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07D renewal window (term period) calculation
1909 Act: §§23, 24
1947 Act: §§24
1976 Act: §§302-305; Transitional and Supplementary Provisions §107 (ad interim copyright);
“All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire.” (§305)
The following passage is from the Code of Federal Regulations, Title 37, §202.17:
“(e) Renewal time limits.
“(1) For works originally copyrighted between January 1, 1964, and December 31, 1977, claims to renewal copyright may be registered within the last year of the original term, which begins on December 31 of the 27th year of the copyright, and runs through December 31 of the 28th year of the copyright, or at anytime during the extended sixty-seven year second term, if the second term is renewed by operation of Public Law 102-307, 106 Stat. 264. The original copyright term for a published work is computed from the date of first publication; the term for a work originally registered in unpublished form is computed from the date of registration in the Copyright Office. To vest the renewal copyright by registration, the required renewal application, fee, and, if original term registration has not been made, the Addendum specified in paragraph (h) of this section must be received in the Copyright Office during the prescribed period before the first term of copyright expires. The Copyright Office has no discretion to extend the renewal time limits for vesting of the renewal copyright by registration.
“(2) The provisions of paragraph (e)(1) of this section are subject to the following qualification: In order to vest the renewal copyright by registration in any case where the year date in the notice on copies distributed by authority of the copyright owner is earlier than the year of first publication, claims to renewal copyright must be registered within the last year of the original copyright term, which begins on December 31 of the 27th year from the year contained in the notice, and runs through December 31 of the 28th year from the year contained in the notice.”
Circulars 15, 15a, 15t
“Under the law in effect before 1978, ... The term of copyright for works published with a year date in the notice that is earlier than the actual date of publication is computed from the year date in the copyright notice....
“The old system of computing the duration of protection was carried over into the 1976 statute with one major change: the length of the second term is increased to 67 years. ... Enactment of Public Law 105-298 extended the second 47-year term an additional 20 years.” (Information Circular 15a)
“The law provides that all terms of copyright will run through the end of the calendar year in which they would otherwise expire. This affects the duration of all copyrights, including those subsisting in either their first or second term in January 1, 1978. For works eligible for renewal registration, the renewal filing period begins on December 31st of the 27th year of the copyright term and ends on December 31st of the 28th year of the copyright term.” (Information Circular 15t)
“June 26, 1992[:] Renewal registration became optional. Works copyrighted between January 1, 1964, and December 31, 1977, automatically renewed even if registration not made.” (Information Circular1a)
SEE ALSO the quotes under “Copyright Office Publications for Laymen” in the page on this web site “07A renewal failure.” It indicates that the renewal-period window opens “the 31st day of December of the calendar year in which all the works were first published” (emphasis added).
Charles Y. Turner copyrighted his painting “The Marriage of the Waters” October 30, 1905. According to the court’s decision, the copyright expired October 29, 1933. The expiration should have been the 28th anniversary of the registration, which was October 30, 1933, not the day before as the court wrote. As the exact expiration did not have a bearing on the decision (which concerned who owned the copyright and thus had the right of renewal), this difference in the date did not warrant being challenged. Nonetheless, it does point to there being uncertainties in the judiciary as to how the copyright term is to be computed.
The song “My Melancholy Baby” remained popular even as the copyright entered its second term. However, because there was an unpublished 1911 version prior to there being a published 1912 version with “1911” in the notice, two music-rights companies became embroiled in a suit over whether the song had entered the public domain after the first term of copyright. The 1911 and 1912 versions differed in, among other respects, the 1911 lyrics being by Watson whereas the 1912 lyrics were by Norton; the music was by Burnett both times.
Claimant “Bennett did not literally comply with these [statute] requirements: although his name appeared, the notice did not state directly that he copyrighted the song in 1912. His notice was of Burnett’s copyright of the 1911 version and its transfer to him in 1912. Nevertheless it is apparent that he intended to copyright the 1912 version, for that was the song he was publishing. His intent being plain to copyright the published song, the fact that the notice impliedly attributed the authorship of both music and words to Bennett is, we think, irrelevant. Also irrelevant is the mistake in date, except as it may operate to cut down the term of the copyright. Neither of these innocent errors misled the public to its prejudice, or failed to give it notice not to infringe. The purpose of a copyright notice is to prevent innocent persons who are unaware of the existence of the copyright from incurring the penalties of infringers by making use of the copyrighted work. The published notice was sufficient to inform a prospective copyist that Bennett was trying to get copyright protection for that published song to which he attached it. Had such a copyist looked up Bennett’s copyright, he would have found that it protected an ‘unpublished song’ with different words, but that ought not to have satisfied him that Norton’s words were in the public domain; on the contrary, he would then have the more reason to believe that Bennett was trying to protect the song as published, and he should be chargeable with knowledge of such facts as reasonable inquiry would have disclosed. Such an inquiry addressed to Bennett would have disclosed that he was the proprietor of both Norton’s words and Burnett’s music and intended to obtain protection for the song as published. So we think the 1912 copyright was valid provided Burnett’s music and Norton’s words were a ‘new work’”.
“There remains for consideration the question whether Burnett’s renewal of copyright on the 1912 version was valid. This depends on whether it was timely. It was made on December 2, 1939, which was after the expiration on October 31, 1939, of the term of the 1911 copyright on the unpublished song. Because Bennett’s notice of copyright on the published version gave the date of copyright as 1911 instead of 1912, the copyright on the published song cannot extend beyond December 31, 1939. If it is extended to that date the renewal was timely. If, however, it was cut down to the term of the 1911 copyright (October 31, 1939), the renewal was too late. The theory upon which a mistaken date in the notice can have any legal effect is that it may mislead the public as to the length of the monopoly. We can see no reason why the public should take one day in the year stated rather than another; in other words the public has no reason to assume that the work is in the public domain until the year has expired.... [A]nyone looking up the 1911 copyright would get notice that it did not cover the combination (words and music) of the published song. Since that was a ‘new and joint work’ Burnett’s renewal was valid.”
Writing about The Bicycle Thief (a classic Italian film), the Court stated that the “date of publication of the film was December 6, 1948.... [A]n application for a valid renewal would have had to have been filed between December 6, 1975 and December 6, 1976.” It wasn’t.
(A complete summary of this case is under derivative versions. Please note that although the U.S. copyright was not renewed, the entry of the United States into the URAA/GATT has resulted in the United States respecting the Italian copyright. Thus, two decades after the 1976 renewal failure, the film again enjoyed copyright protection in the United States.)
“In 1956, John Marascalo and Robert A. Blackwell co-wrote the song ‘Good Golly Miss Molly’.... Venice [Music] registered the song with the Copyright Office on January 22, 1957...
“Marascalo and Blackwell’s original copyright term expired January 22, 1985, with the renewal period—the one year period prior to the copyright’s expiration during which time the copyright can be renewed—extending from January 22, 1984 to January 22, 1985. However, after the enactment of section 305, the renewal period ran from December 31, 1984 through December 31, 1985.”
(These facts were not disputed in the trial, but the fact that Blackwell died during the renewal year had an effect on ownership during the renewal period. See the write-up under renewal term: rights of next-of-kin. The decision also reached a judgment as to whether the song was a work for hire.)
To determine whether two 1946 songs (copyrighted together) had entered into a second term, the Court had to decide “whether an application for copyright renewal that is filed with the Copyright Office before the one year period immediately prior to the expiration of the original copyright renews the copyright. The Court holds, based on the record in this case, that the copyrights in dispute were not renewed and that the works are in the public domain.”
The facts: “The original copyright registration for both ‘Sunnyside of the Mountain’ and ‘Patanio, Pride of the Plain’ was filed with the Copyright Office on January 29, 1946.” The date of publication recorded on the Certificate of Registration was given as January 24, 1946. “The original copyright, thus, expired on January 24, 1974, twenty-eight years after publication. The one year period immediately prior to the expiration of the copyright, therefore, ran from January 25, 1973, to January 24, 1974. The copyright renewal application for both works was filed with the Copyright Office on January 22, 1973, three days before the one year period immediately prior to the expiration of the original copyright.” The two songs together make up Big Slim: The Lone Cowboy’s Folio.
“Plaintiffs do not dispute the fact that the copyright renewal applications for these works was filed three days before the one year period immediately prior to the expiration of the original copyright. Plaintiffs, nevertheless, contest the legal effect of this fact....
“The Court find that the phrase ‘within one year prior to the expiration of the original term of copyright’ in Section 24 of the Copyright Act of 1909 means that a copyright renewal application must be filed inside the relevant one year period, and not either before the commencement of such period or after the termination of such period.
“Applying this legal conclusion to the facts presented in this case, the Court holds that the application for copyright renewal for ‘Sunnyside of the Mountain’ and ‘Patanio, Pride of the Plain’ did not renew the original copyrights because it was not filed within, or inside, the one year period immediately prior to the expiration of the original copyright. The application for renewal was filed three days too early and thus is ineffective. Accordingly, ‘Sunnyside of the Mountain’ and ‘Patanio, Pride of the Plain’ are in the public domain.
“Plaintiffs take the position that the Copyright Office approved the application for renewal and, therefore, the musical compositions at issue were validly renewed. Although the Court may consider the administrative actions of the Copyright Office, it is not bound by such actions in determining the law and applying it to the facts of a particular case.”
(The same trial determined whether four other songs were in the public domain for lack of copyright notice. See the summary under copyright notice omission.)
A comprehensive summary of this case is under registration late (duplicated under renewal failure).
Barris’s photographs were first published August 14, 1962, although they would not be registered for copyright until November 21, 1986. In calculating the period when the 28-year copyright term would be eligible for renewal, the decision states, “Plaintiff’s original copyright term commenced on August 14, 1962 when the work was first published, and expired at the end of August 13, 1990. Under the 1909 Act, Plaintiff could have renewed his copyright between August 14, 1989 and August 13, 1990.” Oddly enough, he quotes the Copyright Office document “Circular 15” where it states “if a copyright originally secured before January 1, 1964, was not renewed at the proper time, copyright protection expired at the end of the 28th calendar year of the copyright, and could not be restored.” Despite his encountering the reference to the “calendar year”, he determined the date on the basis of the anniversary year. There is nothing in the opinion indicating why he would not have applied the rule of Section 305 in the 1976 Act indicating that “copyrights in their first term on January 1, 1978” (see section 304) “run to the end of the calendar year in which they would otherwise expire.” Perhaps the fact that this copyright was not recorded as of that date but came into being retroactively, made the difference. This difference of expiration dates (both of which are in 1990) does not change any aspect material to the specific verdict.
In reading the quotations under “Where to Look in the Law” (above), the term “year” should be read as “calendar year” as opposed to a period that begins on the effective date of a copyright and ends on the same day and month the following year. Other texts issued by agencies of the U.S. Government have specified that the applicable calculations must be made on the basis of a calendar year.
Some might argue that without such delineation, it is expected that a year begins with the first date of a copyright, for otherwise the term would begin with a partial year prior to the full years which are counted. However, when one considers that renewal (if it is to be valid in accordance to Title 17) has to be in the last year of the original term, and that all terms still subject to renewal (the subject of the quoted documents) run to the end of the end of the calendar year in which they expire, then it must follow that the measuring is made on the basis of calendar years.
Here’s why: if a one-year window began with the 27th occurrence of December 31st after the publication date, the one-year window would end on the 28th occurrence of a December 31st, and there would be no option to renew during the final year leading up to the 29th occurrence, which would be the final day after 28 full years of copyright term plus the remainder of the calendar year after the 28th anniversary of the start date. If the renewal eligibility period began on the 27th occurrence of December 31, then in order for the eligibility to remain open until the final day of the copyright term (the 29th occurrence of December 31), the eligibility period would be two years in length — which is not the time window specified in any version of the Copyright Act.
The Compendium of Copyright Office Practices is an internal document used by the Copyright Office to guide Office employees in their work. The 1970 edition states, in item 11.2.2:
“Computing term. The renewal year comprises the year ending on the date of expiration of the original copyright term. It includes both the twenty-seventh and twenty-eighth anniversaries of the date on which the copyright began.
“I. Application before renewal year. An application received at any time before the beginning of the renewal year must be rejected, and an entirely new application must be submitted at the proper time.
“II. Application after renewal year. If an application or fee is received after the renewal year has expired, the claim must be rejected.
“a. When the office records or original certificate contain an error, omission, or patent ambiguity with respect to the date of publication or registration, which may have misled the renewal applicant, registration is possible after the twenty-eighth year as a doubtful case.
“b. When the office records state a date of publication which has not been questioned or corrected, renewal registration will not be made more than twenty-eight years after that date, even when the renewal applicant asserts that the date was erroneous.
“[...]
“IV. Week-end or holiday. If the original copyright expires on a Saturday, Sunday, or holiday within the District of Columbia, renewal action may be taken on the next succeeding business day.” (pgs. 11-9 and 11-10; I, II and IV are reproduced here complete)
The 1984 edition of the Compendium of Copyright Office Practices states the following:
“1303 Computing term for published works. Copyright for works published before January 1, 1978, generally began on the date of first publication. However, under the current Act the original term does not expire until the end of the last day of the 28th calendar year measured from the year of first publication.
“1303.01 Antedated notice. In cases where the year date in the copyright notice appearing on copies as first published was earlier than the actual date of publication, the original term of copyright is computed from the last day of the year given in the notice, and not the date of publication. The actual date of publication should be given in the renewal application, and the Copyright Office will add the annotation: ‘YEAR DATE IN COPYRIGHT NOTICE: 19__.’ Claims to renewal copyright received more than 28 years from the first day in the year given in the copyright notice will be refused registration. See also section 1308 below.
“1303.02 Postdated notice, If the year date in the copyright notice appearing on the copies as published was one year later than the actual date of publication, the original term is computed for renewal purposes from the year date of publication. No annotation respecting a postdated notice will be made to the renewal application. [pgs 1300-3 to 1300-4] [...]
“1307 Application received before the renewal year. A renewal application received at any time before the beginning of the renewal year will not be accepted. An entirely new application must be submitted during the proper year.
“1308 Application received after the renewal year. If an application or fee is received after the renewal year has expired, the claim will be refused.
“* When the application filed too late in reasonable reliance on a record created, or original certificate issued, by the Copyright Office, or an official Copyright Office search report, which contained an error, omission, or patent ambiguity with respect to the term, the Copyright Office will register the renewal claim as a doubtful case.
“* When the Copyright Office records state a date of publication which has not been questioned or corrected, renewal registration will not be made after the 28th year from that date, even when the renewal applicant asserts that the date was erroneous. Concerning the procedure for correcting a date of publication, see Chapter 1500: CORRECTIONS AND AMPLIFICATIONS OF COPYRIGHT RECORDS: SUPPLEMENTARY REGISTRATIONS.
“Examples:
“1) Where the renewal applicant has relied on a certificate of original registration which lacked an annotation showing that the year date in the copyright notice was antedated, a renewal application will be accepted during the 28th year measured from the date of publication.
“2) Where the applicant has relied on incorrect information appearing in the Catalog of Copyright Entries as a result of a copyright Office error, renewal registration will be made. [1300-6 to 1300-7]”
The Copyright Registration and Renewal Information Chart and Web Site
© 2007 David P. Hayes