Duration and Formalities
How Long Do Copyrights Last?
• Current law no longer requires the formalities of notice or registration.
• Most new works are protected for the life of the author plus seventy years.
• Works published before 1978 were required to have a copyright notice in order to gain protection.
• Works published between 1923 and 1978 could have protection for up to ninety-five years.
• Many foreign works that were in the public domain have had copyrights restored.
COPYRIGHTS DO NOT last forever. They may last a long time, or they may expire in relatively short order. Either way, the question of copyright “duration” can be both enormously controversial and unduly complicated. The duration of copyright is important because it signals when a work will enter the public domain and become available for use, free of the limits and restrictions of copyright law. The number of years of protection a work receives under the law can depend on many facts and variables.
Under today’s law, copyright duration for current works is relatively uncomplicated. Copyright in most new works lasts throughout the author’s life, plus seventy more years.1 These rights today automatically vest for the full term without the need to undertake any processes or procedures.2 For works created before 1978, however, copyright duration is inextricably dependent on the formalities of copyright notice, registration, and renewal. Without full compliance with these procedures, the copyright in early works may have lapsed and the work entered the public domain. This chapter will summarize and attempt to make practical sense of the law of copyright duration.
Elimination of Formalities
American copyright law has changed in many respects through recent decades, but one of the most important changes has been the elimination of formalities. Under current law, the formalities of notice and registration are not prerequisites to legal protection. Copyright vests automatically as soon as you create an original work that is fixed in a tangible medium.3 You receive the protection whether you want it or not. You need not do anything to get copyright for a new work—other than create an eligible work. This state of the law imposes instant copyright protection on the vast range of materials in libraries, on the Internet, in file drawers, and in museums. Consequently, nearly every person in the country today is a copyright owner.
WHY DID CONGRESS deliberately remove all formalities? The answer lies in international law. In March 1989, the United States officially joined the Berne Convention, a multinational agreement on copyright law. The Berne Convention was already more than a century old, and it prohibits formalities as a condition to copyright protection. To join Berne, U.S. law had to drop formalities for new works—as most countries already had done.
Berne Convention for the Protection of Library & Artistic Works Implementation Act, Public Law 100-568, U.S. Statutes at Large 102 (1988): 2853, 2858.
Before 1989 Congress required authors to follow certain formalities as a prerequisite to protection. In incremental steps, Congress changed and ultimately dropped those requirements. The earliest law, in 1790, required registration of new works with the federal government.4 That provision disappeared early in the next century.5 Surviving through much of American history was the requirement that publications bear a formal copyright notice. With the 1976 Copyright Act, however, Congress began to loosen that requirement. Although the notice was still required, authors could fix or remedy a missing or defective notice.6 As of March 1, 1989, Congress finally dropped the notice requirement altogether. Today, omitting the notice or using an incorrect notice no longer places the work in the public domain. Rather, a newly created work—whether published or not—enjoys instant protection.
Although the rules for new works became simpler, the rules for early works remain cumbersome. In addition to the notice requirement, copyrights in works published before 1978 also had to be renewed twenty-eight years after first publication. Renewal does not apply to post-1978 works at all. In 1992 Congress added another wrinkle by dropping the need to seek renewal for earlier works.7 The older copyrights are now renewed automatically. These historical developments have profound implications for evaluating today whether a work is protected by copyright—and determining the years of copyright duration each work receives.
This chapter will organize the discussion of formalities and duration in a chronological and pragmatic context, centered especially on the momentous change in the law that took effect in 1978. This chapter will also focus on published works. Special rules apply to unpublished works, and they are addressed more fully in chapter 17.
Copyright Duration for Works Created in or after 1978
The modern rule of copyright protection is relatively simple, at least for most common needs: copyright protection applies automatically when the author fixes his or her original work in a tangible medium; the copyright protection for most works lasts for the life of the author, plus seventy more years.8 Registering the work and placing a copyright notice on it are no longer required to receive copyright protection for the full term.
Works that are made for hire also receive automatic protection, but the duration of copyright is sharply different. A work made for hire has protection for the shorter of either 120 years from creation of the work, or ninety-five years from its publication.9 As examined more fully in chapter 5, the author of these works is the employer, which may be a corporation or other legal entity. Such an author may never die, so duration based on a lifetime makes little sense. The law instead applies a determinate number of years.
For creators of new works, these rules are fairly easy to apply, and they are extraordinarily generous. For users of works, however, the absence of formalities no longer indicates whether a work is or is not protected. Users simply need to realize that most modern works are in fact protected with or without notice and registration. Without full information about the origin of a work, however, a user may not be able to resolve the question of copyright duration with certainty. When exactly was it created? Was it made by someone as an employee acting for hire? The facts may be elusive.
For owners as well as users, notices and registration can still be a good idea and offer some realistic benefits. The copyright notice is a helpful clue for users, indicating the date of origin and the name of the copyright claimant. Similarly, registration records are public, allowing anyone investigating a work to find helpful information about the work and the author. Formalities also provide important legal benefits to copyright owners.10 The law offers a few critical incentives for owners to take those steps, even though they are not mandatory. More information about the practical implications of formalities is included at the end of this chapter and in chapter 14.
Copyright Duration for Works Published before 1978
Before 1978, the rigorous rules demanding a precise notice on all publications had the result of placing many works instantly in the public domain. Copyright owners also sometimes overlooked—whether intentionally or accidentally—the need to renew their copyrights after twenty-eight years. This failure to renew meant the copyright could lapse.
These rules can be nettlesome when investigating the copyright status of early works. Consider a researcher wanting to know if a publication from, say, 1940 is in the public domain. The researcher needs to locate and inspect original, published versions of the work for a proper notice. Absent the notice, the work entered into the public domain upon publication. On the other hand, if the work had been published with the proper notice, then the clock started ticking on the duration of copyright protection.11
How long did the clock tick? The law before 1978 granted two sequential terms of copyright protection for publications. Proper use of a copyright notice gave an initial term of twenty-eight years. At the end of that term, the copyright owner was required to file a renewal application with the Copyright Office in order to receive the second and continuous term of protection.12 Failure to file meant the copyright lapsed at the end of the first term. In the case of that 1940 publication, it could have entered the public domain on at least two occasions: in 1940 if published without notice and in 1968 if not renewed.
Renewal of Copyrights
How long is the renewal term? The question does not have an easy answer. The renewal term was, under the 1909 Act, another twenty-eight years. In the early 1960s the renewal term was stretched to forty-seven years, for a total of seventy-five years of protection. In 1998, Congress added twenty more years to the protection for early works.13 Today, a work published before 1978 can generally have a maximum term of protection of ninety-five years.14 Getting initial protection still depended on satisfying the notice requirement.
In 1992 Congress jiggled the rules again and eliminated the renewal requirement for all existing copyrights.15 Consider the simple example of a book published in 1965. The published copies needed to include a copyright notice to secure the initial twenty-eight years of protection. By the time the copyright was slated for renewal in 1993, Congress dropped the renewal requirement. The 1970 book received an automatic continuation of protection to the full ninety-five years available under today’s law. By contrast, the book published in 1940 was scheduled for renewal in 1968. The law still required renewals at that time; if not renewed the copyright expired.
Early works of art may be in the public domain, but the museum might still assert different forms of control over their use.
Foreign Works and Restoration
In general, the fundamental rules of American copyright law apply to domestic as well as to most foreign works that enter the jurisdictional boundaries of the United States. One essential rule of law: when in the United States, apply U.S. law. Pre-1978 law in the United States, with its formalities and fixed duration, was an international anomaly. For more than a century, many countries had a system of automatic protection lasting for the life of the author plus at least fifty years.
The American system was especially troublesome for foreign authors who had the benefit of automatic protection in their home country, but often did not know the compliance procedures of American law. Many works gained full protection in a foreign country, but went into the public domain within U.S. boundaries. The United States faced diplomatic pressures to conform its law to international standards, and to remedy the perceived inequitable treatment foreign works received under American law.
This result is a complex twist of international law that “restored” copyright protection for many foreign works that had entered the public domain inside the United States for lack of formalities.16 The outcome is yet another dose of confusion in the law. Many foreign and domestic publications from before 1978 entered the public domain for failure to comply with formalities of notice and renewal. Domestic works remain in the public domain, while many foreign works were brought back under copyright protection.
The earliest restoration became effective at the beginning of 1996. Copyrights gaining new life at that time continued through the end of the term they otherwise would have received had the copyright owners complied with all formalities.17 For example, a Swiss publication from 1940 that was not renewed entered the public domain in the United States in 1968. In 1996 it once again became protected by copyright. Had the law not required formalities, American copyright law would have given ninety-five years of protection to the Swiss publication—until the end of the year 2035. Therefore, once restored in 1996, the copyright continues to that same expiration in 2035.
Practical Lessons for Users
What do these rules mean for the user of a pre-1978 work? An early work may well be in the public domain for failure to comply with formalities. To reach that conclusion, however, you may need to investigate the original publication of the work and whether a renewal appears in the records of the Copyright Office. Registration records are public, and the Copyright Office will conduct searches for a fee. Online searches are also available through some database providers.
Even works that lacked the formality of renewal or notice may still be protected, if the work originated from one of the many foreign countries enjoying the benefits of the restoration provision. This twist applies to most, but not all, countries, and as usual the law includes many detailed nuances. A user of an early work clearly has a significant research project to complete before determining whether some publications really are in the public domain.
With respect to works created in or after 1978, users need to face the reality that the lack of a copyright notice or registration is not conclusive. Moreover, given the unusually long period of copyright protection for such newer works, the simple reality is that a user needs to assume that nearly all recent works are fully protected until learning otherwise from the copyright holder.
Important Lessons for Owners
Do not overlook the benefits of formalities for your new works. Placing the copyright notice on your work offers valuable information to readers who might need to locate you for permission or further information. The simple copyright notice can streamline searches for copyright owners and help assure that their interests will be respected. A proper copyright notice also has the legal effect of barring an infringer from claiming to be an innocent infringer. This limited defense could apply if the user believed the activities were not infringing.18
Registering your work with the U.S. Copyright Office offers the practical benefit of creating a public pronouncement of your claim to the copyright, as well as an address for contacting you. Registration additionally grants important legal benefits in the unlikely event of a lawsuit.19 Those aspects of the law are covered in chapter 14, and they will in turn have some surprising and critical implications for librarians and educators who are struggling with fair use and thorny questions of infringement liability.
Notes
1. U.S. Copyright Act, 17 U.S.C. § 302.
2. For works created on or after January 1, 1978, copyright vests automatically at the time the work is fixed. U.S. Copyright Act, 17 U.S.C. § 102.
3. U.S. Copyright Act, 17 U.S.C. § 102.
4. Act of May 31, 1790, ch. 15, sec. 1, U.S. Statutes at Large 1 (1790): 124 (repealed 1802).
5. The history of American copyright law is recounted in many articles and books, among them: Tyler T. Ochoa, “Patent and Copyright Term Extension and the Constitution: A Historical Perspective,” Journal of the Copyright Society of the U.S.A. 49 (Fall 2001): 19–125; and Robert L. Bard and Lewis Kurlantzick, Copyright Duration: Duration, Term Extension, the European Union and the Making of Copyright Policy (San Francisco: Austin and Winfield Publishers, 1998).
6. U.S. Copyright Act, 17 U.S.C. §§ 405–406.
7. U.S. Copyright Act, 17 U.S.C. § 304.
8. U.S. Copyright Act, 17 U.S.C. § 302(a).
9. The same term applies to anonymous and pseudonymous works. U.S. Copyright Act, 17 U.S.C. § 302(c).
10. For specific legal benefits afforded by the law, see U.S. Copyright Act, 17 U.S.C. §§ 411–412.
11. At least one court has held that the publication must have occurred in the United States to trigger copyright protection. If the publication occurred only in a foreign country, the absence of a copyright notice did not, according to these controversial rulings, place the work in the public domain under U.S. law. Moreover, the work may be published in the United States at a later date and then secure the benefit of U.S. copyright. See., for example, Societe Civile Succession Richard Guino v. Renoir, 549 F.3d 1182 (9th Cir. 2008).
12. Act of March 4, 1909, ch. 320, sec. 23–24, U.S. Statutes at Large 35 (1909): 1075, 1080.
13. Sonny Bono Copyright Term Extension Act, Public Law 105-298, U.S. Statutes at Large 112 (1998): 2827, codified in scattered sections of the U.S. Copyright Act. See also Eldred v. Ashcroft, 537 U.S. 186 (2003).
14. U.S. Copyright Act, 17 U.S.C. § 304.
15. Copyright Amendments Act of 1992, Public Law 102-307, U.S. Statutes at Large 106 (1992): 264, 266 (codified at 17 U.S.C. § 304).
16. U.S. Copyright Act, 17 U.S.C. § 104A. A court recently had to address the maze of laws about restoration in order to determine who, if anyone, held a valid U.S. copyright in the ubiquitous troll dolls with rubbery bodies and frenzied hair. Troll Co. v. Uneeda Doll Co., 483 F.3d 150 (2d Cir. 2007).
17. U.S. Copyright Act, 17 U.S.C. § 104A.
18. U.S. Copyright Act, 17 U.S.C. § 401(d).
19. See generally U.S. Copyright Act, 17 U.S.C. §§ 411–412.