Copyright Renewal Exercises
For each hypothetical below, consider the question of termination rights. These problems appear on page 698 of the textbook.
1. Arthur created a work in 1950 and first published it with proper copyright notice on July 10, 1955. In 1954, Arthur assigned ‘‘all right title and interest’’ to the copyright in the work, including ‘‘any and all rights in the renewal term,’’ to Bob. Arthur died on December 1, 1982, leaving his widow, Carol. Arthur’s will bequeathed all his copyrights to Denise, his secretary. Assume a renewal registration was properly filed. Who owns copyright in the work today? Can any rights be terminated by anyone? By whom and when?
Carol owns the copyright today.
Arthur’s assignment to Bob was adequate to assign the renewal term if Arthur lived long enough for the renewal term to vest in him. Under the 1909 Act, federal copyright protection began on the day of publication with notice, July 10, 1955, so the first term expired 28 years later, 7/10/1955 + 28 = 12/31/1983. (The first term ended on December 31 because the 1976 Act changed the computation of all terms to the end of the calendar year.) Assuming the renewal registration was properly filed as the facts state, the renewal term vested on the next day, January 1, 1984. Arthur did not live long enough, (the facts state he died on 12/1/1982, prior to the beginning of the renewal term and also prior to the opening of the final year in which to file the renewal certificate) so the assignment to Bob was only an assignment of a contingent interest that never vested.
Under §304, the renewal term vested in Arthur’s widow, Carol, who now owns the copyright in the work. The will has no effect because a will cannot override the forced inheritance rules of the Copyright Act.
There is no transfer agreement to be terminated.
2. Same facts as in 1, except Arthur lived until December 1, 1985. Who owns copyright in the work today? Can any rights be terminated by anyone? By whom and when?
Bob owns the copyright today.
In this case, Arthur lived long enough for the renewal term to vest in him; therefore, the earlier assignment transferred the vested interest to Bob. It is irrelevant what Arthur’s will says, because Arthur had already assigned his rights in the renewal term to Bob. (Note: If the renewal had not been assigned to Bob, then the will would have been effective to transfer the remaining years of copyright protection to Denise.)
However, the assignment to Bob could have been terminated under §304 because it was (1) before January 1, 1978, and (2) an assignment of a renewal interest. The Author is dead, so the statute (not the will) provides the successor to the termination interest: the author’s widow, Carol. Carol could have retaken the final 39 years of the copyright term, the years added onto the basic 56 years from the 1909 Act.
The problem is that the time for doing so under §304(c) has passed. The five year window for the §304(c) termination date began in 2011 ( 7/10/1955+56 = 7/10/2011) and closes 7/9/2016. But Carol has to give Bob at least two years notice of termination, so the latest date to send that notice was July 9, 2014. (Note: §304 authorizes termination starting 56 years from the date that copyright was first secured. Thus, unlike duration, which runs to the end of the calendar year, termination may occur during the calendar year once the 56th year date is completed.)
A very thorough student may suggest a 304(d) termination for the final 20 years added by the CTEA. Such terminations are available only for those works whose 304(c) termination window had expired prior to the passage of the CTEA in October 1998. In this scenario, the 304(c) termination had not yet expired in 1998, thus the only termination available was under 304(c). This highlights that only works published prior to October 1937 have the possibility of a 304(d) termination (1937 + 56 = 1993 opening of five year window/ 1998 closing of five year window). Such 304(d) terminations are only possible if the 304(c) termination had not previously been exercised.
3. Flora comes to your office to talk to you about an upcoming merger of her company. Before the meeting starts, Flora tells you that she wrote and recorded a song back in 1975 that went platinum in 1990 but she received only $2,000 because she had assigned the copyright to a company, Giga, Inc., in 1979. She tells you that this song recently has been included in a blockbuster hit movie and is on the soundtrack that is a hot-selling album. She is quite proud of her big hit and that’s why she told you the story. Is there anything to which you should alert her?
You should alert Flora to her termination possibilities, but she may need to act promptly. Because the transfer was executed after January 1, 1978, §203 is the termination provision that applies. This is true even though the work was created and maybe even published before 1978.
Section 203 would allow Flora to terminate the transfer to Giga, Inc. Because the information was conveyed in a casual conversation, there are elements of the transfer agreement that will need to be investigated. First, §203 provides two possible windows for termination. If the agreement covers the right of publication, the window opens at the earlier of 35 years after publication under the grant, or 40 years after the execution of the grant. The opening of the five-year window may be as early as 1979+35= 2014 (if the works was published under the grant in the same year in which the grant was executed) with 2019 being the end of the five-year window. That is the earliest termination window. Using that window, Flora could have sent a notice of termination as early as 2004, but must send the notice by 2017 (the exact date will depend on the date of the agreement or the date of publication under the grant, which the facts do not give; as under §304, §203 termination periods are also computed from actual dates, not the end of the calendar year.).
Once notice was sent, Flora could renegotiate her agreement with Giga, Inc., but would have to wait until after the termination date to enter into an agreement with any other company.
4. Henry created a play, titled Georgia’s Garden, in 2001. Henry died in 2002, leaving two sons, Leo and Mike. His will leaves all his literary property including all his copyrights to his long-time companion, Orin. Leo and Mike would like to regain control over the play—can they?
Leo and Mike cannot regain control because transfers by will cannot be terminated.