Citations and Summaries (copyright renewal failure)

07A renewal failure

Where to Look in the Law

1909 Act: §23
1947 Act: §24
1976 Act: §304(a)

CFR: § 202.17 Renewals.

Copyright Office Publications for Laymen

Circular 15

“Public Law 102-307, enacted on June 26, 1992, amended the copyright law to make renewal automatic and renewal registration optional for works originally copyrighted between January 1, 1964, and December 31, 1977.
“While this amendment to the current law makes renewal registration optional for works copyrighted between January 1, 1964, and December 31, 1977, there are a number of incentives that encourage the filing of a renewal application, especially during the 28th year of the copyright term.
“Public Law 105-298, enacted on October 27, 1998, amended the copyright law to add 20 years to the copyright term.” (Information Circular 15)

“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.” (Information Circular 15)

“For works copyrighted between January 1, 1964, and December 31, 1977, an application for renewal of copyright can be made:
“within the last (28th) calendar year of the original term of copyright or
“at any time during the renewed and extended term of 67 years.” (Information Circular 15) (EDITOR’S NOTE: The 28th year has already elapsed even for 1977 works. However, the passage remains valid in that the second term is ongoing for all 1964-1977 works.)

“A renewal registration may be made even if there were no original registration made during the original 28-year term. (This applies only to works first published in 1964 and later.)” (Information Circular 15)

Eligibility for renewal requires, among other things, that “[t]he renewal application and fee are received not less than 27 years after the 31st day of December of the calendar year in which all the works were first published”. (Information Circular 15)

What the Courts Ruled

Silverman vs CBS

SDNY (1986) `¤` 632 F.Supp. 1344
SDNY (1987) 666 F.Supp. 575
SDNY (1988) `¤` 675 F.Supp. 870
USCA (2-6-1989) `¤` 870 F.2d 40

In reaching a decision as to whether Silverman was entitled to create a Broadway musical based on the characters of Amos ‘n’ Andy against the wishes of CBS (which held copyrights on post-1948 Amos ‘n’ Andy radio scripts, although the pre-1948 ones had fallen into the public domain), the Appeals Court summarized a lower-court opinion: “With respect to the pre-1948 radio programs, Judge Goettel ruled that the scripts for these programs were in the public domain because the copyrights in these scripts, originally obtained by Gosden and Correll [writers and originators of the series], had not been renewed. He also ruled that the broadcasts of these programs (presumably the audiotapes of the broadcasts) were entitled to common law copyright protection because the broadcasts did not constitute publication, and publication had not otherwise occurred… .

“Turning next to the post-1948 radio programs, Judge Goettel ruled that CBS had common law copyrights in the scripts for these programs, which became statutory copyrights pursuant to the 1976 Act when CBS registered these scripts with the Copyright Office in early 1985.”

Thus: “For Silverman, the basic copyright principle means that he is entitled to use the public domain material from the pre-1948 scripts and may do so up to the point… protected by valid CBS copyrights.”

(A thorough summary of this case is under underlying copyright.)

George Barris vs Richard Hamilton, Madison Avenue Bookshop, Monacelli Press Inc., Anthony D’Offay Gallery Inc. and Tate Gallery Productions, Inc., Hacker Art Books, Inc. and the Museum of Contemporary Art, Los Angeles

USDC SDNY (5-14-1999) `¤` 51 USPQ 2d 1191, CCH 27,932

Photographs of Marilyn Monroe (1926-1962) bore 1962 copyright notice when published that year, but because they were not registered for copyright, they enjoyed only common-law copyright. The 1976 Act allowed for late registration of works still in their first term, so in 1986 the copyright owner took advantage of this provision by taking out copyright registration that year. Because 1962 was the year of publication, the first term ended in 1990. The copyright was not renewed, so the copyright didn’t protect the photographer’s rights beyond 1990.

Photographer Barris sought a declaration that his 28-year term began in 1986. He objected that his group of photos was first “‘published in England and not in the United States in 1962 and thus was not subject to renewal procedure.’ This contention is ill-founded. It is axiomatic that the publication with notice according to the 1909 Act in a signatory country to the Universal Copyright Convention triggered the onset of copyright protection in the United States.” (inner quote from plaintiff’s statement)

“By virtue of the 1909 Act and the Universal Copyright Convention, plaintiff was able to enjoy copyright protection for twenty eight years from the date of publication abroad. Further, that protection could have been renewed had plaintiff abided by the procedural rules of the 1909 Act… . [T]he Court finds that plaintiff’s copyright protection of the photographs in question expired upon his failure to renew in 1990. Since the alleged infringing acts took place from 1992 to 1996, and Plaintiff’s Amended Complaint fails to set forth a valid copyright for that period, Plaintiff’s claim of copyright infringement is dismissed…”

Barris offered as additional supposed proof his copyright registrations for two books — Marilyn (1986), text by Gloria Steinem, photos by Barris; and Marilyn—Her Life in Her Own Words: Marilyn Monroe’s Revealing Last Words and Photographs (1995), text and photos by Barris — but the judge did not see the relevance. Presumably, the judge recognized (without stating so) that at most these copyrights applied to the new matter and not to the previously-published photographs.

(Another aspect of this case is under term period calculation.)



illustrations: Of the four Barris photographs used by Hamilton in his collage, one (left) also appears (albeit with Barris’s authorization) in the book Marilyn (text by Gloria Steinem, 1986), pg. 163, and another photo (right) appears in Barris’s book Marilyn—Her Life in Her Own Words: Marilyn Monroe’s Revealing Last Words and Photographs, pg. 146. Although the other two photos used by Hamilton are obviously from the same sessions as some similar Barris photos in the two books, the comparable pictures in these books are different exposures and poses than the two others used by Hamilton. Richard Hamilton’s collage, titled My Marilyn, is often available online from art-print dealers who post on their sites an image of the collage. A Google search on `"Richard Hamilton" "My Marilyn"` should reveal any at the time of your search.

Cases Summarized in Other Sections

Classic Film Museum, Inc. vs Warner Bros. Inc. (launch this) concerns the failure to renew the copyright on the 1937 film version of A Star is Born.

Shoptalk vs Concorde-New Horizons (launch this) mentions the failure to renew the copyright registration on The Little Shop of Horrors (1960 version).

Renewal failure is mentioned in passing in decisions concerning the movies McLintock!, The Birth of a Nation, as well as some songs and magazine articles.

Other Information

Readers might assume that where there was a renewal filed and where the date falls outside the proper time period (see the section on “term period calculation” for more on that), the renewal is invalid. However, the following passage from the Compendium of Copyright Office Practices (1970 edition) illustrates an instance where this would not be the case. (The Compendium is an internal document used by the Copyright Office to guide Office employees in their work.)

“II. Details. The physical details of renewal registration need not be completed before the original term expires, if an acceptable application and fee are received before the deadline.

“III. Amendment after deadline. If an unacceptable application, necessitating correspondence, is received within the proper time-limits, it may be amended and accepted after the deadline if it originally contained a correct statement of either the claimant or the basis of claim. A special effort is made, however, to obtain a fully-acceptable application before the original term expires.” (pg. 11-9, in 11.2.1)

See also passages of the 1984 edition of the Compendium of Copyright Office Practices reproduced on this web site in section 07D “term period calculation.”