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Is it in the Public Domain?

English rockers who have apparently not died before they got old are up in arms over the British government’s refusal this week to extend British copyright protection beyond the current 50 year term. Unlike the United States government, which never met a copyright extension act it did not like, the British government feels a 50 year limit, the same as most European countries, is necessary to allow its citizens some public domain benefit before the next Ice Age.

Even with Congress constantly passing laws extending the term of copyright protection, copyrightable material can still enter the public domain in many ways. Lack of proper copyright notice, failure to renew the copyright registration, failure to properly manufacture the work, recording the an audio work prior to U.S. protection, and authorship by a citizen of a country with which the United States does not have a copyright treaty are all ways in which a copyrightable work can enter the public domain.

Probably the only bright line test to determine if a work is in the public domain is if the work was published prior to 1923. While it is possible to check the Copyright Office to confirm a copyright is registered, the absence of registration does not mean the work is in the public domain. Reliance on the absence of a copyright notice, Internet urban legends, or an analysis from Herb in accounting can get you in trouble.

If you know the date the work was created and the date it was published, you can use this handy chart to determine if the work is in the public domain:

I. Is it a published work? (If so, Go to II)
A. Is the work anonymous, pseudonymous or a work for hire? (If so, Go to IB)
1. Unpublished works of Authors:
a) Work is public domain 70 years from last author’s death
b) Work is public domain 70 years after last author’s death
c) If author’s death unknown (assuming you get certified unknown death report from the Copyright Office)
(1) Work is public domain 120 years from creation
B. Unpublished anonymous works, pseudonymous works or works for hire:
1. Work is public domain 120 years after its creation

II. Was it published the same year it was created? (If so, Go to III)
A. Created before 1978 and published before 1978? (If so, Go to III)
B. Created after 1978 and published after 1978? (If so, Go to III)
C. Created before 1978 and published 1977-2002? (If not, skip to IID)
1. Work is public domain the later of
a) 70 years from last author’s death
b) 12/31/2047
D. Created before 1978 and published after 2002? (If not, skip to IIE)
1. Work is public domain 70 years from last author’s death
E. Created before 1978 and published after 2002?
1. Work is public domain 70 years from last author’s death

III. When was the work first published?
A. Before 1909
1. Work is public domain
B. 1923-1963
1. Was it published with proper copyright notice? (If so, Go to IIIB2)
a) If not, work is public domain
2. Was copyright renewed? (If so, Go to IIIB3)
a) If not, work is public domain
3. Published with proper copyright notice and copyright renewed
a) Work is public domain 95 years after publication
C. 1963-1978
1. Was it published with proper copyright notice? (If so, Go to IIIC2)
a) If not, work is public domain
2. Published with proper copyright notice
a) Work is public domain 95 years after publication
D. 1978-March 1, 1989
1. Was it published with proper copyright notice? (If so, Go to IIID3)
a) If not, Go to IIID2
2. Was the copyright subsequently registered? (If so, Go to IIID3)
a) If published without proper notice and no subsequent copyright registration, work is public domain
3. Work is public domain 70 years after the death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation
E. After March 1, 1989
1. Work is public domain 70 years after the death of author, or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation

Brett Trout

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