Copyright Law: Spring 2002 Professor Susanna Fischer CLASS 16 March 13, 2002

GOALS FOR CLASS To learn the length of duration of the copyright term To learn about provisions for renewal terms under the 1909 Act so that you understand the extent to which they survive under the 1976 Act.

WRAP UP POINTS: SCOPE OF TRANSFERS OF COPYRIGHT OWNERSHIP This is an important issue in practice. The question, arising from the general principle of divisibility, is: what copyright has the licensor licensed (or the assignor assigned This is particularly difficult where the licensee wants to use the copyrighted work in connection with new media that was not existing or contemplated when the license was entered into.

WRAP UP POINTS: SCOPE OF TRANSFERS OF COPYRIGHT OWNERSHIP We studied three cases, Cohen, Boosey and Rosetta where courts applied different approaches to contractual interpretation in new media cases. In Cohen, the 9th Circuit invoked the purposes that it saw as underlying federal copyright law to justify a narrow interpretation in favor of the licensor.

WRAP UP POINTS: SCOPE OF TRANSFERS OF COPYRIGHT OWNERSHIP In Boosey, the Second Circuit cast doubt on the Cohen approach, applying ‘neutral principles of contract interpretation rather than solicitude for either party.” Boosey approach effectively puts burden on licensor to include new media in license.

WRAP UP POINTS: SCOPE OF TRANSFERS OF COPYRIGHT OWNERSHIP Was the approach of the district court in Rosetta more similar to that of Cohen or Boosey? The district court’s denial of Random House’s motion for a preliminary injunction in Rosetta has recently been affirmed by the Second Circuit. Here’s a link: urt=2nd&navby=case&no=017912&exact=1

DURATION OF COPYRIGHT OWNERSHIP What is the current term of copyright? 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 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

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? See Saroyan (1987) - does this make sense? 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)

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. 302 Works created on of after 1/1/78 What is the general period of duration? What about joint works? What about anonymous works? Pseudonymous works? Works made for hire? NOTE DIFFERENCE BETWEEN PUBLICATION /CREATION

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?