Author: Gavin Law Offices

Happy New Year, Gavin Law followers!

Some people think the most wonderful time of the year is Christmas, but starting 2019, we are going to receive gifts every January 1st.  Why is that, you ask?

Previously copyrighted works are starting to enter the public domain again!  No copyrighted works have entered the public domain since January 1st, 1998, so this is a truly momentous occasion.  

What does it mean for a work to enter the public domain?  

To start, copyrights give a certain amount of protection to their owners, but do eventually expire.  When a work reaches the end of its term (either by expiration, abandonment, or lack of protection), it enters the public domain. The public domain is full of beautiful creative works of originality that can be used by ANYONE, without fear of infringing copyrights in these works.  Some examples of works famously in the public domain are works of Shakespeare.  This is why we have so many Shakespeare-based derivative films, such as Romeo and Juliet, or Rosencrantz and Guildenstern Are Dead.  Because Jane Austen’s works are in the public domain, we have Pride and Prejudice and Zombies!  Works that enter into the public domain often feed the creativity of new artists.

How long do copyrights last, anyways?

The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication. As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to 1978, the term will vary depending on several factors.

Why did works stop entering the public domain 20 years ago?

In 1998, Congress passed the Sonny Bono Copyright Term Extension Act, which effectively added twenty-one years of protection to works that were under the protection of copyright law.  This Act was incredibly controversial, and many believed that Disney lobbyists were the driving motivator behind the Act, as a copyright on Mickey Mouse was due to expire.  Works created in 1923 or later were therefore set to enter the public domain, not in 1998, but in 2019.     

What works enter the public domain this year?

A variety of works enter the public domain, including the below that are particularly exciting.  However, Duke has published the full list, which you should feel free to peruse here: https://law.duke.edu/cspd/publicdomainday/2019/.

• Tarzan and the Golden Lion, by Edgar Rice Burroughs
• The Inimitable Jeeves, by P.G. Wodehouse
• Stopping by Woods on a Snowy Evening, by Robert Frost
• Don Quixote, by Miguel Cervantes
• The Ego and the Id, by Sigmund Freud
• The Prophet, by Kahlil Gibran
• Tulips & Chimneys, by e.e. cummings

Concluding our coverage of the Music Modernization Act (MMA), this article explores the final Title III of the bill, the “Allocation for Music Products Act” or AMP Act. (To read more about the bill generally, visit the prior blogs Title I and Title II.) Whereas the other two titles have focused primarily on songwriters and musicians, the AMP Act is the Copyright Act’s effort to recognize the roles of producers, mixers, and sound engineers in the creation and production of a sound recording by granting them a statutory right to royalties in from digital performance services. Critically, thanks to the AMP Act, producers, mixers, and sound engineers will not need to enter into contracts that explicitly establish compensation for digital transmissions.

As reported by IP Law Watch, the AMP Act “codifies the requested royalty allocations from artists to studio professionals that SoundExchange[1] has honored since 2004. (For more information see S. Rept. 115-339 (115th Congress Sept. 17, 2018) (Report of the Committee on the Judiciary to accompany S. 2823, The Music Modernization Act). In particular, the AMP Act allows SoundExchange to receive a “letter of direction” from an artist to “distribute, to a producer, mixer, or sound engineer who was part of the creative process that created a sound recording, a portion of the payments to which the payee would otherwise be entitled from the licensing of transmissions of the sound recording.” Although similar allocations are already in place for many, if not most, sound recordings after 1995, this authorization granted by the AMP Act is unique as it enables a more direct, and ideally efficient, process.

Because SoundExchange mainly handles sound recordings created after 1995, the AMP Act provides guidance for sound recordings predating November 1, 1995. For these sound recordings, producers, mixers and sound engineers may receive a distribution of 2% of collected receipts from licensing transmissions of the sound recording as deducted from the amounts payable to the artist provided that the producer, mixer, or sound engineer can evidence a failed attempt to obtain a “letter of direction” from the artist. In addition to these requirements, producers, mixers, and sound engineers would not be immediately entitled to the 2% distribution—there would be an “objection period” in which an artist or owner of the sound recording could raise objections.

There is one minor wrinkle to the above guidelines for sound recordings fixed before November 1, 1995: the relevant sections of the AMP Act—Section 114(g)(5)(B) (pre-1995 recordings) and Section 114(g)(6)(E)(right to receive payments)—do not go into effect until January 1, 2020. This delay is not a bad thing though; rather, it is to provide SoundExchange the necessary time to prepare and upgrade its own internal processes to best accommodate the AMP Act.

[1]SoundExchange is a non-profit collective rights management organization designated by Congress to collect and distribute digital performance royalties for sound recordings.