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Copyright Law FAQ (3/6): Common miscellaneous questions

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Archive-name: law/Copyright-FAQ/part3

See reader questions & answers on this topic! - Help others by sharing your knowledge
Part 3 - Common miscellaneous questions.

Copyright 1994 Terry Carroll
(c) 1994 Terry Carroll

Last update: January 6, 1994.

This article is the third in a series of six articles that contains 
frequently asked questions (FAQ) with answers relating to copyright law, 
particularly that of the United States.  It is posted to the Usenet,,, comp.patents, 
misc.answers, comp.answers, and news.answers newsgroups monthly, on or 
near the 17th of each month.

This FAQ is available for anonymous FTP from [], 
in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 - 
part6.  If you do not have direct access by FTP, you can obtain a copy 
via email: send a message to with the following 
lines in it:

  send usenet/news.answers/law/Copyright-FAQ/part1
  send usenet/news.answers/law/Copyright-FAQ/part2
  send usenet/news.answers/law/Copyright-FAQ/part3
  send usenet/news.answers/law/Copyright-FAQ/part4
  send usenet/news.answers/law/Copyright-FAQ/part5
  send usenet/news.answers/law/Copyright-FAQ/part6


This article is Copyright 1994 by Terry Carroll.  It may be freely 
redistributed in its entirety provided that this copyright notice is not 
removed.  It may not be sold for profit or incorporated in commercial 
documents without the written permission of the copyright holder.  
Permission is expressly granted for this document to be made available 
for file transfer from installations offering unrestricted anonymous file 
transfer on the Internet.  Permission is further granted for this 
document to be made available for file transfer in the data libraries of 
associated with the following Compuserve Information Services fora: the 
Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and 
the Ideas, Invention & Innovation Forum.  This article is provided as is 
without any express or implied warranty.  Nothing in this article 
represents the views of Santa Clara University or of the Santa Clara 
Computer and High Technology Law Journal.

While all information in this article is believed to be correct at the 
time of writing, this article is for educational purposes only and does 
not purport to provide legal advice.  If you require legal advice, you 
should consult with a legal practitioner licensed to practice in your 

Terry Carroll, the FAQ-maintainer, is a computer professional, and is 
currently (January 1994) a student in his final semester at Santa Clara 
University School of Law, is currently Editor-in-Chief of the Santa Clara 
Computer and High Technology Law Journal, and is seeking employment as an 

If you have any additions, corrections, or suggestions for improvement to 
this FAQ, please send them to one of the following addresses, in order of 

I will accept suggestions for questions to be added to the FAQ, but 
please be aware that I will be more receptive to questions that are 
accompanied by answers.  :-)


The following table indicates the contents of each of the parts of the 

  Part 1 - Introduction (including full table of contents).
  Part 2 - Copyright basics.
  Part 3 - Common miscellaneous questions.
  Part 4 - International aspects.
  Part 5 - Further copyright resources.
  Part 6 - Appendix: A note about legal citation form, or, "What's
           all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"

TABLE OF CONTENTS (for this part).

Part 3 - Common miscellaneous questions.

3.1) Who owns the copyright to something I wrote at work, me or my 
3.2) [reserved.]
3.3) Is copyright infringement a crime, or a civil matter?
3.4) What is the statute of limitation for copyright infringement?
3.5) Can the government be sued for copyright infringement?
3.6) Can the government copyright its works?
3.7) Can I legally make a cassette copy of a musical CD for my own
     use, so I can play it in my car?
3.8) Are Usenet postings and email messages copyrighted?
3.9) Are fonts copyrighted?
3.10) What does "All Rights Reserved" mean?
3.11) What's the difference between a copyright and a patent?
3.12) Why is there so little in this FAQ about patents?
3.13 - 3.18) [reserved.]

3.1) Who owns the copyright to something I wrote at work, me or my 

That depends on a lot of things.  Normally, you are the author of the 
work and own the copyright.  There are two broad mechanisms by which your 
company may own the copyright, though: assignment and the work-made-for-
hire doctrine.

ASSIGNMENT: Even if you are the author, and therefore the copyright is 
initially yours, it may now belong to your company if you assigned the 
copyright to them.  A full assignment of copyright must be in writing, 
and signed; it can't be implied.  17 U.S.C. 204.  Therefore, if you're 
the author in a copyright sense, and did not assign the copyright to your 
company in writing, you still own it.  Please note, however, that some 
companies make it a practice to acquire a blanket assignment of copyright 
in any works created on the job at time of hiring.

Note, though, that even in the absence of a written contract, your 
actions might have been sufficient to grant the company an implied 
license to the work.  For example, in the case of Effects Associates v. 
Cohen, 908 F.2d 555 (9th Cir., 1990), a film producer (Cohen) claimed 
that he owned copyright in special effects film footage depicting "great 
gobs of alien yogurt oozing out of a defunct factory."  The footage was 
produced by Effects Associates, a special effects company, and there was 
no written assignment of copyright.  The court ruled that Effects 
retained ownership of the copyright, but that Cohen had an implied 
license to use it in his horror film, "The Stuff," because Effects had 
"created the work at [Cohen's] request and handed it over, intending that 
[Cohen] copy and distribute it."  Because the license was non-exclusive, 
it wasn't a complete transfer of copyright, and did not need to be in 
writing.  Effects was free to sell the same footage to other moviemakers.

WORK MADE FOR HIRE:  If a work qualifies as a work made for hire, the 
company is the author for purposes of copyright, and copyright initially 
vests in the company.  A work is a work made for hire under either of two 
circumstances.  First, if it is a work prepared by an employee within the 
scope of employment.  Second, if the work was specially commissioned, is 
one of a short list of relatively esoteric types (a contribution to a 
collective work, a part of a motion picture or other audiovisual work, a 
translation, a supplementary work, as a compilation, as an instructional 
text, a test, answer material for a test, or an atlas), and the parties 
agreed in writing that it was to be considered a work for hire.  17 
U.S.C. 101.

To determine if a work is one prepared by an employee within the scope of 
employment, there are two important considerations.

First, was the work prepared by an employee, or by an independent 
contractor?  Several facts, such as whether taxes were withheld, who 
supervised the work, artistic control, setting of working hours, etc., 
will be examined to determine this factor.  A good case discussing these 
factors is CCNV v. Reid, 490 U.S. 730 (1989).

The second consideration is whether the work was within the scope of the 

Unless these two considerations are met, the work will not be considered 
one made for hire under the employee test, and the "employee" will retain 
copyright.  Of course, the same considerations discussed above regarding 
an implied license might exist, even in cases where the work-made-for-
hire doctrine does not apply.

3.2) [reserved.]

3.3) Is copyright infringement a crime, or a civil matter?

It's always at least a civil matter (a tort).  17 U.S.C. 501(b) details 
the mechanisms by which an owner of a copyright may file a civil suit, 
and 28 U.S.C. 1338 expressly refers to civil actions arising under the 
copyright act.

However, under certain circumstances, it may also be a federal crime.  A 
copyright infringement is subject to criminal prosecution if infringement 
is willful and for purposes of commercial advantage or private financial 
gain.  17 U.S.C. 506(a).  If the offense consists of the reproduction or 
distribution, during any 180-day period, of 10 or more copies having a 
retail value of more than $2,500, the offense is a felony; otherwise, the 
offense is a misdemeanor.  18 U.S.C. 2319.

As a side note, although 18 U.S.C. 2319 purports to prescribe the 
penalties for criminal infringement, all crimes covered by Title 18 have 
their penalties determined by the U.S. Sentencing Guidelines, another 
part of Title 18.

3.4) What is the statute of limitation for copyright infringement?

For both civil suits and criminal prosecutions, the statute of 
limitations for copyright infringement is three years.  17 U.S.C. 507.

3.5) Can the government be sued for copyright infringement?

Yes.  The United States has expressly waived its immunity to suit for 
copyright infringement.  28 U.S.C. 1498.

For some time, it was unclear whether the Eleventh Amendment of the U.S. 
Constitution operated to make a state immune from suit for copyright 
infringement.  In BV Engineering v. University of California at Los 
Angeles, 858 F.2d 1394 (9th Cir., 1988), UCLA successfully defended a 
copyright infringement suit on the ground that it had such immunity.  
Although UCLA won that suit, Congress responded by passing the Copyright 
Remedy Clarification Act, PL 101-553, in 1990.  This law added section 
511 to the Copyright Act, which had the effect of removing the immunity 
defense.  It became effective June 1, 1991.

Today the law is very clear: the United States government and the 
governments of each state may be sued for copyright infringement, and may 
not plead immunity as a defense.

3.6) Can the government copyright its works?

This one has to be taken slowly, and we'll look at federal and state 
governments separately, because the rules are different.

With one exception, works of the United States government are public 
domain.  17 U.S.C. 105.  The only exception is for standard reference 
data produced by the U.S. Secretary of Commerce under the Standard 
Reference Data Act, 15 U.S.C. 290e.

However, there's a big loophole here: while the U.S government can't get 
copyright for its own works, it can have an existing copyright assigned 
to it.  So if the U.S. government produces a work, it's not copyrighted.  
But if an independent contractor working for the government produces a 
work, it is copyrighted, and nothing prevents that contractor from 
assigning the copyright back to the government.  This reconciles the fact 
that the U.S. government can't copyright its works with the fact that if 
you stay up late on weekends, you'll see Public Service Announcements 
against drunk driving that say "Copyright U.S. Department of 

Also, there are some entities that might seem to be part of the U.S. 
government, but are not.  For example, the U.S. Postal Service is no 
longer a branch of the U.S. government.  In addition, while under U.S. 
control, the District of Columbia, Puerto Rico, and organized territories 
of the U.S. are not considered to be part of the U.S. government for 
purposes of copyright law.

Whether a state can copyright its works is a different matter.  Unlike 
the U.S. government, a state government's works are subject to copyright.  
It is up to each state to decide whether to retain the copyright or 
whether such works are to be automatically made public domain.

A related question that sometimes comes up is whether a government may 
copyright its laws.  In the case of the federal government, because of 
the factors discussed above, the answer is clearly that it cannot.  With 
state governments, it's a little less clear.  There is no statute, case, 
or regulation that indicates that a state cannot copyright its laws.  
However, it is the position of the U.S. Copyright Office that a state's 
laws may not be copyrighted.  The Compendium of Copyright Office 
Practices (Compendium II) section 206.01 states, "Edicts of government, 
such as judicial opinions, administrative rulings, legislative 
enactments, public ordinances, and similar official legal documents are 
not copyrightable for reasons of public policy.  This applies to such 
works whether they are Federal, State, or local as well as to those of 
foreign governments."

Now, the Compendium II does not have force of law.  But this does 
indicate that any state trying to register a copyright in its laws would 
be refused registration by the Copyright Office.  As a result, it would 
either have to successfully sue the Office to force registration, or it 
would bear the burden of establishing that its work was indeed 
copyrighted in the event of an infringement suit (normally, a 
registration fulfills that burden).  It's a safe bet that any state or 
city trying to assert a copyright in its laws would have an uphill battle 
ahead of it.

3.7) Can I legally make a cassette copy of a musical CD for my own use, 
so I can play it in my car?

This issue has been argued back and forth for many years, with consumers 
groups arguing that this was a fair use (see sections 2.8 and 2.9), and 
the recording industry arguing that it was not.  The issue was finally 
settled by Congress when the Audio Home Recording Act (AHRA) (P.L. 102-
563, 106 Stat. 4237, codified at 17 U.S.C. 1001 - 1010) was passed in 
October 1992.  This Act added ten sections to Title 17, one of which 
provided an alternative to the fair use analysis for musical recordings.  
The new section states:

   No action may be brought under this title alleging infringement
   of copyright based on the manufacture, importation, or
   distribution of a digital audio recording device, a digital
   audio recording medium, an analog recording device, or an
   analog recording medium, or based on the noncommercial use by a
   consumer of such a device or medium for making digital musical
   recordings or analog musical recordings.

                                 17 U.S.C. 1008.

As the legislative history to this statute noted, "In short, the reported 
legislation would clearly establish that consumers cannot be sued for 
making analog or digital audio copies for private noncommercial use." 
H.R. Rep. 102-780(I).

Does this mean you can make copies for your family and friends, as long 
as it's not "commercial?"  A strict reading of the words in the statute 
would seem to say that you may.  This is not as outrageous as it sounds.  
Part of the impetus behind the AHRA was the perception that blank tapes 
were being used mostly to copy commercial musical sound recordings.  As a 
result, the AHRA provided that a royalty payment (referred to as a "DAT 
tax" by its detractors) be paid for each sale of digital audio tape to 
compensate authors of musical works and sound recordings for the profits 
lost due to these copies. See 17 U.S.C. 1003, 1004.  Arguably, the AHRA 
anticipates and allows exactly this type of copying, and a literal 
reading of section 1008 would tend to support this position.  But the 
AHRA is still sufficiently new this hasn't been tested in court yet.

Note, also, that this section applies only to musical recordings; it 
clearly does not include spoken word recordings.  Of course, it is still 
possible that such a use of a spoken word recording might still be 
considered a section 107 fair use (see sections 2.8 and 2.9), even though 
section 1008 does not apply to provide a clear exemption.

3.8) Are Usenet postings and email messages copyrighted?

Almost certainly.  They meet the requirement of being original works of 
authorship fixed in a tangible medium of expression (see section 2.3).  
They haven't been put in the public domain; generally, only an expiration 
of copyright or an unambiguous declaration by an author is sufficient to 
place a work into public domain.

However, at least with Usenet postings, there are two doctrines which 
probably allow at least some copying: fair use (see sections 2.8 and 2.9) 
and implied license.

Whether a particular use of a Usenet posting is a fair use is, as always, 
a very fact-specific determination.  However, it's probably safe to say 
that it's a fair use if the use was not commercial in nature, the posting 
was not an artistic or dramatic work (e.g.,, it was the writer's opinion, 
or a declaration of facts, and not something like a poem or short story), 
only as much of the posting was copied as was necessary (e.g., a short 
quotation for purposes of criticism and comment), and there was little or 
no impact on any market for the posting.

A similar argument can be made for quoting of private email messages.  Of 
course, revealing the contents of a private email message could run afoul 
of any of a number of non-copyright laws: defamation, invasion of 
privacy, and trade secrecy, to name a few.  So even if you won't be 
violating any copyright laws, you should consider other factors that may 
expose you to legal liability before revealing a private message's 

Proponents of the implied license idea point out that Usenet postings are 
routinely copied and quoted, and anyone posting to Usenet is granting an 
implied license for others to similarly copy or quote that posting, too.  
It's not clear whether such implied license extends beyond Usenet, or 
indeed, what "Usenet" really means (does it include, for example, 
Internet mailing lists?  Does it include netnews on CD-ROM?).  If a 
posting includes an express limitation on the right to copy or quote, 
it's not at all certain whether the express limitation or the implied 
license will control.  No doubt it depends on the specific facts.  For 
example, was the limitation clearly visible to the person who did the 
copying?  Was the limitation placed such that it would be visible only 
after the person who did the copying invested time and money to get the 
posting, believing it to be without any limitation?

With private email messages, a copier who relies solely on the implied 
license argument will probably lose, since it's hard to argue that by 
sending the private message to a limited audience, the sender intended 
for it to be copied and quoted.  For email messages to a public mailing 
list, the implied license argument may still be sound.

These theories are largely speculative, because there has been little 
litigation to test them in the courts.  As a practical matter, most 
postings, with a small number of notable exceptions, are not registered 
with the Copyright Office.  As such, to prevail in court, the copyright 
holder would need to show actual damages (see section 2.5).  Since most 
of these cases will result in little or no actual damage, no cases have 
been be brought; it's simply too expensive to sue for negligible damages.

3.9) Are fonts copyrighted?

First, let's distinguish between a font and a typeface.  A typeface is 
the scheme of letterforms (which is really what you're probably talking 
about), and the font is the computer file or program (or for that matter, 
a chunk of metal) which physically embodies the typeface.

A font may be the proper subject of copyright, but the generally accepted 
rule is that a typeface embodied in the font is not (see Eltra Corp. v. 
Ringer, 579 F.2d 294, 208 U.S.P.Q. 1 (4th Cir., 1978), and the House of 
Representatives Report on the Copyright Law Revision, 94-1476, 94th 
Congress, 2d Session at 55 (1976), reprinted in 1978 U.S. Cong. and 
Admin. News 5659, 5668).

The letterforms themselves are not copyrightable under U.S. law as a 
typeface.  37 CFR 202.1(e).  A font is copyrightable if it adds some 
level of protectable expression to the typeface, but that protection does 
not extend to the underlying uncopyrightable typeface itself (see 17 
U.S.C. 102(b)).

In essence, a font will be protectable only if it rises to the level of a 
computer program.  Truetype and other scalable fonts will therefore be 
protected as computer programs, a particular species of literary works.  
Bitmapped fonts are not copyrightable, because in the opinion of the 
Copyright Office, the bitmap does not add the requisite level of 
originality to satisfy the requirement for copyright.

So, to summarize this point, a typeface is not copyrightable.  While a 
scalable font might be copyrightable as a program, merely copied the 
uncopyrightable typeface, and creating your own font, either scalable or 
bitmapped, is probably not an infringement, assuming you did not copy any 
of the scalable font's code.

Two warnings:

First, even if typefaces can't be copyrighted, they can be patented under 
existing design patent laws.  35 U.S.C. 171.  Copying a typeface and 
distributing such a font, while not a violation of copyright, might be an 
infringement of the patent.

Second, Congress has been considering design protection legislation for 
many years (most recently, the 102nd Congress' H.R. 1790) which, if 
passed, would protect typeface design.  If such a bill is enacted, the 
above opinion will be obsolete and incorrect.

3.10) What does "All Rights Reserved" mean?

One of the earliest international copyright treaties to which the U.S. 
was a member was the 1911 Buenos Aires Convention on Literary and 
Artistic Copyrights (see section 4.1 for more information).  This treaty 
provided that, once copyright was obtained for a work in one signatory 
country, all other signatories accorded protection as well without 
requiring any further formalities (i.e., notice or registration), 
provided that the work contained a notice reserving these rights.  The 
typical notice complying with Buenos Aires was "All Rights Reserved."

As noted in section 4.1, the Buenos Aires Convention is essentially dead 
today, and the "All Rights Reserved" notice no longer serves much useful 
purpose.  It lives on mostly as a testament to inertia on the part of 
U.S. publishers.

3.11) What's the difference between a copyright and a patent?

This answer is included in both the Copyright and Patents FAQs.

There are basically five major legal differences between a copyright and 
a patent in the United States: subject matter protected, requirement for 
protection, when protection begins, duration, and infringement.  There's 
also a sixth practical one: cost.

Subject matter: A copyright covers "works of authorship," which 
essentially means literary, dramatic, and musical works, pictorial, 
graphic, and sculptural works, audio-visual works, sound recordings, 
pantomimes and choreography.  A patent covers an invention, which 
essentially means a new and non-obvious useful and functional feature of 
a product or process.

Requirement for protection: In order for a work to be copyrighted, it 
must be original and fixed in a tangible medium of expression; no 
formalities are required (see section 2.3).  In order for an invention to 
be patented, it must be novel (i.e., new), non-obvious, and useful and a 
patent must be issued by the United States Patent and Trademark Office.

Start of protection: Copyright protection begins as soon as a work is 
created.  Patent protection does not begin until the patent is issued.

Duration: A copyright generally lasts for the life of the author, plus 50 
years (see section 2.4).  In the U.S., a patent lasts for 17 years from 
the date granted (in some nations, particularly Japan and most European 
nations, the duration is 20 years, and is measured from date of 

Infringement: For a copyright to be infringed, the work itself must have 
actually been copied from (either wholly or to create a derivative work), 
distributed, performed, or displayed.  If a person other than the 
copyright owner independently comes up with the same or a similar work, 
there is no infringement.  In contrast, a patent confers a statutory 
monopoly that prevents anyone other than the patent holder from making, 
using, or selling the patented invention.  This is true even if that 
person independently invents the patented invention.

Cost: A copyright is essentially free.  Even if you want to register the 
copyright, the cost is only $20, and the paperwork is much less 
complicated than the 1040A short form for filing your income tax, well 
within the capabilities of the person registering the copyright.  A 
patent, on the other hand, is much more costly; there are fees to the 
Patent and Trademark Office, and the patent application process is much 
more complex, usually requiring the services of a registered patent agent 
(and perhaps a lawyer) to draft and prosecute the application, adding to 
the cost.

Philosophically, you can look at a copyright as protecting the author's 
rights that are inherent in the work; in contrast, a patent is a reward 
of a statutory monopoly to an inventor in exchange for providing the 
details of the invention to the public.

3.12) Why is there so little in this FAQ about patents?

Peter Treloar, the moderator of comp.patents, currently maintains a FAQ 
devoted exclusively to patents, and duplicating his effort here would be 
needlessly redundant.

The comp.patents FAQ is periodically posted to the Usenet comp.patents 
newsgroup.  A current copy is available by anonymous FTP from, in directory /pub/patents/incoming, and from [], in directory /pub/doc/comp.patents.

The comp.patents FAQ (or "The Internet Patent Book") is available in two 
versions.  The file named "internet_patents.txt" is a plain ascii text; 
"" is a PostScript version.  The PostScript version is 
by far the more readable of the two.

For further information regarding the comp.patents FAQ, please correspond 
with Peter directly, at

3.13 - 3.18) [reserved.]

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