Creative expressions generally are protected by copyright law. Sometimes, however, they are not. When that is the case, a work is said to be in “the public domain.”
The rules specifying the conditions for copyright protection vary from country to country. In the United States, they are set out in the Copyright Act, which is codified in Title 17 of the United States Code. The fact that a work is or is not in the public domain in the United States, however, is not determinative of its public domain status in another country. A work that is in the public domain in the United States might still be protected by copyright in another country.
This blog post focuses on the public domain rules set out in U.S. copyright law.
The 3 ways a work enters the public domain
There are three reasons a work may be in the public domain:
- It was never protected by copyright. Some kinds of expression do not receive copyright protection. Federal government publications created by federal employees, for example, are not protected by copyright.
- Failure to comply with a formal requirement. At one time, it was possible to lose copyright protection by failing to comply with a legal requirement, such as the requirement to display a copyright notice on a published work.
- Expiration of the copyright term. Unlike trademarks, copyrights are time-limited. That is to say, the duration of a copyright is limited to a specified term. Congress has altered the durations of copyrights several times.
It is important to keep in mind that once a work enters the public domain, the copyright is gone. This is true even if copyright was lost only because of failure to comply with a formal requirement that has since been abolished. For example, if a work was published in 1976 without a copyright notice, it entered the public domain. The elimination of the copyright notice requirement in 1989 did not have the effect of reviving it. A few very limited exceptions exist, but in general, the elimination of a formal requirement does not have the effect of reviving copyrights in works that have already entered the public domain.
Guidelines for determining the copyright term
The following rules may be used for determining whether a work of a kind that is protected by copyright is in the public domain or not.
Different sets of rules apply to sound recordings, architectural works, and works first published outside the United States by a foreign national or a U.S. citizen living abroad. They are not covered in this blog post.
Note that the term of a copyright runs through the end of the calendar year in which it would otherwise expire. That is to say, a work enters the public domain on the first day of the year following the expiration of its term.
Unpublished and unregistered works
General rule: Life of the author + 70 years. If the author’s date of death is not known, then the term is 120 years from the date of creation.
Anonymous or pseudonymous works: 120 years from the date of creation.
Works made for hire: 120 years from the date of creation.
Works registered or first published in the US
Before 1929
All works registered or first published in the United States before 1929 are in the public domain now.
1929 to 1963
- Published without a copyright notice: In the public domain.
- Published with a copyright notice, but not renewed: In the public domain.
- Published with a copyright notice, and renewed: 95 years after the first publication date.
1964 to 1977
- Published without a copyright notice: In the public domain.
- Published with a copyright notice: 95 years after the first publication date.
1978 to March 1, 1989
- Created before 1978 and first published, with a copyright notice, between 1978 and March 1, 1989: Either 70 years after the death of the author or December 31, 2047, whichever occurs later. (For works made for hire, it is (a) 95 years after the date of first publication or 120 years after creation, whichever occurs first, or (b) December 31, 2047, whichever occurs later.
- Created after 1977 and published with a copyright notice: 70 years after the death of the author (For works made for hire, it is 95 years after the date of first publication or 120 years after creation, whichever occurs first.)
- Published without a copyright notice, and without subsequent registration within 5 years: In the public domain.
- Published without a copyright notice but with subsequent registration within 5 years: Life of the author + 70 years (For works made for hire, it is 95 years after first publication or 120 years after creation, whichever occurs first.)
March 1, 1989 to 2002
- Created before 1978 and first published between March 1, 1989 and 2002: The greater of (a) The life of the author + 70 years (For works made for hire, it is 95 years after first publication or 120 years after creation, whichever occurs first); or (b) December 1, 2047.
- Created after 1977: Life of the author + 70 years (For works made for hire, it is 95 years after first publication or 120 years after creation, whichever occurs first.)
after 2002
- Life of the author + 70 years
- Works made for hire: 95 years after the date of publication or 120 years after the date of creation, whichever occurs first.
Sound recordings, architecture, and foreign works
The foregoing rules do NOT apply to sound recordings, architectural works, and works that were first published outside the United States by a foreign national or a U.S. citizen living abroad. Special sets of rules apply when determining the public domain status of those kinds of works.
To learn about other works that have entered the public domain, read Newly Public Domain Works. To learn about the other kinds of legal developments in traditional areas of the law that are occurring in the shadow of the AI issues, read Enuring (Non-AI) Legal Issues.
Contact attorney Tom James
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