Demystifying the Public Domain: A Guide to Copyright Duration

Each year, a wide array of books, films and more lose their copyright protection and can be freely used without permission. This primer lays out the basics for determining the lifespan of a copyrighted work.

While January 1 signifies “The New Year” for many across the globe, some recognize the same date as “Public Domain Day,” when original works of authorship whose copyrights expired on December 31 of the previous year finally enter the public domain. According to the United States Copyright Office, a work is in the public domain “if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection.” Once a work is in the public domain, anyone may freely use, reproduce, republish or create derivative works from the work without the permission of the former copyright owner.

2019: The Year of the 1923 Works

In 2019, Public Domain Day in the United States was a monumental one, as an avalanche of published works whose copyright terms had been extended by previous changes to the law, entered the public domain. Works published in 1923 are now in the public domain. There had not been an influx of published works entering the public domain since 1998. As a result, we will begin seeing works published on or after January 1, 1923, republished, available digitally, or reproduced as e-books or audiobooks, without the author or their family controlling these publications or securing royalties. Films that were published in 1923, such as Cecil B. DeMille’s “The Ten Commandments,” may be screened for free. Have you always had your heart set on making a film version of Agatha Christie’s “The Murder on the Links”? Well, fire up that screenplay: This book also entered the public domain on January 1, 2019, and, like all works in the public domain, may be freely used as the basis for a derivative work.

While proponents of free access to books, movies and media have rejoiced over the influx of works to the public domain, it is not completely clear which ones will enter the public domain, or if certain works published in 1923 were already in the public domain. Some had lapsed previously due to author inaction (renewals were required) or injected into the public domain when they were published without notice, and others may have longer lives due to initial foreign publication or because the works were not published when the works were created. Copyright law has many nuances, so determining the term of copyright protection for a particular work depends on a number of factors.

Armed with an understanding of the changes to copyright law since 1976, figuring out copyright duration becomes less of a headache. The rest of this article will cover how copyright formalities have changed over time and review five categories of works that are subject to different rules for calculating duration.

Changes to Law Affecting Copyright Formalities

Under the original 1909 Copyright Act, a work had to be published to receive federal copyright protection. Once that work was published, it was eligible for two terms of copyright protection, each lasting 28 years, for a total term of 56 years following publication. However, the copyright owner had to renew the work for the work to obtain its second 28 years of protection. The Copyright Act of 1976 extended the second term to 47 years, meaning that a work was now protected for 75 years (28 years + 47 years) after publication if it were properly renewed. In 1988, the requirement that a work be published with proper notice was removed. Failure to affix notice would have propelled all works published before 1978 into the public domain. In 1992, renewals were made automatic for works still in their first term.

Then, in 1998, Congress passed the Sonny Bono Copyright Term Extension Act that extended the second term of works published from 1923 to 1978 from 47 years to 67 years for a total of 95 years of federal protection. Sometimes derisively called the Mickey Mouse Protection Act, this Act protected “Steamboat Willie,” the first Mickey Mouse movie, from passing into the public domain. However, Congress did not extend the life of these works again, permitting works published in 1923 to begin entering the public domain in 2019 after the expiration of their 95-year term.

The Copyright Act of 1976 changed how the lifetime of a copyright would be calculated. For works published on or after January 1, 1978, the term would begin upon creation, not publication, and last for the life of the author plus 50 years. The 1998 Act extended this term to life of the author plus 70 years. For anonymous works, pseudonymous works and works made for hire, the term was 100 years from creation or 75 years from publication, whichever is shorter. The 1998 Act also extended this term to 120 years or 95 years.

Calculating Copyright Duration

Most types of works fall into one of the five categories below. These categories do not cover every scenario, however, and they exclude works published outside the United States, sound recordings and architectural works. Please use these categories as a reference only and consult with a copyright attorney for a specific work’s duration.

1. Works published before 1923

The first category is the easiest category. All works published before 1923 are in the public domain. Works within this category had a maximum term of 75 years (28 years + 47 years) under the Copyright Act of 1976 and fell into the public domain before the 1998 Act extended the maximum term to 95 years (28 years + 67 years).

2. Works published 1923-1963 – the “Mickey Mouse” group

These works have begun to enter the public domain and benefited from 1998 Act, which extended their second term from 47 years to 67 years. If the works were properly renewed under the 1909 Act, then these works have a 95-year term. For works in this category, check to see if the copyright owner renewed the work. All works in this category that were not properly renewed are in the public domain.

So, for a work published in 1923, which was properly renewed before the expiration of the first 28-year term, the work’s term lasted until 2018. Next year, we will see works published in 1924 entering the public domain following the expiration of their 95-year copyright term at the end of 2019. In 2021, “The Great Gatsby” by F. Scott Fitzgerald, first published in 1925, will enter the public domain.

3. Works published 1964-1977

Works in this category were affected by the 1992 legislation providing for automatic renewal because they were still in their first term when the law changed. These works enjoy 95 years of copyright protection from the date of publication.

4. Works created, but not published, before 1978

This a tricky category. Remember that prior to the 1976 Act, federal copyright protection was only available to published works. If the work were not published, only common law copyright would protect the author’s rights in the work. However, the 1976 Act provides federal copyright protection as soon as the work is created. In general, works in this category are subject to the duration rules created under the 1976 Act: life of the author plus 50 (now 70) years. Congress recognized that applying this rule to very old works that had never been published would result in many works immediately entering the public domain, as the authors of the works passed away more than 50 years earlier. To prevent this from happening, Congress decided to grant an extra 25 years of protection for these works until at least December 31, 2002. The term for works created, but not published, before 1978, is life of the author plus 70 years or until December 31, 2002, whichever is later. Some of these works are in the public domain, but many still exist under the life of the author plus 70 years term.

Congress incorporated an incentive in the 1976 Act if the copyright owner decided to publish a previously unpublished work. If the work was published before 2003, the 1976 Act granted those works an additional 45-year term before falling into the public domain. For works created before 1978 and published between 1978 and 2002, the term is the life of the author plus 70 years or until December 31, 2047, whichever is later.

We can next expect a large influx of works entering the public domain in 2048, when many works that were in existence but only published between 1978 and 2002 were granted copyright protection lasting until December 31, 2047.

5. Works created on or after 1978

Works in this category are given a straightforward treatment of the copyright duration rules under the 1976 Act. Remember, the copyright term for these works begins upon creation. In general, the term is the life of the author plus 70 years. For anonymous works, pseudonymous works and works made for hire, the term is 120 years from creation or 95 years from publication, whichever is shorter. Most works in this category are not in the public domain.

However, because the law required that works bear proper notice until 1988, some works in this category are in the public domain if they were published without notice from 1978 to 1989 and the lack of notice was not cured within five years of publication.

Benefits to Understanding the Rules of Copyright Duration

Having a basic understanding of the rules of copyright duration will help you, your business or your clients determine the lifespan of copyrighted works. This is important to know when decisions are being made about the availability of using certain works for various projects. To access works in the public domain, check out resources like Project Gutenberg, Open Library and HathiTrust.

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