1709 Blog: for all the copyright community

Thursday, 22 July 2010

Reclaiming the Rights that are Left - Corrected

Note on Corrections: Yesterday, I posted about jazz musician Frank Foster’s reclaiming of his copyright in the song “Shiny Stockings”.  But, I cited and applied the wrong law, Section 203 of the US Copyright Act instead of Section 304.  Section 203 applies to rights transferred after 1977, not before 1978 as I had stated.  A very nice gentleman at the US Copyright Office was kind enough to bring this to my attention.  The corrected post is below.


There’s a great story over at Jazz Corner about an artist protecting his rights under the US Copyright Act.  Often, criticisms of serving big companies and leaving the artists out in the cold are leveled at the Copyright Act, so it’s nice to see an occasion where the Act is working positively for the artist.

The Artist

Jazz Corner’s report does a nice job of covering the humanitarian side of the story.  I’ll offer a short summary here, but suggest you read the piece there for more information.  Saxophonist Frank Foster wrote a very popular jazz tune called “Shiny Stockings.”   And like many other musicians, he signed away the rights to the song without really knowing what he was giving up. (NPR story on that issue here.)  But now, he is going to get his royalties with the help of the Community Law Clinic at Rutgers Law School.  [A demo of the film documenting Foster’s story can be found here.]

The Work

When “Shiny Stockings” was penned in the mid-1950s, it was covered under the 1909 US Copyright Act.  This Act provided copyright protection for a term of 28 years, with an option to renew for another 28 years.  Before the first term could expire on “Shiny Stockings”, a new copyright act came into effect.  The US Copyright Act of 1976.

The Law

The 1976 US Copyright Act made a number of substantial changes to the US copyright law. As such, the new act needed to provide for a variety of different situations, including protection of existing non-published works, works that had already been renewed once and works that were in their first copyright period under the 1909 Act.  Section 304(c) provides a special protection for artists whose works fall under the second two categories. 

Since the 1909 Act provided for two 28 year terms (with renewal), authors could transfer or license their rights for up to 56 years, the entire possible term of the copyright.  The 1976 Act added extra years to the copyright term, years the authors didn’t know they would have when they transferred away their rights.  So, the 1976 Act provided a way for authors to reclaim the extra years. 

Under Section 304(c), authors who transferred their rights in a work prior to 1978 have an opportunity to take back their rights after the end of the term they thought they were giving away.  The window for this opportunity opens at 56 years after the original copyright date and stays open for five years.  Sort of.  The author has five years within which to terminate the original grant, but the author has to give the grantee two-years written notice.  (Notice must also be given to the Copyright Office before the termination occurs.)  Then, of course there’s another catch that makes the math more complicated.  The notice can be sent out as early as ten years before the termination date picked by the author.  So what the author actually winds up with is something like this: (click to view full scale)

Notice and Termination under 304c

“Shiny Shoes,” which was first copyrighted in 1956, so Foster could have requested transfer anywhere from 2012 to 2017.  Once the transfer is effective, Foster will have all the rights which the original transfer had given away, until the end of the work’s copyright term.  For “Shiny Shoes” that full term is 95 years, until 2051.*  Foster and his heirs will get roughly forty years of copyright royalties that the otherwise wouldn’t have received.  Not bad.


*The nice gentleman that send the correction also provided information that “Shiny Shoes” was renewed for its second copyright term in 1984, making it eligible for the 95 year full term under the Sony Bono Copyright Term Extension Act.  See Section 304(b).

Again, my sincere thanks to the gentleman for his note, and my apologies to The 1709 Blog readers for the incorrect information in the previous post.

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