III. Copyright Licensing and Termination
Between 1976 and 1998, Congress acted repeatedly to limit the entry of copyrighted works into the public domain. What makes this trend remarkable is that in the course of amending the Copyright Act, Congress, in the name of protecting authors, arguably took from them a power they had clearly enjoyed under pre-1976 law: namely, the power voluntarily to relinquish rights in their works for the benefit of the public. At the same time, Congress added new statutory provisions empowering authors to recapture rights in their works that had formerly been licensed or conveyed away. The effect has been to make it ever more difficult for authors permanently to part with their exclusive copyright rights, even where they may knowingly and voluntarily wish to do so.
A. From Opt-In to Opt-Out to Locked-In
1. The Evolution of Copyright Standards
The protection of expressive works under copyright has proceeded through three distinct phases. From 1790 to 1977, U.S. law defined an “opt-in” copyright system. Works enjoyed federal[1] copyright protection if, but only if, authors performed all the necessary actions—today commonly labeled “formalities”—that were necessary upon publication of the work for protection to attach.[2] The principal requisites to secure copyright protection included: (1) providing notice of copyright in proper form; (2) registration of copyright in the work; and (3) depositing of a copy of the work with the Library of Congress.[3] Authors who published their works without strictly observing the applicable formalities forfeited copyright protection;[4] indeed,
- ↑ Although copyright is now a domain of exclusive federal jurisdiction, see 17 U.S.C. § 301 (2006), parallel systems of federal and state copyright protection existed until the Copyright Act of 1976. A discussion of state copyright systems is outside the scope of the present work.
- ↑ See Neil Weinstock Netanel, Copyright’s Paradox 54–55 (2008) (observing that early formal requirements imposed “nontrivial” burdens).
- ↑ See Copyright Act of 1909, ch. 320, §§ 9 (notice), 10 (registration), 12 (deposit), 35 Stat. 1075. This listing admittedly simplifies the complex history of formal requirements for copyright protection in the United States. For the unsimplified version, see 3 William F. Patry, Patry on Copyright § 6:3 (2009). By referring to the formalities necessary for copyright protection to attach, this Article purposefully elides the formalities that continue to exist under U.S. law for other purposes, such as the requirement to register before bringing suit for copyright infringement. See 17 U.S.C. § 411 (2006 & Supp. II 2008); Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010) (construing pre-filing registration requirement as nonjurisdictional).
- ↑ See, e.g., Mifflin v. R.H. White Co., 190 U.S. 260 (1903) (failure of notice requirement); Holmes v. Hurst, 174 U.S. 82 (1899) (failure of deposit requirement); Thompson v. Hubbard, 131 U.S. 123, 148–51 (1889) (notice in improper form); Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 665–68 (1834) (failure of deposit and publication of notice requirements); Atl. Monthly Co. v. Post Pub. Co., 27 F.2d 556, 559 (D. Mass. 1928) (failure of notice requirement). But cf. Washingtonian Pub. Co., Inc. v. Pearson, 306 U.S. 30, 37–40 (1939) (holding
