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HE MILITARY author today finds a 'fantastically increasing amount of copyrighted source material from which he may wish to draw information dealing with any subject, whether it be in an area of logistics, science and technology, medicine, administration, personnel, education, entertainment, or public relations. He faces the difficulty of determining the extent to which he can quote from or otherwise use such published source material without incurring personal legal liability or subjecting the Government to a possible suit for damages for copyright infringement. The following comments are intended to be generally informative about copyrights and helpful when copyright problems arise.

Although this treatise considers primarily the author's copyright infringement problems in works organized in words, occasional digression will make clear other areas of potential copyright infringement, i.e., drawings,

music, statuary, etc.

The United States Constitution 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.

This constitutional provision is the basis for both patent rights and copyrights as provided in the United States statutes. Before comparing these respective rights it is well to note that "Writings" as a category has been broadly interpreted so that statutory copyright protection is afforded for a variety of works of art, drawings or plastic works of a scientific or technical character, photographs, pictorial illustrations, and motion pictures in addition to the better-known categories of works which are literally writings, i.e., books, periodicals, newspapers, lectures, dramatic compositions, etc.

There is confusion in many minds between "statutory copyright" in the United States and that to which some refer as "common law copyright." The word "copyright" standing alone usually refers to the right created by statute in a published work. In the United States the common law right of an author to first publication of his unpublished intellectual property is recognized, but such

right expires upon general publication by or on behalf of the author and without restriction. This common law right is of indefinite duration whereas statutory copyright lasts for 28 years, with a renewal term of 28 years under certain circumstances.

statutory rights of copyright owner

The United States copyright statutes1 define the exclusive rights of a copyright proprietor in both general terms and specific terms. These general and specific exclusive rights, to be discussed later, are the bases for legal redress to prevent any unauthorized person from copying or misappropriating the copyrighted work or unfairly encroaching upon the protected area without risking liability for infringement. Just what constitutes copying and what might be excused as a fair encroachment into a protected area will also be discussed.

Generally, a copyright proprietor has the exclusive right to "print, reprint, publish, copy, and vend the copyrighted work."2 These words encompass the entire area of making and publishing or selling any original or copy of every copyrighted work.

Among the more specific statutory rights are the exclusive rights to translate or make another version of a literary work, and to arrange or adapt a musical work.

In the case of lectures, sermons, addresses, or other nondramatic literary works, there is an exclusive right to deliver, authorize delivery of, read or present, and play or perform the copyrighted work in public for profit or to exhibit, represent, produce, or reproduce it in any manner or by any method whatsoever. Exclusivity in this category of works also extends to making or having made any transcription or record thereof. There is indication that the words "transcription" and "record" include copies in stenographic shorthand or the like as well as any copies made by disc or tape recordings, although there has been little litigation in this area to provide a clear basis for statute interpretation.

As to musical compositions, exclusivity extends to public performance for profit. Profit

in this instance is not necessarily of a direct pecuniary nature. Performance of a copyrighted musical publication in a restaurant or hotel dining room where there is no charge for admission is considered a performance for profit. Such performance is obviously not eleemosynary but is part of the total for which the public pays merely by ordering a meal, and the purpose of employing music is to realize greater profit for the establishment.3 It has been suggested that increased enlistments because of the stirring performance of a military service band may be deemed an indirect profit to the Government.4 Such a suggestion, however, goes far beyond the law of decided cases where the profit factor has involved attempted pecuniary gain. The mere broadcasting by a commercial radio station of a copyrighted musical work without authorization is recognized as an infringing performance for profit. So also it is a performance within the meaning of the statute to provide means for reception of a broadcast of a copyrighted work publicly, as in the case of radio receivers provided for hotel guests.5

Since statutory copyright can usually be acquired only after publication and proper marking of all copies with copyright notice, it will not coexist with a right existing at common law.6 Statutory copyright is available for certain works not reproduced for sale, such as lectures, musical, dramatic, or dramatico-musical compositions, motion-picture photoplays, photographs, motion pictures, works of art, plastic works, or drawings.7 Such works need not be published to enjoy protection of the statute. Notwithstanding that Section 2 of the copyright law states "Nothing in this title shall be construed to annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor," it appears that a compliance with the statute to register a copyright in a work not reproduced for sale will terminate common law rights.8

When a military author wishes to use material from some work which does not bear

prescribed copyright notice and when there is doubt that there has been a general publication thereof, he should not proceed with such use without either release from the author or consultation with appropriate legal counsel responsible for copyright matters. It must be kept in mind that personal liability for improper use of unpublished material may result because the law9 which exempts a Government employee, acting in an official capacity, from personal liability for infringement of statutory copyright is not considered to extend to violations of the common law right of first publication, as pointed out later in this article.

copyright notice

According to Section 10 of the copyright statutes, a copyrighted work must bear a prescribed form of notice of copyright. It must appear on all copies of the work published or offered for sale in the United States by authority of the copyright proprietor. For certain works the location of the notice is also prescribed.

In almost every instance a copyrighted work will be marked "Copyright," "Copr." or

in addition to the year of first publication and the name of the copyright proprietor. The copyright notice in a book or other printed publication appears upon the title page or the page immediately following. The “page immediately following" is normally the reverse side of the page bearing the title.

The notice in a periodical appears upon the title page, upon the first page of text, or under the title heading. One notice in each volume of a book or in each edition of a newspaper or periodical is sufficient. Many periodicals are published with only a single general copyright notice covering the issue as a whole. Whether an individual contribution published without a separate notice is protected by the general notice ordinarily depends upon the arrangement between the periodical publisher and the author of the contribution. It is sometimes possible for the author to obtain from the publisher an assignment of copyright in the contribution. Where the contribution does

not bear a separate copyright notice, however, no separate registration for the contribution can be made. If the contribution is a literary, dramatic, or musical work, the notice should appear on the first page (the title page) of the contribution.

The notice in a musical work appears either upon the title page or upon the first page of music. The notice in a motion picture should appear on the title frame or near it. For certain works, i.e., generally, graphic and artistic works, a special abbreviated form of notice which does not include the year of first publication is permissible. This may consist of the symbol, accompanied by the initial, monogram, mark, or symbol of the copyright owner, provided the owner's name appears elsewhere upon some accessible portion of the work.

liability for copyright infringement

In the event of infringement of a valid copyright, Section 101 of the copyright statute provides that the infringer shall be liable: to an injunction restraining infringement; to pay damages and account for profits; to deliver infringing articles for impoundment pending litigation; to deliver infringing articles for destruction; or to pay royalties for certain reproduction of musical works on records or tapes as permitted by statute. Section 104 is a criminal statute providing punishment by imprisonment and fine for willful infringement of copyright for profit.

The foregoing paragraph gives some indication of the extent of liability imposed upon private persons or organizations. When the United States Government is involved in the infringement, the exclusive remedy of the copyright proprietor, under a 1960 provision in the law, shall be by an action for damages against the United States in the Court of Claims. 10 However, prior to bringing suit, a copyright proprietor may seek administrative settlement for infringement of copyrights under a law11 which was also amended in 1960 to authorize military departments to use certain appropriated funds to make settlement for

any infringements of copyright.

Prior to 8 September 1960 Congress had not given consent for the United States as a sovereign to be sued for copyright infringement, and a copyright owner could seek redress only against individuals directly responsible for the act of copying a copyrighted work even if they were Government employees acting in accordance with their official duties.

A 1940 court decision12 had widespread repercussions among Government employees, making them much more aware of the rights of copyright proprietors. Two employees of the United States, who were members of the engineering staff of the Bonneville Administration, were found personally liable for damages as a result of making a negative print and twelve photostatic copies (8" x 10") of a copyrighted map which included some technical data. The court acknowledged that the employees were acting in what they believed to be the interest of the United States but held that their position as employees did not entitle them to the immunity of the sovereign as its agents.

A statutory amendment of 8 September 1960 added the following two subsections to Title 28, U.S. Code, Section 1498.

(b) Hereafter, whenever the copyright in any work protected under the copyright laws of the United States shall be infringed by the United States, by a corporation owned or controlled by the United States, or by a contractor, subcontractor, or any person, firm, or corporation acting for the Government and with the authorization or consent of the Government, the exclusive remedy of the owner of such copyright shall be by action against the United States in the Court of Claims for the recovery of his reasonable and entire compensation as damages for such infringement, including the minimum statutory damages as set forth in section 101 (b) of title 17, U.S. Code: Provided, that a Government employee shall have a right of action against the Government under this subsection except where he was in a position to order, influence, or induce use of the copyrighted work by the Government: Provided, however, that this subsection shall not confer a right of action on any copyright owner or any

assignee of such owner with respect to any copyrighted work prepared by a person while in the employment or service of the United States, where the copyrighted work was prepared as part of the official functions of the employee, or in the preparation of which Government time, material, or facilities were used: And Provided further, that before such action against the United States has been instituted the appropriate corporation owned or controlled by the United States or the head of the appropriate department or agency of the Government, as the case may be, is authorized to enter into an agreement with the copyright owner in full settlement and compromise for the damages accruing to him by reason of such infringement and to settle the claim administratively out of available appropriations.

Except as otherwise provided by law, no recovery shall be had for any infringement of a copyright covered by this subsection committed more than three years prior to the filing of the complaint or counter-claim for infringement in the action, except that the period between the date of receipt of a written claim for compensation by the Department or agency of the Government or corporation owned or controlled by the United States, as the case may be, having authority to settle such claim and the date of mailing by the Government of a notice to the claimant that his claim has been denied shall not be counted as a part of the three years, unless suit is brought before the last-mentioned date.

(c) The provisions of this section shall not apply to any claim arising in a foreign country. Enactment of these statute provisions has exempted Government employees, acting within the scope of their official responsibilities, from both civil and criminal personal liability for copyright infringement.

As of the end of 1962 there had been no copyright cases in the United States Court of Claims under 28 U.S. Code 1498, so that this court's attitude toward the Government's use of copyrighted material and the application of the "fair use" doctrine in the area of Government publications or the writings of Government employees is somewhat uncertain.

This article cannot treat problems of patent or copyright infringement covered by paragraph (c), quoted above, because of the ap