An Author’s Rights Go Public

Originally published by Charles Wallace.

Photo by Ari He on Unsplash

Article 1, Section 8, Clause 8 of the United States Constitution, known as the “Copyright Clause,” gives Congress the power “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.” As such, the exclusive rights held by a copyright author are finite, and the duration of such rights are complex — particularly for works published between 1923 and 1977.There are specific notice requirements that must be adhered to, but as a rule of thumb, it is important to remember that:

• For works created from 1978 on, copyright protection generally expires 70 years after the individual author’s death.(See Note 1 below)
• Copyright protection in works created before 1923 have expired and fallen into the public domain.

The following is a general guide, organized by year of registration or first publication, for determining when an author’s work will fall into the public domain. Note that works created before 1978 had renewal requirements that must be met for an author to retain copyright protection (a topic for another discussion—this topic is already complicated enough):

January 1, 1923 — December 31, 1963

Published without copyright notice:

• The work is in the public domain.

Published with copyright notice, but the registration was not renewed:

• The work is in the public domain.

Published with copyright notice and renewed during the 28th year of publication:

• The work is protected for 95 years from the date it was published.

January 1, 1964 — December 31, 1977

Published without copyright notice:

• The work is in the public domain.

Published with copyright notice (no renewal required):

• The work is protected for 95 years from the date it was published.

January 1, 1978 — February 28, 1989

Published without copyright notice or registration:

• The work is in the public domain.

Published without copyright notice, but registers within 5 years of publication:

• The work is protected for the life of the individual author plus 70 years.

Published with copyright notice (but created on or after January 1, 1978):

• The work is protected for the life of the individual author plus 70 years.

Published with copyright notice (but created before January 1, 1978):

• The work is protected for the life of the individual author plus 70 years, or December 31, 2047, whichever is greater.

March 1, 1989 — December 31, 2002

Created on or after January 1, 1978:

• The work is protected for the life of the individual author plus 70 years.

Created before January 1, 1978 and not previously published:

• The work is protected for the life of the individual author plus 70 years, or December 31, 2047, whichever is greater

January 1, 2002 — Present Day

• The work is protected pursuant to the general rule of thumb—70 years after the individual author’s death.

Works prepared by United States government employees as part of their official duties are in the public domain and do not enjoy copyright protection. There are also special rules and exceptions that apply to works first published outside the United States, architectural works, and sound recordings (as opposed to the compositions of such sound recordings). These topics only complicate the above guidelines, and they are also topics for another discussion.

Although United States law does not allow copyright protection, unlike trademark protection, to persist indefinitely, copyright registrants enjoy a longer duration of protection than patent holders, and copyright registrations do not require the stringent maintenance procedures inherent in trademark law. The good news and takeaway: your copyright registration, assuming you haven’t licensed or sold it, is likely yours for life (plus 70 years).

• Note 1: Copyright protection in works created from 1978 on (with more than one author) expires 70 years after the death of the last surviving author. Additionally, copyright protection for anonymous works, works authored under a pseudonym, and works made for hire expire 95 years from the date of publication or 120 years from the date of creation, whichever expires first.

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