NEW RULES FOR USING
PUBLIC DOMAIN MATERIALS
By Attorney Lloyd J. Jassin
One of the most important gifts authors and publishers have been given
is the treasure trove of creative works known as the public domain (“PD”).
When a work passes into the public domain it can be used without permission
or charge because no one owns it. However, great care must be taken to
determine if a work is truly in the public domain. This article addresses
recent changes in the law, and provides information to help readers negotiate
the sometimes daunting public domain maze.
Many people are surprised to learn that there is a moratorium on new works entering the public domain. During the Clinton administration, the
controversial Sony Bono Copyright Term Extension Act (CTEA) was signed
into law. Under the Act – which added 20 years to most copyright
terms – no new works will enter the public domain until 2019. Enacted
to ensure adequate protection for U.S. works abroad, the CTEA restricts
access to works published after 1922. In 2003, the U.S. Supreme Court,
in Eldred v. Ashcroft, rejected a popular challenge to the CTEA.
While the CTEA has substantially lengthened the commercial life of many
works, the public domain remains a rich source of quality, inexpensive
content for anyone dealing in creative works.
What is the Public Domain?
Copyright protection does not last forever. That is why copyright is often
called a "limited monopoly.” When copyrights grow old and die,
the works they protect fall into the public domain. Subject to certain
exceptions, public domain works may be freely copied or used in the creation
of derivative works without permission, or authorization, of the former
copyright owners.
In addition to works no longer protected by copyright, the public domain
also includes works that are in the public domain for failure to include
a proper copyright notice. Prior to March 1, 1989, notice of copyright
(e.g., © 1941 by Irving Berlin) was required on all published works.
If the notice was omitted, or appeared in the wrong form or location,
the work was put into the public domain. Be aware that if the copyright
notice was omitted on copies of works published between January 1, 1978
and March 1, 1989, copyright was not automatically lost if certain measures
were taken to cure the oversight.
Besides "expired" copyrights, and works lacking proper notice,
the following categories of works are also not eligible for copyright
protection: (i) U.S. Government works, (ii) state judicial opinions, (iii)
legislative enactments, and other official documents, (iv) unadorned ideas
and facts, (v) blank forms, (vi) short phrases, (vii) names, titles and
slogans, (viii) extemporaneous speeches, and (ix) standard plots and stock
characters.
Traps and Pitfalls
It is important to emphasize that copyright protection is not the only
form of legal protection for creative works. Although a work may be in
the public domain for copyright purposes, rights to the material may be
protected under various legal theories such as trademark or unfair competition
laws (which protect against confusingly similar usage by another); an
individual’s right of privacy (the right to be left alone); or a
person’s right of publicity (an individual’s exclusive right
to benefit commercially from his or her name, voice, photograph or likeness).
Similarly, works such as databases may be protected under trade secret
or contract law. And, as discussed below, new or later versions, to the
extent the underlying PD work has been embellished with new material,
may also require permission.
Whenever you rely on the PD status of a work, it is important to make
sure that the particular version you want to use is actually in the public
domain. Later versions or adaptations (e.g., translations, revisions,
annotated and illustrated editions) of PD works may be protected by a
separate copyright. Copyright in later versions or adaptations, relates
to the fresh layer of creative material added by the second author. To
avoid legal entanglements it is important to use only the original PD
version -- not any later copyrighted version that may contain editorial
interventions. While Shakespeare’s Hamlet is in the public
domain, the New Folger Library Edition of Hamlet is not. Keep in
mind that there are many works published works before 1923 that were later
revised (e.g., Dale Carnegie’s Public Speaking, A Practical Course
for Business Men (1915)), and that these later versions are subject
to copyright protection and royalty payments. Therefore, in the event
of a legal dispute, you should retain in a safe place a copy of the PD
work you referenced or worked from.
The following is, perhaps, the most insidious trap of all. Although a
work may be in the public domain in the United States, it may still be
protected in other countries. For example, a work by a United States author
that is PD in the United States for failure to renew, may still be protected
in countries such as Germany -- where copyright duration is based on when
the author died, not a specific term of years. If you plan to publish
a public domain work abroad, you may be required to obtain permission
if the author died within the last 70 years. If you fail to obtain permission,
you will expose yourself to the risk of one or more lawsuits overseas.
Beware! Many foreign works that were previously in the public domain for
failure to comply with technical requirements of United States law (including
copyright notice and renewal requirements) were restored to copyright
in 1996 under the GATT and NAFTA international trade treaties. In order
to be restored, the foreign work had to be under copyright in the "source"
country, and not first published in the United States. Revived works,
which are no longer in the public domain, cannot be used without permission
of the copyright owner.
Determining Whether a Work is in the Public Domain
Knowing when a copyright expires will allow you to take advantage of the
abundance of material found in the public domain. Therefore, it is helpful
to have a basic understanding of copyright law.
One helpful rule-of-thumb is that all works published in the United States
before 1923 are in the public domain in the United States. In addition
to pre-1923 works, there are also millions of other works that have fallen
into the public domain for either (a) failure to renew; or (b) failure
to affix a proper notice.
As discussed below, in the United States, the length of copyright protection
a work receives depends upon when it was created.
New Rules for Works Created Before January 1, 1978
Works created before January 1, 1978, were until recently protected for
a total of 75 years, provided, certain copyright renewal formalities were
followed. The CTEA amended the Copyright Act by extending the term of
protection for works currently in their renewal term from 75 years to
95 years. Under the new law, any work published in 1923 (which would have
otherwise fallen into the public domain on January 1, 1999), will now
be protected until January 1, 2019.
Under the old Copyright Act, before 1978, we had a sensible system in
which you were required to both register and renew your copyright in order
to enjoy copyright protection. Prior to January 1978, the duration of
all copyrights was split into two 28-year consecutive terms. Once the
work was published with a valid copyright notice, the copyright lasted
for an initial term of 28- years. However, the copyright owner was given
the option to renew the copyright for an additional period of 28-years
during the last year of the initial term.
In trolling for public domain works, one of your objectives is to determine
whether the copyright owner renewed, or forfeited, their copyright. Over
time, the renewal term was extended by Congress from 28-years to 47-years,
and with the passage of the CTEA, from 47-years to 67-years -- bringing
the maximum total to 95-years (i.e., 28 + 67 = 95). For example, a work
published in 1930, if properly renewed, will expire at the end of 2025
under the CTEA.
In 1992, Congress enacted a law that made renewal automatic for works
published between 1964 and 1978. However, if a work was published between
1923 and 1963, there is an excellent chance it may have fallen into the
public domain for failure to renew. For example, copyright protection
for Frank Capra's classic film, "It's a Wonderful Life" (1946)
was lost in 1974, because someone inadvertently failed to file a copyright
renewal application with the Copyright Office during the 28th year after
the film's release. Notwithstanding, the film’s owner has asserted
rights based upon copyright in the underlying story and musical score
which were properly renewed.
| TIP: Pre-1978 works what are in the public domain because they
were published without proper copyright notice, or, in the case of pre-1964
works, were not timely renewed, do not receive retroactive protection
under the CTEA. Similarly, works published before 1923, do not receive
retroactive protection, and remain in the public domain. |
Using Works Created on or After January 1, 1978
Newer works, created
after January 1, 1978, which were previously protected for the life of
the author plus 50-years, are now are protected for the life of the author
plus 70 years -- with no renewal term. Copyright in works created by two
or more authors, now expires 70 years after the death of the last surviving
author. And, if the work is a work for hire, or anonymous or pseudonymous,
the term of protection is the shorter of 95 years from first publication,
or 120 years from the date of creation. Consequently, no post-1978 works
are scheduled to fall into the public domain until the middle of the 21st Century1.
Copyright Searches: The Hunt for Lapsed Copyrights
According to a 1961 Copyright Office study less than 15% of all registered
copyrights have been renewed. For books and other textual materials, that
number jumps to more than 90%. If you are interested in older – permission
free – works published between 1923 and 1963, you will need to investigate
whether the work’s copyright was renewed. In this case, you’ll
need to do a copyright search by contacting the Copyright
Office, or a qualified copyright search firm or intellectual
property attorney.
To investigate the renewal status of a work, you will need the following
information:
1. the date the work was published or registered;
2. the name of the person or entity that created the work;
3. the title of the work (and possible variants);
4. where the work was first published; and, if available
5. the copyright certificate number
Start by looking at the copyright notice (e.g., © 1929 by Damon Runyon).
The date of the copyright notice will usually indicate the work’s
publication date. Some copyright notices may even include the copyright
renewal date (e.g., © 1929 by Damon Runyon. Renewed 1956 by Damon
Runyon, Jr. and Mary Runyon McCann), in which case, if you tend to believe
what you read, there is no need for a renewal search.
Whether the Copyright Office staff searches the records for you, or you
engage the services of a professional searcher, the objective is the same
-- to determine if a copyright renewal certificate exists.
Keep in mind that Copyright Office searches may not be conclusive. Although
the Copyright Office’s records are essentially complete, there are
a small number of files missing from the official records at any time.
This is especially true for older works. Also, bear in mind that some
works may have been registered under different titles, or as part of a
larger work such as a periodical or other compilation.
Using Unpublished Works Created Before 1978
Until recently, unpublished works created before January 1978 (including very old works), were entitled to perpetual copyright protection,
provided they remained unpublished and uncopyrighted. These works included
unpublished civil war diaries and anonymous works found in attics and
trunks. Arguably, works dating back to antiquity were protected under
what was known as “common law” copyright. On December 31, 2002,
the era of perpetual copyright ended. On that date, all works that were
unpublished as of December 31, 2002, were released from their perpetual
copyright. Although published before 1978, these works are now treated
no differently than post-1978 works. The term of protection for such works
is now the life of the author plus 70 years. And, in the case of anonymous
and works for hire, the duration of copyright is 120 years from the date
of creation.
As a result, on January 1, 2003, a torrent of unpublished works by creators
who died before 1933 was ejected into the public domain. Because locating
a creator’s heirs is extremely difficult, this change in copyright
status, was a tremendous gift to scholars and society. As Robert H. Hirst,
head of the Mark Twain Project at the University of California in Berkeley,
said, “[F]or the first time in history the owner of an unpublished
Mark Twain manuscript or letter now also owns the publication rights to
it.”
Conclusion
If you are trolling the public domain for works to adapt,
reuse, or republish, be aware that there are many traps for the unwary.
If you are unfamiliar with the intricacies of copyright law, you should
consider hiring an intellectual property attorney or qualified rights
clearance expert. While there are many PD gems out there – including
classic films and unheralded works waiting to be discovered -- be aware
that all that glitters may not be gold. As suggested by this article,
licenses may still be needed from rights holders as well as identifiable
persons.
© 1999 - 2003 by Lloyd J. Jassin.
LLOYD J. JASSIN is a publishing and entertainment attorney and
coauthor of The
Copyright Permission and Libel Handbook (John Wiley &
Sons). He has offices in The Actors' Equity Bldg., 1560 Broadway, Ste.
400, NYC, 10036. He can be reached at 212-354-4442 or by e-mail at Jassin@copylaw.com, or you can visit his firm’s website at www.copylaw.com)
NOTICE: This article discusses general legal issues of interest and
is not designed to give any specific legal advice pertaining to any specific
circumstances. It is important that professional legal advice be obtained
before acting upon any of the information contained in this article.
1 Assuming
an author died shortly after publishing a book in 1978, that work would
enter the public domain on January 1, 2049. |
