Copyright Compendium

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2115.5 (C) (2) Proprietary Works

 

2115.5 (C) (2) Proprietary Works

 

The law provides four exceptions to the general rule that the individual author (or the author’s heirs as described above) is entitled to claim the renewal copyright. For the following types of works, the proprietor of copyright on the last day of the original term (or on the effective date of a timely renewal registration) may claim the renewal copyright:

 

• Works made for hire. The exception that entitles “an employer for whom such work is made for hire” was created to make it possible for a proprietary author (the employer) to claim the renewal copyright in a work created at its “instance and expense.”15

 

NOTE: Generally for this exception to apply, the original copyright claimant must have secured copyright by virtue of employing the creator, rather than through any transfer of rights after the work was completed. When a renewal claim indicates that the work was not “copyrighted” by the employer (i.e., the employer transferred the common law property to a third person prior to publication or registration as an unpublished work), the U.S. Copyright Office will advise the applicant about this situation and request confirmation that the facts of authorship are accurately stated.

 

• Composite works. The purpose of this exception was to provide the proprietor the means of renewing the copyright when, as a practical matter, there were too many authors to join in the renewal claim. To be an acceptable basis for a renewal claim, the work must meet the criteria for composite works.

 

• Posthumous works. This exception as set forth in the Copyright Act of 1909 allows the proprietor to claim the renewal copyright when a work was first published after the death of the author.

 

NOTE: For a proprietary author to be entitled to claim the renewal rights in a work published after an author’s death, other factors should be taken into consideration. See Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 946 (2d Cir. 1975) (concluding that a concerto was not a posthumous work considering the fact that the author completed the concerto, heard it performed, executed a contract for its copyright, corrected published proofs, distributed orchestra parts, and the general public heard the concerto in concert and on the radio). For renewal registration purposes, a work is not considered posthumous unless it was unpublished when the author died and the author did not assign the copyright or exploit any rights in the work during his or her lifetime. The Office will require these facts to be established before registering a renewal claim on the statutory basis of being a posthumous work.

 

Exception: If the work was unpublished when the author died, and if the author did not assign the copyright – ” but did exploit some of the rights through contracts – ” it may be unclear whether the work is posthumous or not. A registration specialist may communicate with the applicant to determine whether the renewal claim is eligible for registration as a personal or posthumous work. As appropriate, the Office may register the claim as an adverse renewal claim or may refuse registration.

 

• Works copyrighted by a corporate body other than as an assignee or licensee. This exception has little meaning within the scope of renewal registration because nearly

 

15 This phrase comes from court decisions regarding works made for hire under the Copyright Act of 1909. See, e.g., Yardley v. Houghton Mifflin Co., 108 F.2d 28, 31 (2d Cir. 1939) (discussing purposes and expense); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567 (2d Cir. 1966); Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir. 1972); Murray v. Gelderman, 566 F.2d 1307, 1310 (5th Cir. 1978); Easter Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323, 325-28 (5th Cir. 1987). all proprietary works to which it could apply more clearly qualify under one of the other exceptions. Examples of types of works to which this exception may apply:

 

• A work to which stockholders of a corporation contributed indistinguishable parts.

 

• A work written by officials or stockholders in a corporation when it was written directly for the corporation but not as a work made for hire.

 

• A work written or created by members of a religious order or similar organization, when the individual authors never had a personal property right in the work.

 

• A motion picture when it is asserted that it was produced under special circumstances and was not copyrighted by an employer for whom the work was made for hire.

 

Types of works to which this exception cannot apply:

 

• The original copyright proprietor was not a corporation.

 

• The individual author of an unpublished work transferred the common law literary property or the right to secure copyright to a corporation.

 

• A posthumous or composite work or a work made for hire.

 

NOTE: The Office will inquire about a renewal claim that cites this exception as the basis of the claim unless the applicant provides an explanation of special circumstances under which this basis of claim applies.