Duration; Termination of Transfers

Intro to IP – Prof Merges

2.17.10

Copyright Duration

1790

14-year term for works published with notice, running from registration, extended for another 14 years if a renewal was timely filed.

1831

Extended initial term to 28 years.

A simple history of the term of copyright

1909

Extended renewal term to 28 years.

1/1/78

Changed basic term from 56 years to life of the author plus 50 years.

1998

Extended terms of all existing copyrights by 20 years and changed basic term for new works to life of the author plus 70 years.

Copyright Renewal

• Required under 1909 Act

• Good technique to differentiate between still-active works and those that no longer are worth the cost of maintaining

• Bring back renewal?

Renewal and transfers

• For tomorrow, but –

• Renewal concept still lives on in “termination of transfer” provisions of Copyright Act

Pre-1978: Dual System Post-1978: Unitary System

1/1/781923Pre-1923

If published before 1923, the work is now in the public domain

Statutory, limited term copyright applies to published and some registered but unpublished works. Common law protection applies to all other works

(1) Federal statutory copyright available for all works fixed in tangible media, including pre-1978 works still protected by copyright

(2) Common law anti-copying protection abolished except for unfixed works

The construction of the public domain

When First Published With Proper Notice

When First Fixed

1/1/7819641923

28-year term running from publication with notice, extended to a total of 95 years IF a renewal was timely filed (28 initial + 28 renewal + 19 under ’76 Act + 20 Sonny Bono)

28-year term running from publication with notice, extended to total of 95 years automatically (28 initial + 28 renewal + 19 under ’76 Act + 20 Sonny Bono)

(1) Sole and joint authors: life of the (last surviving) author, plus 70 years

(2) Anonymous and pseudonymous works and works made for hire: 120 years from creation or 95 years from publication, whichever ends first

This chart applies CURRENTLY to: works published before 1/1/78, and works created on or after 1/1/78 (§§ 302, 304(a), (b))

If Not Published Before 12/31/2002 If Published Before 12/31/2002

(1) Sole and joint authors: life of the author, plus 70 years

(2) Anonymous and pseudonymous works and works made for hire: 120 years from creation or 95 years from publication, whichever is shorter

(3) BUT term expires no earlier than 12/31/2047

This chart applies CURRENTLY to: works created before 1/1/78 but NOT published or registered before 1/1/78 (§ 303)

(1) Sole and joint authors: life of the author, plus 70 years

(2) Anonymous and pseudonymous works and works made for hire: 120 years from creation or 95 years from publication, whichever is shorter,

(3) BUT term expires no earlier than 12/31/2002

1923-1978 1/1/78

A Copyright Term Example

Margaret Mitchell publishes Gone With the Wind in 1936

Margaret Mitchell dies in 1948

Her estate renews the copyright in GWTW in 1963, (c) renewal extends from 1964 to 1992

The ’76 Act adds 19 years to the renewal term The Sonny

Bono Act adds another 20 years to the renewal term

28 years (1936-64)

28 years (1964-92) 19 yrs (1992-2011)

20 yrs (2011-2031)

Mickey then (1928) Mickey now (2003)

Eldred v. Ashcroft (S. Ct. 2003)

the power “to promote the Progress of Science and Useful Arts, by securing for limited Times to Authors . . . The exclusive Right to their . . . Writings”

Mickey then (1928) Mickey now (2003)

Eldred v. Ashcroft (S. Ct. 2003)

“[W]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

Congress does not have carte blanche

• Perpetual extensions “are not before us,” the Court said

• If they were . . . Then what?

Problem 4-22

• 1. Dec 31, 2066

• 2. 95 years from publication, or 120 from creation, whichever is shorter; here, 95 years after 2010 (plus the “end of year” rule) is Dec. 31, 2115

• 3. Dec 31, 2066: 70 years after death; pre-writing contract irrelevant (no WFH)

Problem 4-22

• Part 4: Life of Angela Author plus 70 years (plus end of year rule)

RENEWAL

• 1909 Act

• Had to be made to the Copyright Office in the last year of the first term of copyright for works published with copyright notice up to the end of 1963.

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)

RULES ON VESTING FAVOR VOLUNTARY RENEWAL

• Under automatic renewal provisions (Copyright Renewal Act of 1992), renewal vests on either of 2 dates - when registration filed or if no registration filed, at beginning of renewal term – 304(a)(2)(B).

• Longer term if you voluntarily renew

Renewal and Transfer/Grants

• 1909 Act:

• 2 term structure (28 years initial term + 28 year renewal term)

• Author could transfer renewal term before its start but had to live until sometime in the 28th year for that transfer to be valid

• Otherwise renewal rights would go to the statutory beneficiaries

• Widow or widower, children, executor or next of kin (1909 Act

§ 24)

Two Different Termination Rights

• Works in their second renewal term as of Jan 1, 1978: section 304(c)

– Capture 39 years of extended renewal term

• Transfers made after 1977: Section 203

Stewart v. Abend

• Page 472, note 1

• Termination Right

Cornell Woolrich – “It Had to be Murder” (1942)

Rear Window (1954)

Jimmie Stewart

Terminations of Transfers

• What is a transfer of copyright?

• A “grant” of a transfer of an interest in copyright includes any sale or assignment of all or any part of the copyright, any exclusive or non-exclusive license, and/or any mortgage or hypothecation (such as using the copyright as collateral for a loan) (§ 101)

Termination provision

• 17 USC 203(a)(3)

• Rationale?

Termination of Transfer

1942: Woolrich writes “It Had to Be Murder”

1945: Woolrich assigns movie rights to Hitchcock and Stewart

1954: “Rear Window” produced

“Movie Rights”

• Motion picture is a derivative work based on the copyrighted underlying work, the short story

• The “right to prepare derivative works” is one of the rights granted under section 106 of the Copyright Act – 17 USC sec. 106(2)

Termination of Transfer

1942: Woolrich writes “It Had to Be Murder”

1945: Woolrich assigns movie rights to Hitchcock and Stewart

1954: “Rear Window” produced

1969: Chase Manhattan renews the copyright and (in 1971) assigns it to Abend

1942: Woolrich writes “It Had to Be Murder”

1945: Woolrich assigns movie rights to Hitchcock and Stewart

1954: “Rear Window” produced

1968: Woolrich dies

1969: Chase Manhattan renews the copyright and (in 1971) assigns it to Abend

1983: “Rear Window” re-released; Abend sues

Infringing!

W. dies before renewal vests; renewal vests in successor (Chase)

Authorized!

Woolrich assigns initial term and contingent interest in renewal

STEWART v. ABEND (1990)

• Supreme Court holds that proprietors of derivative works are limited in exploitations they can make of those works following reversion in renewal term of underlying work on which derivative work is based.

Amendment to 304(a) as a result of Stewart v. Abend

• See 304(a)(4)(A)

• Changes the result in Abend for copyrights governed by the 1976 Act (works created after 1/1/1978)

– No termination right for derivative works under 1976 Act; i.e., right to continue using derivative works even after termination

Arnstein v. Porter

• Cole Porter

• Standard for proving infringement

Procedural History

• District court granted defendant Porter’s Summary Judgment motion

• Can you guess why?

Standard for Infringement

• Copying

• Improper Appropriation

Element 1: Copying: P. 477

• Proof of “access” or other circumstantial evidence of copying

• “Striking similarity”

– “must be so striking as to preclude the possibility [of independent creation]”

Element 1: Copying

• Issue of fact

• Evidence here?

Copying facts here

• “Fantastic” evidence

• More objective evidence

– Wide distribution of copyrighted work

Improper appropriation

• “substantial similarity” – versus “probative” similarity” (n. 1, p. 480)

• Effect on the “lay listener”, the ordinary audience member, is what counts

• But: expert witness testimony is admissible too

Judge Clark dissent

• Music is intellectual too; three- four- and five-note sequences are repeated in both compositions

• But this is not enough

• Arnstein v. Edward Marks, 12 note sequence infringed

Second v. 7th Circuit on Access

• 2nd: No evidence of access if there is enough similarity

• 7th: Must show some evidence of access to support infringement case

• Posner reconciliation - ? P. 481