Public Domain and Terms of Copyright
Wherein we review the laws governing the term of protection for copyrights and how these determine when a work of art enters the public domain.
The Sonny Bono Act of 1998To our collective loss, the Sonny Bono Act of 1998 added 20 years to the term of protection for existing and future copyrighted works of art. Thus, from 1998 through 2018, only works published on or before 1922 were in the public domain. This is because the Copyright Act of 1976 provided that all published works registered with the Copyright Office prior to 1978 were granted a term of 75 years. When one adds 75 years to 1922 we arrive at 1997, the year prior to the Sonny Bono Act.
Publication RequirementYet nothing is ever simple with copyrights! One must be aware that this law protected only authorized publications. Thus, if a work was published before 1924 and it was unauthorized or pirated, then the work may in fact still be under copyright if the author claims an authorized version was later published. For example, Felix Salten*s Bambi, A Life in the Woods, was published in 1923 in Germany and published in the U.S.A. three years later. The latter publication date controls and it will not enter the public domain until 2022.
Copyright RenewalsIn addition, there are other works published on or after 1924, and before 1964, that may be in the public domain already. This is because the Copyright Act of 1909 required authors to renew their copyrights prior to the end of the first 28 year term. If the copyright was renewed, then such works continue to be protected under copyright for 95 years from publication. However, a number of studies indicate that fewer than 15% of copyright registrations (7% for books) were actually renewed. See Barbara Ringer, "Study No. 31: Renewal of Copyright" (1960)
Despite there being a good chance that a work from this time period is in the public domain, it is the intended user*s duty to determine if the work was renewed or not. One risks an infringement lawsuit. Though one could conduct this investigation oneself (see US Copyright Office Circular 22), copyright information can be very difficult to find due to the age of these works and the relevant records. I recommend using the services of a competent intellectual property attorney. It is also important to realize that if the work one wants to use is being used in the marketplace, it is likely that it is still under copyright.
Notice RequirementsThe considerations do not end there. The Copyright Acts of 1909 and 1976 required published works to include a notice of copyright so the public was aware of the claim to copyright protection. Under the earlier law, the failure to include a valid notice on a work published prior to 1978 was an incurable defect that resulted in the loss of all copyright protection. The work automatically fell into the public domain. Under the latter law, if the work was not registered within five years of its publication without notice and was published between 1978 and February of 1989, then it is in the public domain.
The Special Case of Sound RecordingsNow, all of this information does not pertain to sound recordings published prior to 1972, which until last year were governed exclusively by each individual state*s laws. Thanks to the passage of the Music Modernization Act in 2018, these sound recordings now are protected by federal copyright law. All such works published prior to 1923 will enter the public domain on Jan. 1, 2022. Those published afterwards have different terms of protection depending on when they were published.
Public Domain 2019Note that this discussion does not address foreign-published works.
For a comprehensive chart that lays out these considerations and others, please see Mr. Peter B. Hirtle excellent charts, linked below.
Let us end on a positive note with a small selection of works that are, as of Jan. 1, 2019, available for all to use:
- Books - Tarzan and the Golden Lion by Edgar Rice Burroughs; The Murder of Roger Ackroyd by Agatha Christie; Tulips and Chimneys by e.e. cummings; New Hampshire by Robert Frost; Kangaroo by D.H. Lawrence; Jacob's Room by Viginia Woolf. - Movies - The Ten Commandments directed by Cecil B. DeMille; The Pilgrim directed by Charlie Chaplin; Our Hospitality directed by Buster Keaton and John G. Blystone; - Music (Songbook only) -
Charleston, w.&m. Cecil Mack & James P. Johnson;
London Calling! (musical), by Noel Coward;
Grandpa*s Spells, The Pearls, and Wolverine Blues by *Jelly Roll* Morton;
Tin Roof Blues, m. Leon Roppolo, Paul Mares, George Brunies, Mel Stitzel, & Benny Pollack. - Art -
Bird in Space by Constantin Br*ncu*i;
Odalisque With Raised Arms by Henri Matisse;
Metempsychosis, Yokoyama Taikan.
For a full list of works that entered the public domain, please download Duke University*s Excel file found at the link below.