Bifurcated Duration Provisions Under US Copyright Act
The United States copyright law is unique in that the duration of the copyright differs depending on the date of creation of the work, as well as the date the work is initially registered or published.
Works created and copyrighted (that is, registered or published) prior to January 1, 1978, are protected for 95 years from the date the copyright was originally secured (95 years from the earlier of the registration or publication). The 95-year period is divided into an initial term of 28 years and a renewal term of 67 years.1
Works created prior to January 1, 1978, that were neither copyrighted nor fell into the public domain before that date are protected for the life of the author plus 70 years, provided (i) in no event shall the term of the copyright in such a work expire before December 31, 2002, and (ii) if such a work is published on or before December 31, 2002, the term of the copyright shall not expire before December 31, 2047.2
Works registered for copyright or published prior to January 1, 1923, are in the public domain in the United States.
Works created on or after January 1, 1978, are protected for the life of the author plus 70 years. In the case of a joint work, protection continues for 70 years after the death of the last surviving author.3
Anonymous Works; Pseudonymous Works; Works Made for Hire
The copyright term for an anonymous or pseudonymous work as well as a work made for hire endures for the shorter period of either 95 years from publication or 120 years from creation.4
Discrepancy in Duration Provisions
It is generally believed that the term of protection for works registered or published prior to January 1, 1978, is roughly equivalent to the term of protection for works created on or after that date. However, this is often not the case. Imagine, for example, a 20-year-old author who creates a composition and registers it for copyright in 1960. The author dies at the age of 85 in 2025. The song registered in 1960 will enter the public domain in the United States on January 1, 2056, just 30 years after the author’s death. Compare this to a 20-year-old author who creates a composition and registers it for copyright in 1980. The author also dies at the age of 85, in 2045. The song registered in 1980 will enjoy copyright protection until 2116—a full 40 years longer than the song from 1960. Clearly, the bifurcated duration provisions have not accorded the earlier author or his/her heirs protection equivalent to the life-plus-70 protection accorded authors of works created on or after January 1, 1978.
Registration and Renewal of Copyrights
Original works may be registered with the Copyright Office at any time after their creation. Although copyright is now secured automatically upon the creation of a work even if no registration is made, it is advisable to officially register a copyright with the Copyright Office in order to establish priority as well as to document title. To register a musical work, request Application Form PA from the Copyright Office and return it with the requested material. You may also print out and fill in Form CO from the Copyright Office website and send it in with the requested material. The fee for both types of registration by mail is currently $65. In addition to these two methods, the Copyright Office allows you to register works online using the eCO Online System. This option provides the fastest processing times and currently costs $35. For a tutorial on how to use this system and more information about registering works visit the eCO Page of the Copyright Office’s website at www.copyright.gov/eco/index.html.
The process of copyright renewal applies only to works registered or published before January 1, 1978.
Works registered or published prior to January 1, 1964, must have been formally renewed (i.e., a renewal application must have been registered with the Copyright Office during the 28th year of copyright). Failure to renew caused the work to enter the public domain upon the expiration of the initial 28-year term of copyright.
Works originally registered or published between January 1, 1964, and December 31, 1977, benefit from automatic copyright renewal. Although the filing of a renewal application was not mandatory for these works, there were several advantages to filing renewals with the Copyright Office. A renewal registration in the 28th year records the interest of the renewal claimant in the work for the renewal term. Additionally, a renewal certificate can serve as prima facie evidence of copyright and allow the claimant to object to the creation of an unauthorized derivative work. Most significantly, with respect to posthumous renewal, the timely filing of a renewal application by the heirs of the author, where the heirs were not party to a prior renewal term grant, ensures that prior licensees shall not be entitled to continue to exploit either the original work or derivative works based thereon without the permission of the heirs.
Publication of Copyrighted Works
Publication is defined in the Copyright Act as the “distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”5 Since January 1, 1978, the distribution of a composition on a sound recording has constituted publication. The simple public performance of a composition does not constitute publication. The date of publication of a work may be significant in determining the duration, as well as statutory termination windows, of the work.
Third Edition. Lisa A. Alter, Esq.