Copyright Duration, Renewal and Termination - Module 4 of 5
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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.
Duration
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.[1] 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.[2] 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.[3] If the work is a work-for-hire, the term runs
for the shorter of 95 years from publication or 120 years from creation.[4]
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.[5] 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.[6]
Termination
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.[7] 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.[8] 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.
Notice Requirement
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.[9] 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.
Conclusion
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.