Copyright Duration, Renewal and Termination - Module 4 of 5
Module 4: Copyright Duration, Renewal and Termination
One of the complexities of copyright law is the fact that the rules vary depending on when the protected work first qualified for copyright protection. These differences are the results of the various amendments to copyright laws that have been enacted over time. The Copyright Act of 1909 governs works that first qualified for copyright protection between 1909 and 1978. The Copyright Act of 1976 applies to materials that qualified for copyright protection on or after January 1, 1978. With that in mind, this module will focus on how long copyrights last, when they terminate and how and under what circumstances they can be renewed.
Under the Copyright Act of 1909, copyright protection lasted for 28 years from the date when the work was first published or first registered with the Copyright Office. The law at that time required that the publication include a copyright notice, or it was not deemed to be effective publication. The 28-year term could be renewed with a timely request for an additional 28-year period. Thus, under the Copyright Act of 1909, the maximum time for which a work could receive copyright protection was 56 years.
Under the Copyright Act of 1976, the duration of copyright protection was extended. For copyrights already in existence, instead of a renewal term of 28 years, the 1976 Act allowed a renewal term of 47 years. So, if a work was in its first term of protection as of January 1, 1978, then at the end of that first term, it could be renewed for 47 more years. If the work was in its renewal term as of January 1, 1978, the renewal term was extended from 28 years to 47 years, thus providing a total copyright life of 75 years (the 28-year initial term plus the 47-year renewal term).
Note that the end of the duration of a copyright is the end of the calendar year in which the copyright is due to expire. Thus, for example, if a copyright is to expire in 2025, that copyright will remain effective throughout the entire 2025 calendar year (expiring at the end of December 31, 2025).
To illustrate how the transition provided under the Copyright Act of 1976 functioned, consider a painting which first received copyright protection in 1950. To receive that protection, the artist was required to properly publish the work with notice or register the work with the Copyright Office. That work was subject to the terms of the Copyright Act of 1909 and was in its initial term of copyright protection (28 years) as of the effective date of the Copyright Act of 1976 on January 1, 1978. Thus, if the copyright owner requested renewal during 1978, the owner would receive a renewal providing copyright protection for an additional 47 years (until 2025). If the painting had first received copyright protection in 1947 and was renewed in 1975, it could have had its renewal period extended to 47 years, making the copyright for the work valid until 2022 (47 years from the beginning of its renewal period, 1975).
The Copyright Act of 1976 eliminated the requirement of publication or registration. Instead, copyrights are established when a work is fixed in a tangible medium of expression. The copyright term begins immediately upon creation and fixation of the work, even without publication or registration. For works created on or after January 1, 1978, the copyright term is the lifetime of the author plus 70 years. If more than one author is involved with the work, the term runs for the lifetime of the author who lives the longest, plus 70 years. If the work is a work-for-hire, the term runs for the shorter of 95 years from publication or 120 years from creation.
If a work is created anonymously or under a pseudonym, the term of the copyright is the same as for work for hire - the shorter of 95 years from first publication or 120 years from creation. However, if the identity of the author is known to the Copyright Office, then the copyright term will be the lifetime of the author plus 70 years, even if it is published under a pseudonym.
In 1998, Congress enacted the Sonny Bono Copyright Term Extension Act. This extended the copyright term for all works that were in their renewal periods in 1998 for an additional 20 years. For example, if a work was originally copyrighted in 1957 and renewed in 1985, its renewal period would have run until 2032 (47 years from the renewal date in 1985). Under the Act, the renewal period was automatically extended to 2052 (20 years beyond the original 2032 renewal term). This legislation thus provided additional copyright protection for extremely valuable works including Disney’s Mickey Mouse. The legislation had the effect of extending the rights associated with most works first protected under the Copyright Act of 1909. As a result, many materials first copyrighted early in the 20th century retained their protection well into the 21st century.
Note that for works created on or after January 1, 1978, there is no need to consider the renewal period. The Copyright Act of 1976 extended copyright terms and eliminated the need to request renewal periods. For those works, the copyright term is the lifetime of the author plus 70 years, with no option to renew.
Renewal Issues Today
The Copyright Act of 1976 effectively eliminated copyright renewals in the United States for new works and, as for works still subject to the Copyright Act of 1909, enough time has passed so that there are no longer new renewal issues. The last of the 1909 Act works received initial copyright protection in 1977. So, their initial terms would have expired in 2005. At that time, the copyright owners for those works would have been required to decide whether to renew.
There are, however, numerous 1909 Act works which are currently in their renewal terms. Thanks to the terms of the 1976, Act- which provided extended renewal terms to 47 years- and the Copyright Term Extension Act of 1998- which provided an additional 20 years to those terms- many works originally protected under the 1909 Act remain under copyright protection today.
Some have expressed concern that the relatively long terms for copyright protection can impede future creativity and innovation by reducing the volume of material accessible in the public domain. In the case, Eldred v. Ashcroft, the Supreme Court addressed the constitutionality of the long copyright term extensions provided by legislation including the Copyright Term Extension Act. The Court concluded that the legislation extending copyright protection did not violate either the First Amendment or the constitutional provisions addressing copyrights.
Expiration of rights due to failure to renew is applicable to works first protected under the Copyright Act of 1909, not to works protected under the Copyright Act of 1976.
Expiration of the copyright period or failure to renew ends copyright protection. Under the 1909 Act, expiration or renewal terminated all grants of rights associated with the work entered by the copyright owner, including assignments and licenses. So, if a work protected under the 1909 Act was assigned to another party during the initial copyright term, that assignment was not necessarily valid during the copyright renewal term.
Copyright termination and renewal was addressed by the Supreme Court in Stewart v. Abend. Cornell Woolrich wrote the story, It Had to Be Murder in 1942 and then assigned its rights to the company that produced its highly popular adaptation, Rear Window, produced by Alfred Hitchcock. Woolrich also agreed to renew the copyright in the future and to assign the renewed copyrights to the production company. Woolrich died in 1968, and in 1969, his estate renewed the copyright and assigned the renewed copyright to Abend. Abend then sued the production company to block future distribution of the movie, arguing that Abend now owned all derivatives associated with the original copyrighted work. The Supreme Court agreed with Abend and concluded that renewal of a copyright granted under the 1909 Act terminated all prior agreements associated with the original copyrighted work and grants the owner of the renewed copyright total control over the work. Thus, the assignment of copyrights to the production company was ineffective and Abend was the proper copyright holder.
A 1991 copyright law amendment ended the requirement of copyright renewal. Thus, works first protected under the Copyright Act of 1909 were now renewed automatically for the maximum time frame upon what would have been expiration of the initial term. This amendment was motivated, at least in part, by the concern that the transition to the terms of the Copyright Act of 1976 may have resulted in many copyright owners neglecting to file for renewal of their copyrights under the 1909 Act. Still, while copyright renewals are automatic, undergoing the voluntary renewal process offers the copyright owner certain benefits. For example, if the copyright owner voluntarily renews the copyright, the owner may terminate all grants of rights previously made for rights of use for the copyrighted work.
Under the provisions of the 1909 Act, copyrights could be lost by failure to include a copyright notice with the work when it was published. The 1909 Act required either publication or registration with the Copyright Office to establish copyright rights.
Proper copyright notice consists of several specific elements. First, the holder must affix a symbol or word that indicates that the work is copyrighted (©, “Copyright” or “Copr.”). The copyright notice must also state the year of publication and the name of the party claiming the copyright (such as the author). Under the 1909 Act, publication without including all these required elements or an error in any of these elements would result in loss of copyright protection. This was to provide warnings to users of the material as to the existence of the claim of copyrights.
For works created after January 1, 1978, that requirement was dispensed with, effective March 1, 1989. When the United States joined the Berne Convention, an international treaty addressing copyright matters, one of the modifications the U.S. was required to make in its national law was elimination of the mandatory copyright notice requirement. This legislative change was necessary to bring U.S. copyright law into conformity with the generally recognized standards of the other Berne Convention signatory nations.
Though formal notice is no longer mandatory, there is still substantial value in publishing the appropriate copyright notice with a copyrighted work. First, notice is viewed to be an indication that any potential infringer should be aware that the material in question is claimed as copyrighted. Notice can be used in infringement litigation as evidence that the infringer was a “willful” infringer who misappropriated the protected content intentionally, not inadvertently. This can help a copyright owner to recover more significant damages in litigation.
Works created today are subject to fewer administrative requirements than those created in the past. New works receive copyright protection immediately upon fixation in a tangible medium of expression. Works created today are subject to a single, substantial copyright term. There is no requirement for renewal or extension of those rights. There is no longer a formal copyright notice requirement.
The key modern trends associated with U.S. copyright law involve efforts to make administration of copyright rights more efficient and continuing extension of the duration of copyright terms. Over the years, U.S. copyright law has continued to evolve to streamline management of copyright administration. At the same time, there has been an ongoing and highly active effort to extend the duration of copyright protection. For some observers, this emphasis on ever-longer copyright terms seems largely driven by efforts to help business interests protect their significant investments in creative assets. There is, however, a risk that these efforts could threaten the vitality of the public domain and thus impede future creativity and innovation.