Monday, March 27, 2006

When a 1909 Act Author Dies in Year 28

What happened, from a copyright perspective, when an author whose work is governed by the 1909 Act dies in the 28th year of copyright, and he or she (alas, there are, statistically, far fewer widowers than widows; see this link which contains an unusual argument why this justifies polygamy in Islam), had previously assigned the right to the renewal term? There are a number of different scenarios. For example, the work was first published in 1950, and was not properly renewed. The assignment is worthless because the work is in the public domain. What if the work was properly renewed? In this case, the renewal assignment is invalid as a contingent interest that did not come to pass, the contingency being that the author would survive until the renewal time came. That is the teaching of Stewart v. Abend and its predecessors.

What if the same author lived to the 28th year, filed the renewal application and promptly died from such a momentous event? Neither the statute nor the legislative history of the 1976 Act provided guidance on when the renewal rights actually vested. The correct answer may determine whether assignments granted during the original term are valid and whether the correct renewal claimant has filed. There are three possibilities: (1) when the renewal term begins; (2) when a timely, proper renewal application is filed with the Copyright Office; or (3) when the renewal certificate is issued by the Copyright Office. The third possibility was undesirable because it depended on a mechanical and unpredictable government action.

The first period (when the renewal term begins) was adopted in Marascalco v. Fantasy, Inc., 17 USPQ2d 1409, 1411 (C.D. Cal. 1990), aff’d, 953 F.2d 469 (9th Cir. 1991), on the ground that it would best effectuate the congressional policy of protecting the rights of authors and their families. The second period (when a timely renewal application was filed) was adopted in Frederick Music Co. v. Sickler, 708 F. Supp. 587, 589 (S.D.N.Y. 1989), principally on the ground that the plain language of the statute did not mention survival until the renewal term began, instead stating that entitlement to the renewal term was available “when application for such renewal and extension shall have been made to the Copyright Office and duly registered therein.” Frederick Music Co. represented the better rule since the author (or other renewal claimant) had done all that he or she is required to do and the act of issuing a renewal application is ministerial, assuming the application is timely and properly filed.

The Copyright Renewal Act of 1992 clarified this question (and of course made renewal automatic). If a renewal registration is made in the 28th year of the original term, and the claimant dies following the renewal registration but before December 31 of that year, the renewal copyright is secured on behalf of the renewal claimant and the 67-year renewal term is conveyed as part of the claimant’s estate. However, if the renewal registration is not made in the 28th year of the original term, the renewal term will vest on January 1 of the 29th year from the commencement of federal protection in the party entitled to claim renewal as of December 31 of the 28th year (e.g., typically as assignee of the author).

The Copyright Office's Circular 15 states, in relevant part: "if a renewal registration is made in the 28th year and the renewal claimant dies following the renewal registration but before the end of the year, the renewal copyright is secured on behalf of that claimant."

The issue is currently on appeal to the Sixth Circuit in Roger Miller Music v. Sony/ATV Publishing, Nos. 05-6824, 05-6880, and will be bear watching. The Copyright Office sent a letter to counsel stating that this phrase in Circular 15, which used to follow that quoted above, no longer reflects the Office's views: "and the subject of the sixty-seven years of renewal copyright becomes a part of the individual's estate." The Office did not take a position of the merits of the case, but was concerned that the phrase was being used to state it did.

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