Copyright Law Boston College Law School February 6, 2003 Transfers and Termination

Duration Created after 1/1/78 –Date: from creation –Term: life + 70 … Published –Date: from publication –Term: 28 initial + 67 renewal (automatic) Published –Date: from publication –Term: 28 initial + 67 renewal (must renew) Published prior to 1923 –Public domain

Transfer 17 U.S.C. § 201(d) –(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance … –(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights …, may be transferred as provided by clause (1) and owned separately…

Transfer Types of transfers of interests –Assignment –License Exclusive Nonexclusive

Transfer of Ownership 17 U.S.C. § 204 –(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” 17 U.S.C. § 101 –A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance … of a copyright or any of the exclusive rights …, whether or not it is limited in time or place of effect, but not including a nonexclusive license

Termination - Generally Post 1978 transfers - 17 U.S.C. § 203 –Can be effective during 5 year period, 35 years from original transfer –Notice between 2 and 10 years from effective date Pre 1978 transfers - 17 U.S.C. § 304(c) –Can be effective during 5 year period after expiration of original 56 year term under 1909 Act or 75 year term under 1976 Act (general rule)

Termination - Generally Important Limitations –Does not apply to works for hire –Derivative work exception Can still continue to use derivative work under grant But cannot prepare new works

Post 1978 Grants Timing –Effective in 5 year period, 35 years from grant –Slight modification if grant includes publication 35 years from publication 40 years from execution (whichever first) –Must abide by formalities Types of transfers –Any transfer, exclusive or nonexclusive –But only by author, during author’s life

Post 1978 Grants Who can terminate? –Author, if still alive –If author is dead, then 50% surviving spouse, 50% to children (or children of a deceased child), per stirpes If no surviving spouse or children, then to author’s estate

Post 1978 Grants Effect of termination –Rights revert back to holders of right to term. –In proportion to interest in termination right –Right vests when notice is served Regranting of rights –Similar to requirement for exercising termination

Pre 1978 Grants Timing –General rule During five year period after expiration of initial 56 year term –Qualifications During five years after Jan. 1, 1978, if this is later If failed to renew after 56 years, can try again after 75 years, to recapture extra 20 years from 1998 extension

Assignment for Next Class Read V - Formalities