January 1, 1964 and December 31, 1977.
242 | THE COPYRIGHT HANDBOOK
A copyright notice valid under U.S.
year after publication. However,
law consists of the © symbol, or the word
most foreign works published during
Copyright or abbreviation Copr., followed
1923–1963 that were never renewed
by the publication date and copyright
had their U.S. copyright protection
owner’s name. However, the date could
restored in 1996 and are protected
be left off maps, original works of art and
for a full 95 years. But a few foreign
art reproductions, technical and scientific
works didn’t qualify for copyright
drawings and models, photographs, labels
restoration and are still in the public
used on products and merchandise, and
domain in the United States. These
prints and pictorial illustrations.
are primarily works that were in the
public domain in their home countries
Works published with a valid copyright notice
as of January 1, 1996. Also, works by
Any work first published in a foreign country
Americans first published outside the
before January 1, 1978 with a copyright
United States during 1923–1963 are
notice receives the same copyright term in
not eligible for copyright restoration.
the United States as works published in the
Thus, for example, photographs of
United States during these years (with one
Marilyn Monroe by an American
big exception, noted below, for works whose
photographer that were initially
copyright was never renewed). The term
published in a British newspaper in
begins with the year of publication of the
1962 with a copyright notice and
foreign work. The copyright terms for such
not timely renewed 28 years later
works are as fol ows:
were not eligible for restoration. As
• Works published before 1923: All these
a result, the photos were in the U.S.
works received a 75-year U.S. copyright
public domain. ( Barris v. Hamilton,
term and, therefore, are all in the public
51 U.S.P.Q. 2d 1191 (S.D. N.Y.
domain in the United States.
1999).) (See Chapter 12 for a detailed
• Works published 1923–1963: The
discussion of restoration of copyrights
vast majority of these works received
in foreign works.)
a 95-year copyright term, dating
• Works published 1964–1977: Any
from the year of publication with a
work first published outside the United
copyright notice. Note that many
States during the years 1964 through
works published during 1923–1963
1977 with a copyright notice receives a
used to be in the public domain in
95-year copyright term, from the date
the United States because their U.S.
of publication with notice. This means
copyrights were not renewed with the
that the earliest any foreign work
U.S. Copyright office during the 28th
published between 1964 and 1978 will
CHAPTER 9 | COPYRIGHT DURATION | 243
enter the public domain in the United F.3d 1162 (9th Cir. 1996).) Since these works
States because of copyright expiration
are viewed as unpublished for American
is January 1, 2060.
copyright purposes, they receive the same
copyright term as unpublished works: They
Works published before 1978
are protected for the life of the author and
without a copyright notice
for 70 years after his or her death.
Many works first published outside the
EXAMPLE: The artists Pierre-Auguste
United States did not contain copyright
Renoir and Richard Guino created a series of
notices because they were not required in
sculptures that were first published in France
the country of publication. Should these
in 1917 without a copyright notice. In 2003,
works be treated any differently than works
the owner of the sculptures filed a copyright
first published outside the United States
infringement suit in Arizona against a
with a notice? One federal court—the
company that was sel ing bronze copies of
Ninth Circuit Court of Appeals—has
them without permission. Under the Ninth
answered this question “yes.” However, this
Circuit rule, which applied in Arizona, the
court’s rulings apply only in the western
sculptures did not acquire U.S. copyright
United States, and it’s possible other courts
protection when published outside the
in other parts of the country may disagree.
United States, and were also not in the U.S.
As a result, it’s possible for a work first
public domain. The district court concluded
published outside the United States before
that such works receive the copyright term
1978 without a copyright notice to be in the
applicable to unpublished works, which
public domain in some states and still under
lasts for 70 years after the death of the last
copyright in others!
surviving author. Renoir died in 1919, but
Guino lived until 1973. Thus, the court
The rule in the western United States
held that the copyright for the sculptures
lasted until January 1, 2043. ( Société Civile
Federal courts in the Ninth Judicial
Succession Richard Guino v. Beseder, Inc. , 414
Circuit—which covers the states of
F.Supp.2d 944 (D. Ariz. 2006).)
Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Oregon, and
However, there is an important exception
Washington—have determined that works
to this rule: If the work was later republished
first published outside the United States
before 1978 with a valid copyright notice,
without valid copyright notices should not
whether in the United States or abroad, it
be considered as having been published
received the same term of U.S. copyright
under the U.S. copyright law in effect at the protection as if it were first published in the time. ( Twin Books v. Walt Disney Co. , 83
United States that year. These copyright
terms are listed in the previous section.
244 | THE COPYRIGHT HANDBOOK
EXAMPLE: The children’s book Bambi: A Life one can be absolutely certain what courts in the Woods, by Felix Salten, was original y
outside the Ninth Circuit will do.
published in Germany without a copyright
notice in 1923. It was then republished
What you should do
in Germany with a copyright notice in
So what should you do? Unless you’re
1926. The 1926 publication triggered the
certain that the work involved will not be
95-year copyright term provided for U.S.
used
or made available in any of the states
works published at this time. This means
Bambi won’t be in the public domain in the
that make up the Ninth Circuit (which
United States until 2022. Had Bambi not
notably includes California), the only
been republished with a copyright notice,
prudent course is to follow both the Ninth
it would have been protected for 70 years
Circuit’s ruling and the rule that most
after Salten died. ( Twin Books v. Walt Disney experts believe should be used.
Co. , 83 F.3d 1162 (9th Cir. 1996).)
Under this approach, a work first
published outside the United States without
a copyright notice before 1978, and never
The rule in the rest of the United States
republished before 1978 with valid notice,
Most copyright experts don’t agree with the
would be treated as in the public domain
decision reached by the Court of Appeals
only if (1) the author has been dead
in the Twin Books case. They believe there
more than 70 years (the same rule as for
should be no difference in copyright terms
unpublished works); and (2) the work was
for works published in the United States
first published before 1923 (the same rule
or abroad. Although the court’s ruling is a
as for works published outside the United
binding legal precedent that all trial courts
States with a valid notice).
located in the Ninth Circuit must follow,
EXAMPLE: Assume that Pierre-Auguste
courts in other parts of the country are not
Renoir created a sculpture which was first
required to follow it, and it is likely they
published in France without notice in 1917
won’t. Thus, for example, if the case involving
and never republished with notice. The work
the Renoir sculptures discussed in the
would be in the public domain under the
above example had been filed in New York
Ninth Circuit’s ruling because Renoir died in
instead of Arizona, it is likely that the New
1919—more than 70 years ago; and, since the
York federal district court would have held
work was first published more than 95 years
that the sculptures were in the U.S. public
ago, it would be in the public domain under
domain because they were published before
the rule likely to be fol owed in the rest of
1923. However, to date, no court outside the
the country. Thus the work is in the public
Ninth Circuit has ruled on this issue, so no
domain in the entire United States.
CHAPTER 9 | COPYRIGHT DURATION | 245
Duration of Copyright in
EXAMPLE: Leslie purchases the right to
Adaptations (Derivative Works)
create a play based on a novel published
by Burt in 1932. She publishes the play in
As discussed in detail in Chapter 6, “Adapta-
2010. The copyright in the novel was timely
tions and Compilations,” a derivative work is
renewed in 1960. Thus, copyright protection
a work that transforms or adapts previously
for the novel will last until 2037, while the
existing material into a new work of author-
copyright in Leslie’s play will last for the rest
ship. A good example is a screenplay based on
of her life plus 70 years. After 2037, anyone
a novel. The copyright in a derivative work
may write their own play based upon Burt’s
published before 1978 lasts for 95 years from
novel, since it is in the public domain. But, in
publication if timely renewed, 28 years if not.
doing so, they could not copy from Leslie’s
The copyright in a derivative work created
play without her permission.
on or after January 1, 1978 lasts for the life
of the author plus 70 years, unless it’s a work
for hire or a pseudonymous or anonymous
Termination of Transfers
work as discussed above. The creation of a
of Renewal Term Rights
derivative work has no effect on the duration in Pre-1978 Works
of the copyright in the preexisting material it As discussed above, works first published incorporates.
or registered before 1978 originally had an
EXAMPLE: Barbara writes a screenplay in 2010 initial 28-year copyright term and a second based on a novel published by Art in 1980.
28-year renewal term. However, the renewal
The copyright in the novel will expire 70 years term has been extended twice: First, it
after Art dies. The copyright in the screenplay was extended an additional 19 years to 47
will expire 70 years after Barbara dies.
years in 1978; it was then extended by an
additional 20 years to 67 years in 1998. This
It is quite common for the copyright
means the owner(s) of the renewal term
in the preexisting material to expire long
ownership rights in a pre-1978 work would
before the copyright in a derivative work
enjoy 67 years of copyright protection
based upon it. In this event, others can use
provided the work was timely renewed.
the preexisting material to create their own
A pre-1978 work’s initial and renewal
derivative works, or for any other purpose,
terms are considered to be completely
without asking permission from the owner
separate. An author may transfer all or part
of the derivative work or anyone else. But
of his or her copyright ownership rights
others cannot use the material added to
during the work’s renewal term. Such a
the preexisting work by the creator of the
transfer may be made any time before a
derivative work.
246 | THE COPYRIGHT HANDBOOK
work’s renewal term actual y begins. Indeed,
By far, the best known instance of
before 1978, authors typical y transferred
the exercise of this termination right
their renewal term rights to their publishers
involves the comic book hero Superman.
and others when they first sold their work.
In 2008, the widow and daughter of
This meant that in most cases, publishers
Jerome Siegel, one of the two original
and other transferees, not authors or their
creators of Superman, successfully used the
families, would be entitled to the additional
termination provision to terminate Siegel’s
39 years of copyright protection created by
1938 transfer of all his copyrights rights
extending the renewal term to 67 years.
in the original Superman comic to Marvel
The whole purpose of having a renewal
Comics for $130. However, the heirs of
term was to give authors and their families a Superman’s cocreator—Joe Shuster—were
second chance to market their work. Thus,
unable to terminate his transfer to Marvel
it did not seem fair that publishers should
because Schuster’s sister had negotiated a
benefit from the extra 39 y
ears added to
new agreement in 1992 and therefore, this
the renewal term. To prevent this, a special new agreement superseded and replaced
provision of the Copyright Act gives authors the pre-1978 grant. ( Larson v. Warner Bros., or their heirs the right to get those extra
CV-08400-ODW (9th Cir. 2013).)
39 years of copyright ownership back by
The copyright law now gives authors or
terminating pre-1978 transfers of renewal
their heirs two separate chances to get back
term rights.
ownership of their works for all or part of
the extra 39 years of copyright protection.
EXAMPLE: Art published a novel in 1952. His
publishing contract contained a provision
by which he transferred to his publisher
Works Published Less Than 61 Years Ago
his publication rights in the novel for the
A transfer of renewal rights may be termi-
renewal term. Art’s publisher timely filed
nated at any time during the five-year period
a renewal application with the Copyright
Office in 1980. The renewal term will last
beginning 56 years from the date that the
for 67 years, until 2047. However, Art or his
work was first published. For example, a
surviving family can terminate the renewal
renewal rights grant for a work published in
rights transfer Art made to his publisher in
1960 may be terminated any time between
1952 and get back the publication rights in
January 1, 2016 and December 31, 2021.
the novel for the last 39 years of the renewal You should think of this period as a five-year term—that is, from 2008 until 2047.
window of opportunity during which you
can get back the last 39 years of copyright
ownership.
CHAPTER 9 | COPYRIGHT DURATION | 247
Works Published More
What to Do
Than 61 Years Ago
A termination of a pre-1978 transfer of
What if the time period for terminating
renewal term rights may be accomplished
renewal rights transfers as set forth above
by the author, or by the author’s widow
has expired and the author or heirs failed
or widower, children, or grandchildren. If
to exercise their termination rights? All is
none of these are living, the termination
not lost. In this event, the author or heirs or may be accomplished by the executor or
executor can terminate the renewal rights
administrator of the author’s estate or by the
transfer for the last 20 years of the 95-year
author’s personal representative or trustee.
The Copyright Handbook Page 43