Claire Corlett

Fish Food, Fish Tanks, and More
William Fisher, CopyrightX: Lecture 6.2, The Mechanics of Copyright: Duration

William Fisher, CopyrightX: Lecture 6.2, The Mechanics of Copyright: Duration

In this segment of the
lecture, we’ll examine the rules that determine
how long US copyrights last. You’re probably thinking, well,
this will be a short segment. How complicated can it be? The answer, unfortunately,
is quite complicated. The reason for the complexity is that
the relevant rules in the United States have been amended several times. But the amendments have been
only partially retroactive. The result is that there are several
subsets of copyrighted works that are governed by different
sets of duration rules. Here’s how I’ll try
to untangle this knot. I’ll begin by reviewing the
history of the pertinent laws. I’ll then start over and consider
the impact of that history on the duration of
different groups of works. The slide in front of you
should by now be familiar. This shows the way things worked
under the original version of the 1909 copyright statute. As we’ve seen, the first term of
federal protection lasted for 28 years after the date of publication. If the copyright was
properly renewed, it lasted for another 28-year term,
commonly known, for obvious reasons, as the renewal term. Here are a few more details
we have not yet discussed. The application for renewal
could be filed any time during the year preceding the
expiration of the initial term. If the author was still
alive at that time, he or she was the person
presumptively entitled to apply for and receive
the renewed copyright. If the author had died, his or
her surviving spouse or children could do so. If there were no
surviving spouse or kids, the author’s executor had the right,
if the author had left a will. If he or she had not left a
will, then his or her next of kin had the renewal right. A technical point that,
as we’ll see later had some important practical
effects, the renewal term was not thought of as a
continuation of the initial term. It was said to be a new
term– a new estate– that belonged to the person who
applied for and received it. With respect to works first published
under the auspices of the 1909 statute, this basic structure
has remained intact. But the length and mechanics
of the renewal term have been adjusted several times. In 1976, the renewal term was
extended from 28 to 47 years. In 1998, as part of the
Copyright Term Extension Act, it was extended from 47 to 67 years. In 1992, the renewals of works that at
the time were still in their first term was made automatic
rather than voluntary. The result is that
copyrighted works ceased falling into the public domain at the
end of their initial 28-year terms. The 1976 general reform
of the copyright statute, which became effective as we’ve
seen at the start of 1978, instituted a radically new regime. As we’ve seen, works created thereafter
acquired federal copyright protection immediately, which lasted for the
life of the author plus 50 years. The Copyright Term Extension
Act in 1998 extended that term to its current duration– the
life of the author plus 70 years. Measuring duration by
the life of the author would not work for anonymous works,
pseudonymous works, and works for hire, so these were given
terms of years that were meant to approximate the
duration of regular copyrights– a century from the
date of creation or 75 years from first publication,
whichever happened first. The Copyright Term Extension Act in 1998
also extended those terms by 20 years. Lurking in these details
are two general themes. The first, I’ve already mentioned–
the gradual transition from an opt-in to an opt-out system. The second, probably obvious, is
that copyrights keep getting longer. They never, even
prospectively, get shorter. OK, now let’s adopt a precedents stance. It’s 2013, how long
do US copyrights last? The answer depends upon
when and how they were born. More specifically, you
need to differentiate five different categories
of copyrighted works. The simplest group consists of
works published before 1923. Some of these got the benefit of
the extension of the renewal term from 28 to 47 years. But all of them fell
into the public domain before the Copyright Term
Extension Act could rescue them. And the Copyright Term Extension
Act did not lift them back up. The upshot is that the copyrights
on these works have expired. The second category consists of works
published between 1923 and 1963. These were rescued
before their expiration by the Copyright Term Extension Act. The most famous and influential
member of this group is Mickey Mouse– a
copyrighted character, who first appeared publicly in the
1928 cartoon, Steamboat Willie. Copyrights in these works will
begin to expire in 2018, 95 years after their first publication. Mickey Mouse, himself, will
fall into the public domain on or about 2023, unless yet
another amendment of the statute rescues him again. Not all works published during this
interval is still alive, however. Only those who were properly renewed,
by people eligible to renew them, survived. As we’ve seen, the large majority of
works registered during this interval were not renewed. The net effect is that most of the work
copyrights in this category of works have expired. Not so with respect to works first
published between 1964 and 1977. These get the benefit of the change from
voluntary renewal to automatic renewal. Who owns these copyrights? Presumptively, the same
person or persons who are eligible to apply for
renewal onto the previous regime. Another important footnote, just
because these copyrights are subject to automatic renewal doesn’t mean that
they cannot be voluntarily renewed. And the system contains
some important incentives for people who voluntarily renew. The upshot, as you might imagine, is
that voluntary renewal remained common after 1992. The key point for our present purposes
is that works in this third category have not yet fallen
into the public domain. They will begin to do so in 2018,
like their surviving older cousins. Works in the fourth category
overlap the fundamental change in the copyright system caused by the
general reform of the statute in 1976. These were created but
not published before 1978. Federal copyright protection for these
last for the lives of their authors plus 70 years or the end of
2002, whichever is later. In addition, if they were
published by the end of 2002, they got an extra lease on life
until, at a minimum, the end of 2047. The purpose and effect
of this provision was to nudge the heirs of the authors
of such things to publish them. We come, finally, to the newest set of
works, those created in 1978 or later. These, as you now know, last for the
life of the author plus 70 years. That means that they will start
expiring in 2048 at the earliest. As we’ve seen, anonymous works,
pseudonymous works, and works for hire get treated differently. They will begin to expire
in 2073 at the earliest. So that’s where things stand. The bottom line, if you need to know
the status of a particular US work, first ascertain which of these
five categories it falls into. Works in the first box
are in the public domain. Works in the second box probably
are in the public domain, but you need to check whether the
copyrights were timely renewed. Works in the third box are most
likely not in the public domain, unless of course they were published
without the required copyright notice. But their copyrights will
begin to expire in 2018. Works in the fourth box could
be in the public domain, unless they were published before 2002. You need to check. And finally, works in the fifth box
are probably not in the public domain. The exceptions to this
last proposition are those published between 1978 and 1989,
without the required statutory notice and that defect was not
cured within five years, and works published recently
subject to cc-zero proclamations. Otherwise, these works will not begin
to fall until 2048 at the earliest. Messy, very messy.

1 comment on “William Fisher, CopyrightX: Lecture 6.2, The Mechanics of Copyright: Duration

  1. If group 3 is subject to automatic renewal, how can they possibly start to fall out of copyright in 2018? Published at the earliest in 1964, that would be a period of 54 years to get to 2018. I see possibilities for 1964 + 95 = 2059 or even 1964 + 28 = 1992 (if renewal were somehow overlooked).

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