A Master Revision – We Describe the 1976 Copyright Act

The revision of the Copyright Act in 1976 changed the way exclusive copyright existed and terminated. The 1976 act is now the primary basis of copyright law in the United States. Basic rights of copyright holders are codified, as well as the now oft employed “fair use” doctrine. Almost all new copyrights are subject to a term determined by the date of the holder’s death, replacing the more convoluted renewal scheme of fixed initial and renewal terms in the previous code provision.

In section 102 of the Act, copyright protection is available for “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” The key change from the prior law is that works no longer have to be published to enjoy copyright protection, and one need not affix the copyright mark (the “circle C”) to one’s work to trigger federal protection. Previous controlling law condemned original works to the public domain if the notice of copyright was not properly included. State copyright protections were made all but superfluous by the federal revisions passed by Congress in 1976.

The 1976 revision granted five (5) exclusive rights to copyright holders: the right to reproduce (copy), the right to create derivative works from the original, the right to commercialize the work, the right to perform the work publicly (if relevant), and the right to display the work publicly (if relevant). Digital audio recordings were added in 1995.

The doctrine of fair use was finally codified in the 1976 revision of the Copyright Act. The fair use doctrine was codified and taken out of the realm of common law protections. Section 106 denotes that the doctrine explicitly applies to any use of copyrighted work for news reporting, criticism, research, scholarship or teaching. Despite this definitive list, the fair use defense is not exclusively limited to just these activities. The Act provides a four prong factor test to determine whether fair use has occurred:

1) the purpose and character of the use (for instance, whether it is commercial or educational);

2) the nature of the copyrighted work (how creative is the work);

3) the amount and substantiality of the portion of the original work used; and,

4) the effect of the use upon the original work in the market (or potential market). The fair use defense was also extended to unpublished works.

The previous term of protection for copyrighted works was greatly expanded by the 1976 revision. Before, copyright protection existed for a term of 28 years, with an optional extension of an additional 28 years. Thus, your total protection for copyrighted works was capped at 56 years. As of the 1976 revisions, protections were granted to the originator of the work for his life plus fifty years. A flat 75 year term was enacted for anonymous or pseudonymous works, and works made for hire. More copyright protections were added by the Sonny Bono Copyright Term Extension Act in 1998. Protection now extends to 70 years after the originator’s death, and 95 years for works made for hire.

Copyright transfers were greatly clarified by the 1976 revision of the Copyright Act. The courts had muddied the presumption that the transfer of a copy of a work carried with it the presumption that the creative rights were transferred as well. That is now definitively not the case. Section 204 of the 1976 revision fully details the procedure for transferring ownership of a copyrighted work. A copyright holder must sign a written statement of conveyance expressly transferring his or her ownership of the copyright to the recipient. Otherwise, there has been no transfer of the original work to the recipient.

Copyright protection is not entirely contingent upon registered one’s work with the Copyright Office; however, an action for infringement cannot be pursued until one registers with the Copyright Office, a process that can take up to six months. To register one’s work, the Act requires one copy and the requisite fees be deposited with the Office. If the work is published, two copies of it are required.

The 1976 revision of the Copyright Act greatly simplified the law and expanded protections for original works. It is always good to find an attorney familiar with copyright law and the Act’s revisions if you are interested in protecting your original work.

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