Copyright duration in the US
The question comes up all the time here at The Legal Genealogist.
Something was published at some point in the past, and a reader wants to know if she can use it in her genealogical work — in a blog post or a journal article or a book or a presentation — without being concerned for any copyright issues.
The bright-line dividing point in the United States is 1923: anything legally published before 1923 is now out of copyright. Anything published in 1923 or later might or might not be copyright-protected, depending on a whole host of factors.
There are so many variables for post-1923 publications that the best thing you can do is consult Peter Hirtle’s chart at the Cornell Copyright Center, “Copyright Term and the Public Domain in the United States.” It’s updated annually and covers the whole waterfront.1
Now… here’s the story on that 1923 dividing line:
For works that had already secured statutory copyright protection before January 1, 1978, the 1976 Copyright Act retains the system in the previous copyright law—the Copyright Act of 1909—for computing the duration of protection, but with some changes.
Federal standards for copyright duration differ substantially under the 1909 act compared with the 1976 act because of the renewal term contained in the 1909 act. Under the 1909 act, federal copyright was secured on the date a work was published or, for unpublished works, on the date of registration. A copyright lasted for a first term of 28 years from the date it was secured. The copyright was eligible for renewal during the final, that is, 28th year, of the first term. If renewed, the copyright was extended for a second, or renewal, term of 28 years. If it was not renewed, the copyright expired at the end of the first 28-year term, and the work is no longer protected by copyright. The term of copyright for works published with a year date in the notice that is earlier than the actual date of publication is computed from the year date in the copyright notice.
The 1976 Copyright Act carried over the system in the 1909 Copyright Act for computing copyright duration for works protected by federal statute before January 1, 1978, with one major change: the length of the renewal term was increased to 47 years. The 1998 Copyright Term Extension Act increased the renewal term another 20 years to 67 years. Thus the maximum total term of copyright protection for works already protected by January 1, 1978, has been increased from 56 years (a first term of 28 years plus a renewal term of 28 years) to 95 years (a first term of 28 years plus a renewal term of 67 years). Applying these standards, all works published in the United States before January 1, 1923, are in the public domain.2
Read that last past again: “Applying these standards, all works published in the United States before January 1, 1923, are in the public domain.”
Now there is an issue with the breadth of this statement: the work had to be lawfully published — meaning that you couldn’t steal somebody else’s work, publish it in the United States, and start the clock running on the stolen version.3
But as long as the item was lawfully published in the United States before 1923, it’s out of copyright now, and nothing anyone does now can put it back into copyright protection. That means nobody can take it, repackage it, and get a new copyright on the new package. You can get a new copyright on any new material, like an index or introductory materials or anything else you add for the first time, but not on the material that’s already out of copyright.4
So the dividing line here in the United States for the public domain is 1923.
Really.
SOURCES
- Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 29 Nov 2016). ↩
- U.S. Copyright Office, “Circular 15a: Duration of Copyright,” PDF version, Copyright.gov (https://www.copyright.gov/ : accessed 29 Nov 2016) (emphasis added). ↩
- See Peter Hirtle, “The myth of the pre-1923 public domain,” LibraryLaw Blog, posted 5 July 2009 (http://blog.librarylaw.com/l : accessed 29 Nov 2016). ↩
- See Judy G. Russell, “Copyright and the republished work,” The Legal Genealogist, posted 25 Feb 2014 (https://www.legalgenealogist.com/blog : accessed 29 Nov 2016). ↩
I struggle with the definition of “published” for photographs. The Society of American Archivists states:
“How can I tell if something is published or unpublished?
The law defines “publication” as offering for distribution or actually distributing copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Publication has been interpreted by the courts as distribution to numerous individuals who are under no explicit or implicit restrictions with respect to the use of the contents. An informational text, such as this one, is published if it is distributed to the public, whether or not it is offered for sale. Generally, material is considered unpublished if it was not intended for public distribution or if only a few copies were created and distribution was limited.”
So am I correct that pre-1923 family snapshots and studio portraits were not published, therefore this public domain law does not apply to them? What about commercial photographs that were made available to the public (as in advertised in city directories and newspapers)? I’ve had other lawyers tell me that these are in the public domain, but I can’t find much in writing about this topic. What about commercial photos that were made specifically for a client (say an architect or business), but never widely distributed? Thanks for your wonderful articles!
I can’t cross the line from general information into legal advice, so let me suggest that you take a look at the info on the Copyright Office website. It says: What is publication?
Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first made available to the public. For further information see Circular 1, Copyright Basics, section “Publication.”
Judy,
Thanks for the clarity on copyright. I do have one question, though. If the publication doesn’t say that it’s copyrighted, does any of this ever apply? Is the document in the public domain from the beginning? Or do the same date rules apply, presuming you can find out what they are? My gg grandfather wrote a book, in serial fashion, beginning in the 1870s, and while it’s dated, he doesn’t put a copyright on any of the sections. Clearly, by the dates, it’s out of copyright by now. But was it ever under copyright protection, since the dates of publication were known?
Thanks,
Doris
You know what the answer is: it depends! Review Dr. Hirtle’s chart at Cornell’s Copyright Center and look at the Works Registered or First Published in the U.S. section.
Sorry Judy, but I’m confused. Does not 1923 + 95 = 2018?
It is confusing, John: the answer is that the 1998 statute (making it 95 years) didn’t become law until after those things published in 1922 and before had entered the public domain. The 1998 law wasn’t retroactive (it didn’t return things to copyright protection after it expired). So it’s still the law that everything published before 1923 is public domain, but for things published in 1923 and later, the longer term applies (and so we may get new things into the public domain starting again in 2019, assuming Congress doesn’t foul it up in the interim).
The other question that comes up with regard to copyright concerns items that have been digitized. That is, if one scans (and publishes) a photograph that is currently in public domain, does the “clock” start over? Is it a new item? Derivative? Simply a reformat? I’ve seen all kinds of copyright claimed on scanned items whose originals are clearly published pre-1923.
When the “new” item is merely a copy of the original, then, in general the courts have said there is no copyright in the reproduction because it lacks the necessary creativity to warrant copyright protection. See Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999) (no copyright for “substantially exact reproductions of public domain works, albeit in a different medium”) and Meshwerks v. Toyota, 528 F.3d 1258 (10th Cir. 2008).
Thanks