Copyright Law: Spring 2006 Professor Susanna Fischer CLASS of March 16, 2006

TASINI CASE What was the issue for the Supreme Court to decide? How did the Court rule on that issue?

TASINI CASE A pyrrhic victory for writers?

DURATION OF COPYRIGHT OWNERSHIP How long is it constitutional for a copyright to last? Remember: Constitution says Congress can gives Authors protection “for limited Times” How long should a copyright last? Should it be for life of author plus term of years or for a specific term of years, or a specific term of years plus a renwal term?

DURATION UNDER 1909 ACT 1909 Act: initial and renewal term (like Statute of Anne). How long were these under the 1909 Act? Under the Statute of Anne? What is the purpose of a renewal term? NOTE idea of statutory beneficiaries

POLICY OF RENEWAL STRUCTURE Under 1909 Act both initial and renewal term were 28 years (Statute of Anne 14 and 14 years) Rationale for renewal terms - highly paternalistic: idea of a renewal term was to give author new independent rights, so author would not suffer from bad initial bargain – note long term is only beneficial to author if actually gets it – we will study one way to ensure this : termination right If author dead, benefit statutory beneficiaries: spouse, kids, executor, administrator

RENEWALS UNDER 1909 ACT How did you renew copyright under the 1909 Act?

RENEWALS UNDER 1909 ACT How did you renew copyright under the 1909 Act? You had to file a renewal registration within the last year of the copyright term – for many works, renewal was not sought. Or problems with renewal registration. That is why House Report characterized it as “one of the worst features of the present copyright law” – life of author more clear

RENEWALS UNDER 1909 ACT Could the author assign his renewal expectancy before renewal vests?

RENEWALS UNDER 1909 ACT Could the author assign his renewal expectancy before renewal vests? See Fred Fisher Music (1943) ; Corcovado (1993) - Yes Isn’t this contrary to the purposes of renewal?

RENEWALS UNDER 1909 ACT Can the author assign the statutory beneficiaries’ renewal rights?

RENEWALS UNDER 1909 ACT Can the author assign the statutory beneficiaries’ renewal rights? - No See Saroyan (1987) Saroyan: “Everyone’s got to die, but I always thought an exception would be made in my case”

VESTING OF RENEWAL TERM How long into the 28th year of the initial term must the author live to vest the renewal interest of the author’s assignee? Conflict between cases: Marascalco v. Fantasy, Inc. (9th Cir. 1991) and Frederick Music Co. v. Sickler (S.D.N.Y. 1989)

AUTOMATIC RENEWAL For works published prior to Jan. 1, 1964, the author had to file a renewal registration in CO in 28th year or work fell into public domain 1992 the 1976 Act amended to provide for option of automatic renewals for works published between 1964 and 1977 What is the benefit of voluntary renewal? – 304(a)(2)(B)

RENEWAL WRAP UP POINTS Author can assign rights in renewal term before rights vests and such assignments will be binding on author Limit on author’s right to assign renewal term - must survive until renewal term vested Case law unclear about when in 28th year renewal term vested

MORE WRAP-UP POINTS ON RENEWAL TERM Under automatic renewal provisions, renewal vests on either of 2 dates - when registration filed or if no registration filed, at beginning of renewal term – 304(a)(2)(B).

CHANGE IN DURATION What basic change did the 1976 Act introduce for duration? Why did it change the law?

DURATION PROVISIONS Published and unpublished works created on or after 1/1/78: s. 302, 305 Unpublished works created but not published prior to 1/1/78: s. 303, s 305 Published works created pre 1/1/78 : s. 304

DURATION S. 303 Unpublished works created before 1/1/78 What is the copyright term? What are special provisions on expiration? Why do you think these provisions are in the Act?

DURATION:1909 Act Works S. 304 What is the copyright duration for a work created in 1910 under the 1976 Act? What about the copyright duration for a work created in 1930? What about the duration for a work created in 1970? What about the duration for a work created in 1980?

WRAP UP POINTS: DURATION 1976 Act changes system of duration to life plus term of years For works published prior to Jan 1, 1978, 1976 Copyright Act has retained 2 year system of copyright duration 1998 Sonny Bono Term Extension Act amends to add 20 years more. This was challenged in Eldred v. Ashcroft.