Music Law 101: How Long Can You Count On Copyright Protection To Last

After a copyright is created, the length of time for which it hangs around tends to vary greatly – although it's often for longer than one might guess. Here we look at what determines a copyright's life span, and why it's usually not safe to assume something's fallen into the public domain.

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Guest post by Coe W. Ramsey and Amanda M. Whorton of the ReverbNation Blog

Once a copyright is created, protection generally lasts for 70 years after the death of the author and in some cases 95 years from publication or 120 years from creation. That’s a long time! After that time, the copyright protection ceases and the underlying work becomes public domain.

More specifically, the term of copyright under the Copyright Act depends on when the work was created, as follows:

• Works Created on or After January 1, 1978: These works are protected for 70 years after the death of the individual author. Where there are two or more individual authors (see our earlier post on authorship and ownership), the term lasts for 70 years after the last surviving author’s death. For “works made for hire,” the term of protection is 95 years from publication or 120 years from creation, whichever date is earlier.
• Works Created Before but Published or Registered After January 1, 1978: The copyright term in these works is generally computed in the same way as for works created on or after January 1, 1978, provided that in no case would the term of such copyright expire before December 31, 2002, and for works published on or after that date, the term will not expire before December 31, 2047.
• Works Created and Published or Registered Before January 1, 1978: These works are generally protected for 75 years from the date the work was published with a copyright notice or on the date of the registration if the work was registered in unpublished form. For such pre-1978 copyrights still subsisting on October 27, 1998, Congress extended the term by 20 years, providing for a total term of protection of 95 years.

Don’t be misled into thinking that a lot of music is now in the public domain. For example, while a piece of classical music may be in the public domain, a specific recording of that musical work is likely not in the public domain and is still protected under copyright.

In a recent case regarding music in the public domain that generated a lot of buzz, filmmakers filed a class action suit against Warner/Chappell Music, the music publishing company, who claimed to own a copyright in the song “Happy Birthday.” The song generated roughly $2 million annually for the company in royalties from the use of the song in television shows, movies, stage performances, and restaurants. The dispute only involved the lyrics to the song, as the melody/music was indisputably in the public domain already. The parties settled after a federal judge held that there was no evidence that the original authors of the lyrics ever sought federal copyright protection or had even transferred the rights in the lyrics to Warner/Chappell Music. In the settlement, “Happy Birthday” was declared to be in the public domain and Warner/Chappell Music agreed to pay back $14 million to those who paid licensing fees for the use of the song.

The same law firm who persuaded the court that “Happy Birthday” belongs in the public domain also recently filed two separate suits over the public domain status of Woody Guthrie’s “This Land Is Your Land” and the Civil Rights Movement anthem “We Shall Overcome.” Both cases are still pending.

Be sure to stay tuned for our next Music Law 101 post, in which we will explain how you can transfer your copyright interest to another person or entity.

The Music Law 101 series is provided by Coe W. Ramsey and Amanda M. Whorton of the law firm Brooks, Pierce, McLendon, Humphrey & Leonard LLP. Brooks Pierce provides sophisticated and strategic counsel to a wide variety of clients in the entertainment industry, including artists, musicians, songwriters, record producers, DJs, artist managers, radio stations, television stations, new media companies, record and publishing companies, film and television producers, advertisers, actors and reality TV talent, radio talent, and literary authors and publishers. The Music Law 101 series provides a survey introduction to the laws in the United States relevant to the music industry, is not intended as and shall in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances, and shall not be construed as creating an attorney-client relationship.