PUBLISHED JUNE 1996
by Ivan Hoffman, Publishing Attorney —
The question frequently arises as to when a copyright goes into the public domain so that the material may be freely copied. The answer is not a simple, straightforward one since there have been a number of changes to the United States Copyright law that have made the answer depend upon when the work was originally published or registered.
In this regard, it is initially important to note that a copyright that was originally taken out or published in another nation may have a different expiration date than one originally taken out or published in the United States. And works that originally were published in the United States but which may have been translated in other nations may have yet another copyright date on the different versions.
And so one preliminary question to be answered is “When was the work published?” This is the definition of “publication” under the law:
“‘Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.”
Thus, once a work has been published, the time period for the duration of its copyright protection begins, although under the old copyright law, some works could be copyrighted before publication.
You should keep in mind, however, that there is another category of work to be considered, one that covers works created before 1978 but never published or registered. As to these copyrights, the term is the life of the author plus 50 years or 75 or 100 years (see discussion below) except that these copyrights remain in effect at least until December 31, 2002, and if they are published before that date, the copyright term in those works is extended to at least December 31, 2027.
There are several categories of published works and the date they go into the public domain varies as follows:
For works originally created on or after January 1, 1978:
These works are automatically protected from the moment of their creation and are ordinarily given a term of protection equivalent to the life of the author plus 50 years. If the work is one created by two or more joint authors who did not work for hire, the term lasts for 50 years after the last surviving author’s death.
For works made for hire, anonymous and pseudonymous works originally created on or after January 1, 1978:
These works are protected for 75 years from publication or 100 years from creation, whichever is shorter. However, in the instance of an anonymous or pseudonymous work, if the author’s identity is revealed in Copyright Office records, then the term becomes the life of the author plus 50 years, as above.
For works originally created and published or registered before January 1, 1978:
If you believe the law was complicated before, here is where it really gets complicated.
Effective January 1, 1978, the United States Copyright law was changed substantially. Previously, a work’s period of protection began either when it was published or registered if the work was registered in unpublished form. The period of protection lasted for an initial term of 28 years and could be extended for a second period of 28 years if the copyright was renewed during the 28th year.
When the new law came into effect, the statute extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, making these works eligible for a total term of protection of 75 years. But the copyright owner had to file an appropriate renewal application in order to obtain this extended protection. As a result, a person inquiring as to the
status of the copyright of works falling into that time frame has to search the records for that renewal certificate.
In 1992, the law was amended again and it automatically extended the term of copyrights that had previously been secured from January 1, 1964 through December 31, 1977 to the further term of 47 years and eliminated the need to file a renewal application.
When attempting to make a determination as to whether a work originally protected under the Copyright Law of the United States has fallen into the public domain, you must initially know when the work first came under the protection of that law, when or if it was renewed, and who created it, whether by a “natural” person or some other category. It is highly advisable to always do a copyright search and consult with an attorney who can advise you of the intricacies of the law.
And certainly if you need help in doing so, just give me a call!
This article is not intended as a substitute for legal advice. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. You should consult with an attorney familiar with the issues and the laws.
No portion of this article may be copied, retransmitted, reposted, duplicated, or otherwise used without the express written approval of the author.
Ivan Hoffman is an attorney, a published writer and author, as well as a publisher. He practices in the Los Angeles area. You may reach him at firstname.lastname@example.org.