1909 Act
As you know, copyright created for works created after the effective date of the 1976 Act is automatic. Copyright subsists as soon as the work of authorship is fixed in a tangible medium of expression. Under the 1909 Act, however, there were both state common law and federal copyright regimes. State common law governed unpublished works. Federal copyright started upon: 1) publication; with 2) notice. Publication marked the dividing line between state and federal protection. Publication with notice led to the end of state protection and the beginning of federal copyright. Publication without notice could constitute a waiver of all copyright protection, putting the work into the public domain.
Under the 1909 Act, the initial term of federal protection was 28 years, with an optional renewal term of an additional 28 years for a total of 56 years.
- The initial term of federal protection required publication with notice. Registration was not required.
- The renewal term required timely registration. If renewal was not sought, then the term was only 28 years.
Unpublished works were protected by state law, which could be of perpetual duration.
The table below shows the law under the 1909 Act.
Initial term: published works |
Renewal term: published works |
Total length of federal copyright protection |
|
1909 ActInitial and renewal terms. |
28 years
Requires publication with notice |
28 years
Requires renewal registration |
56 years |
1976 Act
The 1976 Act was a major change (with more changes to come in 1992 and 1998).
New works, Section 302: Works “fixed” after 1977 got a unified term. For example, a human author got a term of life + 50 years, and works that were anonymous, pseudonymous, or for hire got a term of 75 (if published) or 100 (if unpublished).
Note: Post-1977 works still in copyright in 1998 were extended by 20 years by the CTEA. See below.
Older unpublished works, Section 303: For unpublished works created before 1978, they got at least the same unified term as new works, with the potential of an even longer term.
- If the previously unpublished work was initially published between 1978 and the end of 2002, then the copyright could not expire before the end of 2047!
- Example: suppose you locate a never-published letter of George Washington from the 1700s. That letter, if published prior to 2003, would obtain federal copyright protection through 2047. (Of course, you would not own the copyright, though you might own the letter. See section 202.)
- But if the unpublished work remained unpublished (or undiscovered), the federal copyright would expire after 2002. So if the George Washington letter remained unpublished, it would get federal copyright protection from 1978 to 2002 and then fall into the public domain.
- You might ask why would Congress allow such an old letter to get such a long copyright? That was because unpublished pre-1978 works had been protected by common law copyright, which could be perpetual. So in one sense, Congress took away those perpetual common-law rights for unpublished works, but in turn, gave some guarantee of federal protection through at least 2002 (if never published), and through 2047 or longer (if published after 1977).
Note: the 1998 CTEA also affected the term of these works as well. See below.
Older published works, Section 304: This section is also complex.
- Works in public domain: Works in public domain prior to 1978 remained in the public domain and did not benefit from any copyright extension.
- Works still in initial term: If the work was still in its initial 28-year term from the 1909 Act, then the owner could file a renewal registration. The renewal term was extended by 19 years, from 28 years to 47 years. That meant that a subsisting copyright that predated the 1976 Act could get 28+47 years for a total of 75 years.
- Works in renewal term: If the work was in its renewal term in 1978, then it simply got the additional 19 years, for a total of 75 years.
Note: older published works with a renewal term starting in 1998 or later no longer need a rewewal registration. Renewal is automated under the 1992 changes. See below.
Note: older published works still in initial or renewal terms in 1998 were automatically extended 20 years by the CTEA. See below.
Here’s a table explaining how the law was as of Jan. 1, 1978. For later changes (1992 and 1998), see below.
|
|
Initial term |
Renewal term |
Total length of federal copyright protection |
1976 Act, as of effective date of Jan. 1, 1978
|
Works published before 1978
Initial term of 28 years upon publication with notice |
Works published before 1978 Total: 47 years with renewal registration. This is because the 1976 Act extended the renewal term of 28 years by an additional 19 years. Renewal required a renewal registration. |
Works published before 1978 Total: 75 years, so long as the work got the initial 28 year term along with the optional 47 year renewal registration. |
Works fixed in 1978 or later
|
Works fixed in 1978 or later Because there is a unitary term, no renewal needed. Same as shown to the left. |
Works fixed in 1978 or later Because there is a unitary term, no renewal needed. Same as shown to the left. |
|
Works created before 1978 but not yet published
|
Works created before 1978 but not yet published Because there is a unitary term, no renewal needed. Same as shown to the left. |
Works created before 1978 but not yet published Because there is a unitary term, no renewal needed. Same as shown to the left. |
Copyright Renewal Act of 1992
Under the 1909 Act, a copyright owner could not obtain the renewal term unless it filed a renewal registration. The same was true under the 1976 Act for works published prior to 1978.
However, in 1992, Congress did away with the requirement for a renewal registration. This meant that older published works (published before 1978) could obtain the benefit of the 47-year renewal term automatically, without having to file anything. Which works does that apply to?
Works published in 1963 or earlier, no renewal without registration: no renewal term unless a renewal registration was filed. This is because the initial 28-year term for works from 1963 expired in 1991, prior to the 1992 Act. So failure to file a renewal registration for a 1963 work meant that work fell into the public domain. Too late!
Works published between 1964 and 1977, automatic renewal: Those works were published prior to the 1976 Act, so they could get the 47-year renewal term automatically. This is because their renewal year fell after the implementation of the 1992 Act. For instance, works published in 1964 would start their automatic renewal in 1992 (the effective year of the Act).
Works published after 1977, unified term, renewal irrelevant: Works published after 1977 fall under the 1976 Act and get the unified term such as life+50.
Here’s a table showing how the law was as of the 1992 Act. The 1992 changes are in blue.
|
|
Initial term |
Renewal term |
Total length of federal copyright protection |
1976 Act, after passage of the Copyright Renewal Act of 1992
|
Works published before 1978
Initial term of 28 years upon publication with notice |
Works published before 1978 Total: 47 years with renewal registration. This is because the 1976 Act extended the renewal term of 28 years by an additional 19 years. Changes from 1992 Act:
|
Works published before 1978 Total: 75 years, so long as the work got the initial 28 year term along with the optional 47 year renewal registration. |
Works fixed in 1978 or later
|
Works fixed in 1978 or later Because there is a unitary term, no renewal needed. Same as shown to the left. |
Works fixed in 1978 or later Because there is a unitary term, no renewal needed. Same as shown to the left. |
|
Works created before 1978 but not yet published
|
Works created before 1978 but not yet published Because there is a unitary term, no renewal needed. Same as shown to the left. |
Works created before 1978 but not yet published Because there is a unitary term, no renewal needed. Same as shown to the left. |
Sonny Bono Copyright Term Extension Act of 1998 (CTEA)
Here’s a table showing how the law is today, including the changes from the 1976 Act, the 1992 Copyright Renewal Act (in blue), and the 1998 CTEA (in red).
|
|
Initial term |
Renewal term |
Total length of federal copyright protection |
1976 Act, after the passage of the CTEA of 1998
|
Works published before 1978
Initial term of 28 years upon publication with notice |
Works published before 1978 Total: 67 years with renewal registration. This is because the 1976 Act extended the renewal term of 28 years by an additional 19 years. Additionally, the 1998 CTEA extended the renewal term by an additional 20 years for a total of 67 years of renewal. Changes from 1992 Act:
|
Works published before 1978 Total: 95 years, so long as the work got the initial 28 year term along with the optional 67 year renewal registration. |
Works fixed in 1978 or later
|
Works fixed in 1978 or later Because there is a unitary term, no renewal needed. Same as shown to the left. |
Works fixed in 1978 or later Because there is a unitary term, no renewal needed. Same as shown to the left. |
|
Works created before 1978 but not yet published
|
Works created before 1978 but not yet published Because there is a unitary term, no renewal needed. Same as shown to the left. |
Works created before 1978 but not yet published Because there is a unitary term, no renewal needed. Same as shown to the left. |
Whither the public domain?
Generally speaking, works published in the United States prior to 1923 are now in the public domain. This is because in 1998 (the year of the Sonny Bono Act/CTEA), works published before 1923 were already in the public domain before subsisting copyrights got a 20-year extension (extending existing copyrights from 75 to 95 years).
See the math: 1998 (Year of Sonny Bono Act) minus the pre-CTEA 75-year term for published 1909 Act works = 1923.
Below is a table that goes into additional detail.
In public domain? |
Explanation |
|
Works published 1922 or earlier |
Generally yes. | Works published with notice up to 1922 would have obtained a 28 year term that expired in 1950. If a renewal registration was filed, then the 28-year renewal term was active in 1978 (the effective year of the 1976 Act), so the renewal would have been extended by 19 years. Thus, the copyright for a work published in 1922 would have expired Dec. 31, 1997, which means the work was in the public domain prior to the enactment of CTEA’s additional 20 years in 1998.
Such works are generally in the public domain.
|
Works published between 1923 and 1963 |
Not in public domain unless a renewal registration was not filed. | Works published with notice in 1923 got an initial 28 year term running through 1951, plus a 47-year renewal term to 1998 if renewal registration was filed. Such a work then benefited from the 20 extra years of the CTEA, taking the copyright through Dec. 31, 2018. However, if renewal registration was not filed, then such work fell into the public domain after the initial 28 years term.
Since many of the copyrights to 1923-1963 works were not renewed, many of the works from this period are now in the public domain. A copyright for a work published with notice in 1923 would have expired in 1951. A copyright for a work published with notice in 1963 would have expired in 1991. But for works for which a renewal registration was filed, such works are still in copyright:
|
Works published between 1964 and 1977 |
Not in public domain. | The analysis for such works is similar to “works published between 1923 and 1963.” However, renewal is now automatic, so such works cannot fall into the public domain for failure to file a renewal registration. Such works essentially get 95 years of automatic protection, as measured from year of publication with notice.
Such works cannot fall into the public domain for failure to file a renewal registration, and such copyrights will be long-lasting:
|
Works unpublished and created prior to 1978 |
Depends on a full analysis. | The unpublished work enjoyed possibly perpetual common-law protection prior to the 1976 Act. After that, section 303 of the Act gives such works the same term that new works get (such as life+70). However, such a term for some old works would have technically expired prior to 1976. For example, an unpublished George Washington letter could not take advantage of a life+70 term today because Washington died in 1799. However, section 303 indicates that the federal copyright for any such unpublished work must subsist through at least 2002, and if published prior to 2003, must subsist through 2047.
So some such works will have fallen into the public domain and some have not.
|
Works created 1978 or later |
Not in public domain | For works created after 1977, the status of published or unpublished does not matter.
Such works are not in the public domain unless expressly dedicated by the owner to the public domain. Some such works will be in copyright for a very long time. For example, J.K. Rowling is the author (and copyright owner) of Harry Potter and the Sorcerer’s Stone. The work was published in 1997, but that date is irrelevant. What is relevant is the longevity of J.K. Rowling, who was born in 1965. We all wish her a long, healthy, and happy life. Let’s assume she lives to 100 and passes in 2065. By these assumptions, Harry Potter and the Sorcerer’s Stone will not go into the public domain until Jan. 1, 2136 (and even later, if Congress again extends copyrights). |
Beta (0.1) posted Sept. 13, 2016; Revision (0.2) posted Sept. 14, 2016