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Five Things You Didn’t Know About Copyright

Five Things You Didn’t Know About Copyright by Keith Kupferschmid

October 11, 2018


This blog is part of our new blog series, the Secret History of Copyright. The series will unlock some of the mysteries of the copyright world – including little-known laws, influencers, cases and much more!


Copyright law has been around for a long time. Since 1790 to be precise. The most recent Copyright Act went into effect over 40 years ago so you might think that the law would be widely understood by this point. But that seems not to be the case. There are quite a few aspects of copyright law that many people still don’t know about. For example:

1) Termination Rights

Are you a creator that has licensed or transferred the rights to your copyrighted work to someone? Do you now regret doing that and wish you could get your rights back? Well, if that’s the case, then you might be pleased to know about a little-known provision in the copyright law that may allow you to get those rights back. The provision, which is found in section 203 of the Copyright Act and is commonly known as “the termination right,” allows creators to terminate agreements dated on or after January 1, 1978 that transfer one or more of their exclusive rights.  The transfer can be terminated by either the creator who signed the agreement or his or her heirsregardless of the terms of the agreement. Importantly, this right can only be exercised during a five-year window that opens on the thirty-fifth year after the agreement took effect.

2) Creative Works are Automatically Protected by Copyright

Copyright protection automatically subsists the moment the copyrighted work is fixed in a tangible medium of expression. That means, registering a copyright claim with the U.S. Copyright Office is not necessary to obtain copyright protection. Nor is putting a copyright notice on the work (more on that below). However, there are benefits to both registration and adding a copyright notice and, therefore, they are both highly recommended.

3) Sound Recordings Have No Analog Performance Right

The copyright law vests most copyright owners with a public performance right that empowers them to control the manner in which a work is publicly performed. This performance right applies to literary works, musical works, dramatic works, choreographic works, pantomimes, motion pictures, and audiovisual works. What’s missing from this list?  Sound Recordings. That means that when a song is publicly performed, a royalty is paid to the songwriter(s), composer(s) and publisher(s), but not to the person who performs the song. This injustice was partially corrected in 1996 when Congress passed a law amending the Copyright Act to grant sound recording owners the right to publicly perform the sound recording when the performance occurs by means of a digital audio transmission. What this means is that when you listen to a song that is performed or streamed on a satellite radio station (like SiriusXM), a webcast over the internet, or on a cable music station, the songwriter(s), composer(s) and publisher(s), AND the person who performs the song are compensated. U.S. terrestrial broadcasters, however, continue to be exempt from paying a public performance right for sound recordings.

4) Creators from Other Countries are Treated Better than U.S. Creators Under U.S. Copyright Law

Like many countries, the United States is a member of an international copyright treaty called the Berne Convention for the Protection of Literary and Artistic Works. The Berne Convention requires that the United States honor the copyright in works of authors from all other countries that are members of the Convention. It also requires that foreign authors be treated a certain way. However, it’s important to understand that the Convention sets forth how the United States must treat foreign nationals but not how it must treat its own nationals. This sometimes results in an odd outcome. For example, the Berne Convention makes clear that no country can implement a formality, such as copyright registration, that interferes with the exploitation or use of copyrighted works. So, although the copyright law requires that U.S. nationals first register their copyrighted works with the U.S. Copyright Office before they can bring an infringement case in federal court, there is no such requirement imposed on foreign nationals because the United States is prohibited from applying this requirement to foreign authors. This means that foreign authors may bring a copyright infringement action in a U.S. district court without registering their works with the U.S. Copyright Office.

5) Copyright Notice is No Longer Required

There was a time not long ago when copyright owners were required to place a copyright notice on their published works and, if they didn’t, they would forfeit copyright protection for that work. Works published prior to January 1, 1978 with a U.S. copyright owner’s authority were required to include a copyright notice. A work published without a proper copyright notice resulted in a permanent loss of copyright for the work. For works published between January 1, 1978 and February 28, 1989, the copyright owner had a period of time to take corrective steps to fix the notice problem before they lost their rights. But (as noted above) this is also one of those areas where foreign national are treated better than U.S. nationals. If the copyright owner was a foreign national, the copyright in the work could be “restored” under certain circumstances. Then, on March 1, 1989, all that changed, when Congress passed a law that made copyright notice optional. As a result, any work published after that date does not need to include a copyright notice. There are certain benefits to including a notice though.  For example, including a copyright notice on a work prevents an infringer from raising a defense of innocent infringement. So many copyright owners continue to affix a copyright notice to their works to this day.

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