication or service of notice. (3) Existing derivative works.— (A) In the case of a derivative work that is based upon a restored work and is created— (i) before the date of the enactment of the Uruguay Round Agree- ments Act, if the source country of the restored work is an eligible coun- try on such date, or (ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. (B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States dis- trict court, and shall reflect any harm to the actual or potential market for or value of the restored work from the reliance party’s continued exploita- tion of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. (4) Commencement of infringement for reliance parties.—For purposes of section 412, in the case of reliance parties, infringement shall be deemed to have commenced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. (e) Notices of Intent to Enforce a Restored Copyright.— (1) Notices of intent filed with the Copyright Office.— (A)(i) A notice of intent filed with the Copyright Office to enforce a re- stored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles 12 Copyright Law of the United States INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 Subject Matter and Scope of Copyright §104A known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been consti- tuted in a writing signed by the owner before the filing of the notice. The Copyright Office may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. (ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. (iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Reg- ister pursuant to subparagraph (B). (B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. (ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information Office of the Copyright Office and shall be available for public inspection and copying during regular business hours pursuant to sections 705 and 708. (C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. (D)(i) Not later than 90 days before the date the Agreement on Trade- Related Aspects of Intellectual Property referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright Office shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. (ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. (2) Notices of intent served on a reliance party.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of restoration of the restored copyright. (B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in Copyright Law of the United States 13 INDEX NO. 71167/2023 FILED: WESTCHESTER COUNTY CLERK 01/17/2024 03:33 PM NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 01/17/2024 §104A Subject Matter and Scope of Copyright detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. (3) Effect of material false statements.—Any material false state- ment knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. (f) Immunity from Warranty and Related Liability.— (1) In general.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 106 shall not be liable for legal, equitable, arbitral, or administrative relief if the warranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warranty, promise, or guarantee is made before January 1, 1995. (2) Performances.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was under- taken before January 1, 1995. (g) Proclamation of Copyright Restoration.—Whenever the Presi- dent finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— (1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or (2) which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. (h) Definitions.—For purposes of this section and section 109(a): (1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— (A) a nation adhering to the Berne Convention; (B) a WTO member country; (C) a nation adhering to the WIPO Copyright Treaty;32 (D) a nation adhering to the WIPO Performances and Phonograms Treaty;33 or 14 Copyright Law