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August 7th, 2003
Recapturing Copyrights Alert
Sonny Bono was not just the other half of Sonny and Cher. Having survived life as a pop icon, Sonny Bono became a Congressman who has become memorialized in the Sonny Bono Copyright Term Extension Act.
This Act has extended copyright protection by 20 years, and has given authors and their heirs and successors another chance to recapture rights.
Under the pre-1978 Copyright Act, copyrights in the United States extended for up to 56 years (a 28 year initial term, which could be extended by a Copyright Office filing for an additional 28 years). Outside of the United States, the term of copyright under the Berne Convention was life of the author plus 50 years.
With the 1978 Copyright Act, the renewal term of copyright in the United States was extended from 28 to 47 years, providing for an aggregate possible copyright life of 75 years. In addition, for works created after January 1, 1978, the United States adopted the approach used in the rest of the world by providing that copyrights lasted for the life of the author plus 50 years (certain other rules relate to the term of copyright for works-made-for- hire).
The Sonny Bono Act extended the term of copyright for an additional 20 years (life of the author plus 70 years to match an extension the European Union made in 1995).
Under the 1978 Copyright Act, certain people (author; widow or widower and children and grandchildren) had a right to recapture the last 19 years of the copyright term which had been added by the 1978 Act.
Under the Sonny Bono Copyright Term Extension Act, anyone who had a right to terminate a license or grant which had been entered into before January 1, 1978, but who had failed to exercise that right previously (in effect, anyone who had not terminated pre-1978 agreements by the date 61 years from the original copyright date) was given a second bite at the intellectual property apple.
Exercise of termination rights
Who can exercise termination rights?
Termination rights can be exercised by the original author(s) of the copyrighted work if still alive, or by the author's widow or widower, children and grandchildren, if the author is not still alive. The Sonny Bono Act also permits termination rights to be exercised by an author's executor, administrator, or other personal representative if there are no widows, widowers, children or grandchildren. Termination rights do not exist with respect to works-made-for-hire.
Which grants can be terminated?
A grant or license which was entered into prior to January 1, 1978 is subject to a termination notice and recapture of rights. If a grant was executed after January 1, 1978, it is not subject to the termination and recapture provisions.
When can the right be exercised?
The Sonny Bono Act has created a second time period during which a termination notice can be sent. The starting point is the original date of copyright. If a work was copyrighted on or after 1942, then in 2001 a notice of termination can still be sent to recapture the remainder of 95 years from the date of the original copyright.
If a work was originally copyrighted between 1923 and 1941, and if a notice of termination has not previously been sent with respect to a pre-1978 grant or license, then there is now a new opportunity to terminate such grant or license and to recapture the rights if a notice is sent by not later than the date 78 years from the date of original copyright.
What is the effect of termination?
Keep in mind that a termination of a pre-1978 grant or license recaptures the right to create new derivative works, but does not prevent the original licensee from continuing to distribute and exploit for the term of copyright any derivative work which was created prior to the effective date of termination.
Also, the notice of termination must give the recipient of the notice at least two (2) years notice before the effective date of termination. The law is unclear about what would happen if a licensee creates a new derivative work during this two-year period.
For further information, or for assistance in implementing a notice of termination, please contact Thomas Selz.
Other Technology Law Alerts
Risky Business Just Got Riskier - DOJ Changes Stance on Internet Gambling
Last week the U.S. Department of Justice (DOJ) made waves in the online gambling industry with an Opinion interpreting the Wire Act (18 U.S.C. § 1084). In the Opinion, DOJ's Office of Legal Counsel concluded that most sections of the Wire Act are not limited to sports-related wagers and instead prohibit the use of interstate wires for any bets or wagers. Read more.
January 23 2019
Video Games With Advanced Communications Services Must Now Be Accessible to Players With Disabilities
An important legal waiver recently expired and as a result, video game developers and publishers must now ensure that new and substantially upgraded games comply with the accessibility requirements of the 21st Century Communications and Video Accessibility Act (“CVAA”). Read more.
January 7 2019
Shields On: 9th Circuit Strengthens Legal Defense for Video Game Developers
There's good news for game developers who incorporate real-world elements in their games. On October 20, 2017, the Court of Appeals for the Ninth Circuit affirmed a trial court decision which found that Gran Turismo, a Sony video game, was an expressive work entitled to First Amendment protection Read more.
November 2 2017