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Copyrights Don’t Last Forever—Not Even For Mickey Mouse Or “Happy Birthday”

Copyright expiration is a deadline that demands your business’ attention.  Because copyrights last for decades, monitoring their expiration dates often take a back seat to more immediate business concerns.  Although your business is unable to extend the expiration of its copyrights, your business is not powerless to guard against the negative impacts of copyright expiration.  Counting on copyright protection without also monitoring and planning for impending expiration can devastate your long-term business plan.  Implementing effective copyright portfolio management is crucial to your business’ long term growth and sustainability.

Copyrighted works have enjoyed a longer shelf life since Congress passed and President Clinton signed into law the Copy Right Term Extension Act (also known as the Sonny Bono Act or the Mickey Mouse Protection Act) in 1998 (the “1998 Act”).  The 1998 Act extended copyright terms in the United States so they conformed to the copyright expiration terms promulgated by the European Union.  Prior to the 1998 Act, a copyright would last for the life of the author plus 50 years, or for corporate authorship, 100 years after creation or 75 years after publication, whichever would have expired first.  The 1998 Act extended those terms to the life of the author plus 70 years, or for corporate authorship, 120 years after creation or 95 years after publication, whichever expires first.

Thus, under the 1998 Act, copyrights that would have expired in 1998 are now set to expire on January 1, 2019.  The copyright expiration terms under the 1998 Act are the following:

Date of Publication Copyright Term

 

Before 1923 In public domain

 

1923 through Dec. 31, 1977 95 years after publication date

 

Jan. 1, 1978 through Dec. 31, 2002 70 years after the death of the author.  If corporate authorship, 95 years from publication or 120 years from creation, whichever expires first.  For works created before Jan. 1, 1978 (but published Jan. 1, 1978 through Dec. 31, 2002), the term would not expire before December 31, 2047.
After Dec. 31, 2002 70 years after the death of the author.  If corporate authorship, 95 years from publication or 120 years from creation, whichever expires first.

Many businesses have a lot at stake with their copyrights.  For example, on January 1, 2019, Disney will lose its copyright on Mickey Mouse.  Even the song “Happy Birthday to You” must face the music:  a federal court in California recently decided that the song, which earned the now-former copyright owner an estimated $2 million dollars a year, is in the public domain and therefore not entitled to copyright protection.

Whether Congress will further extend copyright terms remains to be seen.  Furthermore, although the U.S. Supreme Court has ruled that under the Copyright Clause[1] Congress has discretion to extend the terms of existing copyrights for “limited times,” it is not clear just how “limited” those times must be.  See Eldred v. Ashcroft, 537 U.S. 186, 199 (2003).

Businesses certainly should not count on another legislative extension of copyrights.  Expiration of a copyright means that the public has the right to reproduce and copy the work without consent and without paying for it.  Therefore, businesses must plan for the expiration of their copyrights so that once their copyrighted works become part of the public domain, they are not ill-prepared to handle the aftermath.

Good portfolio management, including diversifying your copyright portfolio, can help your business plan ahead for the expiration of its copyrights.  Although copyright expiration is inevitable, the negative impact on your business need not be.  If your business relies on the value gained from its copyrighted works, your business must be prepared for and account for the fact that the copyright will not always enjoy protection.

[1] U.S. Const. Art. I, § 8, cl. 8.

About The Authors

Joseph Avanzato

I am a shareholder and business litigator at AP&S. I am the chair of AP&S’ Appellate Practice Group and chair of its Bankruptcy, Receivership & Creditors’ Rights Group.

Jamie J. Bachant

I practice in AP&S’ Litigation Group, where I primarily focus on matters affecting businesses throughout Rhode Island. I have assisted in the representation of clients in state and federal court in cases involving non-compete agreements, breaches of contract, premises liability, professional negligence, and the diversion of goods.

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