

NEW RULES FOR USING PUBLIC DOMAIN MATERIALS



By Attorney Lloyd J. Jassin



O ne of the most important gifts authors and publishers have been given is the treasure trove of creative works known as the public domain (PD). When a work passes into the public domain it can be used without permission or charge because no one owns it. However, great care must be taken to determine if a work is truly in the public domain. This article addresses recent changes in the law, and provides information to help readers negotiate the sometimes daunting public domain maze.



Many people are surprised to learn that there is a moratorium on new works entering the public domain. During the Clinton administration, the controversial Sony Bono Copyright Term Extension Act (CTEA) was signed into law. Under the Act  which added 20 years to most copyright terms  no new works will enter the public domain until 2019. Enacted to ensure adequate protection for U.S. works abroad, the CTEA restricts access to works published after 1922. In 2003, the U.S. Supreme Court, in Eldred v. Ashcroft , rejected a popular challenge to the CTEA. While the CTEA has substantially lengthened the commercial life of many works, the public domain remains a rich source of quality, inexpensive content for anyone dealing in creative works.



What is the Public Domain?

Copyright protection does not last forever. That is why copyright is often called a "limited monopoly. When copyrights grow old and die, the works they protect fall into the public domain. Subject to certain exceptions, public domain works may be freely copied or used in the creation of derivative works without permission, or authorization, of the former copyright owners.



In addition to works no longer protected by copyright, the public domain also includes works that are in the public domain for failure to include a proper copyright notice. Prior to March 1, 1989, notice of copyright (e.g., © 1941 by Irving Berlin) was required on all published works. If the notice was omitted, or appeared in the wrong form or location, the work was put into the public domain. Be aware that if the copyright notice was omitted on copies of works published between January 1, 1978 and March 1, 1989, copyright was not automatically lost if certain measures were taken to cure the oversight.



Besides "expired" copyrights, and works lacking proper notice, the following categories of works are also not eligible for copyright protection: (i) U.S. Government works, (ii) state judicial opinions, (iii) legislative enactments, and other official documents, (iv) unadorned ideas and facts, (v) blank forms, (vi) short phrases, (vii) names, titles and slogans, (viii) extemporaneous speeches, and (ix) standard plots and stock characters.





Traps and Pitfalls

It is important to emphasize that copyright protection is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under various legal theories such as trademark or unfair competition laws (which protect against confusingly similar usage by another); an individuals right of privacy (the right to be left alone); or a persons right of publicity (an individuals exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law. And, as discussed below, new or later versions, to the extent the underlying PD work has been embellished with new material, may also require permission.



Whenever you rely on the PD status of a work, it is important to make sure that the particular version you want to use is actually in the public domain. Later versions or adaptations (e.g., translations, revisions, annotated and illustrated editions) of PD works may be protected by a separate copyright. Copyright in later versions or adaptations, relates to the fresh layer of creative material added by the second author. To avoid legal entanglements it is important to use only the original PD version -- not any later copyrighted version that may contain editorial interventions. While Shakespeares Hamlet is in the public domain, the New Folger Library Edition of Hamlet is not. Keep in mind that there are many works published works before 1923 that were later revised (e.g., Dale Carnegies Public Speaking, A Practical Course for Business Men (1915)), and that these later versions are subject to copyright protection and royalty payments. Therefore, in the event of a legal dispute, you should retain in a safe place a copy of the PD work you referenced or worked from.



The following is, perhaps, the most insidious trap of all. Although a work may be in the public domain in the United States, it may still be protected in other countries. For example, a work by a United States author that is PD in the United States for failure to renew, may still be protected in countries such as Germany -- where copyright duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas. Beware! Many foreign works that were previously in the public domain for failure to comply with technical requirements of United States law (including copyright notice and renewal requirements) were restored to copyright in 1996 under the GATT and NAFTA international trade treaties. In order to be restored, the foreign work had to be under copyright in the "source" country, and not first published in the United States. Revived works, which are no longer in the public domain, cannot be used without permission of the copyright owner.





Determining Whether a Work is in the Public Domain

Knowing when a copyright expires will allow you to take advantage of the abundance of material found in the public domain. Therefore, it is helpful to have a basic understanding of copyright law.



One helpful rule-of-thumb is that all works published in the United States before 1923 are in the public domain in the United States. In addition to pre-1923 works, there are also millions of other works that have fallen into the public domain for either (a) failure to renew; or (b) failure to affix a proper notice.



As discussed below, in the United States, the length of copyright protection a work receives depends upon when it was created.





New Rules for Works Created Before January 1, 1978

Works created before January 1, 1978, were until recently protected for a total of 75 years, provided, certain copyright renewal formalities were followed. The CTEA amended the Copyright Act by extending the term of protection for works currently in their renewal term from 75 years to 95 years. Under the new law, any work published in 1923 (which would have otherwise fallen into the public domain on January 1, 1999), will now be protected until January 1, 2019.



Under the old Copyright Act, before 1978, we had a sensible system in which you were required to both register and renew your copyright in order to enjoy copyright protection. Prior to January 1978, the duration of all copyrights was split into two 28-year consecutive terms. Once the work was published with a valid copyright notice, the copyright lasted for an initial term of 28- years. However, the copyright owner was given the option to renew the copyright for an additional period of 28-years during the last year of the initial term.



In trolling for public domain works, one of your objectives is to determine whether the copyright owner renewed, or forfeited, their copyright. Over time, the renewal term was extended by Congress from 28-years to 47-years, and with the passage of the CTEA, from 47-years to 67-years -- bringing the maximum total to 95-years (i.e., 28 + 67 = 95). For example, a work published in 1930, if properly renewed, will expire at the end of 2025 under the CTEA.



In 1992, Congress enacted a law that made renewal automatic for works published between 1964 and 1978. However, if a work was published between 1923 and 1963, there is an excellent chance it may have fallen into the public domain for failure to renew. For example, copyright protection for Frank Capra's classic film, "It's a Wonderful Life" (1946) was lost in 1974, because someone inadvertently failed to file a copyright renewal application with the Copyright Office during the 28th year after the film's release. Notwithstanding, the films owner has asserted rights based upon copyright in the underlying story and musical score which were properly renewed. TIP: Pre-1978 works what are in the public domain because they were published without proper copyright notice, or, in the case of pre-1964 works, were not timely renewed, do not receive retroactive protection under the CTEA. Similarly, works published before 1923, do not receive retroactive protection, and remain in the public domain. Using Works Created on or After January 1, 1978

Newer works, created after January 1, 1978, which were previously protected for the life of the author plus 50-years, are now are protected for the life of the author plus 70 years -- with no renewal term. Copyright in works created by two or more authors, now expires 70 years after the death of the last surviving author. And, if the work is a work for hire, or anonymous or pseudonymous, the term of protection is the shorter of 95 years from first publication, or 120 years from the date of creation. Consequently, no post-1978 works are scheduled to fall into the public domain until the middle of the 21st Century1.





Copyright Searches: The Hunt for Lapsed Copyrights

According to a 1961 Copyright Office study less than 15% of all registered copyrights have been renewed. For books and other textual materials, that number jumps to more than 90%. If you are interested in older  permission free  works published between 1923 and 1963, you will need to investigate whether the works copyright was renewed. In this case, youll need to do a copyright search by contacting the Copyright Office , or a qualified copyright search firm or intellectual property attorney.

To investigate the renewal status of a work, you will need the following information:



1. the date the work was published or registered;

2. the name of the person or entity that created the work;

3. the title of the work (and possible variants);

4. where the work was first published; and, if available

5. the copyright certificate number



Start by looking at the copyright notice (e.g., © 1929 by Damon Runyon). The date of the copyright notice will usually indicate the works publication date. Some copyright notices may even include the copyright renewal date (e.g., © 1929 by Damon Runyon. Renewed 1956 by Damon Runyon, Jr. and Mary Runyon McCann), in which case, if you tend to believe what you read, there is no need for a renewal search.



Whether the Copyright Office staff searches the records for you, or you engage the services of a professional searcher, the objective is the same -- to determine if a copyright renewal certificate exists.



Keep in mind that Copyright Office searches may not be conclusive. Although the Copyright Offices records are essentially complete, there are a small number of files missing from the official records at any time. This is especially true for older works. Also, bear in mind that some works may have been registered under different titles, or as part of a larger work such as a periodical or other compilation.





Using Unpublished Works Created Before 1978

Until recently, unpublished works created before January 1978 (including very old works), were entitled to perpetual copyright protection, provided they remained unpublished and uncopyrighted. These works included unpublished civil war diaries and anonymous works found in attics and trunks. Arguably, works dating back to antiquity were protected under what was known as common law copyright. On December 31, 2002, the era of perpetual copyright ended. On that date, all works that were unpublished as of December 31, 2002, were released from their perpetual copyright. Although published before 1978, these works are now treated no differently than post-1978 works. The term of protection for such works is now the life of the author plus 70 years. And, in the case of anonymous and works for hire, the duration of copyright is 120 years from the date of creation.



As a result, on January 1, 2003, a torrent of unpublished works by creators who died before 1933 was ejected into the public domain. Because locating a creators heirs is extremely difficult, this change in copyright status, was a tremendous gift to scholars and society. As Robert H. Hirst, head of the Mark Twain Project at the University of California in Berkeley, said, [F]or the first time in history the owner of an unpublished Mark Twain manuscript or letter now also owns the publication rights to it.





Conclusion

If you are trolling the public domain for works to adapt, reuse, or republish, be aware that there are many traps for the unwary. If you are unfamiliar with the intricacies of copyright law, you should consider hiring an intellectual property attorney or qualified rights clearance expert. While there are many PD gems out there  including classic films and unheralded works waiting to be discovered -- be aware that all that glitters may not be gold. As suggested by this article, licenses may still be needed from rights holders as well as identifiable persons.



© 1999 - 2003 by Lloyd J. Jassin.







LLOYD J. JASSIN is a publishing and entertainment attorney and coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). He has offices in The Actors' Equity Bldg., 1560 Broadway, Ste. 400, NYC, 10036. He can be reached at 212-354-4442 or by e-mail at Jassin@copylaw.com, or you can visit his firms website at www.copylaw.com)



NOTICE: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.







Assuming an author died shortly after publishing a book in 1978, that work would enter the public domain on January 1, 2049.