Does the Common-Law Copyright Affect Your Creative Work?

Common Law, in regards to the copyright-related issues, is a confusing matter. 

Since the U.S. Congress passed the Copyright Act in 1976, common law in copyright is almost non-existent.

In some cases, common-law copyright refers to state-level copyright bills, which are mostly insignificant because the federal copyright laws preempt them. 


Should you be concerned about the common-law copyright? In short, only if you use some pre-1972 sound recordings in your work.

Still, make sure to understand how copyright works in general and how the common law fits into the big picture. 

What Is Common-Law Copyright?

Common-law copyright is the judicial policy that grants copyright protection based on the common law in different jurisdictions, rather than through statutory law protection.

It is based on the premise that authors have ownership over their work until the work is published. At that point, the copyright is covered by federal law. The introduction of the Copyright Act changed this. 

If you were trying to figure out how to copyright your work, you learned that you already have default protection, regardless of whether you published your work or not.

The copyright starts the moment you put your work of authorship in a tangible form and lasts during your lifetime and up to 70 years after your death. 

The Act places the author as the only person who can:

  • Own his or her work
  • Sell it
  • Distribute it or make copies of it
  • License another person to use it

With these rules, the Copyright Act abolished the Common-Law copyright, but in the United States, the concept is still considered active as state-level copyright. There are issues with this idea, as well.

State Regulations and Common-Law Copyright

Even if the common-law copyright refers to state-level copyrights, this still makes the common-law question obtuse.

There are some state-level copyright laws, but they are, for the most part, preempted by federal copyright law.

This means that the states cannot:

  1. Offer protection equivalent to copyright because the federal law already provides that protection by default
  2. Provide copyright protection in cases in which the federal copyright doesn’t apply (if the work is not original or because it has fallen into the public domain)
  3. Enforce penalties for copyright infringement if the content falls within the “subject matter of copyright” as defined by federal law 

There are some copyright-related areas to which state statutes apply, so much that the prosecutors are urged to consult with the state authorities on these cases. These legal enactments are called “true name and address” statutes and are used to fight piracy, but they only refer to videotapes and sound recordings. 

An additional trait of the state-level legislature is public performance rights, especially those concerning pre-1972 sound recordings.

A public performance right grants permission to third parties (usually radios) to play a song in public, online, or on the radio. This means that radios have to pay for that license, usually to the publisher.

Can You Sue for Common-Law Copyright Infringement?

Common-law copyright is not applicable in most situations, but one case in which former band members sued a radio provider for infringement gained some traction in the media.

The case was filed by Flo & Eddie, Inc., a company founded by former band members of The Turtles, against Pandora radio station. 

Pandora was accused of infringing on the band’s common-law public performance rights for the pre-1972 recording granted by the state.

The federal law doesn’t acknowledge the public performance rights for any pre-1972 recordings, so the band members had to rely on state law. 

They argued that based on the state common-law copyright principles, they have a public performance right for their song, even if it fits into the category of pre-1972 sound recordings. The band claimed that Pandora playing the song without their permission is infringing on their common-law copyright. 

While the case may seem insignificant, it is not. 

If the court accepted state protection of the exclusive public performance right for these sound recordings, it could create problems for radio stations focusing on the music from this era. Stations would have to pay to record labels, in addition to music publishers for any song recorded before 1972.

Common law seems only to have an influence on radio stations with a repertoire of classics.

If you fall under this category, you should pay attention to the music industry cases in your state and music copyright laws.

If not, you should consider the best option to keep your work safe per modern copyright laws, predominantly the Digital Millennium Copyright Act (DMCA).

How To Keep Your Content Safe?

In case you’re not running a radio station, you shouldn’t be afraid of any common-law copyright lawsuits. Using content from other creators is always tricky and can result in a lawsuit if you don’t stick to fair-use principles. 

Apart from avoiding committing copyright infringement, which is a part of every creator’s daily life, you should consider your options to keep your original content protected from infringers.

Here are the common methods for protecting your content:

Methods for Keeping Your Content Safe
Preventive Defensive

Each measure can help boost up protection of your work or tackle infringers. While neither of the preventive measures is mandatory, they will make a significant difference if your case goes to court.

Suing should be your last option—it’s expensive, it takes ages, and you may not even get any money from it.

The most effective way of tackling infringers is hitting them with a DMCA takedown notice. DoNotPay can help you achieve this quickly and effectively.

Report the Infringement With DoNotPay

The DMCA copyright infringement notice is the best tool for dealing with copyright infringement, but drafting this notice can be difficult. There are several mandatory sections, and the overall style of the notice has to be of a professionally composed legal document.

DoNotPay, an award-winning app, will make sure you have full DMCA protection in no time. We will generate the notice and send it to the Internet Service Provider hosting the infringing website. You only need to look for the results in the My Disputes tab on your Dashboard.

Here is how to file a DMCA notice with DoNotPay:

  1. Open DoNotPay in your web browser
  2. Tap the DMCA Takedown option
  3. Type in the title of your content
  4. Provide us with the links to both the infringing website and your original content
  5. Click on Sign and Submit

DoNotPay Is a Powerful Multipurpose App

DoNotPay can teach you everything you need to know about protecting your content, from costs of registering copyright to specifics such as filing a copyright claim on YouTube.

We can also show you the difference between a trademark and copyright

explain what the statute of limitations is, and present the most significant copyright infringement cases

Our app will assist you in copyrighting artwork, dances, and scripts and guide you through image copyright laws

To check out what else we can do, access DoNotPay from your web browser.

Some of the issues we can help you with are: