Highlights of Congressional Hearings on Copyright Moral Rights, Termination Rights, Resale Royalty, And Copyright Term

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition

Pic1On July 15, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings regarding a number of copyright issues, including moral rights, termination rights, resale royalty and copyright term. Despite the eclectic nature of the hearing, all of the issues discussed fell under the general category of what Chairman Howard Coble (R-NC) described as the “rights of the creator, often referred to as the little guy.”

Representative John Conyers (D-Mich.) stated that, at the moment, the only moral rights expressly addressed by the Copyright Act are those found in the Visual Artists Rights Act (VARA), which offers visual artists (but not other types of authors) a limited attribution right (i.e., the right to claim authorship of one’s work) and some protection against destruction and modification (sometimes known as an “integrity” right).  As recounted by Representative Bob Goodlatte (R-VA), it was once thought that the Lanham Act provided artists and authors with additional moral rights, particularly with respect to attribution.  However, the Supreme Court’s 2003 decision in Dastar v. Twentieth Century Fox Film Corp. put an end to that interpretation of the Lanham Act once and for all.

Following is our summary of highlights from the witness testimony:

Karyn Temple Claggett, Associate Register of Copyrights and Director of Policy & International Affairs, U.S. Copyright Office

Associate Register Claggett focused her remarks on the concept of a resale royalty right, which would provide artists with an opportunity to benefit from the increased value of their works over time by granting them a percentage of the proceeds from later sales. The issue is not really about the copyrights in visual art, but rather the physical objects embodying those copyrights. So, for example, a student artist sells a painting to Buyer A for a few bucks, and over the next thirty years the painting goes up in value as the artist gains notoriety. Obviously, under current property law, the artist sold the painting a long time ago so she no longer has any rights in that physical object (whether or not she retained copyright in the image). However, with a resale royalty right added to existing law, when Buyer A resells the painting to Buyer B for a significant sum, the artist can claim a percentage of that resale.

A resale royalty right proposal was rejected by a Copyright Office study in 1992.  However, in 2013, the Copyright Office reconsidered its position, and now supports the “American Royalties, Too (ART) Act of 2014,” sponsored by Committee member Representative Jerrold Nadler (D-NY) and others. The bill is based on the French “droit de suite,” first enacted in 1920 and since adopted in whole or part by nearly 70 nations. Among other things, the Act would allow visual artists to collect a resale royalty in the U.S. (if the resale exceeds $5,000), and to take advantage of reciprocal resale royalty rights in other countries.

Rick Carnes, President, Songwriters Guild of America

Pic 2Mr. Carnes supports some form of the “droit au respect de l’integrite de l’oeuvre,” or integrity right.  This right would give songwriters some control over the future use of their compositions.  Carnes stated: “In terms of the right of integrity . . . when you have a song that is about something that you feel is significant . . . like, I have a song about the death of my mother, it was very important to me. I wouldn’t want to see that played on YouTube with someone getting hit in the crotch by a baseball bat, for instance.” Carnes also testified that the moral right of attribution, or “droit d’auteur,” is important to songwriters’ efforts to gain recognition and credibility.

Mr. Carnes urged Congress not to reduce the current copyright protection term. Although the current term (life of the author plus 70 years) seems long to some, Mr. Carnes argues that as a practical matter songwriters don’t enjoy that protection. Rather, for songwriters, copyright protection only lasts as long as it takes someone to upload the song to the internet and start pirating it, and enforcing their rights against such infringement in court is too expensive to offer meaningful relief. Mr. Carnes suggested that Congress implement the small claims tribunal recently proposed by the Copyright Office, thus reducing the cost of enforcement.

Casey Rae, Vice President for Policy & Education, Future of Music Coalition

Pic 3Mr. Rae testified in favor of a termination right for recording artists, and requested that Congress clarify that Section 203 of the Copyright Act applies to sound recordings. Section 203 allows artists and their heirs to terminate a prior copyright transfer in certain circumstances, thus reclaiming ownership. This second “bite at the apple” in theory allows artists to share the benefits of unanticipated revenue streams and to renegotiate royalties for works that have appreciated in value.

Mr. Rae also testified in favor of an attribution right and against the extension of copyright terms, because further extension would “worsen the perception that copyright law primarily services huge corporations, which diminishes respect for the entire enterprise of copyright, encouraging undesirable behaviors.”

Michael W. Carroll, Professor, American University Washington College of Law & Founding Member of Creative Commons, Inc.

Pic 4Professor Carroll argued that the copyright term should be no longer than is necessary to induce creators to devote their efforts to new works of authorship. The life of the author plus 70 year is too long for those purposes, according to Professor Carroll and several Nobel laureate economists.  Instead, he recommended reinstating to the law prior to the 1976 Copyright Act, which provided for an initial term of 28 years that could be renewed for an additional 28 years.  As an alternative, Professor Carroll recommended reintroduction of the Public Domain Enchancement Act, which would have imposed certain registration requirements after the death of the author.

Professor Carroll also supports amending the termination right provisions of the Copyright Act in order to make them less cumbersome and confusing for those seeking to terminate transfers in order to dedicate works to the public domain. This would include waiving certain transaction fees.

Thomas D. Sydnor II, Visiting Fellow, American Enterprise Institute, Center for Internet, Communication and technology Policy

Pic 5Mr. Sydnor reviewed the history and rationale for the extension of the copyright term, which has increased in length by 375% since the original legislation in 1790.  The 1790 Copyright Act, combined with state common law at the time, created copyright protection that lasted for an average term of only 20 years.

According to Mr. Sydnor, that shorter term was considered acceptable in 1790 for two reasons. First, the shorter term corresponded with  the principle that copyright should last during the author’s lifetime, and for a short period thereafter to benefit his or her heirs.  Second, the term tracked international norms (at that time Britain’s Statute of Anne).

Sydnor argued that the same principles guided the extension of copyright terms up to the present.  However, in the present, longer life spans and changing international norms dictate a different result. Therefore, Sydnor concluded, the rationale for the current copyright term is not a philosophical departure from the rationale behind the original term.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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