Duration and The Public Domain
Copyright protection applies automatically to many types of creative works. The legal protection lasts for many decades, offering ample opportunity for the owner of the copyright to exploit the work. On the other hand, works that lack copyright protection, and are therefore in the public domain, are available for everyone to use freely and without permission. The public domain is a rich source of materials for teaching, research, commercial products, and many other uses. A work may be in the public domain for a variety of reasons, most often one of the following:
- It is a work of the United States government
- It is simply facts or other non-protectable work
- The copyright has expired
Each of these possibilities is explained more fully below. Keep in mind that the law on these points can be unduly complicated. In particular, the law of copyright duration and expiration has enough complications and exceptions to fill a book. This page is only a summary of the major points. Thus, if you are unsure of your use, do not hesitate to seek additional information and guidance.
"Researching the Copyright Status of a Book" (PDF) offers a practical exploration of the process for searching the current copyright status of a book or other work. The investigation involves a review of records filed with the U.S. Copyright Office and can yield additional information that may be valuable for your project.
Works of the U.S. Government
Works produced by an officer or employee of the United States government, in the course of that person’s duties, are not eligible for copyright protection. Examples include: statutes and reports from Congress; judicial rulings from federal courts; studies prepared by the State Department; websites developed by the National Park Service. This provision is limited only to the U.S. federal government. Therefore, copyright protection may apply to similar materials prepared by state and local governments, foreign governments, and international organizations such as the United Nations. Even a work that is issued by the U.S. government may not actually be in the public domain. For example, the brochure from the Park Service may include photographs licensed from a private photographer, or the State Department report may have been commissioned by an outside specialist, or the website for another agency may have been developed by a private web designer.
Facts and Non-Creative Works
Copyright law does not protect facts, processes, and discoveries. Short or common phrases are usually not copyrightable, and collections of data that are not compiled or organized in an original manner are not protected. Examples include: white-pages telephone books; standard tables of chemical information; and catchphrases such as “Where’s the Beef?” (Some such symbols and phrases may have trademark protection, but trademark is outside the scope of this page.)
Copyrights expire, and works enter the public domain. The term of protection is commonly referred to as the “duration” of copyright, and the exact length of protection for an individual work may depend on many factors. Determining copyright duration may be easy in some cases, but it often requires extensive research and investigation. These factors to research may include, but are not limited to: date of creation of the work, date of the death of the author, country of creation, circumstances of first publication, and whether the work had been renewed with the U.S. Copyright Office. While much of the law for copyright duration can be complicated, most common questions can be addressed by a few general rules, as summarized below. Most important, Congress made a full revision of the law, effective January 1, 1978. As a result, an inquiry into the term of copyright protection begins with whether the work was created or published before or after that date.
Works Created on or after January 1, 1978
- Individually Created Works: For most new works created on or after January 1, 1978, the copyright lasts for the life of the author plus seventy years. This term of duration is the same whether or not the works are published. This long term of protection applies instantly and automatically upon creating a copyrightable work, regardless of whether the work is registered or includes a copyright notice, and regardless of whether the author even wants the protection. In the case of jointly created works (works with two or more authors) the copyright lasts through the life of the last of the authors to die, plus seventy more years. [See below for the requirement of a copyright notice during the years of 1978 to 1989.]
- Anonymous Works and Works Made for Hire: Some works do not have an identified human author, and so copyright law establishes a different term of protection. In the case of “works made for hire,” the copyright lasts for ninety-five years from their first publication, or 120 years from their creation, whichever term expires first. Note that in the case of works made for hire, the “author” is the employing party, which may be a corporate entity or an individual, but either way, the copyright lasts for the fixed term mentioned here. This same rule of copyright duration applies to anonymous and pseudonymous works, because the actual author is not known. However, if the identity of the author later becomes known, the term reverts to “life plus seventy years.”
Works Created before January 1, 1978
The law that continues to apply to pre-1978 works distinguishes between published and unpublished works and sets different rules accordingly.
- Works Published before 1978: To determine the duration and expiration of copyright for a particular work that was published before 1978, three general rules emerge:
- First, the maximum duration of protection for works published before 1978 is ninety-five years. However, because of various amendments to the Copyright Act, this law applies only to works published between the beginning of 1923 and before 1978. Works published in the U.S. before 1923 are therefore in the public domain.
- Second, for works published after 1922 and before 1978, the law required that they include a formal and correct copyright notice (e.g., “Copyright 1930, XYZ Publisher”). If the work was published without that notice, it promptly entered the public domain. If the work was published with the notice, the copyright was vested for an initial term of twenty-eight years. If the work was published after January 1, 1978 but before March 1, 1989, the work may have entered the public domain depending on whether the copyright owner took steps to remedy the lack of notice. If the work was published after March 1, 1989, a lack of proper copyright notice does not affect the status of the copyright, and, thus, these works are still protected by copyright.
- Third, works published between 1923 and the end of 1963 could be in the public domain, if the copyrights were not renewed after the initial term. Filing a renewal application with the U.S. Copyright Office was at that time required to continue the copyright beyond the first term of twenty-eight years. Works published after 1963 and before 1978 have ninety-five years of protection because in 1992, Congress dropped the renewal requirement and gave the added years automatically. Consequently, works published in 1964 and after are still protected by copyright.
Scenario: Consider a book published in 1930. Because it was published after 1923, it could still have copyright protection for ninety-five years, until 2025. On the other hand, if the book was originally published without a formal copyright notice, the work would have entered the public domain upon publication. If, however, the original publication was with a proper notice, it enjoyed an initial term of twenty-eight years. If the copyright owner failed to renew the work in 1958, it entered the public domain that year.
- Works Created before 1978 but not Published before 1978: A complex set of rules applies to works that were created before 1978, but not published. Before January 1, 1978, works had “common-law” copyright protection, which offered perpetual protection as long as the work remained unpublished. With the revision of the Copyright Act, effective in 1978, Congress eliminated common-law protections and brought all copyrightable works, whether published or not, under federal statutory protection. Bridging the differences between pre-1978 and post-1978 law was not easy, but the following rules are likely to encompass most needs:
- First, for works created before 1978 and which have never been published, copyright duration is based on the rules for modern works: generally life of the author plus seventy years, or the fixed term of years in the case of a work made for hire.
- Second, when Congress revised the law, effective 1978, it provided an opportunity for the owners of copyrights in unpublished works to secure at least a minimum term of protection. As a result, works that were created before 1978, but were published between January 1, 1978 and December 31, 2002, are protected for the life of the author plus seventy years and are statutorily guaranteed protection until the end of 2047.
Scenario: Consider the possibilities surrounding a hypothetical set of letters written by Thomas Jefferson, who died in 1826. If the letters have never been published, they would today be in the public domain, because more than seventy years have passed since Jefferson’s death. In fact, in that case, the letters would still have entered the public domain at the end of 2002, so any publication after that date would not affect the copyright status. If the letters were published between 1978 and 2002, they would be protected until the end of 2047. If the letters were published before 1978, they could have protection for as long as ninety-five years, depending on compliance with the requirements of notice and renewal.
The following are sites and articles that can help clarify duration and the public domain.
- U.S. Copyright Statutes on Duration
- U.S. Copyright Office’s Circular 15a: Duration of Copyright
- Identifying the Public Domain, prepared by Kenneth D. Crews for the Variations2 project
- Basic Table on Duration by Lolly Gasaway, University of North Carolina
- Comprehensive Table on Duration by Peter Hirtle, Cornell University
- U.S. Copyright Office Guidance for Searching Copyright Registrations and Renewals
View a list of sites that offer public domain resources.
Most recent revision: 081010
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