Chapter 8

Duration of Copyright

The 1909 Copyright Act& The Dual System

Until 1978, the U.S. had a dual system of copyright. Under the 1909 Act, federal copyright protection began when a work was published with proper copyright notice. Unpublished works were protected by state law.

State Law Copyright

A work was protected by state law copyright until the work was published, or registered as an unpublished work. If a work was never published or registered, it could be protected by state law indefinitely.

Publication under the 1909 Act

Once a work was published or registered, it became protected under the 1909 Act. 1909 Act copyright lasted for two (2) 28-year terms. Maximum copyright was 56 years. If the work was not renewed in the 28th year, it entered public domain.If author had transferred the copyright to someone else, the renewal right still belonged to the author. But the author could transfer the renewal term.

Copyright Renewal Act of 1992

For works created from 1964 to 1977, renewal was automatic and the renewal period lasted 67 years.

Initial term (28) + Renewal term (67) = 95 years.Example: A work published in 1963 had to be renewed in 1991 to receive the 28-yr renewal term,while a work published in 1964 was automatically renewed for 67 years (until 2059).

Assignment of Renewal Rights

Transfers of the renewal term made BEFORE the 28th year required the author to be alive in the 28th year. Otherwise the renewal right passed to the author’s heirs. An author’s heir could promise to transfer his renewal right, but the transfer required that the heir be alive in the 28th year. Otherwise, the renewal right passed to the next living heir.

Author’s Heirs & The Renewal Right

Example: A songwriter wrote a song in 1950 and transferred all his rights, including the renewal right, to a publisher. If the songwriter died before 1978 leaving a wife and children, the wife and children would own the renewal right. The principle is that the songwriter’s transfer was conditioned upon his living until the time for renewal.

Termination of Transfer of the Renewal Term

The author or his heirs can terminate any pre-1978 transfer of the renewal term. This right can be exercised during a 5-yr period beginning 56 yrs after publication of the work or 1/1/78, whichever is later.

The 1976 Copyright Act

Term of copyright is life of the author + 70 years.

NOTE: A copyrighted work’s duration never changes, regardless of any transfers of ownership.

Determining Copyright Duration

Three (3) categories of works:

1) Works created from 1978 to the present.

2) Works created but not published before 1978.

3) Works published before 1978.

Works Created from 1978 to the Present

Copyright begins with work’s fixation and ends 70 years after the author’s death.

Anonymous Works, Pseudonymous Works & Works Made for Hire

The sooner of 95 years from Publication or 120 years from Creation.

Example:

A song written as a work made for hire is composed in 1995 and released on records (published) in 2000. The song’s copyright will expire in 2095, which is 95 years from publication. If the song was not published until 2025, copyright would expire in 2115, 120 years from creation.

Copyright Lasts Longer Than Life + 70 Years

All terms of copyright run to end of the calendar year in which they expire. Thus, they will expire on December 31 of the year 70 years after the author’s death.

Works Created But Not PublishedBefore 1978

Unpublished works that were protected by state law on 1/1/78 became protected for the life of the author + 70 yrs OR until 12/31/2002, whichever is later. If such works were published before 12/31/2002, copyright will not expire until 12/31/2045 (which encourages publication).

Examples- Sally Songwriter wrote a song in 1950 that was unpublished. She died in 1980. The song was protected by state law copyright until 1/1/78, when it became protected for life plus 70 years, until 2050.- Sam Writer wrote a song in 1872 that was not published. He died in 1898. Song was protected by state law copyright until 1978, when it became protected by federal copyright law until 12/31/2002, because that period is longer than Sam’s life plus 70 years (1968). If he published the song before 12/21/2002, the term would extend to 12/31/2047.

Works Published Before 19781st Extension of the Renewal Term

The 1976 Copyright Act extended the second 28 year term by 19 years, for a total renewal term of 47 years. 28 + 47 = 75 years of protection.A song published in 1951 would be protected for 28 years, plus 75 years, until 2026.

Works Published Before 19782nd Extension of the Renewal Term

Sonny Bono Term Extension Act of 1998 extended the 47-year renewal term by 20 years. The renewal term now lasts 67 years. The maximum term for works in the initial or renewal term as of 1999 is 95 years: (28 + 67 years).

Is a Work in the Public Domain?Search the Catalog of Copyright Entries (CCE)which lists and cross-references every registration or other filing made in the Copyright Office. The CCE is available in certain libraries and at the Copyright Office. You can also pay the Copyright Office to search its records for you.

The Rule of the Shorter TermIf Country A has a longer copyright term than Country B, instead of protecting the foreign work from Country B for its own term (under the national treatment principle), Country A has the option of protecting the work for Country B’s term, which is shorter.

Example: The Rule of the Shorter TermJimin Kim, a South Korean singer songwriter, has a hit in France. He dies in 2010. Although French copyright law provides protection for life of the author plus 70 years, South Korea provides for only life of the author plus 50 years.If a French court applies the Rule of the Shorter Term, the song would be protected until 2060, rather than 2080 (under French law).

END OF CHAPTER 8