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Copyright duration in the US

The question comes up all the time here at The Legal Genealogist.

Something was published at some point in the past, and a reader wants to know if she can use it in her genealogical work — in a blog post or a journal article or a book or a presentation — without being concerned for any copyright issues.

1923The bright-line dividing point in the United States is 1923: anything legally published before 1923 is now out of copyright. Anything published in 1923 or later might or might not be copyright-protected, depending on a whole host of factors.

There are so many variables for post-1923 publications that the best thing you can do is consult Peter Hirtle’s chart at the Cornell Copyright Center, “Copyright Term and the Public Domain in the United States.” It’s updated annually and covers the whole waterfront.1

Now… here’s the story on that 1923 dividing line:

For works that had already secured statutory copyright protection before January 1, 1978, the 1976 Copyright Act retains the system in the previous copyright law—the Copyright Act of 1909—for computing the duration of protection, but with some changes.

 

Federal standards for copyright duration differ substantially under the 1909 act compared with the 1976 act because of the renewal term contained in the 1909 act. Under the 1909 act, federal copyright was secured on the date a work was published or, for unpublished works, on the date of registration. A copyright lasted for a first term of 28 years from the date it was secured. The copyright was eligible for renewal during the final, that is, 28th year, of the first term. If renewed, the copyright was extended for a second, or renewal, term of 28 years. If it was not renewed, the copyright expired at the end of the first 28-year term, and the work is no longer protected by copyright. The term of copyright for works published with a year date in the notice that is earlier than the actual date of publication is computed from the year date in the copyright notice.

 

The 1976 Copyright Act carried over the system in the 1909 Copyright Act for computing copyright duration for works protected by federal statute before January 1, 1978, with one major change: the length of the renewal term was increased to 47 years. The 1998 Copyright Term Extension Act increased the renewal term another 20 years to 67 years. Thus the maximum total term of copyright protection for works already protected by January 1, 1978, has been increased from 56 years (a first term of 28 years plus a renewal term of 28 years) to 95 years (a first term of 28 years plus a renewal term of 67 years). Applying these standards, all works published in the United States before January 1, 1923, are in the public domain.2

Read that last past again: “Applying these standards, all works published in the United States before January 1, 1923, are in the public domain.

Now there is an issue with the breadth of this statement: the work had to be lawfully published — meaning that you couldn’t steal somebody else’s work, publish it in the United States, and start the clock running on the stolen version.3

But as long as the item was lawfully published in the United States before 1923, it’s out of copyright now, and nothing anyone does now can put it back into copyright protection. That means nobody can take it, repackage it, and get a new copyright on the new package. You can get a new copyright on any new material, like an index or introductory materials or anything else you add for the first time, but not on the material that’s already out of copyright.4

So the dividing line here in the United States for the public domain is 1923.

Really.


SOURCES

  1. Peter B. Hirtle, “Copyright Term and the Public Domain in the United States,” Cornell Copyright Center (http://copyright.cornell.edu/resources/publicdomain.cfm : accessed 29 Nov 2016).
  2. U.S. Copyright Office, “Circular 15a: Duration of Copyright,” PDF version, Copyright.gov (https://www.copyright.gov/ : accessed 29 Nov 2016) (emphasis added).
  3. See Peter Hirtle, “The myth of the pre-1923 public domain,” LibraryLaw Blog, posted 5 July 2009 (http://blog.librarylaw.com/l : accessed 29 Nov 2016).
  4. See Judy G. Russell, “Copyright and the republished work,” The Legal Genealogist, posted 25 Feb 2014 (http://www.legalgenealogist.com/blog : accessed 29 Nov 2016).
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