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How Long Does Copyright Protection Last?
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.
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:
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/. Rutgers has a copyright renewal database search - so does Stanford. 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. For a discussion of the effects of this, see an article entitled "15% of Sherlock Holmes Under Copyright" on the Property, Intangible blog.
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.
For another copyright term chart, in PDF format, see Cornell's Copyright Information Center.
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Brown & Michaels acknowledges the copyrights of Laura Gasaway and Tom Field as noted above.
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