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17 U.S.C. 106

Original Creator: Prof. William T. Fisher III Current Version: h2ocopyright

§ 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.


(Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2546; Pub. L. 101–318, § 3(d), July 3, 1990, 104 Stat. 288; Pub. L. 101–650, title VII, § 704(b)(2), Dec. 1, 1990, 104 Stat. 5134; Pub. L. 104–39, § 2, Nov. 1, 1995, 109 Stat. 336; Pub. L. 106–44, § 1(g)(2), Aug. 5, 1999, 113 Stat. 222; Pub. L. 107–273, div. C, title III, § 13210(4)(A), Nov. 2, 2002, 116 Stat. 1909.)






General Scope of Copyright. The five fundamental rights that the bill gives to copyright owners—the ex­clusive rights of reproduction, adaptation, publication, performance, and display—are stated generally in sec­tion 106. These exclusive rights, which comprise the so-called “bundle of rights” that is a copyright, are cumu­lative and may overlap in some cases. Each of the five enumerated rights may be subdivided indefinitely and, as discussed below in connection with section 201, each subdivision of an exclusive right may be owned and en­forced separately.


The approach of the bill is to set forth the copyright owner’s exclusive rights in broad terms in section 106, and then to provide various limitations, qualifications, or exemptions in the 12 sections that follow. Thus, ev­erything in section 106 is made “subject to sections 107 through 118”, and must be read in conjunction with those provisions.


The exclusive rights accorded to a copyright owner under section 106 are “to do and to authorize” any of the activities specified in the five numbered clauses. Use of the phrase “to authorize” is intended to avoid any questions as to the liability of contributory in­fringers. For example, a person who lawfully acquires an authorized copy of a motion picture would be an in­fringer if he or she engages in the business of renting it to others for purposes of unauthorized public per­formance.


Rights of Reproduction, Adaptation, and Publication. The first three clauses of section 106, which cover all rights under a copyright except those of performance and display, extend to every kind of copyrighted work. The exclusive rights encompassed by these clauses, though closely related, are independent; they can gen­erally be characterized as rights of copying, recording, adaptation, and publishing. A single act of infringe­ment may violate all of these rights at once, as where a publisher reproduces, adapts, and sells copies of a per­son’s copyrighted work as part of a publishing venture. Infringement takes place when any one of the rights is violated: where, for example, a printer reproduces cop­ies without selling them or a retailer sells copies with­out having anything to do with their reproduction. The references to “copies or phonorecords,” although in the plural, are intended here and throughout the bill to in­clude the singular (1 U.S.C. § 1).


Reproduction.—Read together with the relevant defi­nitions in section 101, the right “to reproduce the copy­righted work in copies or phonorecords” means the right to produce a material object in which the work is duplicated, transcribed, imitated, or simulated in a fixed form from which it can be “perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” As under the present law, a copyrighted work would be infringed by reproducing it in whole or in any substantial part, and by duplicat­ing it exactly or by imitation or simulation. Wide de­partures or variations from the copyrighted work would still be an infringement as long as the author’s “expression” rather than merely the author’s “ideas” are taken. An exception to this general principle, appli­cable to the reproduction of copyrighted sound record­ings, is specified in section 114.


“Reproduction” under clause (1) of section 106 is to be distinguished from “display” under clause (5). For a work to be “reproduced,” its fixation in tangible form must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise commu­nicated for a period of more than transitory duration.” Thus, the showing of images on a screen or tube would not be a violation of clause (1), although it might come within the scope of clause (5).


Preparation of Derivative Works.—The exclusive right to prepare derivative works, specified separately in clause (2) of section 106, overlaps the exclusive right of reproduction to some extent. It is broader than that right, however, in the sense that reproduction requires fixation in copies or phonorecords, whereas the prepa­ration of a derivative work, such as a ballet, panto­mime, or improvised performance, may be an infringe­ment even though nothing is ever fixed in tangible form.


To be an infringement the “derivative work” must be “based upon the copyrighted work,” and the definition in section 101 refers to “a translation, musical arrange­ment, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Thus, to con­stitute a violation of section 106(2), the infringing work must incorporate a portion of the copyrighted work in [22] some form; for example, a detailed commentary on a work or a programmatic musical composition inspired by a novel would not normally constitute infringe­ments under this clause.


Use in Information Storage and Retrieval Systems.—As section 117 declares explicitly, the bill is not intended to alter the present law with respect to the use of copy­righted works in computer systems.


Public Distribution.—Clause (3) of section 106 estab­lishes the exclusive right of publication: The right “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.” Under this provi­sion the copyright owner would have the right to con­trol the first public distribution of an authorized copy or phonorecord of his work, whether by sale, gift, loan, or some rental or lease arrangement. Likewise, any un­authorized public distribution of copies or phono­records that were unlawfully made would be an in­fringement. As section 109 makes clear, however, the copyright owner’s rights under section 106(3) cease with respect to a particular copy or phonorecord once he has parted with ownership of it.


Rights of Public Performance and Display. Performing Rights and the “For Profit” Limitation.—The right of public performance under section 106(4) extends to “lit­erary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio­visual works and sound recordings” and, unlike the equivalent provisions now in effect, is not limited by any “for profit” requirement. The approach of the bill, as in many foreign laws, is first to state the public per­formance right in broad terms, and then to provide spe­cific exemptions for educational and other nonprofit uses.


This approach is more reasonable than the outright exemption of the 1909 statute. The line between com­mercial and “nonprofit” organizations is increasingly difficult to draw. Many “non-profit” organizations are highly subsidized and capable of paying royalties, and the widespread public exploitation of copyrighted works by public broadcasters and other noncommercial organizations is likely to grow. In addition to these trends, it is worth noting that performances and dis­plays are continuing to supplant markets for printed copies and that in the future a broad “not for profit” exemption could not only hurt authors but could dry up their incentive to write.


The exclusive right of public performance is expanded to include not only motion pictures, including works recorded on film, video tape, and video disks, but also audiovisual works such as filmstrips and sets of slides. This provision of section 106(4), which is consistent with the assimilation of motion pictures to audiovisual works throughout the bill, is also related to amend­ments of the definitions of “display” and “perform” discussed below. The important issue of performing rights in sound recordings is discussed in connection with section 114.


Right of Public Display.—Clause (5) of section 106 rep­resents the first explicit statutory recognition in American copyright law of an exclusive right to show a copyrighted work, or an image of it, to the public. The existence or extent of this right under the present statute is uncertain and subject to challenge. The bill would give the owners of copyright in “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, the exclusive right “to display the copyrighted work publicly.”


Definitions. Under the definitions of “perform,” “dis­play,” “publicly,” and “transmit” in section 101, the concepts of public performance and public display cover not only the initial rendition or showing, but also any further act by which that rendition or showing is trans­mitted or communicated to the public. Thus, for exam­ple: a singer is performing when he or she sings a song; a broadcasting network is performing when it trans­mits his or her performance (whether simultaneously or from records); a local broadcaster is performing when it transmits the network broadcast; a cable tele­vision system is performing when it retransmits the broadcast to its subscribers; and any individual is per­forming whenever he or she plays a phonorecord em­bodying the performance or communicates the per­formance by turning on a receiving set. Although any act by which the initial performance or display is transmitted, repeated, or made to recur would itself be a “performance” or “display” under the bill, it would not be actionable as an infringement unless it were done “publicly,” as defined in section 101. Certain other performances and displays, in addition to those that are “private,” are exempted or given qualified copy­right control under sections 107 through 118.


To “perform” a work, under the definition in section 101, includes reading a literary work aloud, singing or playing music, dancing a ballet or other choreographic work, and acting out a dramatic work or pantomime. A performance may be accomplished “either directly or by means of any device or process,” including all kinds of equipment for reproducing or amplifying sounds or visual images, any sort of transmitting apparatus, any type of electronic retrieval system, and any other tech­niques and systems not yet in use or even invented.


The definition of “perform” in relation to “a motion picture or other audiovisual work” is “to show its im­ages in any sequence or to make the sounds accom­panying it audible.” The showing of portions of a mo­tion picture, filmstrip, or slide set must therefore be sequential to constitute a “performance” rather than a “display”, but no particular order need be maintained. The purely aural performance of a motion picture sound track, or of the sound portions of an audiovisual work, would constitute a performance of the “motion picture or other audiovisual work”; but, where some of the sounds have been reproduced separately on phono­records, a performance from the phonorecord would not constitute performance of the motion picture or audio­visual work.


The corresponding definition of “display” covers any showing of a “copy” of the work, “either directly or by means of a film, slide, television image, or any other device or process.” Since “copies” are defined as in­cluding the material object “in which the work is first fixed,” the right of public display applies to original works of art as well as to reproductions of them. With respect to motion pictures and other audiovisual works, it is a “display” (rather than a “performance”) to show their “individual images nonsequentially.” In addition to the direct showings of a copy of a work, “display” would include the projection of an image on a screen or other surface by any method, the trans­mission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or simi­lar viewing apparatus connected with any sort of infor­mation storage and retrieval system.


Under clause (1) of the definition of “publicly” in sec­tion 101, a performance or display is “public” if it takes place “at a place open to the public or at any place where a substantial number of persons outside of a nor­mal circle of a family and its social acquaintances is gathered.” One of the principal purposes of the defini­tion was to make clear that, contrary to the decision in Metro-Goldwyn-Mayer Distributing Corp. v. Wyatt, 21 C.O.Bull. 203 (D.Md.1932), performances in “semipublic” places such as clubs, lodges, factories, summer camps, and schools are “public performances” subject to copy­right control. The term “a family” in this context would include an individual living alone, so that a gathering confined to the individual’s social acquaint­ances would normally be regarded as private. Routine meetings of businesses and governmental personnel would be excluded because they do not represent the gathering of a “substantial number of persons.”


Clause (2) of the definition of “publicly” in section 101 makes clear that the concepts of public perform­ance and public display include not only performances and displays that occur initially in a public place, but also acts that transmit or otherwise communicate a [23] performance or display of the work to the public by means of any device or process. The definition of “transmit”—to communicate a performance or display “by any device or process whereby images or sound are received beyond the place from which they are sent”— is broad enough to include all conceivable forms and combinations of wired or wireless communications media, including but by no means limited to radio and television broadcasting as we know them. Each and every method by which the images or sounds compris­ing a performance or display are picked up and con­veyed is a “transmission,” and if the transmission reaches the public in my [any] form, the case comes within the scope of clauses (4) or (5) of section 106.


Under the bill, as under the present law, a perform­ance made available by transmission to the public at large is “public” even though the recipients are not gathered in a single place, and even if there is no proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential re­cipients of the transmission represent a limited seg­ment of the public, such as the occupants of hotel rooms or the subscribers of a cable television service. Clause (2) of the definition of “publicly” is applicable “whether the members of the public capable of receiv­ing the performance or display receive it in the same place or in separate places and at the same time or at different times.”




2002—Pub. L. 107–273 substituted “122” for “121” in in­troductory provisions.


1999—Pub. L. 106–44 substituted “121” for “120” in in­troductory provisions.


1995—Par. (6). Pub. L. 104–39 added par. (6).


1990—Pub. L. 101–650 substituted “120” for “119” in in­troductory provisions.


Pub. L. 101–318 substituted “119” for “118” in intro­ductory provisions.




Amendment by Pub. L. 104–39 effective 3 months after Nov. 1, 1995, see section 6 of Pub. L. 104–39, set out as a note under section 101 of this title.




Amendment by Pub. L. 101–650 applicable to any ar­chitectural work created on or after Dec. 1, 1990, and any architectural work, that, on Dec. 1, 1990, is uncon­structed and embodied in unpublished plans or draw­ings, except that protection for such architectural work under this title terminates on Dec. 31, 2002, unless the work is constructed by that date, see section 706 of Pub. L. 101–650, set out as a note under section 101 of this title.


Section 3(e)(3) of Pub. L. 101–318 provided that: “The amendment made by subsection (d) [amending this sec­tion] shall be effective as of November 16, 1988.”


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