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DURATION OF COPYRIGHT
December 21, 1999
by: Nancy E. Wolff
The following article provides a concise explanation of copyright rules in the United States
relative to the duration of a copyright.Ms. Wolff is Counsel for the Picture Agency Council
of America . This article was first
published in the PACA newsletter and is provided compliments of PACA.
Since the duration of copyright protection was extended on October 1998, I have received
many questions regarding the duration of copyright, under both the pre-1978 and post 1978
Revised Copyright Act. When images fall into the public domain is also a recurring issue.
QUESTION:
If an image was published before 1924, it is no longer protected by US copyright?
ANSWER:
Works published BEFORE January 1, 1923, have fallen into the public domain, but works
published after that date could still be protected by copyright if the copyright was
renewed by registration or afforded automatic renewal by law.
Under the 1909 Copyright Act, once a work was PUBLISHED, it was required to be
registered. The copyright was valid for 28 years. In the 28th year, a renewal of
copyright registration was required to be filed to extend the copyright for another 28
years. However, the copyright act has been revised many times to extend copyright
duration.
Note:
If a work was published without proper copyright notice prior to March 1989, the work
fell into the public domain and could not be restored (unless it was a foreign work
governed by GATT). The issue of what is "published" has been interpreted by the various
courts and will be the subject of a follow up copyright update. The Copyright Office
does not interpret the copyright Act.
The duration of copyright in various years becomes complicated. The
Copyright Revision of 1976, effective 1978, changed the duration of
copyright from a 28 year renewal scheme to life of the copyright holder plus 50 years,
unless it was a work for hire, in which case the duration of copyright was for 75 years.
The Sonny Bono Copyright Term Extension Act of 1998 extended US copyright protection to
life of the author plus 70 years and it affects works retroactively. Works for hire are
now protected for 95 years.
In addition, several amendments to the copyright act over the years have extended the
duration of copyrights for works created under the 1909 Act, making our system of
copyright extremely complex.
The following is a summary of the duration of copyright:
1. A work published since January 1, 1923 and before 1964, and originally
copyrighted within the past 75 years, may still be protected by copyright if a valid
renewal registration was made during the 28th year of the first term of copyright. If
renewed, protection is now for the full 95 years. Example, A work published on January
2, 1923 and renewed between January 2, 1950 and January 2, 1951 will not fall into the
public domain until the end of 2018.
2. Copyrights originally secured between 1950 and December 31, 1963, still require
renewal under strict time limits. If renewal was made at the proper time, the renewal was
for 67 years. If renewal was not made, the works fell into the public domain at the end
of the first term (28 years).
3. Copyrights secured between January 1, 1964, and December 31, 1977, have an
optional renewal, which automatically vests on December 31st of the 28th year. Certain
benefits accrue with renewal but are not required. It is still a two term copyright but
the second term is 67 years creating a 95 year copyright. Works created on January 1,
1964 will fall into the public domain at the end of 2059.
4. Copyrights in their second term on January 1, 1978, have been automatically
extended to a maximum of 95 years without he need for further renewal.
5. Works created since 1978 are now protected for the life of the author plus 70
years, and in the case of work for hire, 95 years.
6. Works in existence but UNPUBLISHED AND UNREGISTERED on January 1, 1978, were
automatically given federal copyright protection. All works are guaranteed at least 25
years of protection, or until December 31, 2002, and if published before that date, the
term will extend another 45 years or through the end of 2047.
This means that works of art that have never been published (i.e., only exhibited in a
gallery but never reproduced), even if created in a year that if published would place it
in the public domain, are still protected by federal copyright protection. All terms of
copyright now run through the end of the calendar year in which they would expire.
QUESTION:
How do you know if a copyright has been renewed?
ANSWER:
Renewal are filed with the Copyright Office. Information on how to search the copyright
office records are located at the Copyright Office website www.loc.gov/copyright/
Circular 22 "How to Investigate the Copyright Status of a work.
QUESTION:
If prior to 1978, the creator of the image was not necessarily the
copyright holder, how do you find out who is, and if it's still protected?
ANSWER:
Again you can request that the Copyright Office provide you with the registration
certificate or the renewal certificate. If the registration listed the creator's name as
an author, you would be able to find the name of the creator. The renewal may or may not
list the current copyright owner if the original creator has since died.
If your heads are all spinning, do not despair, the Copyright office has published an in
depth review of the duration of copyright. See Copyright Office Circulars 15, 15 (a) and
15(t).
Ms. Wolff can be contacted at The Law Offices of Nancy E. Wolff, 147 W. 80th Street, New
York, NY 10024, telephone: 212-787-1640, email: newolff@aol.com. She is also Of Counsel
to the Weinberg Legal Group, a new media, intellectual property firm in Phoenix, Arizona.