Works Published or Registered
public domain. If the author is well known,
Before January 1, 1978
reference works, such as encyclopedias, wil
probably reveal when (or if) the author died.
Determining the copyright term for works
The website www.biography.com provides
created before 1978 can be a complex
this information for over 25,000 people.
undertaking. Under the pre-1978 copyright
law (called the Copyright Act of 1909), all
eligible works enjoyed an initial copyright
In the case of unpublished works made for term of 28 years from the date of first
hire created before 1978 (works created by
publication with a proper copyright notice.
employees as part of their jobs or works for
Before the end of the first 28 years, they
which a work-made-for-hire agreement was
could be renewed for an additional 28-year
signed), the copyright lasts 120 years from the term by filing a renewal registration with date of creation. So, all unpublished works
the Copyright Office. This second term is
made for hire created before 1883 entered the called the renewal term.
public domain on January 1, 2003. Every year
This sounds pretty simple, but things
thereafter, another year’s worth of works for
get more complicated. The renewal term
hire enters the public domain—for example,
for works published before 1978 has been
on January 1, 2004, all unpublished works
extended an additional 39 years to 67 years
made for hire created during 1883 entered
(28 + 39 = 67), for a total of 95 years of
the public domain; on January 1, 2005, al
copyright protection (28 + 67 = 95).
unpublished works for hire created during
Under the law in effect from 1909
1884 entered the public domain; and so
through 1992, the renewal term was not
on. This rule also applies to unpublished
automatic. It could be obtained only
pseudonymous and anonymous works.
by filing a renewal registration with the
CHAPTER 9 | COPYRIGHT DURATION | 237
Copyright Office during the 28th year
Unpublished Works Registered With
after a work’s publication. As you might
the Copyright Office Before 1978
expect, many authors failed to timely file a
renewal for their work. Indeed, only about Before 1978, authors of some types of
20% of all pre-1978 published works were
unpublished works had the option of
ever renewed.
registering them with the Copyright Office
This meant that a vast body of work
as unpublished. Such works receive the
entered the public domain 28 years after
same copyright term as works published
publication due to failure to comply with
before 1978, with such protection beginning
a mere technical formality. This seemed
on the date a copy of the registered work
unfair to many people and, as a result, the
was deposited with the Copyright Office.
law was changed in 1992. The new law
Not all unpublished works could be
made copyright renewals automatic—in
registered. The procedure was available
other words, the 67-year renewal term
only for unpublished lectures and similar
was obtained whether or not a renewal
works, “dramatic compositions” (plays),
registration was filed. Renewal registrations musical compositions, “dramatico-musical
were made purely optional—but the law
compositions” (musicals), motion picture
gives copyright owners who file renewal
screenplays, motion pictures other than
registrations some important benefits we’ll
screenplays, photographs, works of art,
discuss below.
“plastic works” (sculpture and similar
works), and drawings. Such items as
unpublished writings other than lectures
CAUTION
could not be registered, nor could art
The 1992 automatic renewal law
reproductions or sound recordings. This
applies only to works published between
procedure was not often used except for
January 1, 1964, and December 31, 1977. Works works that did not qualify as published published during 1923–1963 had to be renewed
for copyright purposes, even though they
during the 28th year after publication or they
were performed in public or broadcast to
entered the public domain, where they will
the public—for example, plays, screenplays,
forever remain.
radio scripts, and teleplays. Copyright
Office records must be searched to
The following sections provide some
determine if such works were registered.
general rules that will help you decide
If such a registered unpublished work
whether a work published prior to 1978 is
was later published, no new copyright was
still protected by copyright.
obtained in the material, and the copyright
term for such material was not extended.
238 | THE COPYRIGHT HANDBOOK
Works Published Before 1923
Congress Freezes Public
The copyright for any work published in
Domain for 20 Years
the United States before 1923 has expired.
Before 1998, the renewal term for pre-1978
This means that the work is now in the
published works was 47 years. Thus, the
public domain. Anyone can use it without
copyright for works published before 1978
permission or payment, but no one can ever
lasted a maximum of 75 years from the year
own it.
of publication: a 28-year initial term and a
47-year renewal term. This meant that al
works published in 1923 were due to enter
TIP
the public domain in 1999; those published
To determine whether a book or
in 1924 would have become public domain
another work was first published before 1923,
in 2000; those published in 1925 would have
simply look at the year shown in the work’s
become public domain in 2001, and so on
copyright notice. This should be the same year
every year until all pre-1978 published works
as the year of first publication.
entered the public domain. However, in 1998
this process was frozen for 20 years when
Congress passed the Sonny Bono Copyright
Works Published 1923–1963
Extension Act. The act extended the renewal
term for pre-1978 published works by 20
Works published 1923–1963 have already
years—from 47 years to 67 years. Works
entered the public domain unless a renewal
published between 1923 and 1978 are now
registration was timely filed with the Copy
protected for 95 years from the year of
right Office by the end of the initial 28-year
publication. This means works published in
term. If it was, the renewal term lasts for
1923 won’t enter the public domain until
67 years. for a total of 95 years of copyright
2019, those published in 1924 won’t become
protection.
public domain until 2020, and so on.
The 20-year copyright extension was chal-
EXAMPLE 1: The copyright in a work that
lenged all the way to the U.S. Supreme Court
was first published in 1932, and timely
which held, in a highly publicized decision,
renewed in 1960, lasts through the end of
that it was constitutional. ( Eldred v. Ashcroft,
2027 (95 years in al ).
123 S.Ct. 1505 (2003).) Thus, the extension—
EXAMPLE 2: The copyright in a work that
and the public domain freeze—is here to stay.
was first published in 1962, but not timely
Again, however, works published before
renewed in 1990, expired on December 31,
1923 are in the public domain, because the
1990 (the end of the initial 28-year term).
Sonny Bono Act did not affect works that
The work is now in the public domain.
were already in the public domain at the
time of its 1998 passage.
CHAPTER 9 | COPYRIGHT DURATION | 239
How to determine whether a
• Have a professional search firm conduct a
renewal has been timely filed
search for you. There are several private
As these examples illustrate, it is impossible
search firms that conduct copyright
to know how long the copyright in a work
renewal searches. They usually report
published during 1923–1963 will last unless
back in two to ten working days. For
you know whether a renewal registration
example, Thomson & Thomson, the
was timely filed. When a book is reprinted
best known of these firms, charges
after renewal, the copyright notice usually
$145 for a renewal search and will
provides this information. Otherwise you’ll
report back in three business days. This
need to research the Copyright Office’s
is a much better deal than paying $400
records to find out if a renewal was timely
to the Copyright Office and having to
filed. There are three ways to do this:
wait up to two months for the results.
•
Following is a list of copyright
Have the Copyright Office search its
search firms:
records for you. They charge $200 an
hour for this service, and searches take a
■■ Durationator Copyright System
minimum of two hours. Unfortunately,
www.limitedtimes.com
it takes the Copyright Office six to eight
[email protected]
weeks to conduct a search and report
■■ Government Liaison Services, Inc.
back to you. You can obtain much faster
www.trademarkinfo.com
service for less by using a private search
■■ Thomson & Thomson
firm as described below. The Copyright
Copyright Research Group
Office will conduct an expedited search
http:/ trademarks.thomsonreuters.com
that takes just five business days, but
800-692-8833
this costs a minimum of $1,000. Again,
• Search the Copyright Office records your-
you can obtain faster service for less by
self. This is relatively easy to do for
using a private search firm.
works published during 1950–1963,
If you still want the Copyright Office
because the records are available online
to do your search, you may make an
at the Copyright Office website at
online request for a search at the Copy-
www.copyright.gov. But researching
right Office website (www.copyright.
works published during 1923–1950 is
gov). At the conclusion of its search, the
more difficult because these records
Copyright Office will issue a written
are not available at the Copyright
search report, which may be certified for
Office website. In the past, it was
an additional $200 fee. Certified search
always necessary to manually search
reports are frequently requested to meet
through the Copyright Office Catalog
the evidentiary requirements of litigation.
of Copyright Entries (CCE). This is a
240 | THE COPYRIGHT HANDBOOK
monumental series of printed annual
pamphlets, and contributions to periodicals
catalogs listing and cross-referencing
published from 1923 to 1977 and made them
every work registered and renewed
searchable online through Google Books
by the Copyright Office. The CCE is
(https://books.google.com/googlebooks/
available to the public at the Copyright copyrightsearch.html). The Stanford
Office, located in the James Madison
University Library also created a searchable
Memorial Building, 101 Independence online database of all the copyright renewals
Avenue SE, Washington, DC. The
for books published during the period 1923
CCE can also be found in government through 1963 (https://exhibits.stanford.edu/
depository libraries throughout the
copyrightrenewals). These records may be
country. Fortunately, this is no longer a searched by title, author, registration date,
problem. All of the 660 CCE volumes and renewal date. Also, the Universal Library
have been digitized by the Copyright
Project, supported by Carnegie-Mel on
Office and made publicly available on
University, has scanned many of the CCE
the Internet Archive (www.archive.org/ renewal records and placed digital copies of
details/copyrightrecords) with a limited each page online at a website cal ed the
search capability based on the results
Online Books Page (http://onlinebooks.
of optical character recognition (OCR) library.upenn.edu/cce).
of the scanned text. A helpful Copyright
Office video on how to use these online
records is available as a download
RESOURCE
(mp4 file) at http://copyright.gov/
For detailed guidance on how to
tutorials/records/cce.mp4. Production
conduct a copyright renewal search, see The Public
scanning is also underway for the
Domain: How to Find & Use Copyright-Free Writings,
40 million catalog card records from
Music, Art & More, by Stephen Fishman (Nolo).
registrations recorded from 1871 to
1977. For details, see the Copyright
Access and Preservation Project, at
TIP
www.copyright.gov/digitization.
Limited copying right for libraries
In addition, several private organizations
during last 20 years of copyright term. Libraries
have made the renewal records available
and archives are now permitted to make copies of
online independently of the Copyright
published works during the last 20 years of their
Office. For example, Google, Inc.
, has
copyright term for the purposes of preservation,
scholarship, or research if such works are not
scanned all 91 volumes of the CCE
commercial y available. See Chapter 10, “Using
containing renewal records for books,
Other Authors’ Words,” for a detailed discussion.
CHAPTER 9 | COPYRIGHT DURATION | 241
Copyright Duration Chart
EXAMPLE: Jackie published a novel in 1965.
The initial 28-year copyright term for the
Date and Nature
book expired on December 31, 1993 (28 years
of Work
Copyright Term
after the year of publication). The 67-year
Published before 1923 The work is in the
renewal term began automatical y on
public domain.
January 1, 1994, whether or not Jackie filed a
Published 1923–1963 The work is in the
renewal application with the Copyright Office.
and never renewed
public domain.
However, as discussed below, important
Published 1923–1963 95 years from the date
benefits can be obtained in some cases by
and timely renewed
of first publication
filing an optional renewal registration with
the Copyright Office.
Published between
95 years from the
1964 and 1977
date of publication
(renewal term
Special Rules for Works First
automatic)
Published Abroad Before 1978
Created, but not
Single term of 120
published or registered, years from creation
There are some special rules for works that
before 1978
for unpublished
were first published outside the United
works made for hire,
States before 1978: They may enjoy a
and unpublished or
different term of copyright protection and
pseudonymous works
the copyright renewal rules no longer apply
to such works.
Created before 1978
Copyright will expire
and published
January 1, 2048.
1978–2002
Copyright Term for Foreign Works
Created 1978 and later Life of author + 70 years
The copyright duration for works first
published before 1978 outside the United
States may depend on whether the work
involved contained a copyright notice.
Works Published During 1964–1977
Copy right notices have never been required
for published works in most foreign countries,
The 67-year renewal term begins auto-
but they were often used anyway.
matically for works published between
The Copyright Handbook Page 42