Wednesday, July 09, 2008

A 1909 Act work for hire puzzle

Olen York sent me this question awhile back. I would be interested in what people think. It involves the interplay between the 1909 Act and Section 303 of the 1976 Act. Here it is, slightly revised:


A mural is created in 1940 under a work for hire, but the work is not published. The author of the mural dies in 1950. What is the term of protection?

The term can't be life of the author plus 70 years since it is work for hire.

18 comments:

Anonymous said...

120 years from creation?

Anonymous said...

Was it ever published? Was it registered as a copyrighted work?

Tom Cotter said...

Federal copyright subsists from January 1, 1978, according to 1976 Act section 303(a), and it should expire 120 years from the date of creation, i.e., through the end of year 2060, under sections 303(a) and 302(c)--unless there's some catch I'm not seeing.

Rebecca Tushnet said...

I admit I haven't given this much thought, but I would have thought that under 302 (which applies because 303 directs you to 302 for unpublished pre-1978 works) the applicable rule was 95 years from publication or 120 from creation, whichever expires first. If it hasn't been published yet, then the term would be 120 years from creation, leading to 2060 as the end date. All of this assumes, however, that copyright was not secured by registration before 1978. What am I missing?

Anonymous said...

The copyright in the mural will subsist for 120 years from creation or 95 years from first publication, whichever expires first. 302(c).

Anonymous said...

I know I will look foolish for stating the obvious, but why is the term not 120 years, as specified in section 302(c) of the 1976 act? If the work was created as a work for hire in 1940, under that provision the protection should expire at the end of 2060, shouldn't it?

T. D. Ruth said...

Isn't that an easy one? Section 303 has no caveats - it expressly provides for the term of pre-78 unpublished works as being the same as Section 302, and in 302(c), a work for hire exists for 95 years from publication or 120 years from creation, whichever expires first.

Does the riddle come in with the question of "publication?" After all, I don't see how a mural is even capable of being published (and knowing that the Act considers that some works cannot be published)? That said, a mural could still, theoretically, meet the requirements of 302, i.e., its not in the public domain and was not registered prior to 1/1/78.

I have a similar 303 question, but relating to termination: Section 304 deals with termination of copyrights "subsisting on January 1, 1978," while 203 deals with terminations of grants executed by the author on or after 1/1/78.

What happens when a copyright is created pursuant to a grant executed prior to 1/1/78 (or is otherwise assigned prior to that date) but is not published or registered until after? A great number of 303 works fall in this category.

Anonymous said...

I would argue 2060.

303 says that for unpublished works, copyright subsists from January 1, 1978, and endures for the term provided by section 302.

302 says that copyright in a work made for hire endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.

The work wasn't created in 1978, and 2060 (1940+120) expires before 2073 (1978+95).

Any rights granted under section 12 of the 1909 act would have been merged into the expanded rights in unpublished works under the 1976 act.

Tamera said...

Maybe I am missing a step, but I think Section 302 does apply to this situation.

Assuming the work was not registered prior to January 1, 1978, you have to look at section 303 regarding works created prior to January 1, 1978 and not registered or published. Section 303 then sends you to section 302.

I also think you have to use the work for hire definition found under the 1976 Act in order for the work for hire provision of Section 302(c) to apply. If it is a work for hire then it would be 120 years from creation if never published. (I don’t claim to be an expert on which work for hire language would apply. I think we would need to revisit the Superboy/Superman case for some guidance.)

If the registration occurred January 1, 1978 or after, then the 1976 Act and revisions will also apply, which sends you back over to Section 302.

We run into this problem when trying to sort out termination issues when a work was created pre-78, but never published/registered and then published and/or registered post-78. If this work is a true work for hire, termination issues are not going to come into play.

Tamera Bennett
www.createprotect.com

Stephen Fishman said...

Shouldn't the term be 120 years from the year of creation under Sec. 302(c)?

William Patry said...

I agree 303 sends one to 302 since the mural was not published or registered. I agree too that Section 203(c) applies. That section reads:

In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.

Since the work was created in 1940 and not published, the copyright expires, I think 2060. I think Olen’s concern is that somehow the work for hire provisions of the 1909 might govern, and that duration was measured by the 1909 Act’s 28+28 term. This would be true only if the work was registered; even if unpublished, the work would be protected federally – in the words of the statute “copyrighted.” The 1909 Act didn’t have a term for unpublished works, however, although courts created one: the date of registration. and in any event, I don't think murals could be federally registered under the 1909 Act. They are not included in the limited exception in Section 12 of that Act.

Since it wasn’t (and couldn't be registered), it was protected under state law, and hence 302(c) via 303 governs. At least that’s my view.

Matt said...

If it was never published, it went into the public domain 1/1/2003.

William Patry said...

Matt, I think you misread Section 303(a), which reads:

"Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047."

The final sentence of this doesn't mean that unless a work was published by December 31, 2002 it goes into the pd the next day. Section 302 still governs, as 303 says: "[Copyright] endures for the term provided by section 302."

Mike Brown said...

I know the original post said "a mural is created in 1940 ... but the work is not published" - but what is the basis for saying it's not published?

I looked this up for a client many years ago, and I found at least a few cases under previous copyright acts which said that exhibition of a painting to the public without reservations was "publication". The cases usually found that their particular facts showed no publication, because the painting was in a gallery which didn't permit copying, or there was an explicit notice of reservation of copyright, but they usually reiterated the general rule. For example,

"It is insisted that there is reason for the distinction in the statute between books, and maps, charts, paintings, etc., in that a book can only be published in print and becomes known by reading, while paintings, drawings, etc., are published by inspection and observation. ... It may be true that paintings are published in this way, but they are often sold to private individuals and go into private collections..." American Tobacco Co. v. Werckmeister
207 U.S. 284, 28 S.Ct. 72 (U.S. 1907)

I don't know if there was something in the 1909 act which changed this, but it seems to me that this would at least support a claim that exhibition of a mural without more can be "publication".

William Patry said...

Hi Mike, you raise an important general point about how paintings were published under the 1909 Act, which had its distinction between general and limited publication, and the American Tobacco opinion you cite is the leading one I believe.

I should have added facts that said something like, "people were permitted to view the mural only after agreeing not to take pictures otherwise copy the mural, and a thorough search of all looking at the mural was made to make sure they couldn't copy. No more than three people at a time were allowed to see the painting, and even then only on February 29th."

Anonymous said...

And then two guys wearing dark sunglasses and black suits would use a little silver thingy with a flash to erase all memories of the mural ...

Carolus said...

Matt: "If it was never published, it went into the public domain 1/1/2003."

Not if the author died in 1950. Assuming no publication until after 2003, it would be protected until 2021 if it weren't a cursed work made for hire - a category that should be severely curtailed because of its rampant abuse. However, since it's a work made for hire, I expect 120 years from creation is likely the case.

Anonymous said...

Isn't the act of creating the mural a singular act of 'distribution' and/or 'publication'? One copy exists: the original. The work is published.

Copyright would seem to be vested in the muralist or his employer if one existed.

I doubt the muralist did not prepare sketches, detail studies, vignetees and what not for preparation for the actual mural installation [how long did it take to paint"], so copyright would exist for those manifestations of an idea as well.

How long? I don't know.