Tuesday, April 26, 2016

It's World Intellectual Property Day. This is a day to improve understanding about trademark, patents, copyright, and other intellectual property protections. So, here's a brief history of U.S. copyright law...........................

The Constitution establishes the right to copyright, but leaves it up to Congress to determine how long copyright should last.

Copyright Act of 1790 – Established a copyright with a term of 14 years, with a 14-year renewal. Copyright must be filed for. Renewal must be filed for (it is not automatic).

Copyright Act of 1831 – Extended the term of a copyright to 28 years, with a 14-year renewal.

Copyright Act of 1909 – Kept the copyright term at 28 years, but extended the renewal term to 28 years. Now a notice of copyright (the famous "(c) Tim Evanson") must be attached to the copyrighted work.

Beginning in 1964, Congress began to debate major changes to copyright. This was spurred by the plight of Joe Shuster and Jerry Siegel, the men who created Superman but sold their work to National Publications for a pittance and now (in old age) were living in poverty. Congress decided to allow authors who'd sold their work prior to the new act to "claw back" their rights after 56 years had passed. To assuage corporations, Congress agreed to extend the copyright term......................

Copyright Act of 1976 – Extended the copyright term to either 75 years or life of the author plus 50 years. Notice of copyright no longer needed to be attached to the work. No longer did one need to file for copyright; copyright was automatic the moment the work was published. Made all works published prior to January 1, 1923, in the public domain. Gave artists the right to recover copyrights when their renewal was up. Renewal still needed to be filed for any work created prior to 1976.

Copyright Renewal Act of 1992 – Removed the formal renewal requirement for any work published after 1964.

But what if a work had been set in final form (like a story or photograph) prior to 1923, but NOT published? What was their status? No one was sure.

And then, The Walt Disney Co. suddenly faced a real dilemma: Mickey Mouse had been created in 1928. His copyright should have expired in 1984, but the Copyright Act of 1976 allowed the copyright to extend to "life of author plus 50". Unfortunately, Walt Disney had died in 1966. This meant the copyright on Mickey Mouse was going to expire in 2016!! Disney was terrified at the possibility of losing access to their biggest money-machine. So they began to lobby Congress for an extension to copyright....................................


Copyright Term Extension Act of 1998 – Also known as "The Mickey Mouse Copyright Act". It extended the copyright term to a whopping 95 years for all works published from January 1, 1923, to December 31, 1977; copyright was now life-of-author plus 70 years for all works published January 1, 1978, or later. Unpublished works created prior to 1978 have a copyright that runs 120 years from the date of creation (if known) or life-of-author plus 70 years, with the provision that no such work shall lose its copyright prior to 2003. Unpublished works created between 1978 and 2003 have a copyright that runs 120 years from the date of creation (if known) or life-of-author plus 70 years, with the provision that no such work shall lose its copyright prior to 2047.



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Note 1: In "Golan v. Holder", 132 S.Ct. 873 (2012), the Supreme Court ruled that Congress, at its discretion, can restore copyright to a work even if that work has entered the public domain. This means that a person may use a public domain image today, but if Congress re-copyrights it -- then that person is suddenly in violation of copyright.

Note 2: "Publication" is the key word here. Ideas cannot be copyrighted. If you have an idea for a sword-and-sorcery novel, anyone can use it. For copyright to function, an idea must first be put into a fixed form. Then the work must be published. Public performance or public display does NOT constitute publication. (That's because the creator is now allowing anyone else to own, hold, or use the work.) Only the distribution to the public by sale or other transfer of ownership, or by rental lease, or by lending constitutes publication. ("Public" means no explicit or implicit restrictions with respect to the content.)

Notice how this works: Great-Grandma Josephine takes a photograph on January 1, 1923. She obtains copyright to her work immediately under the 1976 act. She dies in 1945. Her photo will not enter the public domain until 2043. In 2042, however, "Photographia: The Magazine of Photographic History" publishes her photograph with the permission of her heirs. The work now does not lose its copyright for 95 more years.

Notice how this works: Great-Grandma Hermione takes a photograph....sometime. We are not sure when. She obtains copyright to her work immediately under the 1976 act. She dies in 1945. Her photo will not enter the public domain until 2015. In 2014, however, "Photography of the Lost Ages" magazine publishes her photograph with the permission of her heirs. The work now does not lose its copyright for 95 more years.

This is a major risk. The 1976 copyright act essentially provides a double-copyright, protecting works for as long as 215 years.

Is that how it's supposed to work? I don't think so, but it does.

Mickey Mouse will now lose his copyright in 2036. If you don't think the Walt Disney Co. is heavily lobbying Congress for yet another extension, you're a fool.

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