17 U.S.C. § 501 — Infringement of copyright

Page 166 TITLE 17—COPYRIGHTS § 501 HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 The need for section 412 arises from two basic changes the bill will make in the present law. (1) Copyright registration for published works, which is useful and important to users and the public at large, would no longer be compulsory, and should therefore be induced in some practical way. (2) The great body of unpublished works now pro- tected at common law would automatically be brought under copyright and given statutory protec- tion. The remedies for infringement presently avail- able at common law should continue to apply to these works under the statute, but they should not be given special statutory remedies unless the owner has, by registration, made a public record of his copy- right claim. Under the general scheme of the bill, a copyright owner whose work has been infringed before registra- tion would be entitled to the remedies ordinarily avail- able in infringement cases: an injunction on terms the court considers fair, and his actual damages plus any applicable profits not used as a measure of damages. However, section 412 would deny any award of the spe- cial or ‘‘extraordinary’’ remedies of statutory damages or attorney’s fees where infringement of copyright in an unpublished work began before registration or where, in the case of a published work, infringement commenced after publication and before registration (unless registration has been made within a grace pe- riod of three months after publication). These provi- sions would be applicable to works of foreign and do- mestic origin alike. In providing that statutory damages and attorney’s fees are not recoverable for infringement of unpub- lished, unregistered works, clause (1) of section 412 in no way narrows the remedies available under the present law. With respect to published works, clause (2) would generally deny an award of those two special remedies where infringement takes place before reg- istration. As an exception, however, the clause provides a grace period of three months after publication during which registration can be made without loss of rem- edies; full remedies could be recovered for any infringe- ment begun during the three months after publication if registration is made before that period has ended. This exception is needed to take care of newsworthy or suddenly popular works which may be infringed almost as soon as they are published, before the copyright owner has had a reasonable opportunity to register his claim. Editorial Notes AMENDMENTS 2008—Pub. L. 110–403 substituted ‘‘section 411(c)’’ for ‘‘section 411(b)’’ in introductory provisions. 2005—Pub. L. 109–9 inserted ‘‘, an action for infringe- ment of the copyright of a work that has been preregistered under section 408(f) before the commence- ment of the infringement and that has an effective date of registration not later than the earlier of 3 months after the first publication of the work or 1 month after the copyright owner has learned of the infringement,’’ after ‘‘section 106A(a)’’ in introductory provisions. 1990—Pub. L. 101–650 inserted ‘‘an action brought for a violation of the rights of the author under section 106A(a) or’’ after ‘‘other than’’ in introductory provi- sions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1990 AMENDMENT Amendment by Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title. CHAPTER 5—COPYRIGHT INFRINGEMENT AND REMEDIES Sec. 501. Infringement of copyright. 502. Remedies for infringement: Injunctions. 503. Remedies for infringement: Impounding and disposition of infringing articles. 504. Remedies for infringement: Damages and profits. 505. Remedies for infringement: Costs and attor- ney’s fees. 506. Criminal offenses. 507. Limitations on actions. 508. Notification of filing and determination of ac- tions. [509. Repealed.] 510. Remedies for alteration of programming by cable systems. 511. Liability of States, instrumentalities of States, and State officials for infringement of copyright. 512. Limitations on liability relating to material online. 513. Determination of reasonable license fees for individual proprietors. Editorial Notes AMENDMENTS 2008—Pub. L. 110–403, title II, § 201(b)(2), Oct. 13, 2008, 122 Stat. 4260, struck out item 509 ‘‘Seizure and for- feiture.’’ 1999—Pub. L. 106–113, div. B, § 1000(a)(9) [title I, § 1011(a)(1)], Nov. 29, 1999, 113 Stat. 1536, 1501A–543, sub- stituted ‘‘programming’’ for ‘‘programing’’ in item 510. Pub. L. 106–44, § 1(c)(2), Aug. 5, 1999, 113 Stat. 222, re- numbered item 512 ‘‘Determination of reasonable li- cense fees for individual proprietors’’ as 513. 1998—Pub. L. 105–304, title II, § 202(b), Oct. 28, 1998, 112 Stat. 2886, added item 512 ‘‘Limitations on liability re- lating to material online’’. Pub. L. 105–298, title II, § 203(b), Oct. 27, 1998, 112 Stat. 2833, added item 512 ‘‘Determination of reasonable li- cense fees for individual proprietors’’. 1997—Pub. L. 105–80, § 12(a)(12), Nov. 13, 1997, 105 Stat. 1535, substituted ‘‘Damages’’ for ‘‘Damage’’ in item 504. 1990—Pub. L. 101–553, § 2(a)(3), Nov. 15, 1990, 104 Stat. 2750, added item 511. § 501. Infringement of copyright (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sec- tions 106 through 122 or of the author as pro- vided in section 106A(a), or who imports copies or phonorecords into the United States in viola- tion of section 602, is an infringer of the copy- right or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a). As used in this subsection, the term ‘‘anyone’’ includes any State, any instrumen- tality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity. (b) The legal or beneficial owner of an exclu- sive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that par- ticular right committed while he or she is the owner of it. The court may require such owner Page 167 TITLE 17—COPYRIGHTS § 501 to serve written notice of the action with a copy of the complaint upon any person shown, by the records of the Copyright Office or otherwise, to have or claim an interest in the copyright, and shall require that such notice be served upon any person whose interest is likely to be af- fected by a decision in the case. The court may require the joinder, and shall permit the inter- vention, of any person having or claiming an in- terest in the copyright. (c) For any secondary transmission by a cable system that embodies a performance or a dis- play of a work which is actionable as an act of infringement under subsection (c) of section 111, a television broadcast station holding a copy- right or other license to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that television station. (d) For any secondary transmission by a cable system that is actionable as an act of infringe- ment pursuant to section 111(c)(3), the following shall also have standing to sue: (i) the primary transmitter whose transmission has been al- tered by the cable system; and (ii) any broadcast station within whose local service area the sec- ondary transmission occurs. (e) With respect to any secondary trans- mission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 119(a)(3), a network station holding a copyright or other li- cense to transmit or perform the same version of that work shall, for purposes of subsection (b) of this section, be treated as a legal or beneficial owner if such secondary transmission occurs within the local service area of that station. (f)(1) With respect to any secondary trans- mission that is made by a satellite carrier of a performance or display of a work embodied in a primary transmission and is actionable as an act of infringement under section 122, a tele- vision broadcast station holding a copyright or other license to transmit or perform the same version of that work shall, for purposes of sub- section (b) of this section, be treated as a legal or beneficial owner if such secondary trans- mission occurs within the local market of that station. (2) A television broadcast station may file a civil action against any satellite carrier that has refused to carry television broadcast sig- nals, as required under section 122(a)(2), to en- force that television broadcast station’s rights under section 338(a) of the Communications Act of 1934. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2584; Pub. L. 100–568, § 10(a), Oct. 31, 1988, 102 Stat. 2860; Pub. L. 100–667, title II, § 202(3), Nov. 16, 1988, 102 Stat. 3957; Pub. L. 101–553, § 2(a)(1), Nov. 15, 1990, 104 Stat. 2749; Pub. L. 101–650, title VI, § 606(a), Dec. 1, 1990, 104 Stat. 5131; Pub. L. 106–44, § 1(g)(5), Aug. 5, 1999, 113 Stat. 222; Pub. L. 106–113, div. B, § 1000(a)(9) [title I, §§ 1002(b), 1011(b)(3)], Nov. 29, 1999, 113 Stat. 1536, 1501A–527, 1501A–544; Pub. L. 107–273, div. C, title III, § 13210(4)(B), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 116–94, div. P, title XI, § 1102(c)(2), Dec. 20, 2019, 133 Stat. 3203.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 The bill, unlike the present law, contains a general statement of what constitutes infringement of copy- right. Section 501(a) identifies a copyright infringer as someone who ‘‘violates any of the exclusive rights of the copyright owner as provided by sections 106 through 118’’ of the bill, or who imports copies or phonorecords in violation of section 602. Under the lat- ter section an unauthorized importation of copies or phonorecords acquired abroad is an infringement of the exclusive right of distribution under certain cir- cumstances. The principle of the divisibility of copyright owner- ship, established by section 201(d), carries with it the need in infringement actions to safeguard the rights of all copyright owners and to avoid a multiplicity of suits. Subsection (b) of section 501 enables the owner of a particular right to bring an infringement action in that owner’s name alone, while at the same time insur- ing to the extent possible that the other owners whose rights may be affected are notified and given a chance to join the action. The first sentence of subsection (b) empowers the ‘‘legal or beneficial owner of an exclusive right’’ to bring suit for ‘‘any infringement of that particular right committed while he or she is the owner of it.’’ A ‘‘beneficial owner’’ for this purpose would include, for example, an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees. The second and third sentences of section 501(b), which supplement the provisions of the Federal Rules of Civil Procedure [Title 28, Judiciary and Judicial Pro- cedure], give the courts discretion to require the plain- tiff to serve notice of the plaintiff’s suit on ‘‘any person shown, by the records of the Copyright Office or other- wise, to have or claim an interest in the copyright’’; where a person’s interest ‘‘is likely to be affected by a decision in the case’’ a court order requiring service of notice is mandatory. As under the Federal rules, the court has discretion to require joinder of ‘‘any person having or claiming an interest in the copyright’’; but, if any such person wishes to become a party, the court must permit that person’s intervention. In addition to cases involving divisibility of owner- ship in the same version of a work, section 501(b) is in- tended to allow a court to permit or compel joinder of the owners of rights in works upon which a derivative work is based. Section 501 contains two provisions conferring stand- ing to sue under the statue upon broadcast stations in specific situations involving secondary transmissions by cable systems. Under subsection (c), a local tele- vision broadcaster licensed to transmit a work can sue a cable system importing the same version of the work into the broadcaster’s local service area in violation of section 111(c). Subsection (d) deals with cases arising under section 111(c)(3), the provision dealing with sub- stitution or alteration by a cable system of commer- cials or other programming; in such cases standing to sue is also conferred on: (1) the primary transmitter whose transmission has been altered by the cable sys- tem, and (2) any broadcast stations within whose local service area the secondary transmission occurs. These provisions are linked to section 509, a new provision on remedies for alteration of programming by cable sys- tems, discussed below. Vicarious Liability for Infringing Performances. The committee has considered and rejected an amendment to this section intended to exempt the proprietors of an establishment, such as a ballroom or night club, from liability for copyright infringement committed by an independent contractor, such as an orchestra leader. A well-established principle of copyright law is that a person who violates any of the exclusive rights of the copyright owner is an infringer, including persons who can be considered related or vicarious infringers. To be held a related or vicarious infringer in the case of per- Page 168 TITLE 17—COPYRIGHTS § 502 forming rights, a defendant must either actively oper- ate or supervise the operation of the place wherein the performances occur, or control the content of the in- fringing program, and expect commercial gain from the operation and either direct or indirect benefit from the infringing performance. The committee has decided that no justification exists for changing existing law, and causing a significant erosion of the public perform- ance right. Editorial Notes REFERENCES IN TEXT Section 338(a) of the Communications Act of 1934, re- ferred to in subsec. (f)(2), is classified to section 338(a) of Title 47, Telecommunications. AMENDMENTS 2019—Subsec. (e). Pub. L. 116–94 substituted ‘‘section 119(a)(3)’’ for ‘‘section 119(a)(5)’’. 2002—Subsec. (a). Pub. L. 107–273 substituted ‘‘122’’ for ‘‘121’’. 1999—Subsec. (a). Pub. L. 106–44 substituted ‘‘121’’ for ‘‘118’’. Subsec. (e). Pub. L. 106–113, § 1000(a)(9) [title I, § 1011(b)(3)], substituted ‘‘performance or display of a work embodied in a primary transmission’’ for ‘‘pri- mary transmission embodying the performance or dis- play of a work’’. Subsec. (f). Pub. L. 106–113, § 1000(a)(9) [title I, § 1002(b)], added subsec. (f). 1990—Subsec. (a). Pub. L. 101–650 inserted ‘‘or of the author as provided in section 106A(a)’’ after ‘‘118’’ and substituted ‘‘copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).’’ for ‘‘copyright.’’ Pub. L. 101–553 inserted sentences at end defining ‘‘anyone’’ and providing that any State and any instru- mentality, officer, or employee be subject to the provi- sions of this title in the same manner and to the same extent as any nongovernmental entity. 1988—Subsec. (b). Pub. L. 100–568 substituted ‘‘section 411’’ for ‘‘sections 205(d) and 411’’. Subsec. (e). Pub. L. 100–667 added subsec. (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Amendment by section 1000(a)(9) [title I, § 1002(b)] of Pub. L. 106–113 effective July 1, 1999, and amendment by section 1000(a)(9) [title I, § 1011(b)(3)] of Pub. L. 106–113 effective Nov. 29, 1999, see section 1000(a)(9) [title I, § 1012] of Pub. L. 106–113, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1990 AMENDMENTS Amendment by Pub. L. 101–650 effective 6 months after Dec. 1, 1990, see section 610 of Pub. L. 101–650, set out as an Effective Date note under section 106A of this title. Pub. L. 101–553, § 3, Nov. 15, 1990, 104 Stat. 2750, pro- vided that: ‘‘The amendments made by this Act [enact- ing section 511 of this title and amending this section and sections 910 and 911 of this title] shall take effect with respect to violations that occur on or after the date of the enactment of this Act [Nov. 15, 1990].’’ EFFECTIVE DATE OF 1988 AMENDMENTS Amendment by Pub. L. 100–667 effective Jan. 1, 1989, see section 206 of Pub. L. 100–667, set out as an Effective Date note under section 119 of this title. Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title. CAUSES OF ACTION ARISING UNDER PREDECESSOR PROVISIONS Pub. L. 94–553, title I, § 112, Oct. 19, 1976, 90 Stat. 2600, provided that: ‘‘All causes of action that arose under title 17 before January 1, 1978, shall be governed by title 17 as it existed when the cause of action arose.’’ § 502. Remedies for infringement: Injunctions (a) Any court having jurisdiction of a civil ac- tion arising under this title may, subject to the provisions of section 1498 of title 28, grant tem- porary and final injunctions on such terms as it may deem reasonable to prevent or restrain in- fringement of a copyright. (b) Any such injunction may be served any- where in the United States on the person en- joined; it shall be operative throughout the United States and shall be enforceable, by pro- ceedings in contempt or otherwise, by any United States court having jurisdiction of that person. The clerk of the court granting the in- junction shall, when requested by any other court in which enforcement of the injunction is sought, transmit promptly to the other court a certified copy of all the papers in the case on file in such clerk’s office. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2584.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 502(a) [subsec. (a) of this section] reasserts the discretionary power of courts to grant injunctions and restraining orders, whether ‘‘preliminary,’’ ‘‘tem- porary,’’ ‘‘interlocutory,’’ ‘‘permanent,’’ or ‘‘final,’’ to prevent or stop infringements of copyright. This power is made subject to the provisions of section 1498 of title 28 dealing with infringement actions against the United States. The latter reference in section 502(a) makes it clear that the bill would not permit the granting of an injunction against an infringement for which the Fed- eral Government is liable under section 1498. Under subsection (b), which is the counterpart of pro- visions in sections 112 and 113 of the present statute [sections 112 and 113 of former title 17], a copyright owner who has obtained an injunction in one State will be able to enforce it against a defendant located any- where else in the United States. § 503. Remedies for infringement: Impounding and disposition of infringing articles (a)(1) At any time while an action under this title is pending, the court may order the im- pounding, on such terms as it may deem reason- able— (A) of all copies or phonorecords claimed to have been made or used in violation of the ex- clusive right of the copyright owner; (B) of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be reproduced; and (C) of records documenting the manufacture, sale, or receipt of things involved in any such violation, provided that any records seized under this subparagraph shall be taken into the custody of the court. (2) For impoundments of records ordered under paragraph (1)(C), the court shall enter an appro- priate protective order with respect to discovery and use of any records or information that has