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Practice Pointers: Copyright Status Checklist -- Top Ten Questions For Older Works

09.29.2000

Suppose your client wants to publish a striking old photograph of John Wilkes Booth. The client confidently assures you that the work must be in the public domain, because after all, 'it's over a hundred years old!' Before giving your blessing to this optimistic legal conclusion, be sure to determine (at least) the following facts:

1. When the work was created

The creation date of the work is not itself determinative of copyright status, contrary to your client's assumption, because even very old works can still be under copyright if they have never been published or registered in the U.S. Still, the creation date of the work can be important for determining which Copyright Act to apply for purposes of measuring duration, e.g., the 1909 Act or some earlier incarnation of the statute.

2. When (or if) it was initially registered with the U.S. Copyright Office

This should be checked if the client doesn't have a copy of the registration certificate, but because on-line Copyright Office records only go back to 1978, it will be necessary to hire a commercial service, or local counsel in Washington, to manually check the records of the Copyright Office.

3. When (or if) that registration was renewed

All versions of the Copyright Act prior to the 1976 Act required a renewal filing before the end of the initial term. If a work was properly published or registered, but not timely renewed, the copyright is no longer valid.

4. When the work was first 'published' with the authorization of the copyright owner

This is perhaps the single most important fact to determine. Except in the relatively rare case of works that were registered before publication, publication was the event which either started the statutory clock running on the initial copyright term, or thrust the work into the public domain (if no proper copyright notice was affixed). If the publication was without the authorization of the copyright owner, however, it was a legal nullity with no effect on the copyright in the work.

5. Where that publication occurred

If the work has been published, the nation in which the publication occurred can be important for determining whether (a) the clock has begun running on the statutory term of copyright (foreign publication does not always start the clock, Heim v. Universal Pictures Co. , 154 F.2d 480, but sometimes it does, Barris v. Hamilton, 51 U.S.P.Q.2d 1191 (S.D.N.Y. 1999)); and (b) whether lack of notice or failure of renewal can be forgiven under the 1994 Uruguay Round Agreements Act, which 'restored' copyright in foreign works but not in U.S. works.

6. Whether that publication had proper copyright notice

Prior to U.S. adherence to the Berne Convention in 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, 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. In cases where a work such as our hypothetical photograph 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 (Goodis v. United Artists Telev., Inc., 425 F.2d 397).

7. Whether there was 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 'publication' such as a book or magazine. Such distribution will usually count as publication, and if the copies did not have proper notice the work would be placed in the public domain.

8. What was the pre-publication exhibition history of the work (if any)

In rare cases, even the exhibition of a work could be considered a publication under prior law. Particularly if the work was widely exhibited in public areas where there were no museum-like restrictions on photographing or copying it, an inadvertent 'publication' may have occurred

9. When (or if) the copyright in the publication was renewed

Whether or not the book, magazine, or other 'larger work' in which the work appeared was registered with the Copyright Office, a renewal filing was necessary at the end of the initial copyright term. When the term was commenced by publication, the renewal was often overlooked, causing the forfeiture of the copyright. See Barris v. Hamilton, 51 U.S.P.Q.2d 1191 (S.D.N.Y. 1999).

10. 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 any definitive answer can be given regarding copyright status.

IP Strategist, September 2000

Robert W. Clarida is an attorney at Cowan, Liebowitz & Latman, P.C. in New York
© 2000 Cowan, Liebowitz & Latman, P.C.

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