The current state of digitized images necessitates congressional action to protect authors and content providers from online infringement.

• Author: McMahon, Kris

"The evolving scope of American copyright law ... encompassing almost every conceivable work of authorship, reflects a steady legislative effort to adjust copyright's reach to contemporary technologies of literary and artistic production." (1)

1. INTRODUCTION

   Congress continually adjusts copyright law to correspond with the advent of new technologies, such as the World Wide Web. (2) Through copyright law, Congress aims to incentivize authors to create and disseminate new works without stifling their creativity by providing copyright holders with too much protection. (3) The United States Constitution states copyright protection's goal: "[t]o 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." (4) Determining the scope of copyright protection, however, is difficult; some authors want perpetual monopolies in their works while others are willing to allow free access to their works after recouping their initial investment. (5)

   Under the 1976 United States Copyright Act and its later amendments, authors have exclusive rights to their work; this protection exists for the author's life plus an additional seventy years. (6) There is a passionate debate, however, over the extent and longevity of copyright owners' control. (7) Congress, over the last two centuries, has expanded copyright protection for authors and encouraged new forms of expression. (8) Still, the scope of copyright protection remains a contentious topic between advocates for a broader public domain and those who hope to control and monetize their work for longer time periods. (9)

   The law requires any given work to meet a minimum originality requirement to receive copyright protection. (10) The originality requirement's boundaries are tested anew as novel forms of technology arise. (11) Most recently, online databases containing digital images challenged the traditional "originality" paradigm. (12) Digital images arguably do not meet the standard originality requirements for original works of authorship or derivative works. (13) Consequently, digital image distributors such as Corbis and Getty Images (Getty) make steep financial investments to obtain physical, copyrighted works that are then digitized, uploaded, and licensed as online content available around the world--however, this investment returns little reward. (14)

   Under present law, companies like Corbis and Getty possess copyright protection on the underlying physical work; this protection, however, does not encompass the digitized images uploaded online. (15) Despite that online facilitators such as Google reproduce, display, and distribute images online--an exclusivity violation for copyright owners like Getty--courts almost always rule in favor of the infringing facilitator due to the fair use doctrine. (16) This precedent not only opens the door to infringement on content providers and copyright owners with no legal recourse, but also undercuts copyright law's fundamental goal: to incentivize authors through guaranteed compensation for their creative efforts. (17)

   Because current protections for digital image copyright owners leave creators and content providers vulnerable to mass infringement, legislative action is required to prevent further copyright transgressions and to ensure creative output thrives. (18) Furthermore, copyright owners like Getty may be able to better protect their online content if digital images became copyright protected under Title 17 of the United States Code. (19) This Note argues that the historical practice of safeguarding authors and publishers, coupled with compelling policy concerns, provide ample justification for extending sui generis copyright protection to digital images. (20)

   Part II of this Note outlines the history, scope, and purpose of United States copyright law, highlighting the digitization problem and explaining how previously "new" technologies folded into the scope of copyright law. (21) Part III of this Note analyzes how digital images fare under copyright law, given that they lack originality and often fall under the fair use doctrine. (22) Part III further examines whether digital images fall within traditional copyright law, and recommends extending copyright protection to digital images. (23) Finally, Part IV of this Note concludes that Congress must develop a new approach for handling the infringement of digital images. (24)

2. HISTORY

   1. The Scope of Copyright Protection

      All new works of authorship must meet three established requirements under section 102 of the 1976 Copyright Act before federal copyright protection attaches. (25) First, the author must contribute some modicum of originality to the work. (26) The Supreme Court has formulated a two-part test to determine originality: the work must be "independently created," and the work must exhibit a minimal degree of ingenuity, a "creative spark." (27) Next, if deemed "original," courts also require the work to be in a medium of expression that exists for more than a transient amount of time. (28) The final requirement is that copyright protection does not extend to elements of the work that constitute ideas, systems, methods, or facts. (29) A copyright holder can demonstrate a copyright violation by presenting ownership of the valid copyright and the alleged item that violated their copyright. (30)

      Upon demonstrating these requirements, the law protects many expressive forms, including literary, musical, pictorial, graphic, and sculptural works. (31) Copyright protection grants exclusive rights to authors, including reproduction rights, derivatives preparation, and the distribution, display, and performance of the work. (32) These rights, however, are far from absolute; the fair use doctrine dramatically limits the extent to which authors may claim protection. (33) The Second Circuit's seminal case, Bill Graham Archives v. Dorling Kindersley Ltd. (34) considered the fair use doctrine in connection with images in a book. (35) Although the defendant exclusively used entirely copyrighted posters in its book, the court held that the fair use defense was applicable for a several reasons, including that the defendant reduced the posters' sizes in the book and that the posters were biographical in nature, causing the plaintiff to suffer no market harm. (36)

      In addition to sheltering purely original works, copyright protection also extends to compilations and derivative works. (37) Copyright law's primary objective, however, is to safeguard creative expression, as opposed to protecting works that encompass general ideas or factually-based material. (38) Accordingly, copyright law offers the most protection to original works, which incorporate a greater amount of ingenuity, novelty, and creativity. (39) Conversely, derivative works, which merely add copyrightable variation to preexisting works, merit only minimal protection. (40)

      To receive copyright protection for a derivative work, an author must undergo a number of procedural steps, such as obtaining consent from the original copyright owner, including, in part or whole, one or more preexisting works, and introducing an element of originality that distinguishes the derivative work from the underlying work. (41) The originality requirement for derivative works demands that authors contribute a distinguishable variation from an original work to create something that is "recognizably [their] own." (42) This more stringent originality standard for derivative works ensures that the derivative copyright does not inhibit public domain access, or conflict with the original copyright owner's exclusive rights. (43) Some express great concern about original copyright protection when licensing works to future parties for derivative works. (44) An additional concern stems from the misappropriation of public domain artwork, where this artwork is ultimately used to create derivative works receiving copyright protection. (45)

      The public domain collectively consists of artistic material universally available for reproduction, adaptation, performance, distribution, or display. (46) Copyright law considers broad public domain conservation fundamental to inspire authorial innovation, ingenuity, and democratic involvement. (47) Preserving an abundant public domain of raw material benefits the general public by providing authors with a universe of inspiring material for creating new works. (48) Thus, a public domain with wide-scale distribution and access furthers copyright law's policy goal of promoting innovation. (49)

   2. Purpose and Theory Behind Copyright Law

      The purpose of the Intellectual Property Clause of the United States Constitution rests on the idea that authors deserve exclusive rights so that they may recoup their monetary investment in creating their original works. (50) In addition to authors, distributors rely on copyright protection against infringement because they themselves control copyrights and engage in copyright litigation. (51) Further, the Intellectual Property Clause presupposes that the creation of new works promotes progress, thereby serving the greater public good. (52) In Eldred v. Ashcroft, (53) the Supreme Court acknowledged this overarching goal through its emphasis on rewarding authors' creative endeavors and enabling the public to access those endeavors. (54) Hence, copyright protection evolved into a limited monopoly concept, granting authors and copyright holders' strong protection to ensure they would be comfortable disseminating their works publicly for sale or licensure, and eventually for free, after their monopoly term expired. (55)

      Two theories have emerged for copyright protection: the utilitarian theory and the natural rights theory. (56) The utilitarian theory is predominant in United States copyright law. (57) Although copyright's purpose is utilitarian in nature because it seeks to...