Basics,” copyright protection begins when a
work is created—that is, when it is written
The great divide in determining a copyright’s down or otherwise fixed in a tangible form.
duration is the date January 1, 1978. The
Unless one of the exceptions discussed below
copyright in works created on or after that
applies, the copyright in a work created by a
date usual y lasts for the life of the author(s)
single individual author on or after January
plus 70 years. Works created before that date 1, 1978 lasts for the life of the author plus an have a very different duration.
additional 70 years. This means, at the very
CHAPTER 9 | COPYRIGHT DURATION | 231
least, that the copyright in an individual y
whichever comes first. (A work is published
authored work lasts 70 years. And the
when it is made freely available to the
copyright in a work by a young author could public; see Chapter 1, “Copyright Basics , ”
easily last 100 years or more, depending of
for a definition of publish.)
course on how long the author lives.
This means that if there were a 30-year
delay between creation and publication,
EXAMPLE 1: Bill has a fatal heart attack
the copyright would last for 120 years. For
just as he finishes writing his epic novel on
ancient Sparta. The novel’s copyright will
example, if a work for hire was created in
last for 70 years after Bil ’s death.
2000 but not published until 2030, the
copyright would expire soonest by using
EXAMPLE 2: Natalie completes her own epic the 120-year-from-creation term—that
novel on ancient Sparta when she is 30 years is, the copyright would expire in 2120. If
old. If she ends up living to 80, the copyright the 95-years-from-publication term were
in her novel will last for 120 years.
applied, the copyright wouldn’t expire until
the year 2125. Any delay between creation
Drafts and uncompleted works
and publication of less than 25 years would
mean that the 95-years-from-publication
Copyright doesn’t just protect finished works; term should be applied, since this would
it also protects drafts and uncompleted
result in the shortest period of copyright
works. Each draft of a work created over a
protection. For example, a five-year delay
period of time by an individual author is
would result in a 95-year-from-publication
protected for the life-plus-70-year term. A
term. But, if creation and publication occur
work that is never completed is entitled to
within the same calendar year, as they
the same period of protection.
usually do, the copyright in a work made
for hire lasts for 95 years.
Works Made for Hire
As discussed in detail in Chapter 7, “Initial Joint-Author Works
Copyright Ownership,” a work made for
As discussed in detail in Chapter 7, “Initial
hire is a work created by an employee as
Copyright Ownership,” a joint work is a
part of his or her job or a work that is
work authored by two or more persons on
specially ordered or commissioned pursuant their own behalf (that is, not a work made
to a written work-for-hire contract. The
for hire). The copyright in a joint work lasts
copyright in a work made for hire lasts for
for the life of the last surviving author plus
95 years from the date of its first publication, 70 years.
or 120 years from the date of its creation,
232 | THE COPYRIGHT HANDBOOK
EXAMPLE: Joseph Herodotus and Mary
What if a work is created by one or more
Thucydides write a history of the Persian
people who work for hire and only one
Gulf War. Herodotus dies soon thereafter.
person who does not work for hire? The
The copyright in the work will last for the
Registrar of Copyrights suggests that in
rest of Thucydides’ life plus 70 more years.
this situation whatever copyright term is
If a work is created by two or more
longer—life-plus-70 or the work-for-hire
persons who work for hire, the 95- or 120-
term—should apply.
year work-made-for-hire term discussed
EXAMPLE: Assume that two editors employed
above, applies.
by Acme Press and only one freelance writer
write a book together. Again, the editors’
EXAMPLE: Two editors employed by Acme
Press and two employed by Scrivener &
contributions are works made for hire, while
Sons jointly author a book on publishing for
the free lancer’s contribution is not a work
their employers. The book is a joint work,
made for hire. According to the Registrar of
co-owned by Acme and Scrivener, but the
Copyrights, the copyright in the book should
work-made-for-hire copyright term applies.
last for the longer of the work-made-for-hire
terms or 70 years after the freelancer dies.
Sometimes, a work will be jointly created
both by people who work for hire and people
who don’t. It’s not exactly clear whether the
Anonymous and Pseudonymous Works
life-plus-70 or work-for-hire term should
Obviously, there is no identified author
apply in these situations. The Registrar
with an interest in the copyright of an
of Copyrights has suggested that the life-
anonymous or pseudonymous work.
plus-70 term should apply if at least two of
This makes it impractical to measure the
the work’s creators did not work for hire. It’s duration of the copyright against the life of likely the courts will adopt this rule.
the author. This means that, as with works
EXAMPLE: Acme Press has two of its editors made for hire, there is a copyright term of col aborate on a book with two freelance
95 years from the date of first publication
writers. The contributions by Acme’s editors of an anonymous or pseudonymous work,
are works made for hire. The contributions
or 120 years from the date of its creation,
by the two freelancers are not works
whichever comes first.
made for hire. Since two of the authors
did not work for hire, the life-plus-70 rule
Changing the term to life plus 70 by making
should apply according to the Registrar
identity known to Copyright Office
of Copyrights. That is, the copyright in
If the identity of the author of an anonymous
the work would last for the life of the last
or pseudonymous work is official y made
surviving freelancer plus 70 years.
CHAPTER 9 | COPYRIGHT DURATION | 233
known to the Copyright Office before the
how to record documents with the
95- or 120-year term expires, the copyright
Copyright Office.)
term changes to the life of the author plus 70
EXAMPLE: Harold Lipshitz writes a detective
years (the same as if the true author’s name
novel under the pseudonym “Mike Danger.”
had been on the copyright to begin with).
The book is published the same year Harold
Note, however, that this won’t necessarily
wrote it, so the copyright will last for 95
be longer than a 95- or 120-year term; it al
years unless Harold notifies the Copyright
depends on how long the author lives after
Office of his true identity. Harold gets to
the work was published.
thinking: He was only 25 when he wrote the
Any person who owns all or part of the
novel and his parents both lived well into
copyright in a pseudonymous or anonymous
their 80s, so he figures his copyright would
work may notify the Copyright Office of the
last much longer than 95 years under the
author’s true identity. This may be done by
normal life-plus-70 years term. Harold sends
registering the work under the author’s true
the Copyright Office the fol owing notice.
name or, if the work has already been regis-
tered, by filing a supplementary registration
with the Copyright Office. Copy right
TIP
registration is discussed in Chapter 3,
If an individual author is very ill or
supplemental registration in Chapter 4.
rather elderly and not likely to live 25 years after
Alternatively, it is possible to record (file) the work is published, the work would probably a statement with the Copyright Office
receive longer copyright protection under the
setting forth the following:
95-year term for anonymous or pseudonymous
• the name of the person filing the
works or works made for hire than under
statement
the normal life plus 70 years copyright term.
• the nature of the person’s interest in
The copyright term would also probably last
the copyright
longer if the work was written with a younger
• the title of the particular work affected, collaborator—that is, the copyright would last and
for 70 years after the last col aborator died.
• the copyright registration number, if
Does this mean that elderly authors should
known.
write anonymously or under a pseudonym, or, if
The Copyright Office requires payment
possible, characterize their works as works made
for hire or write them with youthful col aborators?
of a $110 fee to record the statement.
In most cases, no. Very few works have a useful
(See Chapter 8, “Transferring Copyright
economic life of more than 70 years. Thus, the
Ownership ,” for a detailed discussion of
life-plus-70 term is usual y more than adequate.
234 | THE COPYRIGHT HANDBOOK
Sample Letter to Copyright Office
Works Created but Not
Published or Registered
Register of Copyrights
Before January 1, 1978
Library of Congress
Washington, DC 20559
With one important exception, works
created before January 1, 1978, but not
RE: Copyright Registration TX01234567
published or registered with the Copyright
Dear Register:
Office, are subject to the same basic
I am writing regarding copyright registration
copyright duration rules as those created
#TX01234567, registered on January 1, 2000.
after January 1, 1978. That is, the copyright
This work is a novel registered under the title
lasts for the life of an individual author
And Then You Die. It is registered under the
plus 70 years, or 95 or 120 years (from
pseudonymous authorship of “Mike Danger.”
publication and creation, respectively) for a
This is to inform you that I, Harold Lipshitz,
work made for hire or for a pseudonymous
am the author and owner of the copyright in
or anonymous work.
this work. Please record this notice. A check
for $95 is enclosed for the recordation fee.
EXAMPLE: Louisa, a wel -known novelist,
Very truly yours,
dies in 2000 leaving behind an unpublished
Harold Lipshitz
manuscript written in 1977. The copyright in
Harold Lipshitz
the manuscript will last until 2070 (70 years
after Louisa’s death).
Given the above rule, you’d naturally
assume that all unpublished works created
End of Calendar Year Rule
by authors who had been dead more than
70 years on January 1, 1978 automatically
All copyright durations run until the
entered the public domain on that date.
end of the calendar year in which they
However, this did not occur. A special
would other wise expire. For example,
rule provided that the copyright in an
the copy right in a work made for hire
unpublished work created before January
that was first published in 2000 would
1, 1978 could not expire until January 1,
expire on December 31, 2095, regardless
2003, no matter when the author died.
of what month and day during 2000 it
Moreover, if such a work was published
was published. Similarly, if the individual
between January 1, 1978 and January 1,
author of a work published in 1979 died
2003, the copyright cannot expire before
in 1980, the copyright in the work would
December 31, 2047. This is so regardless of
expire on December 31, 2050, regard less of when the author died.
the month and day of his death.
CHAPTER 9 | COPYRIGHT DURATION | 235
EXAMPLE: Samuel, a Revolutionary
Because of these rules, recently discov-
War historian, finds an unknown and
ered unpublished manuscripts by Jane
unpublished diary written by George
Austen and Mark Twain were protected by
Washington in 1790. Since the diary was
copyright in the United States (but no other
never published (or registered with the
country). This is so even though Austen
Copyright Office), it automatical y remained died in 1817 and Twain in 1910. The works
under copyright until December 31, 2002,
have since been published and will be pro-
even though Washington died in 1799.
tected through December 31, 2047.
Samuel had the diary published in 2002.
On January 1, 2003, all unpublished
As a result, its copyright was automatical y
works by all authors who died during 1932
extended until December 31, 2047. The
or earlier entered the public domain. On
copyright in the diary is owned by whoever
January 1 of every year thereafter another
inherited Washington’s papers, not by
year’s worth of unpublished works will
Samuel.
also enter the public domain. That is, on
Preventing Unpublished Works From Entering the Public Domain
If you own the copyright in an unpublished
copies on a street corner would constitut
e
work created by an author who died more
publication.
than 70 years ago, it’s too late to save such a
Does simply placing a work on the Internet
work’s copyright. It is in the public domain.
constitute publication for copyright purposes?
If you own an unpublished work created by
It’s unclear, but it might not. Here is one way
a deceased author whose 70th year after
to definitely publish something by using the
death is approaching, you must publish it
Internet. Put up a website (or use a site you
no later than the end of that 70th year. For
already have) with a notice offering to email a
example, if you own an unpublished work by
copy of the work to anyone who wants one.
an author who died during 1950, you must
You can charge for the copy or offer it for
publish it by December 31, 2020. If you own
free, it makes no difference for publication
an unpublished work by an author who died
purposes. The offer to email copies of the
during 1951, you must publish it by December work to the general public constitutes a
31, 2021 and so on. It’s not difficult to publish
publication for copyright purposes. However,
a work for copyright purposes. You don’t
just to be on the safe side, you may want to
have to have a publisher distribute it, though
actual y email copies to a few people—four
this would certainly qualify as publication.
or five is plenty; these can be friends and
You just have to make copies available to the
associates. Keep copies of the emails and the
general public—for example, handing out
website containing the notice in a safe place.
236 | THE COPYRIGHT HANDBOOK
January 1, 2004, unpublished works by
If you’re the heir or transferee of a
authors who died during 1933 entered
relatively unknown author who has been
the public domain; on January 1, 2005,
dead less than 70 years, and you’re afraid
unpublished works by authors who died
people might think the author has been
during 1934 entered the public domain,
dead more than 70 years, you can simply
and so on.
send a letter to the Copyright Office stating
when the author died. This will prevent
anyone from presuming that the author’s
Determining When Authors Died
unpublished works are in the public domain.
All unpublished works by authors who
died during 1932 or earlier are in the
The Copyright Handbook Page 41