On October 27, 1998, President Clinton signed into law the “Sonny Bono Copyright Extension Act,” which extends the terms of almost all existing copyrights by 20 years, in order to provide copyrights in the United States the same protection they are afforded in Europe. The basic term of copyright protection, the life of the creator plus 50 years, has been increased to life plus 70 years.
For those works that have value beyond the life of the creator, this extension of the term of copyright will have significance. Not only will the estates and heirs of individuals be benefited, but corporations producing entertainment and other intellectual property will also gain from the fact that the term for “work for hire” has been extended from 75 to 95 years.By extending the copyright term, the act also prevents many works that would have fallen into the public domain (where anyone may freely copy them) from losing their copyright.
In particular, copyrighted works published in 1923 would have fallen into the public domain on January 1, 1999. Because of the act, these works will continue to have copyright protection for another 20 years. This result has brought a challenge to the constitutionality of the law from Eldritch Press, a nonprofit publisher dedicated to innovative presentations of literary works on the Web.
The complaint alleges, “Among the works that plaintiffs are preparing to post on the Internet have been works created in 1923 that, but for enactment of the act, could have been legally copied and distributed on January 1, 1999.” Arguing that the Constitution allowed the protection of copyrights for a “limited” time, Eldritch Press asserts that the extension is unconstitutional. While this argument is difficult to accept, given the fact that the longer term is clearly still limited (to either life plus 70 years or, in the case of work for hire, 95 years), the concern of Eldritch Press with respect to what is in the public domain will be shared with many other creators who wish to make use of older works.Copyright issues are often implicated when creating an artistic work.
Authors may want to borrow quotes or passages from other authors, and artists may wish to borrow images and designs from other artists. As a result of this practice, it is important for every publisher and author to be aware of the copyright laws which regulate such uses and the requisite permissions which must be obtained in order to avoid any legal hassles. This article will explore the copyright status in the United States of works created at different times and will also give an overview of fair use, which allows use of a copyrighted work without permission of the owner.
Works in the Public Domain
First, it is helpful (and may avoid a great deal of unnecessary work) to make a cursory determination as to whether or not the work has passed into the public domain. Copyrights have expired on all United States works registered or published prior to 1923. Thus, it is unnecessary to seek a permission in order to use such works. If the work was published or registered more recently, a more complex investigation must be undertaken to determine whether or not the work is protected.
Works Published After January 1, 1978
Determining the protection of works registered or published on or after January 1, 1978 is a relatively straightforward endeavor. The copyright for works created during this time is usually the length of the life of the author plus 70 years. The term differs in the case of works made for hire and works created anonymously or under a pseudonym. A “work made for hire” is a work that is prepared by an employee within the scope of his or her employment, or a work that is specially ordered or commissioned and falls into one of the following nine categories:
- contribution to a collective work,
- part of a motion picture or other audiovisual work,
- as a translation,
- as a supplementary work,
- as a compilation,
- as an instructional text,
- as a test,
- as answer material for a test, or
- as an atlas.
Additionally, for commissioned works, the work for hire relationship must be expressly agreed to in a written instrument signed by both parties in order to be valid. In the case of a work for hire, the creator is not the author; instead the author is the employer or commissioning party. As many times the employers are corporations with a potentially unlimited life, the copyright term for works for hire is a fixed term rather than one based on the length of the author’s life. A work for hire copyright term lasts for 95 years from the date of its first publication, or 120 years from the date of its creation, whichever period is shorter.
Similarly, the copyrights for works done anonymously or under a pseudonym last for 95 years from the date of its first publication, or 120 years from the date of its creation, whichever comes first.If a work was created before 1978, but is not published or registered until after, the copyright term becomes the life of the author plus 70 years or the appropriate anonymous or pseudonym term. Thus, publication after January 1, 1978 of an unpublished or unregistered work that was created before 1978 can be a way of insuring a longer copyright term. In addition, no copyright for a work created before, but unpublished until after 1978, can expire before December 31, 2002. (This would be of interest for very old, previously unpublished or unregistered manuscripts.) And if the work is published on or before December 31, 2002, the term of the copyright will not expire before December 31, 2047, regardless of when the author’s death was.
Works Published Before January 1, 1978
Determining the copyright term for a work that was registered or published prior to 1978 is a complicated task, as several versions and additions to the copyright act between 1909 and 1998 have continuously changed copyright law in the United States. The original 1909 act provided, upon publication with proper copyright notice, an original term of 28 years, which upon its end could be renewed for an additional term of 28 years (the renewal term). The renewal was not automatic, and if the author (or publisher) failed to renew the copyright during the 28th year of the term, the work fell into the public domain and could not be retrieved. It is therefore impossible to know whether or not the term has expired unless you know whether or not the author filed the renewal registration for the work in a timely fashion.
This renewal term of 28 years has been expanded twice over the course of the development of copyright law: first to a term of 47 years for a total term of 75 years, and now (with the enactment of the Sonny Bono Copyright Term Extension Act) to a term of 67 years for a total term of 95 years.Simply, a work published or created before 1978, with timely filed renewals, has a copyright term of 95 years. The real difficulty is in the details, especially since some works had to have a renewal registration filed at the end of 28 years and other works did not because the Copyright Renewal Act of 1992 made the renewal for those works automatic. The 1992 Act applies “only to those copyrights secured between January 1, 1964, and December 31, 1977.”
Therefore, any work published in 1963, or before, still needed to be renewed by the copyright owner (failure to renew on time caused the copyright to be lost to the public domain), while works published between 1964 and 1977 were granted the 67 year renewal. Adding 28 years to 1964, we see that the first works to be automatically renewed were works whose renewal term began on January 1, 1993.To put this simply, copyrights obtained from 1923 to 1963 have a 95 year term if these copyrights were renewed, while copyrights obtained from 1964 to 1977 benefited from automatic renewal and definitely have a 95 year term.
If a creator wishes to use a work but finds that it has not gone into the public domain, it may still be possible to use part or all of the work pursuant to fair use. To foster the free flow of thoughts and ideas, the copyright law permits the reproduction of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. The law lists the following as factors to be considered when determining whether a use is a fair use or an infringement:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market value of the copyrighted work. Since fair use is not a codified statutory exemption, but rather a defense used in a copyright infringement suit, it is uncertain whether or not a court will find a particular use to be considered a fair use.
Therefore, if the use does not clearly fall into one of the delineated fair use categories, it is wise to obtain a permission from the copyright owner before using the work.
Copyright Research Services
Determining the status of a copyright, in particular those published or registered before 1978, is a complex and often time-consuming task. Of course, the easiest way to determine the copyright term for works created before 1978 but after 1964 is to look for copyright notice on the work in question.
The copyright notice (which is no longer required in the United States) generally includes the author’s last name, the year of publication, and the ©. Simple subtraction will indicate when the term of the copyright will expire. In works created before 1964, however, there is no way of telling whether or not an author has filed the necessary renewal registration for a work. It is possible for an individual to search the Copyright Office’s records, which are available in the Copyright Office in Washington, DC, and through the Copyright Office’s Web site. The Copyright Office’s Web site, http://www.copyright.gov/, includes recent developments in copyright legislation, basic copyright circulars, registration forms, as well as registration records and renewal records.
The records available on the Web site, however, date back only to 1978, and there is no search assistance offered by the Copyright Office to users of the Internet. For a fee, however, the Copyright Office will search its renewal records and indicate whether a renewal was filed and when the copyright term has expired or will expire.
A copyright information specialist who can provide more detailed information about this service can be reached during business hours at 202/707-3000, and US Copyright Office publications may be requested at anytime by calling 202/707-9100. The Web site also contains a “related resource” link to a listing of Web sites of copyright licensing organizations and publication rights clearinghouses, which will be helpful in obtaining the proper permissions from the copyright owner of the work in question. A more expensive option would be to use attorneys and copyright search firms that will conduct a search and provide a copyright report detailing the term and expiration date the work’s copyright.
The extension of the copyright term rewards creators and gives an incentive to the creative act. At the same time, there is a value served by having our cultural heritage in the public domain where free copying and usage is allowed. The “limited” term of copyright allowed by the Constitution has shifted toward longer protection in tandem with the growth in production of intellectual property in the United States. Proponents of maximizing information availability on the Internet may feel that the Sonny Bono Term Extension Act has gone too far in the protecting copyrights. However, balancing this is the fact that the copyright term is not eternal and the certainty that all works, even were their creator’s age to rival that of Methuselah, will one day enter the public domain and be freely available to all.
Tad Crawford, attorney, author, and publisher for Allworth Press in New York City, http://www.allworth.com/, is the author of “Business and Legal Forms for Authors and SelfPublishers,””The Writer’s Legal Guide,” and “The Secret Life of Money.” Laura Mankin is in her final year of study at Columbia University School of Law.