Copyright Law: Spring 2003 Professor Susanna Fischer CLASS 14 Feb. 27, 2003

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.

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?

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 – see 304(a)(1)(C)

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 – note that this now only applies to works published with copyright notice prior to 1964 up to end of In 1992, Congress made renewals automatic for all works that were then in their first term. Congress could only reach back 28 years because it could not restore copyright to works in the public domain. –see 304(a)(2)

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?

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)

Summary 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 – Marascalco For for the assignee of a renewal right to take, the author must survive until at least the beginning of the renewal term-the author's survival at the time of application for renewal is insufficient. Sickler – vesting occurred on registration of renewal certificate.

Vesting of renewal term: automatic renewal Under automatic renewal provisions, renewal vests on either of 2 dates - when registration filed or if no registration filed, at beginning of renewal term. – see 304(a)(2)

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”

WRAP UP: 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: 1978 Act works S. 302 Works created on of after 1/1/1978 What is the general period of duration? What about joint works? What about anonymous works, pseudonymous works and works made for hire? NOTE DIFFERENCE BETWEEN PUBLICATION /CREATION

DURATION: 1978 Act Works S. 302 Works created on of after 1/1/1978 What is the general period of duration? LIFE plus 70 What about joint works? Life of last surviving author plus 70 What about anonymous works, pseudonymous works and works made for hire? 120 years from creation or 95 years from publication, whichever expires first NOTE DIFFERENCE BETWEEN PUBLICATION /CREATION

DURATION WORKS CREATED BEFORE 1/1/1978 S. 303 Unpublished works created before 1/1/1978 What is the copyright term? What are special provisions on expiration? Why do you think these provisions are in the Act?

DURATION UNPUBLISHED Pre- 1/1/1978 Works S. 303 Unpublished works created before 1/1/78 What is the copyright term? Basic life+ 70 or applicable term under s. 302 What are special provisions on expiration? Will not expire before 12/31/2002 – if published on or after 12/31/2002 won’t expire before 12/31/2047 Why do you think these provisions are in the Act? To transition fairly from old system of common law copyright for unpublished works

DURATION – WORKS THAT START UNDER 1909 ACT But are still in copyright when 1976 Act comes into force What is the duration for such works? See s. 304

DURATION – WORKS THAT START UNDER 1909 ACT But are still in copyright when 1976 Act comes into force What is the duration for such works? See s Act as amended by Sonny Bono Copyright Term Extension Act extends protection for an additional 39 years – 28 initial term + 28 renewal + 39 extension = total possible protection of 95 years You can also look at it as 28 initial term + 67 extended renewal term See 304(2)(A) and (B)

STEWART v. Abend (1990) Supreme Court holds that proprietors of derivative works are limited in exploitation they can make of those works following reversion in renewal term of underlying work on which derivative work is based.

LIMITS ON ABEND 1. Underlying work must have been subject to copyright prior to 1/1/78 2. Underlying work must have been written outside work for hire relationship 3. Renewal term must not have been effectively conveyed - eg author dies prior to vesting of renewal term 4. Renewal claimant must timely file renewal application - see s. 304(a)(4)(A)

Termination of transfers This applies to 1976 Act Why did Congress provide for a right of termination? Note – transfers include non-exclusive and exclusive licenses and transfers

Termination: Paternalistic Policy The termination provisions in the 1976 Act serve the same function as the renewal provisions in the 1909 Act, namely the paternalistic purpose of protecting authors from unremunerative transfers.

Termination of transfers Applies to 2 situations 1. Right of recapture for works created after January 1, 1978 (life plus 50, now 70 yardstick) - SECTION Works already in copyright under 1909 act to which author/statutory successor had conveyed 28 year renewal term. Who gets extended renewal term (extra 19, now 39 years?) - SECTION 304(c)

Questions for each type of termination? What grants are covered? Who can terminate? When does termination take place? How do you terminate? What is the effect of termination? Who can make further grants?