Introduction
This unit of the course will
cover rules governing the duration ("term") of copyright. In other
words, how long does a copyright last? The answer depends of
several factors, but copyrights generally last for a long
time. In fact, if you create a copyrighted work, it will
outlive you in most cases. In the United
States, the term of copyright has changed several times since the first
Copyright Act
which was enacted in 1790. Of course, a lot of other things have changed since then
as well so maybe it shouldn't be all that surprising that copyright term has
adapted in response to advances in technology, longer lifespans and other
factors.
Under the
United States
Constitution, copyright
protection must be limited in duration. The Constitution expressly gives
Congress the power to enact copyright laws which includes authority to determine
how long copyrights should last subject to the limitation that the term must be
limited. In other words, if Congress were to pass a law which provided that
copyright would last forever, that law would clearly be unconstitutional. When
the term of protection for a copyright ends or expires, the work enters what is
referred to as the "public
domain." A work that is in the public domain cannot
be owned by anyone and anyone is free to use it.
Rules Governing
Copyright Duration
The rules governing the duration of copyright can be quite complex, primarily
due to the fact that there are different terms of protection for different
works. In order to determine which rules are applicable to a particular work,
you must first know when the work was created, and if published, the date of
first publication. Works created and published before 1978 are governed by the
provisions of the 1909 Copyright Act while works created from 1978 to the
present as well as works created before 1978 but not published as of 1978, are
governed by the provisions of the 1976 Copyright Act. However, the duration
provisions of both the 1909 and 1976 Acts have been amended on several occasions
which makes things even more complicated.
Duration
Under the 1909 Copyright Act
Until 1978, a dual system of copyright existed in the United States. Under
the 1909 Copyright Act, federal copyright protection began upon publication
(i.e., making a work available to the public) of a work with proper copyright
notice or on the date of copyright registration for certain unpublished works
such as songs. Unpublished works were not protected under the 1909 Act and
instead were protected by common law (i.e., law resulting from court decisions)
until published. Common law copyright lasted until the work was published or
registered as an unpublished work. If a work was never published or registered,
it could be protected indefinitely under common law copyright. Once a work was
published or registered, it became subject to the 1909 Copyright Act.
The 1909 Act provided for an initial term of 28 years and a renewal term of
an additional 28 years. Consequently, the maximum term of protection was 56
years. However, in order to receive protection during the renewal term, a
renewal registration had to be made for the work. If a copyright was not renewed
properly during the last year of the initial 28 year term, the copyright expired
and the work entered the public domain.
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Question 5.1:
Helmut
Newton, an acclaimed fashion photographer, took a photograph
in 1940. The photograph was published in a magazine and the
copyright in the photograph was registered by Helmut in 1941.
However, since the photograph wasn't one of Helmut's best and
didn't earn much money, Helmut very quickly forgot about it. Under
the 1909 Copyright, the copyright in Helmut's photograph would
have expired in 1996.
a. True
b. False |
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The main reason for dividing the term of copyright into two
periods (i.e., initial and renewal) was to protect authors. It was common
for authors of a work to transfer rights to the work upon or shortly after
creation, before the value of the work could be determined. Additionally, many
of these transfers during the first half of the 20th century were for relatively
small one-time payments.
| Example: Several years ago I
represented the heirs of a songwriter who wrote a song in the late 1950s
which the songwriter transferred shortly after its creation (along with several other
songs) to a publisher for $400. The song ended up being used as the theme
song for a popular television series that ran for several years and has
been broadcast in syndication all over the U.S. for several decades.
Although the publisher has earned millions of dollars in performance
royalties from the song, the songwriter and his heirs never received a
penny beyond the $400 he originally sold the songs for. Beginning
somewhere around the 1950s, it started to become common for authors to
receive, in addition to an upfront payment (an "advance"), a right to
receive royalties (a percentage of the income generated from the work). If
the situation described occurred today rather than back in the 1950s, the
songwriter and his heirs, under standard practice in the music publishing
industry, would be entitled to 50% of all income generated from the song. |
In an effort to prevent the type of situation described in the example above,
the 1909 Act gave the renewal right to the author or the author's heirs if the
author had died prior to the 28th year of the initial term. If the copyright was
properly renewed, the author would own the copyright for the renewal term.
However, the renewal system under the 1909 Copyright Act, did not work well.
Many authors and copyright owners either weren't aware of the renewal
requirement or simply forgot to file renewal applications which resulted in a
lot of works entering the public domain after the initial 28 year term. Also, due to some complicated loopholes in the law, publishers were often
able to acquire the renewal rights (as happened in the example above). This
ultimately lead to Congress' decision to do away with the renewal system when it
passed the 1976 Copyright Act.
Duration
Under the 1976 Copyright Act
Under the 1976 Copyright Act, copyright protection begins upon creation of the work and
is not dependent upon publication. Creation occurs when an original work is
fixed in tangible form and copyright protection arises automatically upon
creation. As mentioned above, Congress did away with the renewal term and
instead decided to base copyright duration on the author’s lifetime. The 1976
Act originally provided that copyright lasts for the life of the author plus an
additional 50 years (although in 1998, Congress increased this period
to the life of the author plus 70 years). One of the reasons for this change was
that by 1976, most of the major foreign countries based their term of copyright
on the author’s lifetime plus 50 years (and life of the author plus 70 years by
1998). However, the duration rules under the 1976 Copyright only apply to works
created beginning in 1978 (the 1976 Copyright Act took effect in 1978).
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Question 5.2:
Peter writes a
book in 1980 about a man-eating shark which terrorizes a coastal
community. The book becomes a bestseller, but in 1985, Peter dies
tragically in a fishing accident. Under the 1976 Copyright Act
(prior to any amendments), the copyright in Peter's book would have
expired in 2035. |
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The 1976 Copyright Act also amended the term provisions of the 1909 Copyright
Act by extending the renewal term for an additional 19 years, making the total
renewal term 47 years (28+19). With this extended renewal period, works
published before 1978 could receive a maximum of 75 years of copyright
protection if renewed. Why 70 years? Congress basically chose this period since
it matched the approximate average life expectancy at the time (the reasoning
was that copyright should ideally last at least for the author's lifetime and
one generation of heirs). In 1998, the 47 year renewal period was later
increased to 67 years by the Sonny Bono Term Extension Act discussed below.
Question 5.3: Going
back to Question 5.1, if the copyright in Helmut's photograph was properly
renewed, the copyright would expire in 1996.
- True
- False
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In 1998, Congress passed the
Sonny Bono Copyright Term Extension Act (named after
singer/songwriter/Congressman). The Term Extension Act increased the term of
copyright to the author's life plus 70 years for works
created beginning in 1978. It also extended the
renewal term under the 1909 Act by an additional 20
years. Consequently, the renewal term now lasts for 67
years and the maximum term for works governed by the
1909 Copyright Act is 95 years (i.e., 28 year initial
term + 67 year renewal term). |
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The Term Extension Act received a lot of criticism as many
people believed it was passed at the instigation of copyright owners of some
extremely valuable works such as the
Disney Corporation (owner of the copyright in the original
Mickey Mouse character) which
would have entered the public domain if the term had not been extended. Although
this is certainly true, there were several other factors that Congress
considered including the fact that the countries of the
European Union had agreed to give
copyright protection for 70 years after the author's death and if the U.S.
failed to match that term, many foreign countries would not have given American
copyrights protection for the additional 20 years under their laws which would
cost the U.S. economy millions of dollars a year.
Question 5.4:
Going
back to Question 5.2 above, under
current copyright law,
the copyright in Peter's book would expire in 2055.
- True
- False
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Duration of Works
Made for Hire
Basing the term of copyright on the author's lifetime (plus some period after
the author's death) works fine for most works. However, one exception involves
works made for hire where the hiring party is considered to be the "author"
under copyright law. Since the hiring party could be a corporation or other
business entity rather than an individual, basing the term of copyright on the
life of the authors does not work so well. Consequently, there is a different
term applicable to works made for hire. The copyright in a work made for hire
lasts for either: (1) 95 years from the work's first publication; or (2) 120
years from the work's creation, whichever period is shorter.
Question 5.5:
An
employee of MikeRoweSoft Corporation creates a bug-free version of a
computer software program called Doors in 1980.
MikeRoweSoft
holds off on releasing Doors until 2004 so it can sell less than
bug-free versions of the program for over 20 years (and make a fortune
selling "upgrade" versions to consumers every 2-3 years). The copyright in
Doors will expire in 2100.
- True
- False
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Determining
the Duration of Copyrights
If all of what we've covered seems a bit confusing, it is. In order to try to
explain how long copyrights last, I have put together a table which summarizes
the duration rules under current U.S. copyright law.
Click here
for the table (it also appears in
chapter 8 of Moser on Music Copyright ). If you want to
determine how long a specific copyright will last or whether a work is in the
public domain, this should provide a relatively straightforward way to do so.
However, you will need to know when the particular work was created and, in some
cases, when it was first published (there are various ways to find this
information such as checking the Copyright Office's registration records, but
there is no comprehensive source for information on all copyrighted works).
Additional Resources
Question Answers
Answer 5.1: False - The copyright would have
expired in 1968 since the 1909 Copyright Act provided for an initial 28 year
period of protection. If Helmut filed a renewal application with the Copyright
Office in 1968, the copyright would have received a second 28 year period of
protection (the "renewal term") and the copyright would have expired in 1996
under the 1909 Copyright Act ( due to amendments to the 1909 Copyright Act made
in 1976 and 1998, the renewal is now 67 years and Helmut's copyright would not
expire until 2035).
Back to Question
Answer 5.2: True - Under the 1976 Copyright,
the copyright in Peter's book would have lasted for 50 years from the date of
his death (1985 + 50 = 2035).
Back to Question
Answer 5.3: False -
The copyright would expire in 2035 (1968 + 67 = 2035).
Back to Question
Answer 5.4:
True - Under the 1976 Copyright
Act (as amended by the Sonny Bono Term Extension Act), the copyright in Peter's
book would lasted for 70 years from the date of his death (1985 + 70 = 2055).
Back to Question
Answer 5.5: False -
The copyright will last for the shorter of either 95 years from the work's first
publication (2004 + 95 = 2099) or 120 years from the work's creation (1980 + 120
= 2100). The copyright will therefore expire in 2099 since that is the shorter
of the two periods.
Back to Question
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