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Wherefore Thou Art #4
How Long Does This Thing Last?

You’ve created something. Or maybe you created something long ago that embarrassed you back then, but you found it in the attic last week and decided “hey, this really ain’t half-bad!” Maybe your Granddaddy created something sixty years ago and you’ve inherited it. Perhaps your Mom wrote and recorded some anti-war folk songs in the 60’s and never saw a dime from the record company, and now there’s some re-kindled interest in the songs (how Moms worked the phrase “time for a regime change” into that 1968 song lyric was prescient, wasn’t it?).

Where’s the copyright for this stuff? Who owns it? If somebody else owns it, can you get it back? And just how long does the copyright last?

The answers to these basic questions really ought to be easy, but often they’re not. The main problem is that the copyright law was extensively overhauled in the mid 1970’s, and fundamental rules of the ownership, transfer and duration of copyrights changed dramatically. This lent a schizophrenic quality to the law because older works are treated differently than newer works. This led to a lot of confusion and lost opportunities for creators and their heirs, and tons of lucrative busy-work for copyright lawyers. Let’s see if we can straighten this out a little.

The easy part first. If a work was created after January 1, 1978, the copyright generally arises upon the creation of the work. For an individual, the copyright runs for the life of the author plus seventy years. For a work “created” by a non-person (in a work-for-hire or employer/employee situation) or for a pseudonymous work, the copyright runs for 95 years from the publication of the work (when the work was distributed to the public) or 120 years from the work’s creation, whichever is shorter.

Copyright terms were recently lengthened by 20 years pursuant to the sublimely-titled “Sonny Bono Term Extension Act of 1998.” Some say that the Bono Act was passed at the behest of the Disney Corporation, which was worried that the copyrights to the first Mickey Mouse cartoons were about to slip into the public domain, and we can’t have that, can we? You may have heard about the Eldred v. Ashcroft lawsuit, a constitutional challenge to the Bono Act, in which it was argued that the new copyright term extensions didn’t further the constitutional purpose of copyright law (“to promote the useful arts and sciences”) and that copyright terms were impermissibly long (the constitutional grant that allows copyright to exist says that terms shall be of a “limited time”). The case made it to the Supreme Court, where the law was upheld by a 7-2 vote of the Justices. As the late Mr. Bono might have said, The Beat (of corporate domination of Congress, the courts and the copyright laws) Goes On.

If a copyright of a work created after 1978 is transferred by the creator (like when writer transfers a novels to a publisher, a musician transfers a recording to a record companies, a photographer to a magazine, etc.) the creator (or the creator’s heirs) can get the copyright back after thirty-five years by giving notice to the transferee. This is a nice thing for the creator--often rights are transferred by the creator under duress and the need for fast money, and with this “termination right,” improvident and unfair deals can be undone. A few years ago, Congress tried to snake this termination away from musicians. In a maneuver that redefined the term “sleazy”, a law buried in an appropriations bill was passed on behalf of the recording industry in the dead of night that exempted sound recordings from the thirty-five year termination right. In other words, musicians would no longer be allowed to get their master recordings back from record companies after 35 years. After numerous high-profile rock stars (most notably Don Henley and Courtney Love) raised holy hell on Capitol Hill, the law was rescinded, with Congress and the recording industry (which wrote and placed the bill) saying it was all just a big misunderstanding. It wasn’t. It was attempted thievery and it was pathetic.

Anyway, the deal with works created after 1978 is fairly straightforward. Life plus 70, and you can get it back after 35. What about works that existed before the 1978 change in the law? Hold on to your hat. The prior law (which dates back to 1909) provided for a copyright term of 28 years, with an extension term of another 28 years (the prior law before that, dating back to the 1790’s, provided for terms of 14 and 14). Significantly, these terms ran not from when the work was created, but from when the work was first published. As noted above, a work is published when the work is distributed to the public.

So, for pre 1978 works it’s 28 plus 28, for a total of fifty-six years, right? Well, no, not exactly. When Congress reworked the copyright laws in the mid-1970’s, it decided to extend existing copyrights, apparently to make things equitable between the old 56 year copyrights and the soon to come life-plus 50 year copyrights. Equity, as nice as it is, can be complicated.

This is what the new law did. For works that were still in their initial twenty-eight year terms as of January 1, 1978, the new law provided that the renewal term would be not 28, but 67 years, so that the full duration of the copyright would be 95 years from publication. For works already in their renewal term as of January 1, 1978, the renewal term has been extended by 39 years, so that the full duration of the copyright would also be 95 years from publication.

As we’ve noted, the term of copyright under the old regime started with the work was published. What about a work created before 1978 that hasn’t been published, like that piece that you did years ago and then hid in the attic? The copyright for these works hasn’t begun to run. The new act provided that such works would be treated like post-1978 works, that is, copyright for pre-1978 non-published works is life of the author plus 70 years. In addition, even if the creators are long dead, the copyrights for all unpublished pre-1978 works lasted until at least December 31, 2002. And if a pre-1978 work managed to get published before December 31, 2002, the copyright automatically runs until December 31, 2047. (Consider the implications for really old, unpublished works. A work from the 1800’s could get protection though 2047 upon publication. The operative word here is “could.” The magic publication date of December 31, 2002 just went by, and a pile of old unpublished works just fell into the public domain.)

Termination rights for copyright transfers for works with existing copyrights as of January 1, 1978 can be exercised 56 years after the initial publication of the work.

If this all does not leave you a little bit confused, there is probably something seriously wrong with you. But as arcane and random as this may all seem, issues arising from these strange little laws impact a vast array of works and involve millions of dollars of royalty revenue. A seminal and hard-fought 1995 case, for example, involved the termination rights for the copyright to the song “When the Red Red Robin Comes Bob-Bob-Bobbin’ Along.” Seriously. Imagine a room full of grown-ups arguing about that!

So the bottom line goes something like this: If the work was created after January 1, 1978, things are pretty easy. For an older work with a copyright still running on January 1, 1978 (which could be anything published after January 1, 1922 (1978 minus 56 years), there is probably an existing copyright on the work, and this copyright will run until at least January 1, 2017 (95 years from 1922, or 1978 plus 39 years). If you have an unpublished work that predates 1978, the copyright depends primarily on whether the creator is still alive and if not, when the creator died. If the creator died anytime after 1933 (2003 minus 70 years), there is still some copyright protection left for the heirs of the creator to enjoy. If the date of death was before then, you missed your chance to capitalize on the work about six months ago.

Aren’t you glad you asked?

© 2003 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.