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Determining whether an older work is still protected by copyright
Posted in Copyrights

The fact that a work is old does not necessarily mean it is in the public domain.

It can be complicated to find out whether or not an older work is still in copyright. Relevant questions may include the following:

When was the work created?

Even a very old work can still be under copyright if it has never been published or registered in the U.S. The creation date does not determine the term of copyright but it can be important for determining which Copyright Act -- the 1976 Act (which took effect in 1978) or the 1909 Act -- applies for purposes of measuring duration.

When, if ever, was the work initially registered with the U.S. Copyright Office?

This will need to be researched if you do not have a copy of the registration certificate.  The Public Catalog of the Copyright Office, available at www.copyright.gov, contains records of registrations and renewals going back to 1978.  Registrations prior to 1978 can be searched manually on the Copyright Office’s card catalog, which is available to the public in the Copyright Public Records Reading Room at the Library of Congress.  You may search the Copyright Office’s records yourself, or you may engage local counsel or the Copyright Office itself (at the hourly rate of $200) to perform the search.  Pre-1978 registrations can also be searched in the Catalogs of Copyright Entries, published by the Office in print format from 1891 through 1978, and now available in digitized (albeit not especially user-friendly) form on the Internet Archive website.

Was the copyright renewed?

If the work came into copyright under the 1909 Copyright Act – i.e., before 1978 – a renewal registration had to be filed during the last year of the initial 28-year copyright term in order for the work to be entitled to a renewal term.  Failure to timely renew the copyright resulted in the work entering the public domain.

When was the work first "published" by or with the authorization of the copyright owner?

This is perhaps the single most important fact for works created before 1989.  If the work was published with authorization for the first time in the U.S. before 1923, it is in the public domain in the U.S.  Thereafter until 1989, except in the relatively rare case of works that were registered before publication, publication was the event that either (a) started the statutory clock running on the initial copyright term, if the work was published with a proper copyright notice, or (b) thrust the work into the public domain, if no copyright notice was affixed to the published copies.  Between 1978 and 1989, a lack of notice could be cured. From 1989 on, no notice was required.

Where did the first publication occur?

The nation in which first publication occurred can be important for determining (a) whether the clock has begun running on the statutory term of copyright (foreign publication does not always start the clock); and (b) whether lack of notice or failure of renewal can be forgiven under the 1994 amendments to U.S. copyright law that “restored” copyright in certain foreign works, but not in U.S. works.

Did the copies that were first published have a proper copyright notice?

Prior to 1989, notice was required, and had to consist of three elements:  the word “copyright” (or the symbol “©” or the abbreviation “copyr.”); the name of the copyright owner (or a recognized abbreviation); and the year of publication.  Authorized publication without the required notice was fatal to the copyright, and caused the work to lapse into the public domain immediately if the publication predated 1978, or the omission was not cured for a publication between 1978 and 1989.  If a work was published as part of a larger work, a single copyright notice in the name of the owner of copyright in the larger work could suffice to keep the work from falling into the public domain.

Was there any authorized distribution of copies of the work prior to "publication"?

Particularly with visual works, copies of the work may have circulated in the form of posters, prints and postcards long before the work appeared in a book or magazine. The circulation of copies of the original usually counted as "publication," and if those copies did not have proper notice the work may have been placed in the public domain.

What was the pre-publication exhibition history of the work, if any?

Under the 1909 Act, in rare cases, even the exhibition of a work of art could be considered a “publication” if the work was publicly displayed without restrictions on photographing or otherwise reproducing it.  A few courts found that in such instances an inadvertent “publication” occurred.  

Who was the copyright owner at the time of (a) publication/registration, and (b) renewal?

In order to determine whether a publication or registration was made with the authorization of the copyright holder, thus starting the statutory term, it is necessary to know who the copyright owner was at that time.  The same is true for determining whether the renewal was made by the proper party.  The entire chain of title is therefore often necessary before a definitive answer can be given regarding copyright status.

For further information, please contact Thomas Kjellberg.

This ON MY MIND™ Blog post© 2014 by Cowan, Liebowitz & Latman, P.C., New York, NY. 

Suggest topics for future Blog posts to law@cll.com.



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