The Copyright Act enumerates 6 exclusive rights enjoyed by copyright owners. A violation of any one of these rights is copyright infringement.
Six Exclusive Rights of § 106
The exclusive rights of § 106 are the rights to:
- Make Copies. Reproduce the copyrighted work in copies or phonorecords;
- Derivative Works. Prepare derivative works based upon the copyrighted work;
- Distribute Copies. Distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- Perform Publicly. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
- Display Publicly. 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
- Perform Publicly – Digital Audio. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Authorize. Not only do copyright owners have the exclusive right to do the listed acts, but also to authorize others to do them. For example, if A owns the copyright in a novel, which is published by B, and B (without A’s consent) authorizes producer C to make a motion picture based upon the novel, when C’s film is later released A can bring infringement actions against both B and C. The Supreme Court has, in effect, concluded that this “authorize” language furnishes the basis for incorporating into copyright law the principle of contributory infringement. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 435 & n.17 (1984) (manufacturer-seller of videotape recorder is not contributorily liable for home taping of copyrighted television programs, which is fair use under the circumstances). See Columbia Pictures Indus. v. Aveco, Inc., 800 F.3d 59 (3d Cir. 1986).
The first three listed exclusive rights—reproduction, preparation of derivative works, and public distribution—are applicable to all forms of copyrightable works listed in § 102(a). The next two listed rights—public performance and public display—are, by their nature, applicable only to certain categories of copyrightable works, and those categories are expressly set forth in §§ 106(4) and (5). For example, the right of public performance attaches to musical works but not to sound recordings; that means that an unauthorized public playing by a disk jockey in a nightclub of a recording of a copyrighted song will constitute an infringement of the song but not of the sound recording, so that the songwriter–author will have legal redress but the record manufacturer and performer will not. If, however, the public playing of the recorded song is “by means of a digital audio transmission,” (streaming podcast, streaming audio, etc.), then this is among the exclusive rights of the sound-recording copyright owner. § 106(6) (added to Copyright Act in a 1995).
Infringing Activity Need Not be “Fixed in a Tangible Medium”
Although a work cannot be copyrighted until its fixed in a tangible medium of expression, unauthorized conduct can infringe without being fixed. For example, a public sale, performance or display can infringe. Likewise, a copyrighted song or play can be infringed by an unauthorized (and “unfixed”) public performance.
Limits on the Exclusive Rights
All of the exclusive rights in § 106 are subject to the provisions in § 107 through 122. Those provisions exempt from liability a wide range of reproductions, derivative works, and the like that would otherwise constitute infringements, particularly for nonprofit, charitable or educational purposes.
More to read: Navigating Cross-border Property Transactions