Tuesday, February 13, 2007

Renewal and the Dead Author

Does a renewal copyright vest when the renewal term begins? (That is, on January 1st of the 29th year from publication). Neither the statute nor the legislative history of the 1976 Act provided guidance on the question. The issue was featured in an opinion yesterday from the ever-prolific Sixth Circuit, in Roger Miller Music , Inc. v. Sony/ATV Publishing, LLC, 2007 WL 443048. In the Roger Miller case, there were the extra twists of the renewal coming due in the very year renewal became automatic (1992), the author dying in the 28th year (1964), and a renewal application filed in that year, triggering a special provision enacted in the 1992 legislation.

There are three possibilities for vesting of a renewal term. Renewal could vest: (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 is undesirable because it depends on a mechanical and uncertain date. 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), a pre-1992 case, on the ground that it would best effectuate the congressional policy of protecting the rights of authors and their families. The Marascalco approach also had the benefit of making the beginning of the renewal term and vesting coterminous.

The second option (renewal vests when a timely renewal application is filed) was adopted in Frederick Music Co. v. Sickler, 708 F. Supp. 587, 589 (S.D.N.Y. 1989), another pre-1992 case,
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.” See also 708 F. Supp. at 592. “[R]enewal rights vest upon registration for renewal during the author’s lifetime and within the statutorily prescribed renewal period.”

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, although it does mean that the vesting of the renewal term and its commencement may not be coterminous.

The Copyright Renewal Act of 1992 clarified this question. 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). Here is the statutory langauge:

Section 304(c)(2)(A) At the expiration of the original term of copyright in a work specified in paragraph (1)(B) of this subsection, the copyright shall endure for a renewed and extended further term of 67 years, which —

(i) if an application to register a claim to such further term has been made to the Copyright Office within 1 year before the expiration of the original term of copyright, and the claim is registered, shall vest, upon the beginning of such further term, in the proprietor of the copyright who is entitled to claim the renewal of copyright at the time the application is made; or

(ii) if no such application is made or the claim pursuant to such application is not registered, shall vest, upon the beginning of such further term, in the person or entity that was the proprietor of the copyright as of the last day of the original term of copyright.

These provisions were inserted at the request of a motion picture company, which argued that it shouldn't be disadvantaged by automatic renewal where the author died before the renewal term but no renewal registration was filed. (In Rear Window a renewal was made). Under those facts, the work would have been in the public domain and the motion picture company would have been free (along with anyone) to use the work.

In the Roger Miller case, Sony filed the renewal application on behalf of Miller before Miller died. If I understand the facts and the statute (and I am most interested if anyone has a different interpretation), submitting the renewal applications worked to Sony's disadvantage (although in 1964 Sony could not have known about how a statute would be drafted 28 years later): because the renewal application was filed in the 28th year and Miller died in that year, under the statute the rights vested in Miller's heirs. Had Sony not filed the renewals (and had the heirs not filed either), Sony would have taken the renewal term under the statute even though Miller died before the renewal term began because it would have been deemed to vest in Sony on January 1, 1993. Professor Tim Armstrong discusses the case at Info/Law.

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