Dave's Top Eight

1. Jerry Reed...Revisited by Darrell Toney (reviewed 6/07) (5 Stars)
2. Sounds Like Sunday by Janet Paschal (reviewed 5/07) (5 Stars)
3. True To The Call by Kingdom Heirs (reviewed 3/07) (4 1/2 Stars)
4. Revival by Gold City (reviewed 10/06) (4 1/2 Stars)
5. Get Away Jordan by Ernie Haase & Signature Sound (reviewed 2/07) (4 1/2 Stars)
6. Breakin' Chains by Three Bridges (reviewed 5/07) (4 1/2 Stars)
7. Big Sky by The Isaacs (reviewed 4/07)
8. Skywriting by Mercy's Well (reviewed 7/07)

Click title to purchase at CBD.com...click artist name to read Dave's Review. A CD will automatically fall out of the Top Eight after twelve months if no CD surpasses it before then.

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April 28, 2007

Copyright Duration: Details and Oddities

Below, I'm essentially reprinting an entry that I wrote on the Singing News message boards just now. I spent so much time on it, I thought I may as well post it here where other readers could see it.

The question was asked initially about the legality of modifying lyrics. This morphed into a discussion about the duration of copyright. I had responded at one point, but later found out I had at least one mis-conception of my own. I knew the current term for copyrights was the life of the author plus 70 years, and that on songs published prior to 1978 (when the law changed completely), the period was 95 years. My mistake was in assuming that 95 years applied to all songs dating back 95 years...it doesn't...not yet.

By the way, the message board thread title for this is "Question for Smart People," so I just naturally assume they're seeking MY help. :o)

They may not have wanted quite this much in the way of worrisome detail, though. Unfortunately, complication is part of the game when it comes to law.

Let's jump into the conversation where Daniel Mount asks:

"So are you saying everything released over 75 years ago--i.e., 1931 and older--is PD?"

No, I was saying that all songs over 95 (1911) years old are in the public domain. The Sonny Bono act added a 20 year extension to pre-1978 songs in 1998. As it turns out, though, that isn't exactly correct. The magic date is 1922, and it will be the magic date for a number of years.

Right now, we're in a freeze period of 20 years while the 1998 extension runs its course.

I'll work through the example you mentioned first.

Assuming 1928 is the first year "Give The World A Smile" was PUBLISHED or REGISTERED (which may not necessarily be the year it was written), it would have held a 28 year copyright initially, taking it to 1956. At that point, it could have been renewed for another 28 years, which means it would have expired in 1984.

I should interject here that beginning in 1962, the renewal term began to grow a bit each year, leading up to the 1976 copyright act. This did not have an effect on "Give The World A Smile," since it was renewed in 1956.

In 1976, an entirely new way of dealing with copyright was approved. The 1976 copyright act did not go into effect until 1978. It preempted existing law. One thing it did was fix the renewal term for all works prior to 1978 at 47 years, so for our example, you must go back to 1956 and add 47 rather than 28. At this point in history, "Give The World A Smile" would have expired in 2003. Then along comes the 20-year extension of 1998, and as it sits right now, "Give The World A Smile" is good through 2023...95 years.

Now, here's why the magic year is 1922 rather than 1911. I did some research and you are correct that any song that had already expired before 1998 did NOT get a 20 year extension. Here what the law states:

"304. Duration of copyright: Subsisting copyrights

(a) Copyrights in Their First Term on January 1, 1978. —

(1)(A) Any copyright, in the first term of which is subsisting on January 1, 1978, shall endure for 28 years from the date it was originally secured."

"(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 —"

"(b) Copyrights in Their Renewal Term at the Time of the Effective Date of the Sonny Bono Copyright Term Extension Act.7 — Any copyright still in its renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes effective shall have a copyright term of 95 years from the date copyright was originally secured."

(I've cut and pasted the pertinent parts only. All this comes from the federal government's own website.)

It's simply a long way of saying any song published before 1978 that hasn't entered public domain will have a 95 year term. This means that any song published in 1922 or earlier would have to be in public domain now. A song published in 1922 would have expired in 1997 under what was the existing 75 year maximum of the law in 1997.

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Now for another wrinkle...PUBLISH date is more important than WRITTEN or CREATION date of a work. The 1998 act stipulated that a song written but not published or registered before 1978 gets the current copyright protection of the life of the author plus 70 years. This means you could find some song your great-granny had written in 1930, register it, and claim royalties off of it for another 70 years after the date of her death.

To wrinkle the wrinkle a bit further, if she died in 1931, you would think the copyright's maximum life for a work that hadn't been registered until, say, 2002, would already be over...since the 70 years were up.

Nope...you could have registered the song in 2002 and still got protection on it through 2047! For that matter, it didn't have to be written in 1930. It could have been written and lain undiscovered for centuries. If you registered it by 2002, you got protection until 2047.

Why this odd language was added to the law is a great mystery that I will never understand. It's so specific, it had to have been written so that some particular entity could benefit from it. What other rational explanation can there be? Someone must have had a stash of unpublished songs they figured would have potential market value, and they somehow convinced Congress to add this peculiar 4-year window during which they could register those works and take advantage of 45-49 years of copyright protection on songs they themselves didn't even write and that the songwriters didn't bother to publish.

Weird stuff.

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By the way, if you're curious about anonymous, pseudonymous, and "work for hire" terms, those get 95 years from the first year of publication OR 120 years from the year of creation, whichever expires first.

This doesn't give anyone who steals a song protection, though it may seem that way when you first read the law. If the anonymous or pseudonymous writer lays claim to their song once it's published, then the current copyright law of the author's life plus 70 years goes into effect.

A work for hire songwriter could obviously dispute the claim that they wrote the song on a "for hire" basis, if in fact, they didn't.

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One final note. I'm obviously NOT a lawyer, so don't take any of this as legal advice...it's just what I understand the law to say.

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posted by David Bruce Murray @ 1:15:00 AM


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