BY:
Neil J. Rosini(This outline, by Mr. Rosini, was originally published in course materials for a Continuing Legal Education program entitled “Copyright Terms & Terminations: Do the Math” by the New York State Bar Association, Entertainment, Arts & Sports Law Section’s Committee on Copyright and Trademark, March 31, 2005, presented by Mr. Rosini.)
THE STATUTORY BASICS1
(A) Duration
(B) Reversion/Termination
(C) Four Public Domain Rules of Thumb (for Pre-1978 Works)
(A) Duration of Copyright (for U.S.2 works not inthe public domain as of January 1, 1978)
• 302: Works created on or after January 1, 1978. [Unitary Term]
o Generally: life of the author plus 70 years.
o Joint works: life of the longest-lived author plus 70 years.
o Anonymous works, pseudonymous works, and works made for hire: earlier of 95 years from first publication or 120 years from creation.
• 303: Works created but not copyrighted3 before January 1, 1978. [Unitary Term]
o Generally, same as 302 above, except:
* The minimum expiration date was December 31, 2002 and
* If the work was published between January 1, 1978 and December 31, 2002, the minimum expiration date was extended to December 31, 2047.
• 304: Copyrights subsisting as of January 1, 1978. [Two-Term]
o The first term of copyright is 28 years and the renewal term of copyright 67 years, for a total term of 95 years assuming:
* the renewal claim was timely registered in the case of works copyrighted before January 1, 1964 (if not, total duration of copyright was only 28 years); and
* for works that entered their renewal term prior to October 27, 1998 when the Sonny Bono Copyright Term Extension Act became effective, the renewal term did not expire before that date. (If the renewal term ended on or after 1/1/78 and before 10/27/98, then the second term was merely 47 years, not 67 years.)
(B) Termination/Reversion (For two-term and unitary term works)
(a) For Two-Term Works
• 304(a): Automatic reversion of rights in the renewal term.4
Generally, if the author does not survive5 until vesting of the renewal term, the author’s statutory successors under 304(a)(1)(C) (i.e., spouse or children/ executors/ next of kin) automatically take possession of all rights under copyright in the renewal term, without having to give notice to then-existing assignees and licensees or their successors – even if rights in the renewal term were licensed or assigned by the author before death, subject to the following:
o This reversion mechanism does not apply in the case of any work made for hire; or posthumous work; or any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor (other than an individual author’s contribution to such a work); or any work copyrighted by a corporate body (not as an assignee or licensee of the individual author); in such instances the proprietor of copyright keeps the renewal term.
o Reversion in the U.S. has no effect on rights outside the U.S.
o If the renewal claim is filed during the calendar year in which the 28th anniversary of copyright occurs, then the renewal copyright vests in those eligible on the effective date of the renewal registration; otherwise, the renewal copyright vests in those eligible as of the last day of the first term of copyright (i.e., December 31 of that calendar year).
o Derivative works prepared under authority of a grant made before expiration of the first term may continue to be used during the renewal term under the terms of the grant unless the renewal claim has been filed during the calendar year in which the 28th anniversary of copyright occurs, in which case, such derivative works made during the original term may not be used during the renewal term without authorization by the renewal copyright owner.
• 304(c): Notice of termination of grants after the 56th anniversary and prior to the 62nd year of copyrightmeasured from the date copyright was originally secured.
In the case of any copyright (other than a copyright in a work for hire), subsisting in either its first or renewal term on January 1, 1978, the author, or if the author is dead, the author’s statutory successors under 304(c)(2) (i.e., surviving spouse, children and grandchildren/ or executor, administrator, personal representative or trustee), may terminate the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it and thereby recover the balance of the renewal termsubject to the following:
o The grant to be terminated must have been executed prior to January 1, 1978 by the author or, after the author’s death, by the author’s statutory successors under 304(a)(1)(C) (i.e., spouse or children/ executors/ next of kin).
o If the grant was executed by a person or persons other than the author, termination is effected by such surviving person or persons, and all of them (or their agents) must sign the notice.
o If the grant was executed by one or more authors of the work, termination is effected to the extent of a particular author’s share by that author, or if the author is dead, by that author’s statutory successors under 304(c)(2) who collectively have more than one-half of that author’s termination interest.
o The effective date of termination must occur after the 56th year but before the 62nd year of copyright measured from the date copyright was originally secured (i.e., the date of first publication or registration).
* To be safe, when timing the effective date of termination during the 61st year, consider the year to end on the anniversary of the copyright—not at the end of the calendar year in which the 61st anniversary falls — notwithstanding 17 U.S.C. Section 305 (see, Nimmer on Copyright at 11.05[B][2]).
[The following are common to 304(c), 304(d) and 203(a):]
o Grants made by will are not subject to termination.
o Notice of termination must be served upon grantees or their successors in interest at least two years and no more than ten years prior to the effective date of termination.
o Termination may be effected notwithstanding any “agreement to the contrary.”
o The termination interest vests on the date the notice of termination is served (even though the rights do not revert until the termination date specified in the notice of termination).
o Derivative works prepared under authority of the grant before its termination may still be utilized under terms of the grant after its termination.
o The notice of termination must be recorded in the Copyright Office prior to the effective date of termination.
o Termination in the U.S. has no effect on rights outside the U.S.
• 304(d): Notice of termination of grants after the 75th anniversary and prior to the 81st year of copyrightmeasured from the date copyright was originally secured.
In the case of any copyright (other than a copyright in a work for hire), subsisting in its renewal term on October 27, 1998 (the effective date of the Sonny Bono Copyright Term Extension Act), the author, or if the author is dead, the author’s statutory successors under 304(c)(2) (i.e., surviving spouse, children and grandchildren/ or executor, administrator, personal representative or trustee), may terminate the exclusive or nonexclusive grant of a transfer or license of the renewal copyright or any right under it and thereby recover the balance of the renewal term, subject to the following:
o The termination right provided in 304(c) has expired by October 27, 1998 without being exercised.
o The grant to be terminated must have been executed prior to January 1, 1978 by the author or, after the author’s death, by the author’s statutory successors under 304(a)(1)(C) (i.e., spouse or children/ executors/ next of kin).
o If the grant was executed by a person or persons other than the author, termination is effected by such surviving person or persons and all of them (or their agents) must sign the notice.
o If the grant was executed by one or more authors of the work, termination is effected to the extent of a particular author’s share by that author, or if the author is dead, by that author’s statutory successors under 304(c)(2) who have more than one-half of that author’s termination interest.
o The effective date of termination must occur between the end of the 75th year and before the 81st year of copyright measured from the date copyright was originally secured (i.e., the date of first publication or registration).
* To be safe, when timing the effective date of termination during the 80th year, consider the year to end on the anniversary of the copyright—not at the end of the calendar year in which the 80th anniversary falls.
o Section 304(d) only applies to copyrights secured between January 1, 1923 and October 26, 1939, according to the Copyright Office’s “better reading” of the statute (67 Fed. Reg. 69134, 69135 [November 15, 2002], included in the accompanying materials).
* These are the only copyrights (a) that could have been in their renewal terms on October 27, 1998 and (b) for which the section 304(c) termination right had already expired by October 27, 1998 (i.e., two years before the end of the 61st year of copyright).
[The following are common to 304(c), 304(d) and 203(a):]
o Grants made by will are not subject to termination.
o Notice of termination must be served upon grantees or their successors in interest at least two years and no more than ten years prior to the effective date of termination.
o Termination may be effected notwithstanding any “agreement to the contrary.”
o The termination interest vests on the date the notice of termination is served (even though the rights do not revert until the termination date specified in the notice of termination).
o Derivative works prepared under authority of the grant before its termination may still be utilized under terms of the grant after its termination.
o The notice of termination must be recorded in the Copyright Office prior to the effective date of termination.
o Termination in the U.S. has no effect on rights outside the U.S.
(b) For All Works
• 203(a): Notice of termination of post-December 31, 1977 grants after the 35th anniversary and prior to the 41st year measured from the execution of the grant (with a twist for termination of publication rights).
In the case of any work (other than works for hire), the author if alive, or if the author is dead the author’s statutory successors under 203(a)(2) (i.e., surviving spouse, children and grandchildren/ or executor, administrator, personal representative or trustee), may terminate the exclusive or nonexclusive grant of a transfer or license of copyright or any right under a copyright and thereby recover the balance of the term of copyright subject to the following:
o The grant to be terminated must have been executed after January 1, 1978 by the author.
o If the grant was executed by one author, termination is effected by that author, or if the author is dead, by the person or persons who under 203(a)(2) have more than one-half of that author’s termination interest.
o If the grant was executed by two or more authors of a joint work, termination is effected by a majority of the authors who executed the grant, or if any of such authors is dead, the termination interest of that author may be exercised as a unit by the author’s statutory successors under 203(a)(2) who have more than one-half of that author’s termination interest.
o The effective date of termination must occur between the end of the 35th year and before the 41st year measured from the date of execution of the grant — unless the grant covers the right of publication of the work, in which case the effective date of termination must occur between (i) the end of the 35th year and before the 41st year measured from the date of publication OR (ii) between the end of the 40th year and before the 46th year; measured from the date of execution of the grant, whichever ends earlier.
* Under 203(a), the year of commencement of the term of copyright and the beginning and end of the year of copyright in which the termination becomes effective, are all irrelevant; the time window for effective termination dates is determined solely by anniversaries of the date of execution of the grant being terminated.
[The following are common to 304(c), 304(d) and 203(a):]
o Grants made by will are not subject to termination.
o Notice of termination must be served upon grantees or their successors in interest at least two years and no more than ten years prior to the effective date of termination.
o Termination may be effected notwithstanding any “agreement to the contrary.”
o The termination interest vests on the date the notice of termination is served (even though the rights do not revert until the termination date specified in the notice of termination).
o Derivative works prepared under authority of the grant before its termination may still be utilized under terms of the grant after its termination.
o The notice of termination must be recorded in the Copyright Office prior to the effective date of termination.
o Termination in the U.S. has no effect on rights outside the U.S.
(C) FOUR PUBLIC DOMAIN RULES OF THUMB (FOR PRE-1978 WORKS)
(1) All works published and/or registered for copyright in the U.S. before January 1, 1923 are in the public domain
o A question remains as to whether works first published abroad before January 1, 1923 without a U.S.-style notice of copyright are in the public domain (see Nimmer on Copyright 9.11[B][1]).
o 1923 will remain the turning point until 2019, when the date will turn to 1924, and thereafter increase by one each year.
* This is because the Sonny Bono Copyright Term Extension Act, effective October 27, 1998, afforded the extended copyright term totaling 95 years to all works for which the 75-year term previously in effect had not elapsed.
* 1998 – 75 = 1923
* 1923 + 95 = 2018
(2) If the first term of copyright ended before January 1, 1964, and the copyright was not renewed, the work is in the public domain.
o The requirement that a renewal claim be filed to avoid public domain status was lifted in 1992 (under the Copyright Renewal Act of 1992), but only for post 1963 copyrights.
(3) If renewal term of copyright expired on or after 1/1/78 and before 10/27/98, the work is in the public domain.
o This follows from the fact that the Sonny Bono Copyright Term Extension Act only applies to works that were in their first term or renewal term of copyright as of 10/27/98, the effective date of that act.
(4) All copyrightable works that were neither published nor registered for copyright prior to January 1, 1978, and remained unpublished through December 31, 2002, are in the public domain if the author or authors have been dead more than 70 years.
o Accordingly, as of January 1, 2005, such works of authors who died before 1935 are in the public domain.
1 This is an overview and does not purport to include all factors and considerations that apply in all instances. A close reading of the pertinent statutes, with reference to authorities such as case decisions and treatises that address factual and interpretive permutations, is always advisable.
2 Variations in this overview that might result from restoration of copyright of foreign works (which had lost copyright protection in the U.S. because of noncompliance with formalities of U.S. law), are beyond the scope of this presentation. Also, this overview assumes compliance by U.S. works with necessary formalities that avoided loss of copyright protection, such as publication with a valid copyright notice when required.
3 The term “copyrighted” in this overview means: initially published in the U.S. or registered in the U.S. for copyright protection as an unpublished work.
4 For works originally copyrighted between January 1, 1964 and December 31, 1977, filing of a renewal registration in the U.S. Copyright Office is optional, and can be accomplished any time during the calendar year in which the 28th anniversary of copyright occurs and any time during the automatic renewal term that follows. However, the following advantages apply only if the filing occurs during the calendar year in which the 28th anniversary of copyright occurs: (1) the renewal copyright vests in the eligible renewal claimant or claimants on the effective date of the renewal registration; (2) the renewal certificate constitutes prima facie evidence during the renewal term as to the validity of the copyright and of the facts stated in the certificate; and (3) the right of prior licensees and assignees to use derivative works in the renewal term may be extinguished, as explained below. Works originally copyrighted prior to January 1, 1964, for which no copyright renewal was timely filed, are now in the public domain. (See below.) The year 2005 has special status, moreover, as the 28th year following 1977 — which also had special status as the final year of the 1909 Copyright Act, and therefore the final year in which the initial term of a two-term copyright could possibly commence. This makes 2005 the last calendar year in which the 28th anniversary of copyright can occur for two-term works.
5 The author who survives until vesting of the renewal term would enjoy a reversion of rights too, but only to the extent that he or she did not make a license or assignment that included the renewal term. This scenario has become increasingly rare, and for this reason is not treated here.