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The Society of Folk Dance Historians (SFDH)

Copyright and Folk Dance
Unverified factoids by Ron Houston

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Ron Houston

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The 1976 copyright law made choreography protectable under United States copyright law. One court case so far has dealt with infringement of choreographic copyright, Horgan v. Macmillan.

October, 1998: Copyright Extension Act. Music published more than 75 years ago is no longer free for use, the rule is now 95 years. This should not resurrect expired copyrights from 1922 or before. But material from 1923 forward will not be in the public domain for an extra 20 years. Recent works are different: group compositions will be covered by United States copyright law under 70 years after the death of the last contributor.

Libraries and Archives may copy and perform works from the last 20 years, but only if there is no commercial potential and copies are not available at a reasonable price (which would have to be proven in court). The exemption does not extend to people who use the library or archives. The library may make a copy for you, but you couldn't copy or perform it in public unless you could (a) find – and (b) make a deal with – the current owner of a copyright in a 75-95 year old piece of music.

Section 108 of the Copyright law: Archives can copy entire texts for preservation and for the use of researchers.

Folk melodies are in the public domain. Federal copyright laws do not protect sound recordings fixed before 2-15-72.

State laws do protect the reproduction rights of the owners of sound recordings, regardless of when fixed. California law defines "owner" for this purpose as: "the person who owns the original fixation of sounds embodied in the master phonograph record, master disk, master tape . . ." from which copies can be made. Sometimes there might be more than one of these? My original field recordings. The master tape I prepared from these? The master disk from which the records were pressed?


CONGRESS EXTENDS THE DURATION OF COPYRIGHT

Take a look back at Messages 10 and 11 about the duration of copyright protection. Recall that the basic term of protection for most new works is life of the author, plus fifty years. The term for most pre-1978 publications is a maximum of seventy-five years. On October 27, 1998 Congress changed the rules with passage of the Sonny Bono Term Extension Act. Available at URL: http://lcweb.loc.gov/copyright/legislation/s505.pdf.

In general, Congress added twenty more years of protection to new and existing copyrighted works. The new basic rule for works created since 1978, is that copyright lasts for the author's life, plus seventy years. And, yes, the bonus twenty years applies retroactively, so publications from as far back as the 1920s and 1930s now have a maximum of ninety-five years of protection. A publication, from say 1920, had already fallen into the public domain because of the expiration of the seventy-five years of protection it previously enjoyed. That work remains in the public domain. The publication from 1924, however, was not due to expire until the end of 1999, so it gains the added protection out to 2019.

Unpublished works from today and the past are generally subject to the rule of "life-plus-seventy," and that rule continues to take effect after December 31, 2002. Works made for hire that previously received either seventy-five or 100 years of protection, now receive ninety-five or 120 years under copyright.

The earlier Messages in this Tutorial include citations to helpful sources, including resources that provide insight into the controversies surrounding the issue of extending the term of copyright.

Professor Laura N. Gasaway at the University of North Carolina has prepared a chart outlining these rules.

Definition: A public domain work is a creative work that is not protected by copyright and which may be freely used by everyone. The reasons that the work is not protected include:

(1) the term of copyright for the work has expired;
(2) the author failed to satisfy statutory formalities to perfect the copyright or
(3) the work is a work of the U.S. Government.

DATE OF WORK

PROTECTED FROM

TERM

Created 1-1-78 or after

When work is fixed in tangible medium of expression

Life + 70 years[1] (or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation[2]

Published before 1923

In public domain

None

Published from 1923 - 63

When published with notice[3]

28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain

Published from 1964 - 77

When published with notice

28 years for first term; now automatic extension of 67 years for second term

Created before 1-1-78 but not published

1-1-78, the effective date of the 1976 Act which eliminated common law copyright

Life + 70 years or 12-31-2002, whichever is greater

Created before 1-1-78 but published between then and 12-31-2002

1-1-78, the effective date of the 1976 Act which eliminated common law copyright

Life + 70 years or 12-31-2047 whichever is greater

[1] Term of joint works is measured by life of the longest-lived author.
[2] Works for hire, anonymous and pseudonymous works also have this term. 17 U.S.C. § 302(c).
[3] Under the 1909 Act, works published without notice went into the public domain upon publication. Works published without notice between 1-1-78 and 3-1-89, effective date of the Berne Convention Implementation Act, retained copyright only if efforts to correct the accidental omission of notice was made within five years, such as by placing notice on unsold copies. 17 U.S.C. § 35%5. (Notes courtesy of Professor Tom Field, Franklin Pierce Law Center and Lolly Gasaway).


A couple of points for Doc Savage webmasters:

TITLE II: LIMITATIONS ON ONLINE SERVICE PROVIDER LIABILITY

Establishes a mechanism for avoiding copyright infringement liability based upon the storage of infringing information on an online service provider's own computer system, or upon the use of "information location tools" and hyperlinks, if the provider acts "expeditiously to remove or disable access to" infringing material identified in a formal notice by the copyright holder.

TITLE IV: INCLUDES DIGITAL PRESERVATION AND DISTANCE EDUCATION

Updates the current preservation provision of the Copyright Act (Sec. 108) to: expressly permit authorized institutions to make up to three, digital preservation copies of an eligible copyrighted work; electronically "loan" those copies to other qualifying institutions; permit preservation, including by digital means, when the existing format in which the work has been stored becomes obsolete.


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