The Exclusive Rights

Section 106 of the Copyright Act is the operative provision of U.S. copyright law. It states that the owner of copyright has the exclusive rights to do and to authorize six things, and everything else in the statute either qualifies those six or explains who owns them. Infringement, defined in section 501, is nothing more than violating one of them without authority.

The six rights are: reproduce the work in copies or phonorecords, prepare derivative works, distribute copies to the public by sale or other transfer of ownership or by rental, lease, or lending, publicly perform the work, publicly display the work, and, for sound recordings only, publicly perform the work by means of a digital audio transmission. That last one, section 106(6), was added by the Digital Performance Right in Sound Recordings Act of 1995 and is the odd member of the family.

Six rights, not one blanket right

The most common misreading of copyright is treating it as a general right to control a work. It is not. It is a closed list of specific acts. If what someone did is not on the list, no amount of unfairness makes it infringement.

This matters more often than it sounds. Reading a book aloud to your family is a performance, but not a public one, so section 106(4) is not touched. Reverse-engineering an idea out of a work and building your own implementation reproduces nothing fixed. Sending someone a link is not, on the prevailing view, distributing a copy. The question is never “did this feel like taking,” it is “which enumerated right was exercised.”

Each right is also opened by the words “to do and to authorize.” Those five words are the statutory hook for secondary liability: a defendant who never copied anything can still be liable for authorizing the copying, which is how contributory and vicarious infringement doctrines attach to platforms and distributors.

The rights are divisible, and that is the whole business model

Under the 1909 Act, copyright was indivisible: you either owned the whole thing or you owned a license. The 1976 Act reversed that. Section 201(d)(2) provides that any of the exclusive rights, including any subdivision of any of them, may be transferred and owned separately, and that the owner of any particular exclusive right holds all the protection and remedies the Act gives to a copyright owner.

That single sentence is why a publishing industry exists. A novel can be carved into North American hardcover rights, film and television rights, audiobook rights, translation rights by language, and merchandising rights, each sold to a different party, each of whom can sue in its own name over its own slice. A song is routinely split at an even deeper level, because the composition and the sound recording of that composition are two separate copyrights with separate owners and separate licensing chains.

Two guardrails follow. Section 204(a) requires that any transfer of an exclusive right be in a writing signed by the owner; a handshake can create a nonexclusive license but never an exclusive one. And sections 203 and 304(c) give authors an inalienable right to terminate transfers decades later, which is why catalogs from the late 1970s onward keep reverting to artists and their heirs.

Where the distribution right stops: first sale

Section 106(3) controls distribution “to the public,” but section 109(a) cuts it off at the first authorized sale. The owner of a lawfully made copy may sell, lend, or give away that particular copy without permission. Libraries, used bookstores, video rental, and the entire secondary market for physical media rest on that provision.

The fight in the 2000s was over the phrase “lawfully made under this title.” Publishers argued it meant made in the United States, which would have let them price-discriminate abroad and block reimportation. In Kirtsaeng v. John Wiley & Sons (2013), the Supreme Court held the phrase imposes no geographic limit: a textbook lawfully manufactured in Thailand is lawfully made under the Act, so a student who bought copies there could resell them in the U.S. at a profit. The United States thus follows international exhaustion for copyright.

First sale has hard edges. It exhausts only the distribution right, never reproduction, so it gives no cover to making a new copy. Section 109(b) carves out rental of phonorecords and software, which is why record rental shops disappeared. And courts have been reluctant to extend it to digital transmissions, where transferring a file means making a new copy and deleting the old one, an act section 109 does not on its face reach. Section 109(c) separately lets the owner of a lawful copy display it directly to viewers present at the place where the copy is located, the provision that lets a gallery hang a painting it bought.

What “publicly” means, and why it swallowed Aereo

Performance and display rights only bite when the act is public, and “publicly” is a defined term in section 101. It captures performing at a place open to the public or where a substantial number of people outside a normal circle of family and social acquaintances is gathered. It also captures the transmit clause: transmitting a performance to the public “by means of any device or process, 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.”

That breadth was drafted in 1976 to cover cable retransmission, and it decided the streaming era. Aereo built a system of thousands of dime-sized antennas, one assigned to each subscriber, so that every stream was technically a unique private copy sent to one person. In American Broadcasting Cos. v. Aereo (2014), the Court held the service was performing publicly anyway, reasoning that Aereo was substantially similar to a cable system and that the behind-the-scenes engineering could not change the nature of what viewers received. Whether the audience receives the same transmission does not control; whether the aggregate audience is the public does.

The sound recording exception

Sound recordings joined federal copyright only in 1972, and they arrived with rights deliberately clipped. Section 114 limits section 106(1) and (2) for recordings to actual mechanical capture of the sounds, so an independent recreation that imitates a record note for note infringes nothing in the recording, though it may infringe the underlying composition.

More consequentially, there is no general public performance right in sound recordings. Section 106(4) reaches musical works, so terrestrial radio has always paid songwriters and publishers through ASCAP, BMI, and SESAC while paying the label and the featured artist nothing. Section 106(6) grants only a digital audio transmission right, which is why satellite and internet services pay recording owners through SoundExchange under the statutory license in section 114(d)(2), and AM/FM does not. Congress has been asked to close the gap for decades and has not.

Alongside all six, section 106A gives visual artists a narrow set of moral rights of attribution and integrity in single-copy and limited-edition works, the one place U.S. law protects an interest that is not economic.

Frequently asked questions

What are the exclusive rights under Section 106? Six of them. The owner alone may reproduce the work in copies or phonorecords, prepare derivative works based on it, distribute copies to the public by sale or other transfer of ownership, publicly perform the work, publicly display the work, and, for sound recordings only, perform the work publicly by means of a digital audio transmission. They are listed at 17 U.S.C. § 106 and every one of them is subject to the limitations in sections 107 through 122.

Can copyright rights be split up and sold separately? Yes. Section 201(d)(2) makes copyright divisible, so any of the six rights, or any subdivision of one, can be transferred and owned separately. A novelist can sell film rights to a studio, print rights to a publisher, and audiobook rights to a third party, and each buyer becomes the owner of that slice with standing to sue over it. Exclusive transfers must be in a signed writing under section 204(a).

Does buying a copy of a work give you any of these rights? No. Section 202 separates ownership of the physical object from ownership of the copyright. Buying a book, a painting, or a download gives you the object, not the right to copy, adapt, or publicly perform it. The first sale doctrine in section 109 lets you resell or lend that particular copy, and lets the owner of a lawfully made copy display it to viewers present where the copy is located, but it goes no further.

Why do radio stations pay songwriters but not always the performers? Because sound recordings have no general public performance right in U.S. law. Section 106(4) covers musical works, so terrestrial radio pays the songwriter and publisher. The recording itself only gets the narrower right in section 106(6), limited to digital audio transmissions, which is why internet and satellite services pay recording owners and AM/FM stations historically have not.

Authorities and sources

• 17 U.S.C. § 106: Exclusive rights in copyrighted works (Cornell LII)
• 17 U.S.C. § 101: Definitions, including “publicly” and the transmit clause (Cornell LII)
• 17 U.S.C. § 106A: Rights of attribution and integrity (Cornell LII)
• 17 U.S.C. § 109: Effect of transfer of particular copy (first sale) (Cornell LII)
• 17 U.S.C. § 114: Scope of exclusive rights in sound recordings (Cornell LII)
• 17 U.S.C. § 201: Ownership and divisibility of copyright (Cornell LII)
• 17 U.S.C. § 204: Execution of transfers of copyright ownership (Cornell LII)
• 17 U.S.C. § 501: Infringement of copyright (Cornell LII)
• Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013) (Cornell LII)
• American Broadcasting Cos. v. Aereo, Inc., 573 U.S. 431 (2014) (Cornell LII)
• U.S. Copyright Office Circular 1: Copyright Basics

Going further: The Creator's Guide to Copyright .

This page is general legal information, not legal advice, and it does not create an attorney-client relationship.