Copyrights Last for a Limited Time, At Least in Theory

I am being asked more and more frequently how one figures out when a work will go into the public domain.  Theoretically (and that’s a big theoretically), copyrights are only supposed to last for a limited time before they go into the public domain for everybody’s use.  But trying to figure out when a copyright for a particular work will expire is confusing at best.  The short answer is “it depends”.  Sorry to give that dreaded two word answer that makes all non-lawyers snort and roll their eyes, but bear with me, I promise it really does depend.  And I’m addressing this today because, with the increasing aged population, I think we’ll see in the coming years a large collision between copyrights (well, intellectual property in general) and decedents’ estates.

The first place to start is figuring out if the work still merits copyright protection.    I’ve distilled the various Acts down and tried to make the idea as digestible as I could.  But some of the dates infra may seem a bit random.  They are mentioned in various Acts and Amendments, but the article just wouldn’t flow well trying to address every little nuance.  So there are some aspects you’ll just have to take on faith (or dive head first into United States copyright term history and dig around for yourself.  Have fun with that.)

A copyright derives its existence from the United States Constitution, Article 1, Section 8. The stated purpose is to “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  Generally speaking, a patent is good for 20 years from the filing date then it goes to the public.  When a copyright goes public depends what kind of work it is and when it was published.  Currently, the term for copyright protection is life of the author plus 70 years.  To put this into perspective for you, Steamboat Willie initially aired in 1928.  The copyright is ruled by the 1909 Act and has a shorter term of protection that the current scheme.  Steamboat Willie is due to go into the public domain in 2023 unless Congress extends the copyright term again.  I’m not sure if nearly one hundred years is a limited term (almost everybody alive during the initial air date will be dead before they can use it),

But this wasn’t always the case.   Back when the US was just a baby nation trying to figure out what to do with itself, our Founding Fathers recognized the need to encourage innovation. So, using the power granted to them by Article 1, Section 8, Congress enacted the Copyright Act of 1790 for “the encouragement of learning by securing the copies of maps, charts, and books to the authors and proprietors of such copies during the times therein mentioned”.  This gave an author the exclusive right to publish maps, charts, and books for 14 years.  This system stayed in place until 1831, when Congress extended the copyright term from 14 years to 28 years, with an option to renew the copyright for another 14 years.  Musical compositions, prints, dramatic compositions, photographs, works of art, and music were added to the list of protected works throughout the 1800’s and 1897 saw the first protection of music from unauthorized performance.  Things remained pretty quiet until 1909.

Under the 1909 act, the term was again extended, this time to 28 years from the date of publication, which was renewable for a second 28 year term.   But to gain federal protection, the work had to be published and it had to have the copyright notice affixed to it.  Under the 1909 Act, the term “published” meant copies of the work had to be sold, put up for sale, or publicly distributed by the copyright holder.  At this point, we still had state-based copyright laws, which governed unpublished works.  Federal law governed all published works, with or without the notice.  In the 1900’s, motion pictures were added to the list of protected works, recording and performing rights were extended to literary works, and we saw the first mechanical compulsory license.  Steamboat Willie would be due to go into the public domain in 1956, and then in 1984 due to the term renewal.  Other than that, nothing really major happened until 1976, which gave us our current governing statute.

The 1976 Act (the principal provisions went into effect in 1978) changed copyright law quite a bit.  The first thing Congress did was get rid of state-based copyright law with the federal preemption provision.  Then they expanded the definition of works of authorship to include the term “now known or later developed” in anticipation of technological advances.  The Act also broadened the protection from works that were published to works that are fixed and expanded the term to life of the author plus 50 years.  For works that were copyrighted before 1978 the term was increased from 28 years to 47 years, giving a total term of 75 years.  Under the Act, Steamboat Willie would now go into the public domain in 2003, not 1984.  The 1980’s saw recognition for computer programs and the first ever criminal statute for willful copyright infringement.  The 1990’s gave us protection for architectural works, the DMCA, and the Copyright Term Extension (“CTE”).

Congress passed the CTE, AKA the Sonny Bono Copyright Term Extension Act AKA the Mickey Mouse Protection Act, in 1998. Disney donated huge amounts of cash lobbied extensively in favor of this.  Although it is important to note that the extension in the Act could also be in connection with complying with the international requirements of the Berne Convention, which the US became a signatory of in 1988.  At any rate, for a work created after 1978, the copyright now lasts for the life of the author plus 70 years.  Joint works are also good for life of the author plus 70, but the term is measured from the life of the longer living author.  Works for hire (e.g., “corporate authorship”) are good for 120 years after creation or 95 years after publication, whichever is shorter.  For works that were copyrighted before 1978 the term was increased from 75 years to 95 years.  Things with the copyright term have remained pretty quiet since then.  For those of you keeping score, Steamboat Willie is safe from the public domain until 2023.  Did you notice that each time Congress extended the copyright term of protection it was just before Steamboat Willie was due to go into the public domain?   Just sayin….

But let’s have some fun and put this into practice.  Pretend you are the executor of the estate a recently departed relative.  And let’s say, when seeing to said recently departed relative’s final affairs, you discover she had a trunk of original manuscripts written by your great great grand uncle who died in 1920.  The works were never published, never sold, and only shared with family members as bedtime stories.  You think they might make a great children’s book and want to publish them now.  Are they in the public domain?  If they are, when did they enter?

Here’s a very simple and cursory if-then outline to help us find the answer:

1. Was the work created after 1978?
   1. IF YES ? it’s protected once it’s fixed in a tangible medium and is good for life of the author plus seventy years.  If it’s a work made for hire its good for 120 years from the creation. If is an anonymous work or a pseudonymous work, it’s good for 95 years from publication, or 120 years from the year of creation.
   2. IF NO ? goto 2.
2. Was the work published before 1923?
   1. IF YES  ? it’s in the public domain.
   2. IF NO ? goto 3.
3. Was the work published between 1923 and 1963?
   1. IF YES ? it’s protected from when it was published with notice and is good for 28 years plus it can be renewed for 47 years and then another 20 years after that.  If it wasn’t renewed or if it was published without notice, it’s in the public domain.
   2. IF NO ? goto 4.
4. Was it published between 1964 and 1977?
   1. IF YES ? it’s protected from when it was published with notice.  It’s good for 28 years for the first term, and an automatic extension of 67 years. If it was published without notice, it’s in the public domain.
   2. IF NO ? goto 5.
5. Was it created before 1978 but not published?
   1. IF YES ? it’s protected as of 1978 and is good for life of the author plus 70 years.
   2. IF NO ? goto 6.
6. Was it created before 1/1/78 but published between 1978 and 2002?
   1. IF YES ? it’s protected as 1978 and is good for life of the author plus 70 years, or 2047, whichever is longer.
   2. IF NO ? goto 1.

Fair warning- my little outline ignores quirks with certain types of works as well as international stuff, so don’t use it as a meter stick.  But it works for our hypo.  So what’s our answer then?  The work is in the public domain, and it entered in 1990, 70 years from the date your great great grand uncle died.  This is because it was created before 1978 but not published.  So copyright attached the moment it was fixed and remained in place for 70 years after your great great grand uncle died in 1920.  You answered “no” to questions 1-4 but “yes” to question 5.  See, wasn’t that fun?  OK, it was for me, but I did find this neat-o public domain calculator if you want to cheat.

A final note on sound recordings.  They are treated differently.  Sound recordings also used to be governed by state and federal law, but that sort of went away in 1976.  The Sound Recording Amendment of 1971 (an anti-piracy bill, by the way) gave federal protection to recordings fixed on or after February 15, 1972.  But if they were fixed before that, they could remain under common law.   The Copyright Act of 1976 maintains this until February 15, 2047, which was subsequently extended by the Sonny Bono Act to 2067.  Long story short, music created in your lifetime ain’t gonna go into the public domain during it, so forget it.  FYI, Congress has directed the copyright office to study if they should bring sound pre-1972 sound recordings under federal jurisdiction.  Call it a hunch, but I smell another term extension on the horizon.  Let’s see- its 2011, Steamboat Willie is due to go into the public domain in 2023, and given the speed with which Congress moves….yep.  Sounds about right.

You didn’t really think a work created during your life time would go into the public domain before you died, did you?