If one is trying to find out if a specific work is protected by copyright, the answer may depend on many factors, depending on when the work was created, when and how the copyright was registered (if it was), when and how the work was published (if it was), and (for some works) whether or not the copyright was renewed.
This chart is presented to give general rules covering copyright coverage in the abstract. For a work which was published before 1978, you may need to investigate further, since copyright protection might have expired earlier than the theoretical term due to defects in notice, registration or renewal of copyright.
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IF THE WORK WAS... |
PROTECTION BEGINS |
TERM EXPIRES |
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Created in 1978 or after |
When work is fixed in tangible medium of expression |
Author's Life + 70 years |
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Created before 1978 but neither published nor registered before December 31, 2002 |
January 1, 1978 |
Author's Life + 70 years. |
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Created before 1978 but published or copyright registered between 1978 and 2002 |
January 1, 1978 |
Author's Life + 70 years, or December 31, 2047 |
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Published, or copyright registered, between |
When registered or published with notice |
28 years for first term; automatic extension of 67 years for the second term (total of 95 years) (note 5) For musical works, see note 7 |
| A sound recording "fixed before February 15, 1972" | Not covered by Federal copyright law. | Protected, if at all, by state common law protection, until February 15, 2067. Note 8 |
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Published, or copyright registered, between 1950 and the end of 1963 |
When registered or published with notice |
28 years for first term, and could have been renewed for 67 years (total of 95 years). See Note 12 for information on searching for renewal records. If the copyright was not timely renewed, copyright expired at the end of the first 28 year term. (but see note 6) For musical works, see note 7 |
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Published, or copyright registered, between January 1, 1923 and 1950 |
When registered or published with notice |
28 years for first term. If the copyright was renewed, and there were no other defects, so that the work was under its renewal term as of January 1, 1978, the renewal term is extended to 67 years (for a total of 95 years). See Note 12 for information on searching for renewal records. If the copyright was not timely renewed, the work is now in public domain (but see note 6) For musical works, see note 7 |
| Published in another country between 1923 and 1977 | When published | If the work was published with notice, and was still under copyright in its home country as of January 1, 1996, the term expires 95 years after publication.
If the work was published in a language other than English, and was not republished with a copyright notice, and was still under copyright in its home country as of January 1, 1996, the term expires 95 years after publication. (but see note 10 - this rule may be different in the 9th Circuit) If the work was in the public domain in its home country as of January 1, 1996, it is now in the public domain in the US |
| Published, or copyright registered, between January 1, 1922 and December 31, 1923 | (Now in Public Domain) | Now in public domain - no term remaining. Copyright in such works expired, at the latest, on December 31, 1997, at the end of their 47-year renewal term (see note 13) |
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Published, or copyright registered, before January 1, 1922 (i.e. more than 56 years before effective date of 1976 copyright act) |
(Now in public domain) |
Now in public domain - no term remaining. Copyright in such works expired prior to the effective date of the 1976 copyright act. |
| Created by a resident of, and published in, Afghanistan, Bhutan, Ethiopia, Iran, Iraq, Nepal, San Marino. | According to Copyright Office Circular 38a - "International Copyright Relations of the United States" these countries are not members of international copyright conventions to which the US is a party, so these works are not protected by US copyright law.
Note: this list possibly also includes Cormoros, Kiribati, North Korea, Palau, Sao Tome and Principe, Seychelles, Somalia, Syria, Tuvalu, Vanuatu, or Yemen, whose status is listed as "unclear" in Circular 38a. |
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Notes:
1. Term of joint works is measured by life of the longest-lived author.
2. Works of corporate authorship, works for hire, anonymous and pseudonymous works have a term of 95 years from publication, or 120 years from creation, whichever ends first. 17 U.S.C. 302(c).
3. Under the 1909 Act, works published without notice went into the public domain upon publication. (but see note 6)
4. 17 U.S.C. 405. If a work was published without notice between January 1, 1978 and March 1, 1989 (the effective date of the Berne Convention Implementation Act), then the copyright is invalid, unless:
(1) the notice has been omitted from no more than a relatively small number of copies or phonorecords distributed to the public; or
(2) registration for the work was made before, or within five years after the publication without notice, and a reasonable effort was made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered; or
(3) the notice was omitted in violation of an express requirement in writing that, as a condition of the copyright owner's authorization of the public distribution of copies or phonorecords, they bear the prescribed notice.
5. There are a number of rules involving renewal of copyright in works which were in their first 28 year term on January 1, 1978 (i.e. registered between 1950 and 1977). Works which were registered in 1950, but not renewed in 1977, have yet another set of special rules which allowed them to be renewed during 1978. These rules involve whether or not renewal is automatic, when renewals may be filed, and who may file them. As a general rule, it's best to consider such works to have the full 95 year term, absent evidence to the contrary.
6. Section 104A of the Copyright Act, which became effective in 1994, restores copyright to certain works created in certain countries outside the US whose copyright had passed into the public domain in the US (but not in the work's home country) due to (i) noncompliance with formalities imposed at any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; (ii) lack of subject matter protection in the case of sound recordings fixed before February 15, 1972; or (iii) lack of national eligibility. The work must have at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an "eligible country", and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country. Copyright in these works was restored as of January 1, 1996, but there are transitional rules covering third parties who copied the work or who created derivative works during the period the work was in the public domain. Consult with an attorney experienced in copyright law (preferably one at Brown & Michaels) if you have any questions about a work which might be covered by this provision.
7. The distribution before January 1, 1978, of a phonorecord is not considered a publication of the musical work embodied in the phonorecord. 17 USC 303(b)
8. Until February 15, 1972, sound recordings were not protected by US Copyright Law. State common law copyright rules would apply to these works, as the law which established Federal copyright in sound recordings provided that common law copyright in sound recordings fixed before the effective date of the law would not be annulled or limited until 2067. However, note that while this provision left pre-1972 recordings under State protection or in the public domain, the music and lyrics on the recording might still be under Federal copyright protection - the regular rules for copyright protection would apply to these works.
9. All copyright terms expire at the end of the calendar year, so if a term is "Author's life plus 70 years", and he dies on January 2, 2000, the copyright will expire on December 31, 2070, not January 2, 2070.
10. A controversial 1996 decision of the 9th Circuit, Twin Books v. Walt Disney Co., held that works published abroad in a foreign language without a copyright notice (or which failed to comply with US formalities for some other reason) are to be treated as "unpublished" in the US, and subject to the rules for unpublished works. This decision may be effective only in the 9th Circuit, but it isn't clear, and the Supreme Court has yet to speak on the subject.
11. If the date of the author's death is unknown after a reasonable investigation, and the work was either published more than 95 years ago or created more than 120 years ago (whichever occurred first), you should get a certified report from the Copyright Office that its records contain nothing about the author's death. Obtaining and relying on such a certification in good faith is a complete defense to an action for infringement, if it later turns out that the copyright is still in existence. (see 17 USC 302(e))
12. Copyright Office records for renewals after 1978 are available online at http://www.copyright.gov/records/. Stanford has a copyright renewal database search. Google has made all renewal records available as part of their Google Books project. For details, see http://booksearch.blogspot.com/2008/06/us-copyright-renewal-records-available.html
13. As if things weren't complicated enough, works published between January 1, 1922, and December 31, 1922, and whose copyright was renewed in 1950, were still under copyright in 1978, and thus were under the terms of the 1976 Copyright act. Their second 28-year term was extended - but to 47 years as required in the act as originally written in 1976. The Sony Bono Copyright Term Extension Act, enacted in 1998, extended the renewal term to the current 67 years - but this applied only to works still under copyright at the time of the law's passage. So, works published in 1922 (and only works published in 1922) were subject to a 47-year and not a 67-year renewal term, and their term expired at the end of 1997, before the Bono Act took effect.
For example, Arthur Conan Doyle's Sherlock Holmes story "The Problem of Thor Bridge", published in February and March 1922, fell into the public domain in 1997, but "The Adventure of the Creeping Man", published one year later in March 1923, will still be under copyright until the end of 2018.
14. We say "died before 1933" because the Copyright Act said works which were created before 1978, and remained unpublished and unregistered until 2003, were protected for the later of the author's life plus 70 years or December 31, 2002. So, any such work by an author who died before 1933 would have been under copyright for more than the usual "life+70", and would not have fallen into public domain until December 31, 2002.
Acknowledgement: Although it has been updated and expanded many times since it was first posted in 1997, this page was originally based on one prepared by Laura Gasaway, Associate Dean for Academic Affairs & Professor of Law at the University of North Carolina-Chapel Hill, and her work is used by permission. Footnotes 1-3 are courtesy of Professor Tom Field, Director, Intellectual Property Amicus Clinic Franklin Pierce Law Center. We would like to say "thank you" to both professors for permission to use this material.
The Copyright Office has circular 15a on copyright term.
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