Introduction to Copyright Law

An Overview of Copyright

The subject of copyright law is human creativity. Like its subject matter, copyright law is fascinating, complicated, and contested. Copyright law as we know it today began over 300 years ago with the enactment of the Statute of Anne in England in 1710. The Statute of Anne was a delayed response to the disruptive technology of the printing press that had swept across Europe in late 15th and 16th Centuries. Copyright has continued to respond to technological and social change ever since.

The next few paragraphs sketch out a very basic overview of copyright as a preview of the material that lies ahead. The aim of this overview is to describe the law as it is now in the United States, and to gloss over important questions of history and alternative interpretations of the law—these will come later.

Authors & Works. Copyright is a set of exclusive rights that belong, initially at least, to the author or authors of “a work” such as a novel, a movie, or a piece of music. Copyright begins when the work is created and typically lasts for the life of the author plus 50 or 70 years. Copyright protects a wide variety of cultural objects, including books, drawings, paintings, sculpture, music, and movies. More recently this list has expanded to include computer software and architecture.

Rights. Broadly speaking, the copyright owner has the exclusive right to reproduce the work, to make adaptations based on the work that are reasonably close to the original, to distribute the work, and to communicate the work to the public through performance and display. Rights in relation to distribution and display can seem very broad, but in practice they are quite narrow because they only apply to any given copy of a work up until the first sale of that copy.

Copyright rights are broad, but they are not as broad as the equivalent rights in patent law. Patent owners have the exclusive right to “make, use, or sell” the patented invention. The concepts of “make” and “sell” have their analogs in copyright law, but there is nothing so broad as a right to “use” the copyrighted work. This is significant: you don’t need permission to read a book or listen to music on a compact disc or an LP, you don’t need permission to lend the book or the disc to a friend, or to tell people about the things you have learned from the book or your reaction to the music.

Expression. Even though copyright law gives the author the exclusive right to make reproductions of her works, that right only goes so far: Copyright does not protect every aspect of a work, it only protects original expression.

Copyright does not protect facts, ideas or functional product features. To illustrate, I would infringe the copyright in Martha Stewart’s cookbook if I copied the entire work and made it available for free on the Internet. However, I could follow one of the recipes in that book to make a cake, and I could sell that cake for profit, all with no duty to account to Martha Stewart. Indeed, I could reduce Martha Stewart’s cake recipe down to a simple set of instructions and then describe those instructions in my own words and compete with Martha Stewart in the market for cake recipes. As the Seventh Circuit explained in Publications Int’l, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996), recipe books can show originality and obtain copyright protection if “the authors lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation.” But so long as a second comer doesn’t copy Martha Stewart’s original expression, they don’t infringe on her copyright, even if they use her book in ways of which she would not approve.

Rights can fragment and overlap. Copyright rights can be fragmented and overlapping.

Suppose that A writes a poem. B adapts the poem into song lyrics. C adds an original musical composition. D performs the song and it is recorded by E to create a sound recording. Further suppose that F then plays that recording in public, and G records that performance along with images of the reaction of the audience to create an audiovisual work.

If H were to copy G’s movie without obtaining permission from anyone, she might be infringing the rights of A, B, C, E and G. It is possible that D and E would be joint authors of the sound recording. Also, some jurisdictions outside the United States would also recognize that D has an intrinsic right to the performance such that D’s permission would be required for certain downstream uses whether she is an author of the sound recording or not.

Limitations & Exceptions. The rights of copyright owners are subject to a number of important limitations. The copyright laws of most countries contain a hodgepodge of limitations and exceptions that reflect the influence of particular interest groups at particular times. Some copyright limitations are required to meet its overall purpose of encouraging the diffusion of knowledge, promoting authorship and enabling creativity; some are required because without them copyright law might unduly constrain freedom of expression; and some limitations are required because without them copyright would confer overly broad exclusive rights in related and downstream activities. But we must also concede that some copyright limitations or exceptions are really just a result of special interest pleading and can’t be fully justified as fulfilling the essential purpose of copyright or maximizing general welfare. The copyright system would be self-defeating without some limits on the broad rights of copyright owners, but exactly what limits are required, how they should be structured, and who is best placed to make these decisions are all highly controversial questions in modern copyright law.

The Historical Development of Copyright Law

Monopoly and censorship as a response to the printing press

Copyright law is constantly evolving. Prior to Gutenberg’s invention of the movable type printing press in the early 15th century, the predominant technology of copying was the monastic scribe. At a time when very few people could read and copying was highly labor-intensive, copying was essentially unregulated. But then came Gutenberg and the diffusion of printing press technology throughout Europe catalyzed enormous social and political changes. In the early days of this new technological era, regulation of the printing press focused on the need to maintain religious and political orthodoxy. In England, this need was met by a licensing system that ensured that only the Stationers’ Guild was permitted to print books. In turn, the Guild ensured that only approved books were printed. The Licensing Act of 1662 explained its objective in terms of guarding against the publication of “heretical schismatical blasphemous seditious and treasonable” books.

By convention, the members of the Stationers Guild agreed that the first member to enter a literary title in the Stationers’ Register would have exclusive and perpetual rights to publish it. This practice explains some of the terminology of copyright law. As Simon Stern explains in Towards a Pre-History of the Public Domain: Copyright Law and Its Limits in Eighteenth-Century England, in the Oxford Literature Handbook: “The registered title and the rights associated with it were known as the “copy” of the publication, and the acquisition of a copy (or the “right of copy”) was limited to guild members.” The Stationers Guild was essentially a cartel of London publishers and booksellers. Within this group it was common to view the ‘copy’ as a form of property, it was treated as an exclusive right and was a thing to be owned, traded, and used as collateral for loans. But it is important to understand that although the booksellers thought of the “copy” as their property, this concept of property was very different from the idea of “literary property”—a term that came into vogue only much later—and our modern concept of copyright. For more, see John Feather, From Rights in Copies to Copyright: The Recognition of Authors’ Rights in English Law and Practice in the Sixteenth and Seventeenth Centuries, 10 Cardozo Arts and Entertainment Law Journal 461-62 (1992).

The Licensing Acts lasted until almost the end of the 17th century but they were eventually allowed to expire, thus bringing the de jure printing monopoly of the Stationers Guild to an end. The demise of the Licensing Acts has been attributed to a growing distaste for pre-publication censorship, and to dissatisfaction with the inflated prices and monopolistic practices of the Stationers Guild.

The transition from monopoly and censorship to statutory copyright did not occur in a vacuum. England in the 17th Century witnessed regicide, civil war, dictatorship, the restoration of the monarchy, and a “Glorious Revolution” which cemented Protestantism as the official state religion. Underlying most of these events was a power struggle between the crown and parliament in which parliament eventually prevailed.

The First Copyright Act: The Statute of Anne

In 1710, the British Parliament passed “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors, or Purchasers, of such Copies, during the Times therein mentioned”, or as it is usually simply called, The Statute of Anne.

Historians have debated whether the Statute of Anne should be seen as displacing, regulating, or merely entrenching the pre-existing monopoly of London booksellers in the seventeenth century. On the surface, the Statute of Anne was a significant departure from previous customs of the book trade because it placed control of new works of authorship into the hands of authors themselves. Also, unlike the Stationers Guild’s monopoly privileges, the author’s rights under the Statute of Anne were for a limited duration. Books published before the Statute were granted twenty-one years of protection under the new law. The authors of books published after the Statute of Anne took effect were entitled to an initial term of 14 years, renewable for a second term of the same length if the author was still alive when the first term ended.

Why 14 years and not some other period? Why two terms for that matter? In Authors and Owners: The Invention of Copyright (1993), Mark Rose argues that the bifurcated term was an attempt to bring the new author’s right within the scope of the 1624 Statute of Monopolies. The Statute of Monopolies limited the powers of the Crown to grant monopolies, but created an exception relating to any “manner of new manufacture” as long as the monopoly did not exceed a specified limited term: twenty-one years for extant grants; fourteen years for future grants.

The scope of protection under the Statute of Anne was much narrower than modern copyright. The statute did not explicitly address translations, incomplete copying or the unauthorized creation of sequels. The Statute of Anne also contained a provision whereby booksellers who charged “high and unreasonable” prices could be called into account and potentially fined. The statute did not reach the import of foreign books in languages other than English.

The First United States Copyright Act

The first United States copyright law was the Copyright Act of 1790—formally titled, “An Act for the Encouragement of Learning,” enacted on May 31, 1790. But the U.S. Supreme Court did not hear its first copyright case until 1834.

Wheaton v. Peters, 33 U.S. 591 (1834)

“An act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.”

“Whereas printers, booksellers and other persons, have of late frequently taken the liberty of printing, reprinting and publishing, or causing to be printed, reprinted and published, books and other writings without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families,” &c.

Notes and questions

(1) The final sentence of the majority opinion notes, almost as an afterthought, that the court is unanimously of the opinion that “no reporter has or can have any copyright in the written opinions delivered by this court; and that the judges thereof cannot confer on any reporter any such right.” Why not?

(2) Why does the majority recognize a common law right of first publication, but reject perpetual copyright?

(3) A historical detour. Whether copyright existed at common law but was then displaced by statute, versus never having existed at all was addressed in England long before Wheaton v. Peters in two pivotal cases in the history of copyright, Millar v. Taylor 98 Eng. Rep. 201 (K.B. 1769) and Donaldson v. Becket (1774) 1 Eng. Rep. 837. Consider this note a historical detour on what is often called “The Battle of the Booksellers,” or the “Question of Literary Property” in England.

Following the enactment of the Statute of Anne, members of the Stationers’ Guild argued that, regardless of the limited times referred to in the statute, they held perpetual common law exclusive printing rights. It is worth noting that members of the Stationers’ Guild never sought to establish such a common law right in the period between the end of the Licensing Acts in 1695 and the enactment of the Statute of Anne in 1710. In support of this contention, these London booksellers noted that members of the Guild had a longstanding practice of respecting such claims and would not reprint any text first claimed by another member. The Guild members based in London came into increasing competition with provincial and Scottish publishers who failed to respect their comfortable cartel.

The argument for perpetual copyright was initially successful. In Millar v. Taylor the majority of the Court of King’s Bench held that copyright existed as both a statutory and a common-law right. The majority held that when statutory copyright ended, the booksellers’ common law copyright assigned from the author would continue, forever. In this view, the Statute of Anne merely vested copyright owners with additional remedies over and above those available at common law and in equity. Justice Yates, dissenting, agreed that authors had a right to control the first publication of their manuscripts, but no more. Millar died not long after the ruling and it was never appealed. In 1771, London bookseller Thomas Becket asked the Court of Chancery to enjoin Scottish bookseller Alexander Donaldson from printing James Thomson’s The Seasons (Thomson died in 1748). With Statute of Anne rights expired, Becket pressed a common-law claim beyond first publication. Donaldson v. Becket has long puzzled readers: the procedure was ornate and the early reports thin. Lord Chancellor Apsley, reading Millar v. Taylor as controlling, issued a perpetual injunction. On appeal, the Lords solicited the views of the twelve common-law judges on five questions—overlapping in part—about (1) an author’s first-publication right at common law; (2) whether that right expired upon publication; (3) whether the 8 Anne statute displaced any common-law action; (4) whether a perpetual right existed at common law; and (5) whether 8 Anne impaired such a right.

The conventional account, echoed in Wheaton v. Peters, says a majority favored a common-law right (beyond first publication) but thought the statute took it away. Wheaton v. Peters does not follow that position, so it is largely a matter of historical interest that it is probably incorrect. But historical interest is still interesting, so here is why that account is mistaken. Confusion began with misreported judicial tallies. As Ronan Deazley shows, both the counts and their institutional weight were misunderstood: the Lords included judicial and lay peers; they often, but not invariably, followed the judges. Five peers spoke; only one supported a common-law right.

Crucially, the judges answered the five questions above, but the peers voted only whether to dissolve the perpetual injunction. The Lords reversed without stating whether (i) no common-law copyright existed, (ii) none existed beyond first publication, or (iii) the statute abrogated any prior right. Counting speeches yields a tie: seven judges and one peer for a common-law right; four judges and four peers against. Eighty-four Lords attended the final vote; their individual views are unknown. In stating the law of the case, Lord Chancellor Apsley expressly denied any common-law right, and that position prevailed, so that is the controlling holding of the case. For more, see Ronan Deazley, Commentary on Donaldson v. Becket (1774), in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, (2008) (www.copyrighthistory.org).

(4) Does Wheaton v. Peters support a utilitarian or a natural rights view of copyright law? We address the difference between these two perspectives later in this chapter.

Copyright Formalities and Duration

Formalities

The Supreme Court’s decision in Wheaton v. Peters (1834) firmly established that copyright in the United States is a creature of statute rather than a natural or common-law right. Having rejected the notion of perpetual literary property, the Court grounded protection in compliance with the positive requirements of Congress’s copyright acts. Under the Copyright Act of the day, copyright protection was contingent on complying with various formalities and procedural steps. U.S. law continued in this vein in the 1831 Act and in the 1909 Act, but changed significantly with the Copyright Act of 1976, which became effective January 1, 1978. The 1976 Act was a watershed moment in U.S. copyright, but it’s still important to understand how the law applied to works that were created under the 1909 Act, because many of those works are still potentially under copyright today.

Under the Copyright Act of 1909, authors obtained protection only by publishing their works with a proper copyright notice, registering the work with the U.S. Copyright Office, and depositing copies with the Library of Congress. These requirements were treated as conditions of protection rather than procedural steps. Failure to comply, such as omitting a notice on publication, placed the work irrevocably in the public domain. Registration was also a prerequisite to bringing an infringement suit, a requirement that continues through to the present day.

This system changed fundamentally with the Copyright Act of 1976. The 1976 Act made copyright protection automatic upon fixation of an original work in a tangible medium of expression, thereby eliminating publication and registration as conditions of existence. The reform aligned U.S. law with international practice and anticipated the later requirements of the Berne Convention, which the United States joined in 1989. Under this modern regime, the author’s creative act of fixation, not the act of publication or registration, suffices to create the copyright.

Although formalities no longer determine whether copyright exists, they remain relevant to enforcement and evidentiary matters. A copyright notice, while optional after 1989, can still defeat a claim of innocent infringement. Registration is not mandatory for protection but serves several important functions: it is a prerequisite for filing an infringement action in federal court; it enables access to statutory damages and attorney’s fees; and if completed within five years of publication, it provides prima facie evidence of validity. Deposit of copies with the Library of Congress remains an administrative requirement, and failure to deposit may incur fines but does not invalidate the copyright. Thus, formalities have evolved from conditions of creation to tools that facilitate enforcement and public record-keeping.

Duration

The duration of copyright protection in the United States depends on when the work was created and whether it was produced by an individual author or as a corporate or anonymous work. For works created on or after January 1, 1978, the general rule under § 302 of the 1976 Act grants protection for the life of the author plus 70 years. In the case of joint authorship, the term lasts seventy years after the death of the last surviving author. For anonymous, pseudonymous, and “works made for hire,” the statute provides an alternative fixed term of 95 years from publication or 120 years from creation, whichever expires first.

Works created before 1978 but still protected on that date are governed by the transitional provisions of § 304. Under the 1909 Act, works enjoyed an initial term of 28 years upon registration with a renewal term of equal length. Congress repeatedly extended the renewal term, most notably through the 1976 Act and again in the 1998 Sonny Bono Copyright Term Extension Act, which lengthened the renewal period to sixty-seven years. As a result, the total duration for these older works is now 95 years from the date of publication, provided that their copyrights were properly secured and renewed. It means that there are works created under the 1909 Act, which were given an initial term of protection of 28 years, but then ended up with a second term of 67 years, totaling 95 years. One of the most important rules of thumb that any copyright attorney should know is that as of 2026, all works published before 1930 are in the public domain. But note that this date advances each year, so in 2027 the magic date will be 1931, and so on.

Under the 1976 Act it doesn’t matter when a work is published. The clock starts ticking on copyright duration as soon as the work is created. As a reminder, the two most important categories are individual authors (life + 70 years) and works for hire (95 years). If that sounds simple enough, don’t worry, it gets more complicated. Specifically, in order to smooth the transition to the new framework under the 1976 Act, Congress provided that all unpublished works created prior to 1978 would remain under copyright until at least the end of 2002. Furthermore, if such a work was published between 1978 and December 31, 2002, the copyright extends through December 31, 2047. This creates the somewhat counterintuitive result that an unpublished work by an author who died in 1850 would have been protected through at least 2002, and through 2047 if published by that deadline, even though a published work from that same era would have entered the public domain long ago.

Sound recordings fixed before February 15, 1972 run on a separate and slower ladder, and the rule of thumb above does not apply to them. Before 2018 these recordings were governed by state law rather than federal copyright. The Classics Protection and Access Act, discussed later in this chapter, brought them within the federal scheme but gave them their own terms in § 1401(a)(2). Recordings first published before 1923 entered the public domain on January 1, 2022. Recordings first published between 1923 and 1946 are protected for 100 years from publication, so as of 2026 the equivalent magic date for sound recordings is 1926: recordings published in 1925 or earlier are in the public domain, and like the general rule this date advances by a year each year. Recordings first published between 1947 and 1956 get 110 years. Everything else fixed before February 15, 1972 is protected until February 15, 2067, at which point the whole category enters the public domain at once.

For guidelines for calculating copyright term, see the Cornell University Library’s Copyright Information Center, Copyright Term and the Public Domain in the United States at https://copyright.cornell.edu/publicdomain, this very useful chart is updated annually.

Publication, The Right of First Publication, and What’s Left of Common Law Copyright

With so much riding on the question of publication, it should not be surprising that the very concept of publication itself has become somewhat tortured under United States law.

Estate of Martin Luther King v. CBS, Inc., 194 F.3d 1211 (11th Cir. 1999)

In Estate of Martin Luther King v. CBS (11th Cir. 1999), the Eleventh Circuit reversed a district court’s grant of summary judgment to CBS in a copyright infringement case. CBS had used substantial portions of Dr. King’s famous “I Have a Dream” speech in a 1994 documentary without authorization from the Estate, which held a valid copyright obtained shortly after the speech’s delivery in 1963. The central issue was whether Dr. King’s public delivery of the speech at the 1963 March on Washington, broadcast live to millions and widely covered by the press, constituted a “general publication” that forfeited the speech to the public domain under the 1909 Copyright Act. The appellate court held that, under established precedent, a performance—even before a massive audience—is not a general publication, and distribution to news media for contemporary coverage of a newsworthy event constitutes only a “limited publication” that preserves copyright. The court distinguished this case from situations involving unrestricted copying or widespread distribution of tangible copies to the general public, finding genuine issues of material fact precluded summary judgment and remanding for further proceedings on CBS’s other defenses.

Judge Cook agrees with the outcome of reversing summary judgment for CBS but fundamentally disagrees with Chief Judge Anderson’s reasoning. While the majority relies on the “limited publication” doctrine—arguing that distributing the speech to the press for news coverage was only a limited rather than general publication—Judge Cook advocates for a simpler, more categorical approach rooted in the principle that performance of a work can never constitute publication under any circumstances. He emphasizes that this rule, established by Supreme Court precedent and later codified in the 1976 Copyright Act, applies regardless of audience size, press coverage, or copying restrictions. In his view, publication can only occur when tangible copies of a work are distributed to the public without copyright notice, which never happened with Dr. King’s speech. Judge Cook criticized the majority’s framework because it requires analyzing factors like audience size, media dissemination, and copying restrictions that he believes are irrelevant for performed works. This makes the case fairly straightforward: Dr. King performed the speech but never authorized distribution of tangible copies without copyright notice, therefore no publication occurred.

The copyright law concept of publication is obviously strained and artificial. As Estate of Martin Luther King Jr. v. CBS illustrates, courts developed a distinction between “limited publication” and “general publication” to mitigate the extreme consequences of publication without copyright notice. Under the 1909 Act, only a “general publication” made without complying with copyright formalities would divest a work of its potential for federal copyright and simultaneously end its common law copyright (the right of first publication).

Ongoing Confusion About “Common Law Copyright”

Until the Copyright Act of 1976, unpublished works enjoyed a common law right of first publication that is sometimes referred to as “common law copyright.” So long as a work remained unpublished it was eligible for statutory copyright protection from the moment of general publication in compliance with copyright formalities. Historically, the common law recognized the right of an author to control the first publication of an unpublished work. This doctrine grew out of early English cases involving unpublished letters and manuscripts, which held that the author of the letters rather than their possessor had the right to authorize or prohibit their publication. The common law did not, however, recognize any right to control subsequent publication of a work after a first authorized publication had taken place, see Wheaton v. Peters 33 U.S. 591 (1834) and in particular the “historical detour” discussed under note 3 after Wheaton.

It is often said that publication without compliance with formalities would “divest” common law copyright. But this is only true in the sense there can be only one “first” publication. In truth, publication without notice was not literally divesting, it is more accurate to say that it was exhausting of one’s common law rights and represented the failure to take advantage of a contingent statutory requirement. This right of first publication did not amount to the broad concept of literary property advocated by Blackstone, and the right of first publication should not be treated as the exclusive right to reproduce, distribute, publicly perform and display the work that applies to statutory copyright.

The expression “common law copyright” is apt to cause confusion between the common law right of first publication and broader concepts of a supposed common law right in literary property that (a) was arguably never part of English law, the arguments of Blackstone notwithstanding and (b) never became part of American common law. The term “common law copyright” should be avoided if all we are really talking about is the common law right of first publication. There is a smattering of case law that indicates the existence of a common law copyright that was something more than a right of first publication, but such cases either have been overruled or should be. For example, in Flo & Eddie, Inc. v. Sirius, 28 N.Y.3d 583 (NY Court of Appeals 2016), the New York Court of Appeals held that the common law of New York does not recognize a right of public performance for the creators of sound recordings fixed prior to February 15, 1972. But note that since that case was decided, the 2018 Music Modernization Act gave something equivalent to federal copyright protection to sound recordings made before February 15, 1972, which were previously only protected (if at all) under state law. These older recordings now receive at least 95 years of federal protection from their publication date, with some getting even longer protection depending on when they were published. This federal law also replaced many state-level protections that previously covered these recordings.

The “Why” of Copyright Law

Utilitarian versus natural rights perspectives

There are a multitude of theories as to what the true purpose of copyright law should be.

John Locke’s labor-desert theory of property as expanded in Locke’s Two Treatises of Government could be used to justify copyright, although Locke himself was more focused on justifying real and personal property. The Lockean theory holds that because we own ourselves, we own the product of our labor. Thus, when an individual contributes their labor to unowned resources or resources held in common, they earn a property right over the resulting product. According to some, this Lockean hinges on the “no-harm” proviso, asserting that people should not harm others by taking the fruits of their labor. This implies that appropriation from common resources or a state of nature is only justifiable if there is still “enough and as good” left for others to claim, and the appropriation should not lead to waste, implying that the property claim is only legitimate if the resources can be put to use. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale Law Journal 1533 (1993), and more recently, Mala Chatterjee, Lockean Copyright vs. Lockean Property, 12 Journal of Legal Analysis 136 (2020). For a different perspective, see Seana Shiffrin, Lockean Arguments for Private Intellectual Property, in New Essays In The Legal And Political Theory Of Property 138-67 (2001).

Another deontic justification for copyright comes from personality theory, most clearly explored in the writings of Immanuel Kant. Adapting personality theory to copyright, one might argue that an individual’s original expression, which embodies their personality, should be respected and protected as a property right to their autonomy. For more, see Margaret Jane Radin, Property and Personhood, 34 Stanford Law Review 957 (1982). While the personality theory has a certain intuitive appeal it struggles when it comes to resolving competing claims based on personality. The theory gives us no basis to reconcile the personality interests of a first author and a second who builds upon her work, such as when a novel reflecting one author’s personality is adapted into a movie reflecting the filmmaker’s personality.

Many would argue that neither of these theories is a great fit for the Anglo-American tradition of copyright law. Instead, the best general characterization of Anglo-American copyright law is that it is utilitarian or consequentialist. On this view, copyright is not based on natural rights at all, it is simply enlightened social policy that provides incentives for the production of new artistic and literary works that might otherwise be lacking. Incentives are required because information goods are generally expensive to make, but cheap to copy. For more on the economics of copyright law, see below. But in the meantime, consider the textual evidence that Anglo-American copyright law is primarily utilitarian.

Evidence for an author-centric, natural-rights account of copyright law

The Supreme Court’s decision in Wheaton v. Peters 33 U.S. 591 (1834) reprised the common law copyright debate from Millar v. Taylor and Donaldson v. Becket. The Supreme Court agreed that the common law carried from England to the colonies that became the United States recognized a right of first publication, but it rejected the broader claim of perpetual common law copyright.

The textual evidence for a positivist-utilitarian seems strong. The first copyright statute, the Statute of Anne enacted in England in 1710, begins with the following rationale:

Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families …

The purpose of the Statute of Anne is apparent in its title:

An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors, or Purchasers, of such Copies, during the Times therein mentioned.

This sentiment is also reflected in Article I, Section 8, Clause 8 of the United States Constitution, which empowers Congress:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

These overlapping sentiments are not a coincidence: the Statute of Anne was the template for similar copyright laws in the American colonies, the United States itself and numerous other common law jurisdictions. This common heritage is seen in the long title of the U.S. Copyright Act of 1790, which was almost identical to that of the Statute of Anne:

An Act for the encouragement of learning, by securing the copies of maps, Charts, And books, to the authors and proprietors of such copies, during the times therein mentioned.

But we should not be too quick to see this as a one-sided debate. Although the text of the Constitution and reading Wheaton v. Peters on its face seems to settle the question of whether copyright is a natural right or a utilitarian regulation quite decisively, there are alternative points of view. Jane Ginsburg argues that the U.S. tradition has always had both a positivist/utilitarian current and an author-centric (quasi-natural-rights) current and she makes three sets of arguments against an overly reductive reading of Wheaton v. Peters. See, Jane C. Ginsburg, Humanist Copyright, 6 Journal of Free Speech Law 91 (2025).

First, Ginsburg notes that there was good evidence for a natural rights view of copyright prior to Wheaton v. Peters. She notes that founding-era sources such as pre-Constitution state statutes literally framed authors’ control as a “natural right” (e.g., Massachusetts 1783), and that Madison in Federalist 43 even referred to a British common-law copyright.

Second, Ginsburg would question whether the Supreme Court in Wheaton v. Peters really meant to settle the status of copyright as a natural right by insisting on adherence to formalities. In various contexts, formalities can serve administrative or evidentiary functions rather than denying the existence of a natural right or signaling a pure social-contract view. Indeed, perhaps Wheaton was more about federalism than it was about copyright at all? Ginsburg suggests that the decision also fits the Marshall Court’s project of consolidating federal power and clearing interstate barriers, not just an ideological rejection of authorial rights. On this view, Wheaton’s rigidity about formalities was a byproduct of Commerce-Clause-era federalism, not a referendum on natural-rights theory. Furthermore, Ginsburg also notes that while Wheaton is a strong positivist turn for published works (you had to comply with federal formalities), the Court still acknowledged a kind of inchoate, pre-publication right.

Third, Ginsburg notes that in many ways, later doctrinal and statutory developments lean back toward a focus on what is inherent in authorship. As we’ll see shortly, Justice Holmes in Bleistein famously presumed protection from the fact of human creation—“that something he may copyright unless the Act says otherwise”—which rhetorically flips Wheaton’s posture and re-centers the author. Furthermore, modern statutes reinforce an author-centric view in some ways. Most notably, the 1976 Act’s premise that copyright “subsists” upon creation and fixation (i.e., is automatic) reflects a shift away from formalities toward the creative act itself—consistent with Ginsburg’s humanist arc.

Although the debate is far from settled, the U.S. Supreme Court has endorsed a purposive understanding of copyright law on more than one occasion, although with nuanced differences in emphasis between ends and means. In Sony Corporation of America v. Universal City Studios, Inc. 464 U.S. 417 (1984), Justice Stevens, writing for the majority, said

The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired.

Or, as Judge Pierre Leval put it in an influential 1990 Harvard Law Review article, Toward a Fair Use Standard,

[Copyright is] not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.

Other cases and authorities downplay the need to shape copyright to meet its public purpose goals, arguing that copyright incentives intrinsically tend toward the public good. On this view:

… copyright law celebrates the profit motive, recognizing that the incentive to profit from the exploitation of copyrights will redound to the public benefit by resulting in the proliferation of knowledge.... The profit motive is the engine that ensures the progress of science.

In Eldred v. Ashcroft 537 U.S. 186 (2003), Justice Ginsburg (whose views on copyright were not coincidentally similar to those of her daughter Professor Jane Ginsburg) used this quote in rejoinder to Justice Stevens’ and Justice Breyer’s arguments concerning the constitutionality of extending the term of copyright for works that had already been created. She explained that the public and private ends are not in tension in copyright law, or at least that “the two ends are not mutually exclusive; copyright law serves public ends by providing individuals with an incentive to pursue private ones.”

In contrast to the United States, the European approach to copyright does not ignore utilitarian benefits, but its foundational concern is with recognition of the rights of the author. This natural rights view of copyright explains the European enthusiasm for “moral rights” that protect the integrity of a work as distinct from the traditional economic rights. It also explains another key difference between European influenced copyright systems and those in the Anglo-American tradition, the treatment of the rights of performers. Both of these topics are addressed in later chapters. Of course, many aspects of European copyright law are more consistent with a utilitarian conception of copyright; just as a few aspects of copyright in common law jurisdictions may be better explained from a natural rights perspective.

The continued relevance of non-utilitarian theories of copyright law

Critics of non-utilitarian theories of copyright law would argue that where it is clear that a non-utilitarian theory of copyright is welfare reducing, privileging the non-utilitarian position amounts to little more than expressing a preference for the utility of one class of persons over another. As Glynn Lunney notes in Copyright’s Excess: Money and Music in the US Recording Industry 57 (2018),

“I like authors better” may be perfectly fine as a basis for deciding who receives an invitation to your next cocktail party; it is not a satisfactory basis for a system of legal rights that binds author and non-authors alike.

What should we make of natural rights and other non-utilitarian theories of copyright law? Even if you find it difficult to accept them as the primary justification for the institution of copyright law, they have their place.

Natural rights intuitions about copyright play an important role in constructing the basic concepts of copyright law. Non-economic theories are essential to developing a coherent body of law with reasonably determinate parameters—which is another way of saying low information costs. The problem with a purely instrumental account of copyright law is that it sets a goal but tells us very little about the means to realize that goal. As Professor Shyamkrishna Balganesh, explains in a 2012 article in the Harvard Law Review, The Obligatory Structure of Copyright Law: Unbundling the Wrong of Copying:

To the instrumental account, the precise structure of copyright’s entitlement--that is, its “rights”--matters very little. The inducement for creativity that it seeks to provide could thus be meaningfully achieved in principle through the grant of a government-sponsored subsidy or reward, a tax break, or perhaps more realistically, a compensation (or compulsory licensing) regime. The instrumental account thus lacks explanatory depth, in that it does not extend beyond the surface of copyright’s operation to explain why it operates in the precise way that it does …

Without some intrinsic idea of what copyright is supposed to be about, we face too many choices about what the law should be to be able to make any rational choices at all. The mandate to maximize the public good can’t give us a predictable definition of authorship by itself, nor does it dictate where the line between ideas and expression should be drawn in the abstract. Answering these questions from a strictly utilitarian position would require knowledge of all of the other variables in the system, such as the duration of copyright, the scope of rights, etc. For more, see Matthew Sag, Beyond Abstraction, The Law and Economics of Copyright Scope and Doctrinal Efficiency, 81 Tulane Law Review 187 (2006).

Copyright law is built around a few key legal concepts, concepts such as originality and the idea-expression distinction that will be discussed at length elsewhere in this book. These concepts are not inconsistent with the instrumental account of copyright law, but they are more than merely levers of instrumentalism. As Balganesh further explains:

The instrumental account thus answers the question, “why copyright?” Yet in operationalizing the institution and applying it to individual instances, a decisionmaker need not make reference to the overall instrumental goals of the institution, but can instead adopt an analysis using the granular devices and concepts on which the liability regime relies--all of which revolve around the idea of copying.

Is copyright property?

The debate about whether copyright and other forms of “intellectual property” (i.e., patents, trademarks, trade secrets, etc.) are really property tends to proceed along the following lines. Those who proclaim that copyright is property observe that as a matter of definition exclusive and tradable rights are generally thought of as property. Those who resist the property label note that copyright and other IP rights are limited in scope and duration and subject to a number of important public interest caveats.

Pro-property advocates respond with fascinating descriptions of the law relating to nuisance, easements, riparian rights, and ancient Roman concepts holding the oceans and navigable waterways in public trust. The implication being that, for every conceivable feature of copyright that supposedly distinguishes it from property, there is in fact a property law antecedent.

Those who resist the property label respond by saying something along the lines of “but that is not what you mean when you say copyright is property. You mean that as a normative matter, the rights of the copyright owner should come as close as possible to absolute control that is unyielding and perpetual.” Both sides then declare victory in the debate and revert to their initial positions.

Whether one chooses to call copyright “property”, “regulation”, or something else entirely, it is worth understanding how copyright is different to rights in relation to tangible things. A property right in Blackacre confers broad rights of exclusion on the owner. As a corollary, the property owner’s right to exclude necessarily implies a duty to refrain from trespass. Copyright has a similar right/duty correlation. The copyright owner’s exclusive rights with respect to her original expression can be reframed in terms of a duty not to copy original expression. For more on this, see Shyamkrishna Balganesh, The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, 125 Harvard Law Review 1664 (2012).

In real property, the right to exclude makes possible an undefined set of use privileges in relation to Blackacre. These privileges are protected through a right to exclude because the underlying resource is rivalrous. If I am to make full use of my parking space, it is essential that you are not allowed to park your car there. Here we see the difference between copyright and real property. The exclusive rights of the copyright owner are entirely superfluous to her use of her intellectual property. If you make a copy of my manuscript, I am not prevented from reading my original copy, or from using it as the basis for additional copies. To recap, the difference between copyright and property is that in the latter case exclusion and the correlative duty not to intrude serve as placeholders for more fundamental interests; whereas in copyright, the fundamental interest is the duty not to copy original expression.

There is also a separate debate in Constitutional law as to whether copyright qualifies as property within the original meaning of the Fourteenth Amendment’s Due Process Clause. Compare Justice Kagan’s majority opinion in Allen v. Cooper, 140 S.Ct. 994 (2020) with Justice Thomas’ separate opinion concurring in part and concurring in the judgment. But, to this author at least, that argument is even less interesting than the general philosophical question posed above.

Key Economic Concepts in Copyright Law

The standard model

The standard model for the economic analysis of copyright starts with the idea that copyright law is a solution to a “public goods” problem. For a classic account, see William Landes & Richard Posner, The Economic Structure of Intellectual Property Law (2003).

As Stewart Brand once said: “Information wants to be free. Information also wants to be expensive.” This is the basic dilemma that copyright law attempts to resolve. Information wants to be free in the sense that, once produced, information is cheap to copy, distribute, and recombine. Information wants to be expensive in the sense that, for information producers to recover their fixed costs of creation, they need to be able to charge more than just the low marginal cost of copying that results from a competitive market.

In its pure form, information is what economists call a public good, meaning that it is both non-excludable and non-rivalrous. The non-excludable nature of information means that those who produce it often find it difficult to keep the benefits to themselves. Consider the following example. Amy, a budding novelist, plans to write a novel at an expected initial cost of $100 (called the “cost of expression”). Amy also expects that, once written, it will only cost her $1 to make copies of her novel for distribution. There are ten potential buyers of Amy’s work, each with a different valuation ranging from Bill, for whom the novel is worth $20, to Kevin, for whom the novel is worth only $11. If Amy sells ten copies of her novel at $11 each, she will recover both her initial cost of expression and her marginal cost (the cost of printing each additional volume). Unfortunately for Amy, she is unlikely to be able to charge that price because once she sells a copy to her first customer, Bill, he will also be able to make copies and offer to sell them to the remaining customers. Bill’s cost of expression is zero, because he did not write the novel, so Bill can make a profit by selling at any price above his marginal cost of copying. If Amy can’t stop Bill from free riding on her work, she will abandon the idea of becoming a novelist and pursue an alternative career instead, a suboptimal outcome for both Amy and her customers.

Amy’s story illustrates the classic economic rationale for the creation of exclusive rights in information in general and copyright in particular. Without the legal artifact of exclusivity, assuming that everyone has the same marginal cost, Amy’s competitors will face a lower average cost of production for her novel than she does. Consequently, faced with the choice between creating and copying, it makes more sense to copy. To put it another way, in a competitive market the market price will be that of the lowest cost producer, which the author will never be. As such, without some mechanism to appropriate the benefits of their investments, authors and publishers will underinvest in the production of information products. Of course, authors and artists invest in writing for many reasons beyond the financial rewards that copyright law provides. But this fact should not obscure the point that the author’s hope of commercial success is often what keeps them chained to the typewriter and keeps their publisher paying the rent.

Copyright rights allow an author to internalize more of the benefits of her creations; or in the jargon of economics, copyright facilitates the internalization of a work’s positive externalities and limits free riding.

So that was the standard model of the economics of copyright. The basic story is that without the incentives that copyright provides, creators would lack the incentive to create, or at least to disseminate their creations.

So far, so good, but what about the costs of copyright?

Copyright facilitates the internalization of a work’s positive externalities and limits free riding, but free riding in this context is not necessarily something we want to limit. Intellectual works are non-rivalrous — a non-rivalrous good is one for which one person’s use does not affect the value of any other person’s use. For example, while a photographic print is a tangible physical object, it also embodies creative expression. If I take the print from your living room, you are deprived of the enjoyment of seeing it there; on the other hand, if I merely reproduce the print, you still have the original, and yet I now have one too. The photo qua object is rivalrous; the photo qua artistic expression is non-rivalrous.

The non-rivalrous nature of information makes the welfare implications of copyright different from those of other forms of property: the incentives attributed to allocating property rights in information must be offset against the resulting underutilization of that information. In other words, there is a trade-off between the author’s incentive to produce a work and the public’s interest in access to that work.

The author’s exclusive rights under copyright law provide a buffer against price competition. This competitive buffer allows the author to charge higher prices than she otherwise would, which in turn has two immediate effects. First, some consumers remain willing to purchase the work at a higher price and consequently pay more. Assuming we value the welfare of both consumers and authors equally, this is simply a wealth transfer and is welfare-neutral. Second, those who are unwilling to pay the higher price are forced to go without the work in question. Market allocation of scarce resources to their highest valued use is usually welfare enhancing, but for non-rivalrous goods, the exclusion of low value users produces a deadweight loss because their consumption is not at the expense of another who values the good more.

All this suggests that there is a trade-off between efficiency in production and efficiency in consumption; essentially this is a comparison of dynamic benefits (incentives) and static costs (exclusion). Copyright has dynamic benefits in that it creates incentives to invest in the creation of new intellectual and creative works. Copyright has static costs consisting of the “consumer deadweight loss resulting from higher pricing,” the concentration of market power, and possible stifling of alternative points of view. In the classic model, the optimal assignment of copyright rights is determined by balancing the dynamic incentives against static deadweight losses. For more, see William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 Journal of Legal Studies 325 (1989).

Copyright and Creativity: Evidence from Italian Operas

What do we know about the economics of copyright? We know that in theory copyright establishes market-based incentives for the creation and dissemination of expressive works. We also know that, depending on the scope of copyright, these incentives might become obstacles for the next generation of creators and that they might limit access to the work leading to a deadweight loss.

So much for theory, is there any evidence that copyright actually works in practice?

In Copyrights and Creativity: Evidence from Italian Opera in the Napoleonic Age, Michela Giorcelli and Petra Moser found a creative way to empirically test the effect of copyright law by examining the production of operas in Italian states between 1770 and 1900. Usually, it doesn’t make sense to attribute the difference in output between two states to any particular aspect of their legal systems because the difference may well be attributable to whatever caused the two states to adopt different legal systems. But in this case, the variation in copyright laws came about as a result of Napoleon’s military campaign in Northern Italy. This gives the authors something close to a natural experiment, variation between comparable states in copyright law that came about for reasons that have nothing to do with copyright. Lombardy and Venetia adopted copyright laws in 1801, as part of a broader packet of French laws, after they had fallen under French rule.

From 1801 onwards, Lombardy and Venetia appear to have experienced a significant increase in the number of new operas that premiered per state and per year. Giorcelli and Moser also found that the number of high-quality operas also increased in the copyright early adopter states. However, although the Italian experiment suggests that copyright really does create incentives, the same can’t necessarily be said about extensions of the duration of copyright. As Giorcelli and Moser note, when Lombardy and Venetia later moved to extend their copyright terms, “there was no clear increase in the level or the quality of output, even though both states had responded strongly to the adoption of basic copyright laws.” See, Michela Giorcelli & Petra Moser, Copyrights and Creativity: Evidence from Italian Opera in the Napoleonic Age 128 Journal of Political Economy 4163 (2020).

Less money, more music?

Copyright has steadily expanded for the last 300 years. As Glynn Lunney notes in Copyright’s Excess (2018), much of that expansion has been driven by “on the fundamental premise that more incentives will yield more and better original works,” but this is a premise that we have never really tested. In Copyright’s Excess, Lunney uses a variety of data sources to show that, at least since the 1960s, the relationship between money and music production has been exactly the opposite to that which the incentive story of copyright would predict. The central dogma of copyright holds that greater rewards spur greater endeavors and that we should expect that less money means less music. And yet, increases in copyright have reduced music output and quality, and forces undermining copyright—especially illegal peer-to-peer filesharing—have increased it.

Macroeconomic studies such as those in Lunney’s book are incredibly tricky and not everyone will agree that he has demonstrated a perverse relationship between music industry revenue and music production. At the very least, however, the last 50 years of data from the United States music industry leave us with a total absence of evidence for the central dogma of copyright law.

Sequential innovation

The standard model of copyright does not pay much attention to sequential innovation. This is unfortunate in a world where very few creations stand alone. Even the greatest authors and artists typically see further by standing on the shoulders of those who came before them. Although we want the law to encourage highly original works, we don’t expect art and literature to stand apart from contemporary culture. Films refer to other films, books refer to other books, even in the visual arts and in architecture one might see references and reactions to other works. The scope of copyright needs to be carefully calibrated to provide sufficient incentive for original works without smothering the creativity of the next generation.

The economics of sequential innovation raises many questions but provides few answers in the context of copyright. When creator B wants to build on all the work of creator A to produce a new copyrightable work, it is impossible to say in the abstract how the rewards/incentives for the second work should be allocated. The simplistic belief that the initial allocation of every conceivable right relating to a work should be vested in A does not account for transaction costs, uncertainty and strategic behavior, externalities (cost and benefits visited on third parties), and non-economic motivations. It might seem intuitive that the author of a book should be entitled to determine who writes the sequel, but where do we draw the line between a sequel and a companion book, a parody or simply a work in the same genre?

The Expansion of Copyright Rights and Subject Matter

The range of things that copyright protects and the ways in which it protects them have expanded significantly over the years. New technologies such as photography, player pianos, the gramophone (and other ways of recording music), the motion picture camera, radio and television have all had an important influence on the development of copyright.

More recently, technologies such as the photocopier and the videocassette recorder and then later the personal computer significantly destabilized copyright policy because these inventions placed commercially significant copying technology directly in the hands of large numbers of consumers for the first time.

The challenge of new technology intensified with digitization and the Internet. Digitization allows for perfect reproduction such that the millionth copy of an MP3 file sounds just as good as the first copy. The Internet has connected billions of people together; by and large, this is regarded as a positive development, but this togetherness has also facilitated copyright piracy on a massive scale. Determining how copyright law should respond to the challenges and opportunities of the Internet is one of the fundamental questions underlying almost every issue in copyright.

Jurisprudential Changes

Copyright discourse, particularly the discourse in judicial opinions, has changed markedly over the years. These developments are summarized in Professor Shyamkrishna Balganesh’s 2020 Pennsylvania Law Review article, “Copyright as Legal Process: The Transformation of American Copyright Law.” Balganesh argues that

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law--focusing on horizontal rights, privileges, and private liability--copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law.

As Balganesh notes, courts today commonly invoke the ultimate policy goals of copyright as an explanation for particular copyright doctrines. Sometimes these goals are located in the essence of copyright itself, sometimes in the Constitutional mandate for copyright in Article I, Section 8, Clause 8, and sometimes in the Congressional intent animating the modern statute. Such overt policy discussion can make copyright sound like public law rather than private law, but this was not always the case.

Prior to World War II, copyright law and copyright theory focused more on a conception of copyright as a private right and far less on the ultimate policy goals of the copyright system as a whole. The discourse in early cases and treatises was formalist and not much concerned with issues of statutory interpretation or questions of legislative intent. The relative insignificance of the text of the prevailing copyright law reflected the lack of specificity of those statutes. Thus, although copyright has always been statutory, for most of the last 300 years it has been very much a common law statute. The early copyright acts were not excessively detailed or regulatory in nature and they gave judges significant freedom to create law “out of whole cloth”, guided by their own sense of the fundamental principles of copyright law.

The jurisprudence of copyright law appears to have changed quite suddenly in the second half of the 20th Century. In the 1950s, Congress became more involved in copyright policy and commissioned a series of reports on the nature and functioning of the copyright system to prepare for a comprehensive legislative revision of copyright law. Through this series of reports and the process of drafting the Copyright Act of 1976, the Copyright Office took on an expanded policy role and began to be recognized as a genuine expert agency.

Around the same time, we see the discourse of copyright adjudication turn outwards and engage more directly with copyright’s public purpose. Early cases in the copyright law canon, such as Baker v. Selden and Burrow-Giles Lithographic Co. v. Sarony rest heavily on principles internal to copyright doctrine but have little or no regard for the broader issues of policy that we now view as animating and constituting those principles. But from the late 1940s, courts began to stress that the private rights of copyright owners are merely a means to an end, a “secondary consideration” to copyright’s “public purpose.” See U.S. v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948). See also, Mazer v. Stein, 347 U.S. 201, 219 (1954) “The economic philosophy behind ... copyright is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare.”

The changing nature of federal litigation has also had a significant impact on copyright more discourse. Courts in the United States began to make much greater use of summary judgment in the postwar era. This practice effectively diminished the importance of the jury, but it also required federal judges to articulate their reasons for decision in much greater detail. In copyright cases in the postwar era we see judges trying to articulate concepts like the idea-expression distinction, substantial similarity, and fair use, in much greater detail.

Who controls the Copyright Office?

The Copyright Office sits in an unusual constitutional position. It is housed within the Library of Congress, an institution of the legislative branch, and the Register of Copyrights is appointed by the Librarian. Yet much of what the Office does looks executive in character. It registers claims, it issues regulations, and it produces the policy reports that Congress and the courts have come to rely on. For most of the Office’s history that arrangement attracted little attention. Since 2025 it has been the subject of live litigation.

On May 8, 2025, the President removed the Librarian of Congress, Carla Hayden. Days later the administration removed the Register of Copyrights, Shira Perlmutter, and installed an acting Register. Perlmutter sued, arguing that only the Librarian may remove the Register and that the Deputy Attorney General who purported to remove her, Todd Blanche, was not lawfully serving as acting Librarian. The district court declined to order her reinstatement, but in September 2025 the D.C. Circuit enjoined the administration from interfering with her service as Register pending appeal, over the dissent of Judge Walker. Perlmutter v. Blanche, No. 25-5285 (D.C. Cir. Sept. 10, 2025). In June 2026 the Supreme Court denied the government’s emergency application to lift that injunction.

At the time of writing no court has ruled on the merits. Everything so far is interim relief, granted on a preliminary assessment of the likelihood of success and expressly described by the D.C. Circuit as an exceptional remedy. The underlying question, whether the Register serves at the pleasure of the President or is insulated from removal by the Office’s placement in the legislative branch, remains open.

The stakes are larger than the fate of one official. Much of the Office’s influence rests on a claim to institutional expertise and a measure of distance from the political branches. Courts cite its reports, defer in varying degrees to its registration practices, and treat its views as informed rather than merely interested. If the Register is removable at will by the President, that claim is harder to sustain, and the weight that copyright doctrine has quietly placed on the Office as an expert body becomes a question rather than an assumption. Readers should watch this litigation less for what it says about the separation of powers than for what it may say about who gets to speak with authority about copyright.

The American Law Institute’s Copyright Restatement

The American Law Institute completed its long-awaited and somewhat controversial Restatement of the Law of Copyright in May 2025, marking the culmination of an eleven-year project that began in 2014. On May 20, 2025, the ALI membership voted to approve this first-ever Restatement devoted to copyright law, despite vocal opposition from some stakeholders (including the U.S. Copyright Office, prominent copyright scholars, members of Congress, and representatives from copyright industries). Critics argued that the project inappropriately attempted to recast federal statutory copyright law rather than merely restating existing judicial interpretations, with some characterizing it as reflecting the Reporters’ policy preferences rather than established legal doctrine.

Supporters of the Copyright Restatement argue that it addresses a genuine need created by forty years of complex, sometimes inconsistent judicial interpretation across thirteen federal circuits. The Copyright Act leaves many questions for courts to resolve, and the resulting case law requires synthesis and clarification. For the most part, the Restatement is a straightforward, uncontroversial distillation of existing law and it is likely to be very helpful to federal district and appellate court judges. Perhaps even more so than the leading treatises, which are all quite idiosyncratic in different ways. ALI Restatements typically command significant judicial respect, but it remains to be seen how this particular Restatement is received by the courts. Note that although the membership approved the Restatement in May 2025, the official volume is still in preparation; in the interim, the approved Tentative Drafts are cited as the ALI’s position.

Copyright’s International Framework

International cooperation on IP issues dates back to the mid-19th century. However, a major shift occurred in 1994, when IP was incorporated into the global trade regime through the World Trade Organization (WTO). This might seem like a paradox that IP laws grant territorial exclusive rights, whereas the WTO’s focus is the reduction of trade barriers. Nonetheless, modern trade agreements have come to encompass wide-ranging regulatory standards, including detailed IP provisions. The rationale for integrating IP into trade agreements is the promise of regulatory harmonization and economic efficiency. This linkage has allowed IP-exporting countries—chiefly the United States—to secure stronger IP protections from importing countries in exchange for trade concessions in other sectors. It has also enhanced enforcement by connecting IP obligations to the WTO’s dispute resolution system.

The 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) significantly expanded international IP law, making it more comprehensive and enforceable. TRIPS sets minimum standards across various IP domains but allows for some national discretion. To close some of these gaps, countries like the United States have pursued bilateral free trade agreements (FTAs) that impose more stringent IP protections. However, WTO-led progress slowed in the 21st Century and the U.S. and EU increasingly relied on bilateral FTAs.

The Berne Convention, the TRIPs Agreement, and more

Copyright law has been the subject of far-reaching international agreements since the Berne Convention of 1886. Today, the TRIPs agreement incorporates by reference articles 1 to 21 of the Berne Convention (Paris 1971) and its Appendix. The TRIPs Agreement also contains its own minimum standards for copyright which both overlap with and extend the Berne Convention.

TRIPs Article 9(1)

Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.

The first Berne Convention was a significant development in the internationalization of intellectual property. Prior to the Berne Convention, countries either didn’t recognize the copyrights of foreign nationals, or they did so based on bilateral agreements of reciprocity. The Berne convention adopted the principle of national treatment whereby each country agrees to treat foreigners at least as well as it treats its own nationals, regardless of the level of protection offered in a foreign country. The Berne Convention also adopted certain minimum standards.

Remarkably, the United States stayed outside of the Berne Convention until 1989. Initially, the United States refused to enforce foreign copyrights as part of a deliberate industrial policy that prioritized the education of a fast-growing population over the rights of authors in faraway countries. However, even after the United States became an important producer of literature, music, film, and television it was reluctant to accede to the Berne Convention because United States law predicated copyright protection on compliance with formalities – including publication with a copyright notice, registration with the copyright office and deposit with the Library of Congress. Insistence on these formalities was strictly prohibited under the Berne Convention.

Some other significant international agreements on copyright and related rights include the Rome Convention, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, first signed in 1961; and the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Note that although over 180 countries are members of WIPO, the influence of these two WIPO treaties is still weaker than the TRIPS Agreement, which enjoys the strong enforcement mechanism under the WTO’s Dispute Settlement Body.

In addition, copyright has also been an important issue in a number of regional and bilateral free trade agreements, particularly those negotiated by the European Union and the United States. These agreements are often referred to as “TRIPs-Plus” agreements because they seek to impose minimum standards above and beyond what was agreed to in the TRIPs Agreement.

The Constitutional Basis of Copyright Law

The Constitution addresses copyright in Article I, Section 8, Clause 8, known as the Copyright Clause or the Intellectual Property Clause. It states:

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Note that “Science” in 18th-century usage meant knowledge and learning generally (what we’d now call culture, literature, and scholarship), while “useful Arts” referred to practical crafts and technology. This phrase establishes that copyright exists to serve a public purpose: advancing knowledge and creativity for society’s benefit. But how much does this clause actually limit Congressional power?

The Copyright Term Extension Act of 1998 (CTEA), often called the “Sonny Bono Copyright Term Extension Act” or derisively the “Mickey Mouse Protection Act,” significantly extended copyright durations in the United States. The CTEA extended copyright terms by 20 years across the board. Nominally, the act was passed largely to harmonize U.S. copyright law with the European Union, which had already adopted life-plus-70-year terms. However, critics argued it was heavily influenced by corporate lobbying, particularly from Disney, whose copyright on early Mickey Mouse works (especially “Steamboat Willie” from 1928) was approaching expiration.

Section 514 of the Uruguay Round Agreements Act (URAA) of 1994 restored U.S. copyright protection to certain foreign works that had previously been in the public domain in the United States. These were works that originated in countries that later joined the Berne Convention or other copyright treaties, were still under copyright in their source country, and had fallen into the U.S. public domain for technical reasons. The main technical reasons were failure to comply with U.S. formalities (like copyright notice or registration) or lack of copyright relations between the U.S. and the source country at the time.

Both the CTEA and the Section 514 of the URAA were challenged under the Copyright Clause and the First Amendment in two cases that rehearsed largely the same arguments. In Eldred v. Ashcroft 537 U.S. 186 (2003), petitioners challenged the CTEA’s retroactive extension of existing copyrights on several grounds. Petitioners argued that extending the duration of existing copyrights violated the Copyright Clause’s “limited Times” requirement and failed to “promote the Progress of Science.” They contended that retroactive extensions couldn’t possibly incentivize creativity for works already created—the authors had already produced these works under the original terms, so extending protection afterward provided no additional incentive to create. They also argued that this made the term effectively unlimited through repeated extensions and served no constitutional purpose of promoting progress. Petitioners also argued the CTEA violated the First Amendment by restricting access to creative works for an additional 20 years, interfering with free expression and the public’s ability to build upon existing culture.

In Golan v. Holder, 565 U.S. 302 (2012) Petitioners argued that removing works from the public domain violated the “limited Times” provision even more egregiously than mere extension—Congress was taking works that had completed their copyright term and re-privatizing them. They also argued this served no purpose in promoting progress, since these works had already been created without any expectation of U.S. copyright protection. The “Progress” requirement, they contended, was a quid pro quo: exclusive rights in exchange for creative production. But Section 514 granted rights without any corresponding creative contribution. Turning to the First Amendment, Petitioners, who included orchestra conductors, educators, and film archivists who had relied on these public domain works, argued that Section 514 imposed especially severe First Amendment burdens by removing speech from the public domain—taking away expressive material people had already been freely using.

In both cases, petitioners lost. On the Copyright Clause, the Court held that the “limited Times” requirement was satisfied as long as copyright terms had a definite endpoint—even if extended. In Eldred, Justice Ginsburg’s majority opinion rejected the argument that retrospective extensions were categorically impermissible, noting that the First Congress had enacted retroactive copyright extensions. The Court found that “promote the Progress of Science” was merely a preamble stating copyright’s purpose, not an enforceable limitation—Congress had wide latitude in determining what would best serve progress. In Golan, the Court similarly held that restoring foreign copyrights could rationally serve progress by encouraging better international copyright relations and ensuring American creators received reciprocal protection abroad.

As to the First Amendment, the Court held that copyright’s built-in free speech safeguards—the idea/expression distinction and fair use doctrine—were generally adequate to address First Amendment concerns. Copyright law and the First Amendment were viewed as compatible, complementary systems rather than in tension. The Court applied rational basis review rather than heightened First Amendment scrutiny, treating copyright as a permissible content-neutral restriction on speech that served important governmental interests. Only if a copyright law altered the “traditional contours” of copyright protection would heightened First Amendment scrutiny apply—and neither the CTEA nor Section 514 did so in the Court’s view.

These decisions reveal a constitutional understanding of copyright that is remarkably permissive. The Court treats copyright as primarily a matter for legislative policy judgment rather than strict constitutional constraint. The “limited Times” and “promote the Progress” language in the Constitution seem to count for very little. In particular, the Court doesn’t require Congress to prove that extensions or restorations actually promote creativity or seemingly provide any half-way convincing theory how it could.

Eldred and Golan are important decisions, but they don’t add much to a textbook on copyright law. Beyond the fact that rational basis review applies to copyright term extensions and restorations, and that in practice Congress can do whatever it wants, as long as the term is nominally limited.

A Quick Look at the Rights of the Copyright Owner

Before getting too immersed in the details of copyright law, it is useful to have a general appreciation of the kinds of exclusive rights copyright provides.

The TRIPs Agreement and the Berne Convention both contain some general guidance as to the rights of the copyright owner. However, it is important to recognize that these international agreements are not self-executing, at least not in the United States. The rights of the copyright owner in a particular country only exist by virtue of that country’s domestic legislation. If that domestic legislation is noncompliant with international norms, that may, or may not, lead to censure or retaliation through the dispute settlement mechanisms of the World Trade Organization.

It is also important to recognize that although the TRIPs agreement and the Berne Convention (and the WIPO Treaties for that matter) use certain language to describe the rights of the copyright owner, the use of particular terms of art is not as important as the substance of the rights.

The most significant economic rights of the copyright owner under the Berne Convention are the rights of reproduction, adaptation and translation, public performance, communication and broadcast, and public distribution for cinematographic adaptations.

Berne Convention Economic Rights

Article 2^bis (collection of speeches)

Article 8 (translations)

Article 9 (reproduction)

Article 11 (public performance of musical works)

Article 11^bis (public communication)

Article 11^ter (public recitation)

Article 12 (adaptations, arrangements, and alterations)

Article 14 (cinematographic adaptations)

Article l4^ter (droit de suite, or resale right)

In addition to these, the TRIPs Agreement also contains a rental right for computer programs and cinematographic works.

Different jurisdictions have different styles of lawmaking. Some copyright laws contain specific rights tied to particular categories of works; whereas others state the rights of the copyright owner more generally. Section 106 of the United States Copyright Act of 1976 (the “Copyright Act”) sets out six exclusive rights belonging to the copyright owner. These are: the right to reproduce the work in copies, the right to make a derivative work based on the copyrighted work, the right to distribute the copyrighted work, the rights of public performance and public display, and something called a digital audio transmission right.

17 U.S. Code § 106 - Exclusive rights in copyrighted works

Subject to sections 107 through 122, the 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; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

The first three rights apply to all types of work. Generally, the performance right in Section 106(4) applies to things capable of being performed and the display right in Section 106(5) applies to things capable of being displayed. However, if you read the section carefully you will see that there is no public performance right for sound recordings in 106(4), only for musical works (for the moment, think “musical works” as musical compositions and “sound recordings” as recordings of performances). There is, however, a public performance right for sound recordings by means of a digital audio transmission, for example, by means of webcasting or Internet radio.

Sound recordings are a relatively late addition to United States copyright law. In 1972, Congress included sound recordings within the umbrella of federal copyright, but it gave no protection to recordings already in existence. In 2018 Congress extended copyright protection to pre-1972 sound recordings in the “Classics Protection and Access Act” which was passed as part of the Music Modernization Act of 2018. The method Congress chose to achieve this objective adds some additional complexity to the structure of the Copyright Act. The CPA Act adds a new chapter to the Copyright Act (Section 1401) that provides that the unauthorized use of a sound recording fixed before February 15, 1972 shall be subject to the same remedies as any other form of copyright infringement. Section 1401 of the Act puts pre- and post-1972 sound recordings on an equal footing, but it does not extend a general performance right to sound recordings.

Finally, it is worth noting that business terms and legal rights under the Copyright Act are not always in sync. In fact, so-called “synchronization licenses” are great examples of this phenomenon. According to Kohn On Music Licensing, “synchronizing involves making a piece of music an integral part of the audiovisual work — by recording the music in ‘timed-relation’ with the moving pictures in an audiovisual work.” In reality, a sync license is simply a license to reproduce the musical work limited to a particular factual context. Usually the terms of a sync license will include performance rights as well, but not always. There is nothing special from a legal standpoint about the fact that the music is combined with video—except that the statutory license in Section 115 of the Copyright Act is only available for fixing musical works in “phonorecords” and that term is defined to exclude music combined with video—but the terminology is a useful way of conveying the limits of the permission and the understanding that use of the same musical composition in a different context or in a different audiovisual work “would require a separate license, carrying an additional fee.” See Al Kohn & Bob Kohn, Kohn On Music Licensing 1086 (4th ed. 2010).