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Public Domain Article

This BZ/Brief applies only to the use of Public Domain works in the U.S. and only to works originally copyrighted under the Copyright Law of the United States. Other countries have different rules about Public Domain.

MATERIAL USABLE WITHOUT PERMISSION, WITHOUT A FEE, IN ANY WAY YOU WISH

Public Domain (PD, for short) means that particular works: music, literature, films, TV shows, photographs, works of art, and cartoons‚ are no longer covered by copyright, no longer owned by anyone. Copyright law determines when (or if) a work has this PD status. Public Domain does not apply to the personal rights of celebrities or anything that is a registered trademark.

Public Domain Under U.S. Copyright Law

This country’s rules governing Public Domain are the same for all copyrightable works, except sound recordings published before February 15, 1972 (see below). There are two major copyright laws that affect Public Domain status: what we call the Old Law (which covered works published before 1978) and what we call the New Law, which came into effect on January 1, 1978 and covered works published thereafter. Then in October 1998, the Sonny Bono Copyright Term Extension Act was passed. This extended the terms of all works then under copyright by 20 years. All works that were already in the Public Domain in 1998 stay there, but nothing else will become PD before January 1, 2019 (20 years after 1998).

Here is how the two copyright laws are affected by the 1998 Sonny Bono Copyright Term Extension:

The New Law

Under the New Copyright Law that took effect on January 1, 1978, U.S. rules were changed to be based on the lifetimes of creators plus a specified number of years. All works created from that date forward will become PD 70 years after the year the creator (author, composer, photographer) dies, entering the Public Domain on January 1 of the 71st year. (Before the 1998 Extension, the rule was life plus 50 years.) If there is more than one creator (as in a collaboration), the work becomes PD in the 71st year after the last creator dies. The earliest any such work can become PD is Jan. 1, 2049 (1978 plus 71 years).

Anything that is a work-for-hire or owned by a corporation (such as most recordings, motion pictures, and TV shows) or an anonymous or pseudonymous work will become PD 96 years after its publication (95 years after publication, entering the Public Domain on Jan. 1 of the 96th year) or 120 years from creation, whichever is sooner. Again, before the 1998 Extension, the term was 75/100 years. Thus, no works-for-hire can become PD earlier than January 1, 2074 (1978 plus 96 years).

Nothing created after 1978 was due to come into the Public Domain for a long time anyway.

All works that are now PD are published under the Old Copyright Law in effect before 1978.

The Old Law’s 75-Year Rule Is Now a 95-Year Rule

The material copyrighted under this Old Law was the material that was moving into the Public Domain each year. The 1998 Sonny Bono Extension effectively stopped that movement for twenty years.

Now, under the Old Law, works first published in this country will be covered by copyright for 95
years in the United States. These works will become PD on Jan. 1 of the 96th year after the year of their first publication.

A great deal of important material had entered the Public Domain under this Old Law rule by 1998. In literature, for example, some major Frost and Sandburg poems have entered the Public Domain. In songs, “I’m Forever Blowing Bubbles” became PD in 1995; “Take Me Out to the Ball Game” and “Jingle Bells” were PD earlier than that. Most classical music is PD. Characters like Sherlock Holmes and Dracula are PD. So even though properties have ceased going into the Public Domain, there is already a lot of great Public Domain material that you can freely use.

Under both the Old and New Laws, the rules for unpublished work are different

A Special Rule for Sound Recordings
The “New” law of 1978 extended to all records made before February 15, 1972, a special “grandfather” copyright protection that now ends on January 1, 2067 (the date was 2047, but it too was extended for 20 years). Before then, sound recordings were governed by a chaos of state copyright protections.

Since that 1972 date, sound recording copyrights, which are usually owned by corporations have been registered as works-for-hire. Some are registered by individuals. The term will follow the rules of the Old or New law depending on what year the recording was copyrighted.

U.S. Government Works are PD

Any work entirely created by employees for an agency of the U.S. Government has always been and remains PD under both the New and Old copyright laws. It is important to check with the agencies to make sure the work you are interested in is indeed theirs.

Technical Loss of Copyright Protection

The Old Law also set up some major technical standards for getting and keeping copyright protection (most importantly, copyright notice and proper copyright renewal). Some works lost copyright protection by failing to meet these and other technical requirements. Copyright renewal became automatic in 1964. A copyright search can determine the status of any work important enough to the user to justify the cost.

NAFTA, GATT, and Copyright Restoration
Over the years, many foreign works lost copyright protection in this country because of U.S. technicalities. During these trade negotiations, the U.S. agreed to restore foreign copyrights lost for such reasons. These were the first copyright restorations ever made under U.S. law.

NAFTA, the first of these new agreements, provided U.S. copyright restoration to certain Mexican and Canadian motion pictures if applied for by a definite date. The list of titles involved was published in the Federal Register in February of 1995. The effect of the NAFTA agreement is minor.

The GATT treaty restores technically lost U.S. copyrights to works first published in foreign countries that are still copyrighted in their source country, but have fallen into the Public Domain in the United States for reasons other than the expiration of our full copyright term. When checking to see if a particular work entered the Public Domain, because of GATT, it is important to note whether the work is of foreign origin.

International Implications

The 1998 copyright term extension made the U.S. copyright term the same as that adopted by the European Union (EU) to become the standard for all its member nations. This is a good place to note that, as of this writing, Canada still has a term of 50 years after the creator dies, which will probably change to 70 years eventually.

WHEN COPYRIGHTS BECOME PUBLIC DOMAIN IN THE U.S.

  • Please note: The Public Domain rules below apply to most materials (books, songs, photos, art, films and TV shows, to name only a few) that can be copyrighted. Exceptions are audio recordings and unpublished works.
  • Material published from 1923 to 1977 is covered by the Old Copyright Law and has a copyright term of 95 years, coming out of copyright on January 1 of the 96th year.
  • Material published from 1978 forward comes under the New Copyright Law and has a copyright term of death of the creator plus 70 years, coming out of copyright on January 1 of the 71st year.
  • If there are several creators (several authors, composers, artists, for instance) it is the death date of the last of them to die that you use to determine when the material will go into the Public Domain.
  • Audio recordings and unpublished materials have different rules.
  • Works copyrighted by corporations or done as works for hire have a term of 95 years from first publication or 120 years from date of creation, whichever expires sooner.

Public Domain is an area riddled with complexities. If you are doing something public, you should always check with an attorney.

Public Domain Reference Books for Music and Literature

The BZ/Rights Stuff publishes five books of listings of music and literature guaranteed to be in the Public Domain. To order any of these books or to find out more about them, go to www.thepublicdomainsite.com or call us at 212-924-3000

THEY NEVER RENEWED: SONGS YOU NEVER DREAMED WERE IN THE PUBLIC DOMAIN

Our newest title! The music is in the Public Domain because the copyrights were never properly renewed–96 songs from the ’50s and ’60s that made the Billboard Pop Charts. This is, we believe, a unique book. No one has ever published a list of music that has gone into the Public Domain in the United States because the copyrights were not properly renewed. Price: Book: $99. CD:$99 (book text only). Book & CD: $149

THE MINI-ENCYCLOPEDIA OF PUBLIC DOMAIN SONGS

Songs in the Public Domain because their copyrights have expired – 800 well-known, well-loved songs that you are free to use as you choose in the United States. The emphasis of this book is on popular music, although some classical titles are included. The titles range from “Take Me Out to the BallGame”, and “A Pretty Girl Is Like a Melody” to “Auld Lang Syne” and “Wedding March.” These are song titles that both adults and children know and love, songs that are usable in everything from advertisements to TV productions or educational projects. Price: Book: $99. CD: $99 (CD contains the text of the book only – no music). Book & CD: $149

GREAT LITERARY WORKS IN THE PUBLIC DOMAIN

This is a listing of 244 famous titles, including children’s stories that everyone knows and loves. The listing of authors included in the book, all of whose works are in the Public Domain, opens up access to hundreds more Public Domain titles that you are free to make use of without permission and without any fee. Here are just a few of the world-famous titles in this listing: Anna Karenina, Camille, Pinocchio, The Man Without a Country, Moby-Dick, Of Human Bondage, The Return of the Native, A Room With a View, Sons and Lovers, The Swiss Family Robinson, all of Dickens, Henry James and more. Much more. Price: $65

GREAT CHILDREN’S LITERATURE IN THE PUBLIC DOMAIN

A listing of beloved children’s books and stories that contains 69 titles. The book includes such classic works as Jules Verne’s Journey to the Center of the Earth, Peter Pan,and Tom Sawyer. The titles in this book are included in Great Literary Works in the Public Domain.
Price: $40

ALL THINGS CHRISTMAS IN THE PUBLIC DOMAIN

Christmas carols, poems, and stories that are in the Public Domain. From A Christmas Carol to “Silent Night”. Contains 50 song titles plus stories and poems. The Christmas carols in this book are included in The Mini-Encyclopedia of Public Domain Songs. Price: $30

 
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