You Keep Using That Word . . . (Sec. 101)

This is the latest in our series of posts marking the 50th anniversary of the Copyright Act of 1976. To find a list of all the posts in this series, click here.

The first thing you read when you open Title 17 is the first thing you will read when you open many sources of law—definitions. A list of definitions may not seem like the most exciting thing you will read this week, and perhaps it isn’t. But this is an appropriate place to start a celebration of the Copyright Act because a lot of the magic happens right here in Section 101. There’s also a lot that doesn’t happen in the definitions section, and that is almost as interesting as what does.

If you’ve spent any time learning programming languages, you may have encountered something called operator overloading. An operator, in programming speak, is a special symbol or word that performs certain operations, such as arithmetic functions. In some languages, you can redefine an operator to mean essentially anything you want. In C++ programming, for example, by default the “+” operator means what you think it would—it means, “add the figure before the operator to the figure after it.” But that is only the default—you could, say, define the “+” operator to mean, “add the figure before the operator to twice the figure after it.” This is called operator overloading. Under the default rule, 2 + 2 is, of course, 4 (in base 10, at least). But under the overloaded definition, 2 + 2 would resolve to . . . 6.

(Side note: I never understood why my C++ teacher assigned that very task to us many, many years ago. I had no idea he was preparing me for law school.)

Legal definitions work much the same way. By default, courts have frequently instructed that a term means what it normally would mean in plain language. But when a statute provides a definition for a term, that term then takes on that statutory definition, whether or not it matches—or even is consistent with—the common understanding. If you’re not familiar with the law, that word may not mean what you think it means.

Sometimes Sec. 101 broadens a plain language definition. For example, Sec. 101 defines “transfer of copyright ownership” as “an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.” Here, Sec. 101 takes all those different terms, and says, “regardless of any subtle differences between these various terms, they now mean the same thing.” So, whatever a hypothecation is, we now know to treat it as just one more example of a “transfer of copyright ownership.” 

But I think the most interesting thing about Sec. 101 is when it overloads a definition. Take, for example, the term, “establishment.” Oxford Languages defines an establishment simply as “a business organization, public institution, or household.” But Sec. 101 defines it as:

. . . a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly.

Notice how many plain language “establishments” (that is, business organizations, public institutions, or households) are excluded by that definition. Where the copyright law talks about an “establishment,” it is not talking about a business if a majority of its space is not used for selling goods or services. If 51% of a coffee shop was used only for purposes of displaying (but not selling) artworks, for example, it would not qualify as an “establishment” under this definition. If the business only played dramatic musical works in public, or if it only performed literary works, then it also would not qualify as an “establishment,” no matter what Oxford Languages said.

Section 101 has many more interesting overloaded definitions than can be named in single blog post. To name just a few, under the Copyright Act, a work isn’t “fixed” (a requirement for copyright) unless the fixation is authorized by the author. A work is not a “joint work” unless there was intention to create a joint work. The District of Columbia and Puerto Rico are “states,” but other U.S. territories are not unless Congress explicitly makes the Act applicable (which Congress has not done, for example, with tribal territories). But is it art? Only if it is in a limited edition of 200 or fewer, consecutively numbered, and signed by the author.

As I alluded earlier, there are also some surprising omissions from the list of terms. One of the most glaring, in my opinion, is the lack of a definition for . . . author. Authorship is fundamental to copyright—after all there is no copyright if there is not an author—and yet Congress has left this most essential of terms undefined.

It might seem unnecessary to define such a common term, but relying on the plain language definition can be problematic. In most cases, copyright ownership of any commercially valuable work is agreed to by a private contract. But what if there is no contract? There are many unresolved questions. For example, who is the author (and therefore the initial copyright owner) if a novel is credited to one person, but was in fact ghost written by another? (answer: probably the ghost writer). If a journal article has several thousand named “authors,” is each of them an “author” for copyright purposes? (answer: almost certainly not). Who is the “author” of a sound recording? (answer: it isn’t clear, but it probably depends on the circumstances). 

Congress has left the question of how to define “author” to the courts. The Supreme Court has ruled that an author is the person or persons “to whom a work owes its origins,” and some lower courts also require a copyrightable contribution in order to be a joint author. It’s a good start, but it doesn’t begin to finish answering the question. The Compendium of Copyright Office Practices, which guides the Office uses in processing registration, is a useful resource for many questions, and it can provide some assistance, but it is not binding on courts. 

For a section that is essentially a specialized glossary, it provides surprisingly interesting reading for copyright nerds (which means what you think it means).