17 U.S.C. § 205 — Recordation of transfers and other docu-

Page 138 TITLE 17—COPYRIGHTS § 204 problem here, of course, is that years may have passed between the time the reverted rights vested and the time the new owners want to make a further transfer; people may have died and children may have been born in the interim. To deal with this problem, the bill looks back to the date of vesting; out of the group in whom rights vested on that date, it requires the further trans- fer or license to be signed by ‘‘the same number and proportion of the owners’’ (though not necessarily the same individuals) as were then required to terminate the grant under subsection (a). If some of those in whom the rights originally vested have died, their ‘‘legal representatives, legatees, or heirs at law’’ may represent them for this purpose and, as in the case of the termination itself, any one of the minority who does not join in the further grant is nevertheless bound by it. An important limitation on the rights of a copyright owner under a terminated grant is specified in section 203(b)(1). This clause provides that, notwithstanding a termination, a derivative work prepared earlier may ‘‘continue to be utilized’’ under the conditions of the terminated grant; the clause adds, however, that this privilege is not broad enough to permit the preparation of other derivative works. In other words, a film made from a play could continue to be licensed for perform- ance after the motion picture contract had been termi- nated but any remake rights covered by the contract would be cut off. For this purpose, a motion picture would be considered as a ‘‘derivative work’’ with re- spect to every ‘‘preexisting work’’ incorporated in it, whether the preexisting work was created independ- ently or was prepared expressly for the motion picture. Section 203 would not prevent the parties to a trans- fer or license from voluntarily agreeing at any time to terminate an existing grant and negotiating a new one, thereby causing another 35-year period to start run- ning. However, the bill seeks to avoid the situation that has arisen under the present renewal provision, in which third parties have bought up contingent future interests as a form of speculation. Section 203(b)(4) would make a further grant of rights that revert under a terminated grant valid ‘‘only if it is made after the effective date of the termination.’’ An exception, in the nature of a right of ‘‘first refusal,’’ would permit the original grantee or a successor of such grantee to nego- tiate a new agreement with the persons effecting the termination at any time after the notice of termi- nation has been served. Nothing contained in this section or elsewhere in this legislation is intended to extend the duration of any li- cense, transfer or assignment made for a period of less than thirty-five years. If, for example, an agreement provides an earlier termination date or lesser duration, or if it allows the author the right of cancelling or ter- minating the agreement under certain circumstances, the duration is governed by the agreement. Likewise, nothing in this section or legislation is intended to change the existing state of the law of contracts con- cerning the circumstances in which an author may can- cel or terminate a license, transfer, or assignment. Section 203(b)(6) provides that, unless and until ter- mination is effected under this section, the grant, ‘‘if it does not provide otherwise,’’ continues for the term of copyright. This section means that, if the agreement does not contain provisions specifying its term or dura- tion, and the author has not terminated the agreement under this section, the agreement continues for the term of the copyright, subject to any right of termi- nation under circumstances which may be specified therein. If, however, an agreement does contain provi- sions governing its duration—for example, a term of fifty years—and the author has not exercised his or her right of termination under the statute, the agreement will continue according to its terms—in this example, for only fifty years. The quoted language is not to be construed as requiring agreements to reserve the right of termination. Editorial Notes AMENDMENTS 2002—Subsec. (a)(2)(A) to (C). Pub. L. 107–273, in sub- pars. (A) to (C), substituted ‘‘The’’ for ‘‘the’’ and, in subpars. (A) and (B), substituted period for semicolon at end. 1998—Subsec. (a)(2). Pub. L. 105–298, § 103(1), struck out ‘‘by his widow or her widower and his or her chil- dren or grandchildren’’ after ‘‘exercised,’’ in introduc- tory provisions. Subsec. (a)(2)(D). Pub. L. 105–298, § 103(2), added sub- par. (D). § 204. Execution of transfers of copyright owner- ship (a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memo- randum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent. (b) A certificate of acknowledgement is not re- quired for the validity of a transfer, but is prima facie evidence of the execution of the transfer if— (1) in the case of a transfer executed in the United States, the certificate is issued by a person authorized to administer oaths within the United States; or (2) in the case of a transfer executed in a for- eign country, the certificate is issued by a dip- lomatic or consular officer of the United States, or by a person authorized to admin- ister oaths whose authority is proved by a cer- tificate of such an officer. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2570.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Section 204 is a somewhat broadened and liberalized counterpart of sections 28 and 29 of the present statute [sections 28 and 29 of former title 17]. Under subsection (a), a transfer of copyright ownership (other than one brought about by operation of law) is valid only if there exists an instrument of conveyance, or alternatively a ‘‘note or memorandum of the transfer,’’ which is in writing and signed by the copyright owner ‘‘or such owner’s duly authorized agent.’’ Subsection (b) makes clear that a notarial or consular acknowledgment is not essential to the validity of any transfer, whether executed in the United States or abroad. However, the subsection would liberalize the conditions under which certificates of acknowledgment of documents executed abroad are to be accorded prima facie weight, and would give the same weight to domestic acknowledg- ments under appropriate circumstances. § 205. Recordation of transfers and other docu- ments (a) CONDITIONS FOR RECORDATION.—Any trans- fer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for rec- ordation bears the actual signature of the per- son who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to reg- ulations established by the Register of Copy- rights. Page 139 TITLE 17—COPYRIGHTS § 205 (b) CERTIFICATE OF RECORDATION.—The Reg- ister of Copyrights shall, upon receipt of a docu- ment as provided by subsection (a) and of the fee provided by section 708, record the document and return it with a certificate of recordation. (c) RECORDATION AS CONSTRUCTIVE NOTICE.— Recordation of a document in the Copyright Of- fice gives all persons constructive notice of the facts stated in the recorded document, but only if— (1) the document, or material attached to it, specifically identifies the work to which it pertains so that, after the document is indexed by the Register of Copyrights, it would be re- vealed by a reasonable search under the title or registration number of the work; and (2) registration has been made for the work. (d) PRIORITY BETWEEN CONFLICTING TRANS- FERS.—As between two conflicting transfers, the one executed first prevails if it is recorded, in the manner required to give constructive notice under subsection (c), within one month after its execution in the United States or within two months after its execution outside the United States, or at any time before recordation in such manner of the later transfer. Otherwise the later transfer prevails if recorded first in such manner, and if taken in good faith, for valuable consideration or on the basis of a binding prom- ise to pay royalties, and without notice of the earlier transfer. (e) PRIORITY BETWEEN CONFLICTING TRANSFER OF OWNERSHIP AND NONEXCLUSIVE LICENSE.—A nonexclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a writ- ten instrument signed by the owner of the rights licensed or such owner’s duly authorized agent, and if— (1) the license was taken before execution of the transfer; or (2) the license was taken in good faith before recordation of the transfer and without notice of it. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2571; Pub. L. 100–568, § 5, Oct. 31, 1988, 102 Stat. 2857; Pub. L. 111–295, § 3(b), Dec. 9, 2010, 124 Stat. 3180.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 The recording and priority provisions of section 205 are intended to clear up a number of uncertainties aris- ing from sections 30 and 31 of the present law [sections 30 and 31 of former title 17] and to make them more ef- fective and practical in operation. Any ‘‘document per- taining to a copyright’’ may be recorded under sub- section (a) if it ‘‘bears that actual signature of the per- son who executed it,’’ or if it is appropriately certified as a true copy. However, subsection (c) makes clear that the recorded document will give constructive no- tice of its contents only if two conditions are met: (1) the document or attached material specifically identi- fies the work to which it pertains so that a reasonable search under the title or registration number would re- veal it, and (2) registration has been made for the work. Moreover, even though the Register of Copyrights may be compelled to accept for recordation documents that on their face appear self-serving or colorable, the Reg- ister should take care that their nature is not con- cealed from the public in the Copyright Office’s index- ing and search reports. The provisions of subsection (d), requiring recorda- tion of transfers as a prerequisite to the institution of an infringement suit, represent a desirable change in the law. The one- and three-month grace periods pro- vided in subsection (e) are a reasonable compromise be- tween those who want a longer hiatus and those who argue that any grace period makes it impossible for a bona fide transferee to rely on the record at any par- ticular time. Under subsection (f) of section 205, a nonexclusive li- cense in writing and signed, whether recorded or not, would be valid against a later transfer, and would also prevail as against a prior unrecorded transfer if taken in good faith and without notice. Objections were raised by motion picture producers, particularly to the provision allowing unrecorded nonexclusive licenses to prevail over subsequent transfers, on the ground that a nonexclusive license can have drastic effects on the value of a copyright. On the other hand, the impracticalities and burdens that would accompany any requirement of recordation of nonexclusive li- censes outweigh the limited advantages of a statutory recordation system for them. Editorial Notes AMENDMENTS 2010—Subsec. (a). Pub. L. 111–295 inserted at end ‘‘A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to regula- tions established by the Register of Copyrights.’’ 1988—Subsecs. (d) to (f). Pub. L. 100–568 redesignated subsecs. (e) and (f) as (d) and (e), respectively, and struck out former subsec. (d), which read as follows: ‘‘No person claiming by virtue of a transfer to be the owner of copyright or of any exclusive right under a copyright is entitled to institute an infringement ac- tion under this title until the instrument of transfer under which such person claims has been recorded in the Copyright Office, but suit may be instituted after such recordation on a cause of action that arose before recordation.’’ Statutory Notes and Related Subsidiares EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–568 effective Mar. 1, 1989, with any cause of action arising under this title before such date being governed by provisions in effect when cause of action arose, see section 13 of Pub. L. 100–568, set out as a note under section 101 of this title. RECORDATION OF SHAREWARE Pub. L. 101–650, title VIII, § 805, Dec. 1, 1990, 104 Stat. 5136, provided that: ‘‘(a) IN GENERAL.—The Register of Copyrights is au- thorized, upon receipt of any document designated as pertaining to computer shareware and the fee pre- scribed by section 708 of title 17, United States Code, to record the document and return it with a certificate of recordation. ‘‘(b) MAINTENANCE OF RECORDS; PUBLICATION OF IN- FORMATION.—The Register of Copyrights is authorized to maintain current, separate records relating to the recordation of documents under subsection (a), and to compile and publish at periodic intervals information relating to such recordations. Such publications shall be offered for sale to the public at prices based on the cost of reproduction and distribution. ‘‘(c) DEPOSIT OF COPIES IN LIBRARY OF CONGRESS.—In the case of public domain computer software, at the election of the person recording a document under sub- section (a), 2 complete copies of the best edition (as de- fined in section 101 of title 17, United States Code) of the computer software as embodied in machine-read- able form may be deposited for the benefit of the Ma- chine-Readable Collections Reading Room of the Li- brary of Congress. ‘‘(d) REGULATIONS.—The Register of Copyrights is au- thorized to establish regulations not inconsistent with Page 140 TITLE 17—COPYRIGHTS § 301 law for the administration of the functions of the Reg- ister under this section. All regulations established by the Register are subject to the approval of the Librarian of Congress.’’ REGISTRATION OF CLAIMS TO COPYRIGHTS AND REC- ORDATION OF ASSIGNMENTS OF COPYRIGHTS AND OTHER INSTRUMENTS UNDER PREDECESSOR PROVI- SIONS Recordation of assignments of copyrights or other in- struments received in the Copyright Office before Jan. 1, 1978, to be made in accordance with this title as it ex- isted on Dec. 31, 1977, see section 109 of Pub. L. 94–553, set out as a note under section 410 of this title. CHAPTER 3—DURATION OF COPYRIGHT Sec. 301. Preemption with respect to other laws. 302. Duration of copyright: Works created on or after January 1, 1978. 303. Duration of copyright: Works created but not published or copyrighted before January 1, 1978. 304. Duration of copyright: Subsisting copyrights. 305. Duration of copyright: Terminal date. § 301. Preemption with respect to other laws (a) On and after January 1, 1978, all legal or eq- uitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject mat- ter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are gov- erned exclusively by this title. Thereafter, no person is entitled to any such right or equiva- lent right in any such work under the common law or statutes of any State. (b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to— (1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of au- thorship not fixed in any tangible medium of expression; or (2) any cause of action arising from under- takings commenced before January 1, 1978; (3) activities violating legal or equitable rights that are not equivalent to any of the ex- clusive rights within the general scope of copyright as specified by section 106; or (4) State and local landmarks, historic pres- ervation, zoning, or building codes, relating to architectural works protected under section 102(a)(8). (c) Notwithstanding the provisions of section 303, and in accordance with chapter 14, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title. With re- spect to sound recordings fixed before February 15, 1972, the preemptive provisions of subsection (a) shall apply to activities that are commenced on and after the date of enactment of the Classics Protection and Access Act. Nothing in this subsection may be construed to affirm or negate the preemption of rights and remedies pertaining to any cause of action arising from the nonsubscription broadcast transmission of sound recordings under the common law or stat- utes of any State for activities that do not qual- ify as covered activities under chapter 14 under- taken during the period between the date of en- actment of the Classics Protection and Access Act and the date on which the term of prohibi- tion on unauthorized acts under section 1401(a)(2) expires for such sound recordings. Any potential preemption of rights and remedies re- lated to such activities undertaken during that period shall apply in all respects as it did the day before the date of enactment of the Classics Protection and Access Act. (d) Nothing in this title annuls or limits any rights or remedies under any other Federal stat- ute. (e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder. (f)(1) On or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, all legal or equitable rights that are equiv- alent to any of the rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State. (2) Nothing in paragraph (1) annuls or limits any rights or remedies under the common law or statutes of any State with respect to— (A) any cause of action from undertakings commenced before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990; (B) activities violating legal or equitable rights that are not equivalent to any of the rights conferred by section 106A with respect to works of visual art; or (C) activities violating legal or equitable rights which extend beyond the life of the au- thor. (Pub. L. 94–553, title I, § 101, Oct. 19, 1976, 90 Stat. 2572; Pub. L. 100–568, § 6, Oct. 31, 1988, 102 Stat. 2857; Pub. L. 101–650, title VI, § 605, title VII, § 705, Dec. 1, 1990, 104 Stat. 5131, 5134; Pub. L. 105–298, title I, § 102(a), Oct. 27, 1998, 112 Stat. 2827; Pub. L. 115–264, title II, § 202(a)(1), Oct. 11, 2018, 132 Stat. 3728.) HISTORICAL AND REVISION NOTES HOUSE REPORT NO. 94–1476 Single Federal System. Section 301, one of the bedrock provisions of the bill, would accomplish a fundamental and significant change in the present law. Instead of a dual system of ‘‘common law copyright’’ for unpub- lished works and statutory copyright for published works, which has been the system in effect in the United States since the first copyright statute in 1790, the bill adopts a single system of Federal statutory copyright from creation. Under section 301 a work would obtain statutory protection as soon as it is ‘‘cre- ated’’ or, as that term is defined in section 101 when it is ‘‘fixed in a copy or phonorecord for the first time.’’ Common law copyright protection for works coming within the scope of the statute would be abrogated, and the concept of publication would lose its all-embracing importance as a dividing line between common law and