Rights Included
The specific rights included in copyright protection are enumerated in § 106 of the Copyright Act:
"[T]he 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;"
The right of reproduction is probably the most straightforward right retained by copyright owners. It grants the author of a work the exclusive right to make copies of his or her original work.
Copyright owners retain an exclusive right to perform their works publicly. The Copyright Act states that to "perform" a work means, "to recite, render, play, dance, or act it, either directly or by means of any device or process." Of course, not all unauthorized performances constitute an infringing activity; only public performances violate the copyright holder's right. The Copyright Act says that a performance occurs in public whenever one of two conditions is met: (1) the performance takes place 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) when the performance is transmitted to a place specified by clause (1) or to the public, by means of any device or process.
Section 101 of the Copyright Act defines a "derivative work" as, "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." The definition also explicitly includes works consisting of editorial revisions, annotations, elaborations, or other modifications to an original work.
Under Section 106 of the Copyright Act, listed above, the holder of a copyright in an original work possesses and exclusive right to create derivative works. Any derivative works prepared by persons not holding the copyrights to the original work must be authorized by the copyright owner to avoid infringement.
The right of public display has much in common with the rights of public performance and of distribution. Like the right of public performance, the right of public display grants the copyright holder the exclusive right to "show [a work], either directly or by means of a film, slide, television image, or any other device or process," in public. The definition of "public" for purposes of the display right is the same as it is under the performance right. Like the right of distribution, the right of public display is limited by the first sale doctrine.
The right of distribution can perhaps best be understood as a "right of first sale" for original works. Section 109 of the Copyright Act helps to define the limits of the right of first sale: "[T]he owner of a particular copy . . . lawfully made . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy."
Thus, while the right of distribution gives the copyright holder the exclusive authority to sell or transfer possession of original works and their copies in the first instance, it does not give the copyright owner the authority to control the resale or redistribution of lawfully made and purchased copies.
ALR Report on First Sale Doctrine: Students with access to Westlaw can view this American Law Report on the construction and application of the first sale doctrine. The Report compiles a list of federal cases interpreting and analyzing the right of first sale and its limits.
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