There’s a wellspring of creative work entering the public domain this year and every year (unless the law changes to extend copyright duration, again). Works first published in the United States in 1923 are now in the public domain including those of Robert Frost, Virginia Woolf, George Bernard Shaw, Henri Matisse, and Constantin Brancusi, to name but a few. There have been many news stories about the cache of creative work that is now available.
Few works of art are truly original, even the great ones. Literary plots and themes can be traced back to the ancients, as can much visual art. No creative work exists in a vacuum—it is indebted to what came before. Access to public domain work encourages expansion and innovation in art. But before you incorporate someone else’s creative work into your own without permission, you need to establish either that your use is fair or that the work is in the public domain.
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Use this quick and easy guide to help you decide whether a use you plan to make of someone else's work is fair, or if someone has made fair use of your work.
Tracking what is in the public domain is not as simple as determining its publication date. Authors of works published between 1923 and 1963 were required to renew their copyright registrations after 28 years in order to secure their continued exclusive rights. If a renewal was not filed, the work fell into the public domain. Word is that fewer than 15% of copyright holders of early works properly renewed their registrations. Many works published after 1923 are in the public domain for failing to comply with this technical formality.
What is the Public Domain?
Public domain works are not protected by copyright. They are free to be used by anyone without permission. In essence, the public owns these works. No one can ever exert exclusive rights over them once they have entered the public domain. Once a work enters the public domain, it is there forever.
There are three ways that a work can become part of the public domain:
- The copyright on the work has expired and cannot be renewed;
- The copyright owner failed to file a renewal on the copyright; or
- The copyright owner dedicated their work to the public, intentionally placing it in the public domain.
How Long Does Copyright Last?
The length of copyright is different in different countries. Copyright lasts for the life of the author plus 70 years in the EU. In Canada, works enter the public domain 50 years after the death of the author. Mexico’s term of copyright is life plus 100 years. Keep in mind that the laws are constantly changing, so double check before you publish work derived from something you believe is in the public domain.
In the US, the copyright term for work created after 1977 is the life of the author plus 70 years thanks to the Sonny Bono Copyright Term Extension Act of 1998. This is the law that froze the release of work into the public domain for 20 years – a freeze that began thawing on January 1, 2019. Hence, the recent fuss. (Note: The length of the copyright term is different for pseudonymous work.)
For creative work published before 1978, the maximum length of a copyright term can be as long as 95 years from the date of publication. Authors of these early works (those created before 1978) had to fulfill certain conditions in order to secure the current 95-year term. If the work was originally published before 1978 without a copyright notice ©, then the work is in the public domain. If a work published before 1963 was not properly renewed, it is in the public domain.
Determining the term of copyright for older works can be tricky. An excellent reference that you can use to calculate the term of copyright for a particular work can be found at Cornell University’s Copyright Term in the Public Domain in the United States.
What is in the Public Domain Now?
Articles celebrating Public Domain Day (January 1) and the new work released to the public domain have focused on works that fall into the first category — the copyright on the work was properly renewed and has now expired. That’s easy math. Take the date of publication and add 95 years. For 2019, that puts everything published in 1923 in the public domain. In 2020, everything published in 1924 and properly renewed will enter the public domain, and so on.
The law changed in 1992 and copyright renewals became automatic. The automatic renewal law only applies to works published between January 1, 1964 and December 31, 1977. The copyright term for works published with notice between those dates is 95 years after publication date. Works published between those dates without notice are in the public domain.
Determining how long the copyright lasts in a work first published in the US between 1924 to 1963 is completely dependent on the quirkiness of public domain math. There is a variety of resources available to obtain the variables for the equation. Let’s take a look at a few examples and the various sites where important copyright information can be found.
Public Domain and Copyright Term Calculations
A Work Published in 1932 that is Still Protected by Copyright
Consider the only novel written by Zelda Fitzgerald, Save Me the Waltz . It was published in 1932. The copyright was renewed in 1960. The claimant on the renewal was Frances Scott Fitzgerald Lanahan, the only child of Zelda and F. Scott. Zelda died in 1948. If the law of copyright duration had been the life of the author plus 70 years back in 1948, Save Me the Waltz would have come into the public domain in 2018. Because of the Sonny Bono Extension Act, Zelda’s heirs control the copyright to and benefit from the revenue streams generated by her work until 2027.
I was able to find the renewal information for Save Me the Waltz in Stanford University’s Copyright Renewal Database where you can search for renewals filed between 1950 and 1977. Stanford explains why it created this database:
Copyright status of works published in the US between 1923 and 1963 is of particular interest, as it is dependent on whether the original copyright was renewed. The Copyright Office has never made available in machine-readable form the renewals it received between 1950 and 1977, which would generally cover renewals for books published between 1923 and 1950, and this has made it difficult for libraries and archives to determine which books are in the public domain.
Here’s a screen shot of the entry for the copyright renewal on Save me the Waltz from the Stanford database:
Finding the copyright renewal on books can now be done easily online with the Stanford database. Putting your hands on the original copyright registration without going to the Copyright Office in D.C. is more difficult. The online searchable Copyright Public Records Catalog only goes back to 1978. To find the original registration of a work published before 1978, you have to search manually through the Copyright Office Catalog of Copyright Entries (CCE). That is what I did in the post tracing ownership of the copyright for Rudolph the Red-Nosed Reindeer. The CCE consists of 660 bound volumes containing approximately 450,000 pages covering copyright records from July 1, 1891 through December 31, 1977. The CCE has been digitized and almost all volumes are available online, but they are not searchable. Hunting down what you need can be tedious work.
Save Me the Waltz is still under copyright protection because its copyright registration was renewed. Next, let’s consider the fate of a work that was not renewed.
A Work Published in 1937 that is in the Public Domain
Napoleon Hill, an American self-help author, published Think and Grow Rich in 1937. It is said to be one of the ten best selling self-help books of all time. In order to extend his copyright, Hill should have filed a renewal in 1965. He didn’t. He's not one of the 15%.
Hill died in 1970. The Napoleon Hill Foundation was established in 1982 to promote “the philosophy of success from Think and Grow Rich.” They have to do it without the exclusive rights to the text.
Think and Grow Rich is still selling well. And it’s being sold by many different publishers on Amazon because the book is in the public domain. The Hill Foundation has tried to regain control over the public domain content by obtaining a trademark registration for the mark THINK AND GROW RICH as a book series. The Foundation has sent take down notices to Amazon against the gypsy publishers alleging trademark infringement. In the past, Amazon took some of the “unauthorized” listings down.
One publisher, insisting that it has the right to publish Think and Grow Rich freely because it is in the public domain, filed suit against the Napoleon Hill Foundation in federal court. That case settled. Judging by the number of other publishers of the book Think and Grow Rich on Amazon, it seems that the Foundation has quit trying to use trademark law to regain control over a public domain text.
Public Domain Lessons
Today, for a work first published in the US, there is no notice requirement and no need to renew your registration. There’s no chance that your work will slip into the public domain by accident.
If you intend to use or republish work that you believe is in the public domain, use the resources in this post to confirm its public domain status.
And double check your math.