The summary below is provided for informational purposes only, and does not constitute legal advice. Any specific question about copyright law should be directed to an attorney in our Copyright Practice Group.
The general framework for understanding statutory copyright duration involves the change of law effective January 1, 1978 (the 1976 Copyright Act). Under the prior law (the 1909 Act) the copyright term began on the date of publication or registration, and originally lasted 28 years; a series of laws, culminating in the Sonny Bono Term Extension Act of 1998, extended the term to a maximum, for some works, of 95 years from publication. The U.S. Supreme Court has upheld the constitutionality of the Sonny Bono Act. Eldred v. Ashcroft, 537 U.S. 186 (2003).
Under the 1976 Act, as amended by the 1998 Act, the copyright term for works created on or after January 1, 1978 begins on the date of creation and ends 70 years after the author’s death, 95 years from publication, or 120 years from creation (depending on the nature of the work, its authorship, and its date of publication).
This term also applies to works created but not published or registered before January 1, 1978. In addition, the 1976 Act, as amended, provides these works with a minimum term until the end of 2002; the term is extended, if the work was published by the end of 2002, through 2047.
We have prepared a flow chart setting forth some general guidelines regarding the duration of United States federal statutory copyright. There are a number of exceptions to these guidelines. In most cases, these exceptions may involve expiration prior to the theoretical date indicated. However, in some cases, copyright protection may continue past the indicated date. In addition, some remnants of state common law copyright protection continue to exist, and may provide protection even when federal copyright does not. See, e.g., Capitol Records, Inc. v. Naxos of Am., Inc., 4 N.Y.3d 540 (2005) (holding that New York state common law copyright protects sound recordings made before 1972 until February 15, 2067).
We recommend consulting with an attorney in our Copyright Practice Group before relying on any conclusions concerning the copyright status of a work reached using this flowchart.
Dates of Note
Use of the flowchart will reveal the following categories of works that have already entered the public domain, and works that will enter the public domain in the next few decades:
- Works published (or registered when unpublished) before January 1, 1923.
- Works published (or registered when unpublished) before January 1, 1964, for which the registration was not properly renewed.
- Works published before March 1, 1989 without a proper copyright notice (where the defect was not cured and no exception applied).
- Works created before January 1, 1978, not registered as an unpublished work before January 1, 1978, and not published before December 31, 2002 entered the public domain on January 1, 2003, if the author died before 1933. If the author died in 1933, the work entered the public domain on January 1, 2004; if the author died in 1934, the work entered the public domain on January 1, 2005, and so on.If the work was a work for hire, or was anonymous or pseudonymous, it entered the public domain on January 1, 2003 if the work was created before 1883. If the work was created in 1883, the work entered the public domain on January 1, 2004; if it was created in 1884, the work entered the public domain on January 1, 2005, and so on.
- Works published (or registered when unpublished) in 1923, 1924, 1925, 1926, and so on, and properly renewed will enter the public domain on January 1 of the years 2019, 2020, 2021, 2022, and so on, respectively.
Our attorneys can obtain information concerning copyright registrations and renewals for particular works. In some cases, we use the U.S. Copyright Office web site (discussed below); in others, we use a professional copyright search firm. We can also obtain listings of assignments, licenses, liens and mortgages and other documents recorded with the U.S. Copyright Office.
Information including copyright registrations and renewals dated January 1, 1978 and later can be researched at no charge on-line, at the U.S. Copyright Office internet web site at www.copyright.gov/records. (The web site also includes useful information on a variety of copyright-related topics, including copyright duration. The Copyright Office offers circulars, some available on-line and others available on request, on particular topics.)
Information concerning registrations and renewals between 1891 and 1982 is available in the Catalog of Copyright Entries (“CCE”), published by the Copyright Office. A number of libraries maintain copies of the CCE. The Boston Public Library has a set, although a number of volumes have been damaged and are available only on microfiche. The CCE does not include information concerning assignments or other recorded documents, or the addresses of copyright claimants.
Most Copyright Office records are available to the public at the Library of Congress. In addition, the Copyright Office will search its records for you at an hourly rate that includes the search and a written or oral report.
Foreign Rights and Works
The flow chart concerns only U.S. copyright law. Copyright in a work can expire under U.S. law, but remain valid under the law of another country. Thus, if you make use of a work in another country or on the Internet you may be subject to liability under the laws of a foreign country, even though the work has entered the public domain in the U.S.
Under current law, foreign authors from most countries are accorded the same exclusive rights under U.S. copyright law as they would have if they were U.S. citizens.
Under the 1909 Act, works of foreign authors entered the public domain by virtue of being first published in the U.S. before January 1, 1978, unless they qualified for protection under some other basis, which many did.
Works by foreign authors that were first published abroad before January 1, 1978 similarly entered the public domain unless they qualified for protection under some other basis, but copyright in such works, if lost due to lack of national eligibility, was later restored if the work was not in the public domain in the country of first publication and if certain other requirements were met. (The same law restored the copyright in foreign works that entered the public domain due to other reasons, including publication without notice of copyright before March 1, 1989, or failure to renew U.S. registration when such renewals were necessary.)