COPYRIGHT DURATION AND THE PUBLIC DOMAIN

In most cases, it will be necessary to obtain permission to include part of another author's work in a book unless that work is in the public domain. A work will be in the public domain if its term of copyright has expired.

Determining whether a work is still protected by copyright or has fallen into the public domain is often more difficult than might be expected.Unfortunately, determining whether a work is still protected by copyright or has fallen into the public domain is often more difficult than might be expected. This difficulty is largely due to changes made to the U.S. copyright laws over the years. The Copyright Act of 1909 was in effect from 1909 until January 1, 1978, when it was replaced by the Copyright Act of 1976. Beginning on September 19, 1962, Congress made a series of interim amendments to the 1909 Act. The 1976 Act was amended in 1992, and again in 1998.

The term of copyright for a work created on or after January 1, 1978 will be determined exclusively by the rules under the 1976 Act. The term of copyright for a work created prior to January 1, 1978 may be determined by the rules under the 1909 Act, or it may be determined by the rules under the 1976 Act, depending on when or if the work was published or registered, and, in some cases, on when or if a renewal registration was filed.

The rules for determining if a work has fallen into the public domain are explained below.

Works Created on or after January 1, 1978

The term of copyright for any work created on or after January 1, 1978 is the author’s life, plus 70 years, unless the work is a joint work or a work made for hire. If the work is a joint work, the term of copyright will be the last surviving joint author’s life, plus 70 years. If the work is a work made for hire, the term of copyright will be 95 years from publication or 120 years from creation, whichever expires first.

Works Created but not Published or Registered Before January 1, 1978

Under the 1909 Act, the term of copyright began on the earlier of registration or first publication, and continued for at least 28 years. However, a work that was never registered or published was deemed to be protected by common law copyright, which had an unlimited term. The 1976 Act did away with the concept of common law copyright, and established limited terms of copyright for works that had never been registered or published. Under the 1976 Act, the term of copyright for any work that was created prior to January 1, 1978 but was never published or registered will last until the later of: (i) the author’s life plus 70 years; or (ii) December 31, 2002. As an additional wrinkle, if the work was published with the permission of the copyright owner prior to December 31, 2002, the term of copyright will extend until the later of: (i) the author’s life plus 70 years; or (ii) December 31, 2047. If the work was a joint work or a work made for hire, then, instead of the author’s life plus 70 years, the term of copyright will be the last surviving joint author’s life plus 70 years (for a joint work), or the shorter of 95 years from publication or 120 years from creation (for a work made for hire).

Works Published or Registered Before January 1, 1978

As noted above, under the Copyright Act of 1909, a work was entitled to an initial term of copyright of 28 years, beginning on the earlier of publication or registration. The work was also entitled to a single renewal term of 28 years, provided the author or the author’s heirs or assigns filed a renewal registration prior to the end of the initial term. The 1976 Act replaced the 1909 Act, effective as of January 1, 1978, but changes were made to the length of the renewal term, beginning in 1962, in anticipation of the passage of the new Act. Additional changes were made by the new Act and by amendments to that Act in 1992 and 1998, resulting in the following rules for works published or registered before January 1, 1978:

Safe Harbors

A work that was registered or published prior to January 1, 1923 is now in the public domain. Two safe harbors can be distilled from the above rules:

1. A work that was registered or published prior to January 1, 1923 is now in the public domain.

2. A work that was registered or published before January 1, 1964 is in the public domain if a renewal registration was not filed for that work.

If a work does not fall into either of these safe harbors, it will be necessary to do additional investigation to determine if the work is in the public domain.