COPYRIGHT LAW 2003

CLASS 15

Mar. 10, 2003

Welcome Back From Spring Break!

ANNOUNCEMENTS

• Quiz No. 2 (to be handed out on next Monday)• Same format as before – open book; use exam

number; please type; 1 hour under simulated conditions. Will cover material through today’s class

• Class for Wed. Mar. 12 is cancelled. Make-up is sc scheduled for Sat. March 22 at 2 p.m. This will cover 2 assignments (see syllabus)

WRAP-UP: DURATION

• You should be able to calculate the copyright term for works published with copyright notice prior to the effective date of the 1976 Copyright Act as well as works created on or after the effective date of the 1976 Act.

GOALS FOR CLASS

• To discuss the unsuccessful constitutional challenge to the Sonny Bono Copyright Term Extension Act in Eldred v. Ashcroft

• To learn about termination of transfers

• To start a unit on the exclusive rights of the copyright owner by studying the rights of reproduction and distribution

Eldred v. Ashcroft

• How did the U.S. Supreme Court rule on petitioners’ challenge to the constitutionality of the CTEA?

• Describe the reasoning of the majority opinion

• Was the majority correct, in your view? Why or why not?

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 203

• 2.  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?

WHAT GRANTS ARE COVERED S. 203?

• Lucinda writes a copyrightable poem in Jan. 2003 and validly assigns all rights in the poem to her daughter Mimi in Feb. 2003. Covered under 203?

• What if Lucinda’s poem was created in 1967 but she assigns rights in Feb. 2003?

• What if Lucinda makes no assignment to Mimi but L. dies on Feb. 15, 2003 and bequeaths all her copyrights to Mimi under her will? Can any rights be terminated by anyone?

S. 203 : COVERED GRANTS

• Applies to transfers or licenses of copyright or any right under copyright on or after 1/1/78

• By author• Of any right under any copyright• DOES NOT APPLY TO TRANSFERS/LICENSES

OF RIGHTS IN WORKS MADE FOR HIRE also not dispositions by will 

WHO CAN TERMINATE UNDER s. 203?

• Author• If joint work, majority of authors who executed grant• If author dead, majority of statutory owners of his

termination right (no need for unanimous consent - compromise)

• If one of many authors is dead, then termination interest of that author is exercised as a unit by statutory owner(s) of termination right

• Rights of kids and grandkids is exercised per stirpes – what does that mean?

OWNERSHIP OF SHARES IS PER STIRPES

• Widow/widower and no kids - W owns 100%. If kids only they own 100%

• If both widow and kids, W 50% and K 50%• Rights of kids and grandkids are exercised PER

STIRPES• That is, K take share parents would have taken & int of

dead child can only be exercised by majority of surviving kids

• If author, widow/er, kids, grandkids all dead, then executor or administrator , personal rep or trustee owns termination interest

Examples

• Lucinda, author of poem assigns all rights in poem to Bob on Jan. 1, 2003. L. dies on Feb. 1 2003.

• L. leaves a widower, Henry, and 3 kids, Anna, Barbara, and Caroline. Caroline died in 1999.

• REMEMBER THAT MAJORITY INTEREST NEEDED• Can Henry and Anna terminate? • What if Henry wants to terminate but Anna and Barbara do not;

Caroline had 3 kids. How many of the grandchildren must agree to terminate?   

When Does Termination Take Place under s. 203?

• At any time for period of five years starting at end of 35 years from date of execution of grant – so in L’s case anytime between Jan. 1, 2038 and Dec. 31, 2043.

• OR if grant covers publication right, period starts either 35 years from publication or 40 years from grant, whichever ends earlier

•  

How Do You Terminate under s. 203?

• Let’s assume, for simplicity’s sake, that Lucinda only had a husband, Henry who survived her. How does Henry terminate the assignment to Bob?

How Do You Terminate under s. 203?

• Serve written notice on grantee - vests when served• Must be served between 2 and 10 years before

effective date of termination• Must state effective date of termination & it must be

correct• Must comply with  CO regulations in 37 CFR 201.10• Copy of notice must be recorded in CO before

effective date of termination 

Effect of Termination under s.203?

Effect of Termination under s. 203?

• All rights that were conveyed under the grant revert to those having right to terminate – vest as of the date notice of terminaion was served and vest in same shares as termination right divided (per stirpes)

• What about derivative works prepared before termination? These can be used after the termination subject to terms of the grant.

• Can new derivative works be prepared after date of termination?

•  

Further Grants

• Who can make further grants?

SECTION 304(c)

• Governs transfers of renewal interests made before 1/1/78• Thus, allows author and family right to recover 19 years

of extended renewal term• 304(D) allows you to get back additional 20 years

extended by Sonny Bono Act if 304(c) termination rights expired prior to effective date of that act…

• I am not going to go over this section, because I think it is clearly explained in the book, but slides on this follow as an additional resource for you.

 

TERMINATION EXAMPLE

• Annie publishes novel in 1935• Annie assigns rights in renewal expectency to movie

company & survives after 1963, when renewal vests.• Annie has no rights in renewal term – she has given

it away• If Annie terminates under 304(c) she can reclaim

extra 19 years of copyright term under 1976 Act• Even if she doesn’t terminate under 304(c) she can

recover extra 20 years (granted by Sonny Bono extension act) under 304(d)

TIMING

• 1935 work published• 1963 copyright renewed• 1991 second term ends and 19 year first

termination period begins 304© • 2010 20 year second termination period

begins 304(d)• 2030 copyright ends - work falls into public

domain

304(c): What Grants?

• Grants executed before 1/1/78 for copyrights in first or renewal term on 1/1/78 – only grants covering interest in the renewal term.

• Not works made for hire

• Not dispositions by will

Example

• Novel copyrighted in 1940• In 1960 author assigns expectency in

renewal term to movie studio.  Author survives vesting of renewal term.

• Author and heirs could reclaim extended renewal term for 19 years

• If fail to do so get second bite of apple for second renewal term

Who can terminate –304(c)

• Same as for 203 if grant made by author (per stirpes rules and all)

• If grant made by another, then by surviving grantors

304(c): EFFECTIVE DATE OF TERMINATION

• 5 year period beginning at end of 56 years from date copyright protection originally secured or, beginning on Jan. 1, 1978 whichever is later 304(c)(3)

• OR if failed to exercise right of termination, during 5 year period beginning at end of 75 years from date of copyright 304(d)

How do you terminate?

• Serve written notice on grantee or successor in title

• If grant executed by s/o other than author everyone who executed grant must sign notice

• Must serve between 2 and 10 years before effective termination date

• Must comply with CO regs and be recorded in CO before effective date of termination

Effect of Termination?

• All rights revert to those having right to terminate

• Derivative works can continue to be exploited under terms of grant

• No new derivative works can be prepared after termination date

• Termination rights vest when notice served

Who can make further grants?

• 304(c)(6) - each owner of a right which has reverted after termination of a transfer made by author’s successor-in-interest becomes a tenant in common entitled to deal separately with the right.

• If author dead, then further grants must be made by majority action (per stirpes) as to author’s share

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