Logistics of Ownership & Registered Copyrights
Statute of Frauds:
We first raised the topic of copyright duration at the beginning of Chapter 2. There we noted that the length of time we choose to grant an author a monopoly over use of her creative work depends upon the motivation for granting this monopoly. These underlying motives must also be examined when considering how and when copyrights are transferred from the original owner to others, and is complicated by the fact that our views changed between the 1909 Act and the 1976 Act. While the duration and transfer of copyrights is relatively clear in works created after the 1976 Act, works created before the effective date of January 1, 1978 cause significantly greater problems.
Works Created On or After January 1, 1978
Title 17 §302 sets the duration for copyrighted works created on or after January 1, 1978 (as a result of the 1976 Act). Note that there is no true fixed term for copyright ownership in most cases, as it is tied to the author’s lifespan.
From the effective date of the 1976 Act until October of 1998, the term for a copyright in these works lasted until 50 years after the author’s death which, at the time the Act was drafted, was similar to the rights granted by most other nations. See House Report, p. 311.
Today, the term of a copyright is the author’s life plus 70 years. §302(a). Of course, this is in the case of a classic, single-author work. §302(b) tells us that in the case of a joint work, the rights shall extend until 70 years past the death of the last remaining author.
EXAMPLE (1): Frances earns her living selling original pottery which she creates in her converted barn. In 2001 she creates a piece called “Child in Fury.” Immediately upon creation she has the exclusive rights granted by copyright. At this time, the end of her monopoly is indeterminate. It is not only unknown, but unknowable (impossible to know or determine). In 2006 Frances passes away. Her monopoly in “Child in Fury” will expire in 2076.
EXAMPLE (2): Rosy, Nils and Stash are musicians who work together to write songs. The way in which they collaborate (along with the sophisticated contracts written by their attorneys!) indicates that these songs are joint works as defined in §101. One of their most famous songs, “Love, Peace & Granola” was written in 1979, a bit late for its style, really, but quickly rose to the top of the charts. In the decades that followed, the song earned untold thousands for the aging artists. In 2007 Rosy, overweight and at high risk, dies of a heart attack. Three years later, in 2010, Stash is performing in concert when a speaker falls on his unshod foot (he prefers to perform in his socks). The wound becomes infected and within days he expires. In 2011, Nils is “trading fours” with an up-and-coming guitarist when a freak accident causes a powerful electric shock to arc from the younger man’s guitar to Nils’ guitar. Both are killed instantly. The initial copyright term will end in 2081, 70 years after the last joint author’s death.
The extension from 50 years to 70 years came about in 1998 as a result of (no kidding) the Sonny Bono Term Extension Act. Pub. L. No. 105-298, 112 Stat. 2827 (1998). In addition to extending the terms for works of individual authorship and works by joint authors, the Act extended the terms in §302(c) by twenty years.
§302(c) applies to “anonymous works, pseudonymous works, and works for hire,” and currently grants a term of 95 years from first publication, or 120 years from creation, whichever is shorter. There are some further complications addressed in the subsection, which is worth a gander.
Note that the extensions granted by the Bono Act apply not only to works created after the Act was passed, but to any work then protected under the 1976 Act, so both examples above (Frances’ pottery and the jointly authored song) would have terms of “life plus 70 years.” Further, some works protected by the Act of 1909 also receive extension under the Bono Act.
Subsections (d) and (e) concern death records and the presumption of death, the timing for which parallels that in subsection (c).
§302 (a) – (c) are fairly straightforward, and these are the vital subsections to keep in mind for 1976 Act works.
Term of Copyright Under the 1909 Act
The Statute of Anne (1710) was the first “modern” copyright law. There, authors were granted a 14 year copyright term starting with the first date of publication with a second 14 year term to follow if the author was alive when the original term expired. See Gorman p. 3, See also Intellectual Property: The Law of Copyrights, Patents and Trademarks, Schechter and Thomas, Thomson West (2003).
Two hundred years later, with the Act of 1909, we see a similar scheme. The basic choices available to us in constructing copyright law are the following:
- Should the work or the author be the measure used in determining the length of the term of protection?
- If the work is the determining factor, is its creation or its publication more important?
The 1976 Act saw a move away from using the work as a determinant, and instead uses the author’s life, plus a fixed period of years. Therefore, under the 1976 Act, the world remains uncertain as to when the work will enter the public domain until the author dies, or is presumed dead under §302(e).
The Statute of Anne, however, and the 1909 Act, fix the term of copyright protection independent of the author’s life (setting aside, of course, the Statute of Anne’s interesting renewal policy).
Consider the chart above. I have used green text to indicate what most would consider a preferable result of copyright law, red to indicate an undesirable result, and blue to indicate a highly debatable area.
The benefit in knowing the term of protection is that others will be able to make the most advantageous use of the intellectual property. We protect an author’s work because by providing protection we can encourage creation, but we release those works to the public because more widespread use of the work may result in new or creative uses.
Similar reasoning sheds light on the benefit of allowing authors to maintain their rights throughout their lifetimes. Imagine a young author knowing he likely has fifty years or more to live and also knowing that well before his time is done, others will be able to use his property as they see fit. This might, in some cases, diminish the creative zeal.
As to the third point in the chart, however, it is unclear which position is most advantageous. Staggering the release of an author’s material into the public domain might well avoid a flooding of the market, but releasing all at once will avoid the confusion of those seeking to use an author’s work. After all, some authors produce works on a weekly or even daily basis, and determining the precise creation date, not to mention keeping track of these dates, might be an incredibly difficult task.
No matter which side you take in this debate, with the Act of 1976, we see the final demise of copyright terms based on the creation or publication dates of the work. The current act might use the creation date as the beginning of the term of protection, but the life of the author plus a fixed term (70 years) is used to determine the end of protection.
The Statute of Anne used the date of publication as the starting point for the term, but the 1909 Act could provide us with no such clear and simple rule.
The general outline for terms of protection under the 1909 Act is as follows: As soon as a work was created it was protected by “common law” copyright. If the work is not published, this protection continues in perpetuity, i.e., forever. Once a work is published it begins an initial 28-year term from the date of publication (assuming there was a valid copyright notice), and a renewal is available which would provide a second 28 year term (but the statutory right to renew was limited to certain persons).
Basically, for works covered by the 1909 Act, there is a difference between copyright protection in a work prior to its publication and protection following publication, and rather than a single term there is a two-term system. Because this rule is no longer in use, we need not get bogged down in the details. But it is again important to note that for works created prior to January 1, 1978, the 1909 Act may apply and should be thoroughly researched. A useful summary of the 1909 Act issues relevant today can be found in Copyright Law: A Practitioner’s Guide, Keller & Cunard, §7:3, Practising Law Institute (2005).
Recall that Title 17 §102(a) tells us that copyright ownership attaches immediately upon creation of an original work “fixed in any tangible medium of expression….” This says nothing of a filing, registration, or other administrative requirement because there is no such requirement. Basically, you make it, you own it.
Registration is nonetheless available at the Copyright Office, and its website contains a wealth of information. This optional registration has its benefits. Primarily, it establishes a record of the work and allows you to file an infringement claim (registration is necessary before the claim may be filed). Further, there is now available a “Preregistration” for “classes of works which have a history of infringement prior to commercial distribution….”.
One “do-it-yourself” trick often left out of books on copyright, but used at times by artists, is the “poor man’s copyright.” One of the main benefits of registration, as noted above, is that it establishes a record of the work. This is important because copyright protects only against copies of a work, not independent creation. It is therefore important in bringing, or defending, any infringement claim to prove the date of creation of your client’s work. For paper, recorded music, video, or anything easily shipped, this can be achieved by shipping a copy of the work in a sealed envelope or container to yourself and not opening the envelope/container. The postmark on the envelope/container then serves as somewhat convincing evidence as to the date of creation. The postmarked container, when opened by a judge, is certainly a nice addition to the author’s sworn testimony.
The “poor man’s copyright” is not the best way to protect a valuable work, especially given the relatively low cost of registration (starting as low as $30 per work), but it is a useful tool for those seeking to avoid formal registration for whatever purpose.
EXAMPLE: Kenny is a struggling musician who has begun to receive some attention from promoters and small-time record companies. Convinced that he has some hit songs in his repertoire, but unable to hire an attorney to help him with registration, he resorts to a poor man’s copyright. He records all of his songs onto a single CD and mails them to himself. Recording the dozen or so songs with the Copyright Office would have cost several hundred dollars, assuming he could get the job done without the help of an attorney. If he can keep his curious little brother from opening the CD mailer, this might afford him some level of protection against a slimy producer who claims authorship of one of the songs at a later date.
Transferring Copyrights §§201 – 205
A copyright is intellectual property, and as with all property it can be sold or otherwise transferred under the right circumstances. With certain types of property, and certain transfers, a statute of frauds might require the transfer be evidenced by a writing. Title 17 §201 permits for transfers of ownership “in whole or in part,” and §204(a) states that a transfer of copyright ownership is invalid
“unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.”The exception to this rule is when copyright ownership transfers by law (e.g., to a surviving spouse upon death).
But novel issues arose under the 1909 Act, because a copyright is different from a piece of land in that there is value in something beyond the physical object (i.e., in the intellectual property). The 1976 Act resolved these issues in §202, which makes clear that the physical object is completely separable from the copyright, and that the transfer of one does not automatically include the transfer of the other.
EXAMPLE: F.A. Tisage is an artist who uses food to create paintings, by throwing various foodstuffs at a canvas. In 1985 she creates “Orange A La Carte.” In 1990, she grants Deborah the exclusive right to copy the work and distribute prints of the work. Under the 1909 Act this would create difficulties, but §202 of the new act makes it clear that Tisage has not conveyed ownership of the painting itself, but rather has transferred only certain rights in the property.
The importance in allowing a party to hold rights in the property without owning the object itself lies largely in the ability to sue.
EXAMPLE: Bobby conveys to Jerry “the exclusive right to distribute copies of his watercolor ‘Lilac Summer,’ in the state of Nevada.” If Phil tries to sell copies of the painting in Nevada, Jerry need not ask Bobby to intervene, but may himself commence a suit for infringement as copyright owner.
Nestled between §§202 and 204, we are provided the rule concerning the termination of copyright transfers. §203 applies to transfers executed on or after January 1, 1978, regardless of when the work was created. §304(c) addresses termination of transfers executed before January 1, 1978, for which a different rule applies than that discussed here.
- Jimmy writes a song about his girlfriend in 1968. In 1988, he transfers rights in that song to Ted. §203 would control the termination of this transfer.
- In 1980, the still-prolific Jimmy writes a song about his ex-wife. Certain rights in this song are also transferred to Ted in 1988, the termination of which would also be controlled by §203.
- In 1976, Jimmy writes a song about his dog. On Christmas Day, 1977, he transfers all rights in the song to his friend Robert. Termination here would be controlled by §304(c).
So how exactly does termination work under §203? It can get complicated in the case of multiple authors, so we will consider only the termination of a transfer of rights in a work created by a single author. Even in that case, as you will see, the requirements can easily become confusing.
A simplified explanation is this: beginning 35 years after the transfer is executed, for a five year window of opportunity, the author (or certain other persons, such as a surviving spouse or child) may terminate the transfer of rights. §203(a)(3). This is done by serving adequate notice as prescribed in §203(a)(4). (A quick glance at §203 will help you appreciate the value of this over-simplification!)
The effect of termination, as per subsection (b), is that all rights revert back to the author. Of course, existing derivative works require an exception, which is provided by the rule. Following termination, the right may be transferred freely by the author (or by the same persons permitted to terminate under the statute).
EXAMPLE (1): Neil and Randy are young Canadians hoping to earn a living slinging their guitars. On January 1, 1980, Neil writes a song called “My Sore Back,” and then conveys full ownership in the song to Randy. By 2015, the song has been a major international hit for decades and is in frequent demand by film-makers and others who wish to use the song commercially. On January 1, 2016, the beginning of the 36th year after selling the song to Randy, Neil is thinking about retirement and decides that he’d really like to earn some income from the song that meant so much to him the night he wrote it. He therefore properly notifies Randy that, under §203, the transfer will terminate on January 1, 2018, the beginning of the 38th year. On that day the rights to the song revert to Neil and he is free to do with it as he likes.
EXAMPLE (2): In 1995, while “My Sore Back” was at the height of its popularity, Randy granted Brigand Seltzer the right to create a song based on “My Sore Back.” That derivative work is now famous in its own right, and because it was properly authorized, it is unaffected by the termination of transfer. Further, the many films which properly licensed their use of the song are unaffected.
Note the two year notice Neil gives Randy. This is not just for old time’s sake. §203 includes two important timing requirements on the notice. First, the effective date of the termination must fall within the 5-year window of opportunity. Second, the notice must be given at least 2 years before that effective date, but not more than 10 years before the effective date. In other words, Neil could have given notice anytime between January 1, 2006 and January 1, 2014 of a January 1, 2016 termination date – the earliest termination date permitted under the statute. But because Neil waited until the 36th year of the transfer to give notice, termination could not take effect until the 38th year.
One last note about timing while these numbers and dates are swimming in your head: Because of the requirements, the latest effective notice of termination will be the last day of the 38th year of the grant, as with the minimum 2-year notice period, we would then have an effective termination on the last day of the 40th year, which is the latest possible termination date permitted under the statute.