• Chris

When Does Something Become Public Domain?


TL;DR:

  • Created after 1978? Probably not public domain

  • Published before 1923? Probably public domain

  • Published between 1923 and 1978? Investigate further

  • Created before 1978 but published after 1978? Investigate further

As discussed in our article about safely sharing content, under modern U.S. copyright law, there’s a good chance just about any media you encounter is proprietary. Since the 1976 Copyright Act (and in contrast to the norms of preceding human history), copyright arises automatically, requires no notice or maintenance, applies to anything remotely creative, grants the author a fairly comprehensive monopoly, and lasts a very very long time. It’s the form of IP that has arguably leeched most into people’s everyday lives, an ever-expanding property right that legal scholar Jessica Litman memorably dubbed “billowing white goo.”

Still, copyright isn’t infinite (at least in theory). The term used to describe content that’s not subject to any claim of copyright is “public domain.”

A work can fall into the public domain in a number of ways. For example, an author can release a work into the public domain by waiving her copyright. That’s usually as simple as making the intention known in writing, but organizations such as Creative Commons can help formalize the release.

The biggest contributor to the public domain, however, consists of older works: works for which the copyright has expired or which predate modern copyright laws. Unfortunately, identifying which works are old enough is deceptively complex.

The first important date to remember is January 1, 1978. That’s the effective date of the 1976 Copyright Act. Works created after that date are subject to modern copyright rules and the modern copyright term: life plus 70 years for individual authors or a straight 95 years for works made for hire. In other words, you can be confident that nothing created since 1978 is in the public domain (at least not on account of its age).

Pre-1978, things start to get more complicated. First, you need to know not just when the work was created but when the work was published. To make matters worse, “published” doesn’t mean what you think it does. Published/unpublished is no longer a distinction that makes much difference under modern law, but it mattered a lot under previous iterations of the U.S. Copyright Act and there’s a fair body of caselaw weighing in on what exactly constitutes publication. To give one example of how the legal standard might be counterintuitive, there’s a good argument that most of what’s published online isn’t actually “published” for copyright purposes.

Works that were created or published in another country before publication in the U.S. add yet another complication. International treaties have done a lot to standardize and introduce reciprocity into copyright law in recent decades, but that hasn't always been the case. You may need to know not only when a work was published but also where in order to fully evaluate its copyright status.

As a rule of thumb, if a work was unpublished in the U.S. prior to 1978, it typically gets the post-1978 copyright term. As an example of the implications of this, if the works of a particularly long-lived author who died around mid-century were later published posthumously by her grandchildren after 1978, you could conceivably have works from well back into the 1800’s still under copyright.

Even if you know for certain that a work was both created and published prior to 1978, your investigation isn’t done. Under the 1909 Copyright Act, the maximum copyright term was 56 years (but, again, that’s 56 years from publication not creation). However, this term has been automatically extended for copyrights that hadn’t yet expired at the times of the extensions. The upshot is that the maximum copyright length for works published pre-1978 is currently 95 years and, as of 2018, anything published before 1923 should be public domain.

If a work was published between 1923 and 1978, though, you need to delve deeper. Copyright under the 1909 Act didn’t arise spontaneously like it does now. Prior to 1978, authors wishing to secure copyright in their works had to publish them with a copyright notice (i.e. something saying “copyright” or © and the year and owner of the copyright) and deposit two copies of the work with the Copyright Office. Failure to mark copies of the work with a copyright notice could result in the work falling into the public domain. Examples of works accidentally losing their copyright status in this way include the film Night of the Living Dead.

Moreover, the initial copyright term under the 1909 Act was only 28 years. If copyright owners wanted to extend their rights, they had to file a renewal for second 28-year term and pay a fee. Many wouldn’t bother, and plenty of works published prior to 1950 therefore lapsed into the public domain for this reason.

Determining whether something’s in the public domain seems like it should be simple math. Unfortunately, it’s a lot messier than that. If you have questions about whether an old book, picture, song, film or other piece of content is available for public use, drop us an email at info@knowmad.law or give us a call at 831-275-1401.

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Tel: 831-275-1401

Email: info@knowmad.law

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