Copyright expiration — copyright protection doesn’t last forever

Diamonds are forever, but copyright isn’t. It’s not supposed to be. Copyright expiration is important for the public domain. Because once a work’s copyright term has expired, the work is free for all to use — to repurpose, to republish, to build upon. The public domain fuels creativity ... and the longer you lock up works, well, you get the idea. (It appears we’re moving toward a perpetual copyright term here in the US, though, with ever increasing copyright terms. Sad. But I digress.)

Back to the task at hand: copyright expiration. Determining the expiration date for US copyrights can be a complex task (that’s an understatement, actually — the law is a mess). So let’s take the easy cases first, and go from there.

The easy cases

If the work was published before 1923, it’s in the public domain.

If a work was published after 1963, its copyright has not expired, so it won’t be in the public domain for that reason. (But as we just saw, it could be in the public domain if it was published without a proper copyright notice.)

And that, my friend, is it for the easy cases. (Sorry.) Now for the rest.

So, how long does copyright last? It depends ...

You can’t know how long a work’s copyright will last if you don’t know when, or if, it was published. The length of its copyright protection will depend on which law was in effect at the time — the 1909 Act or the 1976 Act.

Works published in the US as recently as 1963 could be in the public domain because their copyright has expired. And the copyright for countless unpublished works expired on January 1, 2003. So our first question must be...

Published, or unpublished?

Let me repeat: you can’t know how long the copyright term will last, or whether it has expired, if you don’t know if and when the work was published. Okay, so how can you tell if a work has been published?

First you have to know what “published” means according to copyright law.

Section 101 of the US copyright statute defines publication like so:

“Publication” is the distribution of copies of a work to the public by sale or other transfer of ownership or by rental, lease, or lending. Offering to distribute copies to a group of persons for purposes of further distribution or public display also constitutes publication. A public display does not of itself constitute publication.

Say what?

Here’s the bottom line on publication: copies of the work, even as few as one, must be made available to the general public. The copies don’t have to be sold, mind you. They can be given away, in fact. And there’s no minimum number of copies, either. There can be just one copy.

With that in mind, here are a couple of questions to ask about any work you’re investigating:

Is this a copy or the original? If it’s the original, can you find out if copies were distributed to the public? Because remember ... copies are key. Performing a play or dance or a piece of music, delivering a speech or a lecture, displaying a painting or showing a movie — none of these amount to publication.
Note: Before 1978, if a work of art was displayed to the public and the public was allowed to copy it freely (by drawing or photographing it, say), the work was considered published.
Were copies distributed to the general public? Distributing a work to a particular group of people (for example, a writers’ group for purposes of critique) does not amount to publication. That would be a “limited distribution”, where the recipients of the work wouldn’t have the right to distribute the work to others outside the group.

Not sure the work has been published?

Sometimes answering the “is it published?” question will be easy. For example, those cool photographs you’ve been admiring on someone’s web site? Published, for sure. Ditto their blog postings and articles. But sometimes, the answer isn’t as clear as you’d hope. For example ...

If the work has a copyright notice on it, does that mean it’s published? It might, but a notice isn’t definitive. Unpublished works can have copyright notices on them, too, so look for other signs of publication. Like what? Like the name of a publisher on the work (that’s a dead giveaway), or a price, or ISBN numbers on books, or photos of original works of art ... that kind of thing. And you can always use a search engine to research the work’s creator. Just remember, you’re looking for evidence that the general public had access to copies of the work.

The general rules for copyright expiration

First, the easiest case of all: works published before 1923 are in the public domain. Now, for the rest, here are the general rules on US copyright duration.

The 1976 Act (the current one)

The US copyright term for works published on or after January 1, 1978:

For the works of individuals, the term is the author’s life plus 70 years after his or her death. If the work is a joint work, term is measured by the last surviving author’s life plus 70 years.
But note: If the work was created, but not published or registered, before 1978, and subsequently published between Jan. 1, 1978 and Dec. 31, 2002, the term will not expire before Dec. 31, 2047, no matter when the author died. (Isn’t this fun?)
For corporate works (works for hire), or anonymous or pseudonymous works, the term is 95 years from the date of publication, or 120 years from the date of creation — whichever expires first.

But those terms aren’t much help when you’re looking at works that were published or created before 1964, because the 1909 Act governs those works.

The 1909 Act (the previous one)

Under the 1909 Act copyright duration was measured from the date of publication, not the date of creation. The US copyright term for works published between January 1, 1924, and December 31, 1977, is 95 years from the date of publication.

But not all works published between 1924 and 1978 got the full 95-year term. Why? Another factor that affected copyright expiration under the 1909 Act was the renewal requirement ...