Federal CopyRight Law
One of the most useful but, unfortunately, least used forms of IP is the federal copyright. Artists, photographers, authors, and publishers of web sites are notorious in their failure to suitably register their works. There is no state equivalent in Washington nor in any of the remaining states and territories of the United States. Copyright and the registration of copyrights are, together, a form of protection provided by the federal laws of the United States (title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works.
1. The Nature of the Copyright Under Section 106 of the 1976 Copyright Act, the owner of copyright may assert the exclusive right to do and to authorize others to do the following:
· reproduce the work in copies or phonorecords;
· prepare derivative works based upon the work;
· distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
· perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
· display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work; and
· perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the further rights requiring attribution and integrity as described in section 106A of the 1976 Copyright Act. These rights, however, are not unlimited in scope. Sections 107 through 122 of the 1976 Copyright Act establish limitations. In some cases, these limitations are specified exemptions from copyright liability. One major limitation of liability is the right of the public set forth in the exemption called “fair use,” which is defined in section 107 of the 1976 Copyright Act. The idea of the “fair use” is to permit limited use of copyrighted material for informing the public without acquiring permission from the rights holders (to prevent the copyright protection from becoming a wall against dissemination of important information). Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. In essence, the test is one of pitting the need of the public against the rights of the copyright holder.
In some instances, the need of the public is accommodated by the existence of a right of “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. There are several different compulsory license provisions in United States copyright law, including for non-dramatic musical compositions, public broadcasting, retransmission by cable systems, subscription digital audio transmission, and non-subscription digital audio transmission such as Internet radio. The compulsory license for non-dramatic musical compositions under Section 115 of the Copyright Act of 1976 allows a person to distribute a new sound recording of a musical work, if that has been previously distributed to the public, by or under the authority of the copyright owner. There is no requirement that the new recording be identical to the previous work, as the compulsory license includes the privilege of rearranging the work to conform it to the recording artist's interpretation. This does not allow the artist to change the basic melody or fundamental character of the work. In order to take advantage of this compulsory license the recording artist must provide notice and pay a royalty. The notice must be sent to the copyright owner, or if unable to determine the copyright owner, to the Copyright Office, within thirty days of making the recording, but before distributing physical copies. Failure to provide this notice would constitute copyright infringement. In addition to the notice to the copyright owner, the recording artist must pay a royalty to the copyright owner. This royalty is set by three copyright royalty judges. Though the compulsory license allows one to make and distribute physical copies of a song for a set royalty, the owner of the copyright in the underlying musical composition can still control public performance of the work or transmission over the radio. If the underlying musical work is well known, the work can be licensed for public performance through a performance rights organization such as ASCAP, BMI, or SESAC.
Copyrightable works include the following categories:
1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings;
8. architectural works
These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”
2. Copyright Creation All forms of federal IP are creatures of statute and not of the common law. Copyright is one statutory creature and as such, the extent of offered protection is very strictly limited to those eight categories expressed above. As such, some forms expression are generally not eligible for federal copyright protection. These include among others:
· works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded);
· titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents;
· ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration (some of these being better suited for patent protection than for copyright); and
· works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. No publication or registration or other action in the Copyright Office is required to secure copyright. Registration of the right provides both of proof of the content at a particular time and the accrual of certain rights.
Authorship under the Copyright Statute is not always the same person as who would be considered an author in the common sense of the word. Under the statute there is an exception when the person who fixed the work in a tangible medium is doing so in response to an obligation of employment. This exception is expressed in the statute as “works made for hire,” where the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:
1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as:
a. a contribution to a collective work;
b. a part of a motion picture or other audiovisual work;
c. a translation;
d. a supplementary work;
e. a compilation;
f. an instructional text;
g. a test answer material for a test; or
h. an atlas;
So long as the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If a work is “made for hire”, the employer—not the employee—is considered the legal author. The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status.
Where there are two or more authors cooperating to produce a joint work, each of the authors are coowners of the copyright in the work, unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.
Possessing a copyright is distinct from ownership of the medium upon which the idea is fixed. Put another way, mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
“Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or vinyl disks. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date. Registration merely perfects some of the rights the copyright holder has from the moment of its fixation in a tangible medium.
3. Copyright Notice Copyrights are not dependent upon the presence of the notice of the claim of copyright. Nonetheless, prudent legal authorities counsel the advantages of affixing a copyright notice on the work when possible. Many people are familiar with some form of the copyright notice, but its use is no longer required under U. S. law to validate the claim of copyright. Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected.
The notice for visually perceptible copies should contain all the following three elements:
1. The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”; and
2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
Example: © 2014 Mark L. Lorbiecki
The “C in a circle” notice can only be used only on “visually perceptible copies.” Where, for example, relative to musical, dramatic, and literary works, there is no medium upon which the notice would be visually perceptible, the use of a aurally perceived notice is acceptable in an audio recording. Since audio recordings such as audio tapes and phonograph disks are “phonorecords” and not “copies,” the “C in a circle” notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.
4. Copyright Registration In general, copyright registration serves to establish a public record of the basic facts underlying a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
· Registration establishes a public record of the copyright claim.
· Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
· If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
· If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
· Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U. S. Customs and Border Protection website at www.cbp.gov/.
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired. Copyright registration can be most easily accomplished by the use of the website known as “eCO Online System” and located at: http://www.copyright.gov/eco/
5. How Long Copyright Protection Endures Even the most experienced copyright practitioners must know when a work was created to figure out when the copyrighted work is then dedicated to the public domain.
1. Works Originally Created on or after January 1, 1978 A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.
2. Works Originally Created Before January 1, 1978, But Not Published or Registered by That Date. These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the lifeplus70 or 95/120year terms apply to them as well. The law provides that in no case would the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.
3. Works Originally Created and Published or Registered before January 1, 1978. Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years. Public Law 102307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1, 1964, and December 31, 1977. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office.
6. Assignment of Copyright Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred or assigned, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement. The ownership of a copyright is a right of personal property just as is the right to own a car or book. With the exception for formality imposed by federal law requiring a writing for an exclusive license or transfer, copyrights are transferred in accord with the relevant state’s laws of contract (If the contract is made by parties in Washington, Washington law applies.) These are the same requirements as those rights apply to chattel or personal property and that transfer is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.
The federal law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.
7. International Copyright Protection There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. Treaties between the several countries have brought the protection that each of the signatory countries offer to foreign works into alignment one with the others, and, further, these international copyright treaties and conventions have greatly
1. The Nature of the Copyright Under Section 106 of the 1976 Copyright Act, the owner of copyright may assert the exclusive right to do and to authorize others to do the following:
· reproduce the work in copies or phonorecords;
· prepare derivative works based upon the work;
· distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
· perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
· display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio visual work; and
· perform the work publicly by means of a digital audio transmission.
In addition, certain authors of works of visual art have the further rights requiring attribution and integrity as described in section 106A of the 1976 Copyright Act. These rights, however, are not unlimited in scope. Sections 107 through 122 of the 1976 Copyright Act establish limitations. In some cases, these limitations are specified exemptions from copyright liability. One major limitation of liability is the right of the public set forth in the exemption called “fair use,” which is defined in section 107 of the 1976 Copyright Act. The idea of the “fair use” is to permit limited use of copyrighted material for informing the public without acquiring permission from the rights holders (to prevent the copyright protection from becoming a wall against dissemination of important information). Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. In essence, the test is one of pitting the need of the public against the rights of the copyright holder.
In some instances, the need of the public is accommodated by the existence of a right of “compulsory license” under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. There are several different compulsory license provisions in United States copyright law, including for non-dramatic musical compositions, public broadcasting, retransmission by cable systems, subscription digital audio transmission, and non-subscription digital audio transmission such as Internet radio. The compulsory license for non-dramatic musical compositions under Section 115 of the Copyright Act of 1976 allows a person to distribute a new sound recording of a musical work, if that has been previously distributed to the public, by or under the authority of the copyright owner. There is no requirement that the new recording be identical to the previous work, as the compulsory license includes the privilege of rearranging the work to conform it to the recording artist's interpretation. This does not allow the artist to change the basic melody or fundamental character of the work. In order to take advantage of this compulsory license the recording artist must provide notice and pay a royalty. The notice must be sent to the copyright owner, or if unable to determine the copyright owner, to the Copyright Office, within thirty days of making the recording, but before distributing physical copies. Failure to provide this notice would constitute copyright infringement. In addition to the notice to the copyright owner, the recording artist must pay a royalty to the copyright owner. This royalty is set by three copyright royalty judges. Though the compulsory license allows one to make and distribute physical copies of a song for a set royalty, the owner of the copyright in the underlying musical composition can still control public performance of the work or transmission over the radio. If the underlying musical work is well known, the work can be licensed for public performance through a performance rights organization such as ASCAP, BMI, or SESAC.
Copyrightable works include the following categories:
1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings;
8. architectural works
These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”
2. Copyright Creation All forms of federal IP are creatures of statute and not of the common law. Copyright is one statutory creature and as such, the extent of offered protection is very strictly limited to those eight categories expressed above. As such, some forms expression are generally not eligible for federal copyright protection. These include among others:
· works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded);
· titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents;
· ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration (some of these being better suited for patent protection than for copyright); and
· works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright. No publication or registration or other action in the Copyright Office is required to secure copyright. Registration of the right provides both of proof of the content at a particular time and the accrual of certain rights.
Authorship under the Copyright Statute is not always the same person as who would be considered an author in the common sense of the word. Under the statute there is an exception when the person who fixed the work in a tangible medium is doing so in response to an obligation of employment. This exception is expressed in the statute as “works made for hire,” where the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:
1. a work prepared by an employee within the scope of his or her employment; or
2. a work specially ordered or commissioned for use as:
a. a contribution to a collective work;
b. a part of a motion picture or other audiovisual work;
c. a translation;
d. a supplementary work;
e. a compilation;
f. an instructional text;
g. a test answer material for a test; or
h. an atlas;
So long as the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. If a work is “made for hire”, the employer—not the employee—is considered the legal author. The actual creator may or may not be publicly credited for the work, and this credit does not affect its legal status.
Where there are two or more authors cooperating to produce a joint work, each of the authors are coowners of the copyright in the work, unless there is an agreement to the contrary.
Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.
Possessing a copyright is distinct from ownership of the medium upon which the idea is fixed. Put another way, mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
“Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. “Phonorecords” are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as cassette tapes, CDs, or vinyl disks. Thus, for example, a song (the “work”) can be fixed in sheet music (“copies”) or in phonograph disks (“phonorecords”), or both. If a work is prepared over a period of time, the part of the work that is fixed on a particular date constitutes the created work as of that date. Registration merely perfects some of the rights the copyright holder has from the moment of its fixation in a tangible medium.
3. Copyright Notice Copyrights are not dependent upon the presence of the notice of the claim of copyright. Nonetheless, prudent legal authorities counsel the advantages of affixing a copyright notice on the work when possible. Many people are familiar with some form of the copyright notice, but its use is no longer required under U. S. law to validate the claim of copyright. Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy or copies to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement in mitigation of actual or statutory damages, except as provided in section 504(c)(2) of the copyright law. Innocent infringement occurs when the infringer did not realize that the work was protected.
The notice for visually perceptible copies should contain all the following three elements:
1. The symbol © (the letter C in a circle), or the word “Copyright,” or the abbreviation “Copr.”; and
2. The year of first publication of the work. In the case of compilations or derivative works incorporating previously published material, the year date of first publication of the compilation or derivative work is sufficient. The year date may be omitted where a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article; and
3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.
Example: © 2014 Mark L. Lorbiecki
The “C in a circle” notice can only be used only on “visually perceptible copies.” Where, for example, relative to musical, dramatic, and literary works, there is no medium upon which the notice would be visually perceptible, the use of a aurally perceived notice is acceptable in an audio recording. Since audio recordings such as audio tapes and phonograph disks are “phonorecords” and not “copies,” the “C in a circle” notice is not used to indicate protection of the underlying musical, dramatic, or literary work that is recorded.
4. Copyright Registration In general, copyright registration serves to establish a public record of the basic facts underlying a particular copyright. However, registration is not a condition of copyright protection. Even though registration is not a requirement for protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
· Registration establishes a public record of the copyright claim.
· Before an infringement suit may be filed in court, registration is necessary for works of U. S. origin.
· If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
· If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
· Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies. For additional information, go to the U. S. Customs and Border Protection website at www.cbp.gov/.
Registration may be made at any time within the life of the copyright. Unlike the law before 1978, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired. Copyright registration can be most easily accomplished by the use of the website known as “eCO Online System” and located at: http://www.copyright.gov/eco/
5. How Long Copyright Protection Endures Even the most experienced copyright practitioners must know when a work was created to figure out when the copyrighted work is then dedicated to the public domain.
1. Works Originally Created on or after January 1, 1978 A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.
2. Works Originally Created Before January 1, 1978, But Not Published or Registered by That Date. These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works is generally computed in the same way as for works created on or after January 1, 1978: the lifeplus70 or 95/120year terms apply to them as well. The law provides that in no case would the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.
3. Works Originally Created and Published or Registered before January 1, 1978. Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years. Public Law 102307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1, 1964, and December 31, 1977. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office.
6. Assignment of Copyright Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred or assigned, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. Transfer of a right on a nonexclusive basis does not require a written agreement. The ownership of a copyright is a right of personal property just as is the right to own a car or book. With the exception for formality imposed by federal law requiring a writing for an exclusive license or transfer, copyrights are transferred in accord with the relevant state’s laws of contract (If the contract is made by parties in Washington, Washington law applies.) These are the same requirements as those rights apply to chattel or personal property and that transfer is subject to the various state laws and regulations that govern the ownership, inheritance, or transfer of personal property as well as terms of contracts or conduct of business.
The federal law does provide for the recordation in the Copyright Office of transfers of copyright ownership. Although recordation is not required to make a valid transfer between the parties, it does provide certain legal advantages and may be required to validate the transfer as against third parties.
7. International Copyright Protection There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. Treaties between the several countries have brought the protection that each of the signatory countries offer to foreign works into alignment one with the others, and, further, these international copyright treaties and conventions have greatly