One-Page Guide to Copyright
This page—and this web site—are intended for people who are interested in making use of already-existing creative works and want to know whether those creative works are copyright-free for their use. Secondarily, this page (and web site) discusses what legitimate uses might be made of creative works that do have valid copyright protection. To help visitors to this site determine whether any particular works are under copyright protection, it guides users through areas of copyright law which need to be understood by those who want to avoid copyright infringement.
COMING UP ON THIS PAGE: When a creative work is entitled to copyright protection, that copyright is limited to a fixed period of time, so this web page provides a Duration Chart. • And, because older copyrights were subject to renewal requirements, this page describes renewal law. • The copyright notices that state to all who look to them to determine whether a work is under copyright are not always in conformity with the laws of their time. This page explains how to spot errors that can invalidate a copyright. • Copyright paperwork sometimes defeats the legality of a registration, so there is information here on paperwork defects. • A proper initial registration might be followed up with paperwork defects on a renewal registration, so the specifics of that are discussed. • People wanting to inspect some registrations will want instructions in researching copyright status. • Where an ownership change can affect what names an investigator is to look for on paperwork, that researcher will want to know about transfer of ownership for the second term and recordation of transfer. • Not every work presented to the public was officially published—which can effect registration deadlines—so sections here discuss works never published and works belatedly published. • Works of the U.S. Government as well as Work For Hire entail different rules under the law. • To this point on the page, the page considers copyright only from the perspective of American law, so it becomes necessary to introduce the differences when International law is respected under American law for works of foreign creators. • When one creative work makes use of or incorporates an earlier copyrighted work, concepts of underlying rights apply to the derivative works created. • When a user plans to copy from a work known to enjoy copyright protection, there may be rights to excerpt portions under the doctrine of Fair Use just as law can impose penalties for a new work with extensive similarity to a previous copyrighted work. • Allowances are made for news, and special rules apply to sound recordings and music, but the Supreme Court did not give people in their homes a right to make permanent copies of copyrighted works from the airwaves. • The implied endorsement of a celebrity (such as Fred Astaire, pictured) by a new work is addressed. • At the end of this page, it addresses fire sharing, allowances for parodies and other esoteric subjects.
About this web site:
|Card files such as these at the U.S. Copyright Office inside the Library of Congress may contain the answers to your questions about the copyright status of a work.|
(Later on this page is information on researching copyright status through several resources.)
First step: establish how long the copyright could last
|The duration of copyright is measured from the date that copyright protection begins. For works with copyright-begin dates during 1977 and earlier, the number of years are fixed so that the length of each term will be same for all works with copyright-begin dates that same year. For works with copyright-begin dates in 1978 and later, the lifetime of the author (or last-surviving author in case of multiple creators) may be a factor. The graph appearing below will enable you to establish the length of the terms.|
The copyright-begin year is on the “x” axis (the one running up and down, vertically); the “y” axis (the one running across left to right) identifies where terms of copyright begin and end. Place your mouse over the colored bars to obtain specific information about the terms in the form of written numbers of statements. (If you are unable to see the overlays when you place the mouse atop the color bars, consult the text immediately below the table for an alternative source to obtain the information.)
If you were unable to see the overlays by positioning your mouse, you can obtain the same information on an alternative page that presents the same graph but has the term-length information as fixed-in-place text positioned below the graph. Visit the alternative page for the graph.
To get the most from the above chart, place mouse over color bars of a selected year, to display detailed information about copyright protections accorded works which began copyright protection that year.
Information in this chart applies to American copyright on American works. In cases of works prior to 1978, information applies to (a) works that have been published, and (b) unpublished works on which formal copyright registration was undertaken. Sound recordings are not covered by this chart.
The mouse-over layer boxes provide Applicable Law in the form of dates. To convert these dates into “Stat.” and “Pub. L.” citations, read the following note.
Statutes are referred to here by date of passage inasmuch as the date that changes in law went into effect is the most material fact that users of this chart should be concerned with in determining whether a particular copyright duration or rule would affect the copyright on a given work. However, standard citation numbers for the statutes are cross-referenced on another page of this web site. For those who need to cross-reference (for example) October 19, 1976 to “Public Law 94-553” or “90 Stat. 2541” (which are the legal profession’s citations for the copyright bill passed that day — only the date is given in the notes supplementing the chart), users are referred to the cross-referencing tool — and to the full texts of these copyright laws and amendments available on the same web page — at http://law.copyrightdata.com/amendments.php (for viewing amendments to the law) and to http://law.copyrightdata.com (for the fully changed versions of the copyright law enacted in 1909, 1947 and 1976, and for amended versions which integrate the subsequent amendments into the full versions). The law.copyrightdata.com pages reproduce full texts of the laws and amendments in effect from 1909 to the present.
For works first published from 1923 to 1963 (including the entireties of both those years), the law required that a valid renewal be filed prior to the end of the 28-year first term of copyright. If there was no valid renewal, the work went out of copyright protection and there was no getting it back.
If you are interested in a work first published 1964 or later, skip this step and move on to the following ones. You will want to determine whether the work was registered for copyright, however. (Investigating whether a 1923-1963 work was registered for an initial term of copyright will probably mean unnecessary additional effort, because only the presence of a valid renewal controls whether there is copyright coverage at present.) If the work is an American work first published 1922 or earlier, you can stop inquiring, because any American work published before the end of 1922 has already received the maximum amount of copyright protection allowable by law.
You might be wondering: Just what is the end of the 28-year first term? And: Couldn’t a renewal just be filed when the original registration was? In answer to the second question, a renewal was never valid unless it was filed after the 27th anniversary of publication. In the case of a work first published after 1950, the copyright holder had to wait until the December 31st after the 27th anniversary of publication.
In the case of a work first published in 1950 (not before, not after), a copyright holder could file for renewal under either of the time windows available for pre-1950 and post-1950 works. The “anniversary-year window” (with its earlier eligibility date—the 27th anniversary) or the “calendar-year window” (with its closing date of the December 31st following the 28th anniversary) were both valid, but only for 1950 works. This meant an average window of eighteen months for each copyrighted work (a minimum of twelve months, in cases where the anniversary date occurred December 31st, to a maximum of twenty-four months, in cases where the effective date of copyright had been January 1st). (Information in table format, linked to citations: citation page devoted to renewals eligible in 1977)
Note: In cases where the calendar-year window applies, copyright could be lawfully renewed on the December 31st of the year prior to the calendar year in addition to all days during the eligible calendar year.
How courts have computed time windows for renewal eligibility
Courts have sometimes been faced with a dispute where the resolution depended on a ruling by the court as to what was the specific range of dates during which a particular copyright was eligible for renewal. A 1943 Supreme Court decision concerning a copyright registered August 12, 1912, states that the eligibility period for renewal was August 12, 1939, to August 12, 1940. (Fisher decision) The full day of the 27th anniversary and the 28th anniversary were included. So, too, did a district court ruling specifying a window running from December 6, 1975, to December 6, 1976, for the American copyright to the Italian film The Bicycle Thief (International Film Exchange case); an appeals court recognized that January 22, 1984, to January 22, 1985, would be the renewal window for the song “Good Golly Miss Molly,” under the rules in place when the song was published in 1957, but that under the revised laws applicable to post-1950 works, what applied was the calendar-year window: December 31, 1984, to December 31, 1985. (Marascalco decision)
One court apparently regarded the 27th anniversary as part of the 27th year and thus started the renewal window one year plus one day after copyright began, while retaining the 28th anniversary as the last day of the renewal window. Copyright on two 1946 songs (published January 25 of that year) were declared by the court to have a renewal window of January 25, 1973, to January 24, 1974 (Big Slim: The Lone Cowboy’s Folio case). Two courts apparently regarded the 28th anniversary as the beginning of the 29th year, and thus excluded it from the renewal window: a 1938 court decision ruled that a copyright which had begun October 30, 1905, had expired October 29, 1933. (Yardley decision) Why not October 30, 1933? Likewise, some photographs of Marilyn Monroe ended up with a renewal window of August 14, 1989, to August 13, 1990, based upon a publication date of August 14, 1962. (Barris case) In the case of the Monroe photographs, the court should have applied the revised rule for post-1950 works and thus declared calendar year 1990 as the renewal window (with December 31, 1989, thrown in). In these three cases, the differences of one day (or of several months, in the Barris case) had no bearing on the outcome, which may be why no higher court reversed or revised the decisions.
Conflicting start dates for a term of copyright might be perplexing, but courts and Federal law have charted a course for such cases. One copyright application was dated February 27, 1905, but the copyright notice on the work itself gave the date as 1904, so the court declared that the copyright commensed December 31, 1904. This meant the first term ended December 31, 1932, just a little short of February 27, 1933, when it otherwise would have, giving the copyright holder ten months of overlap in the time window for renewal. (Southern Music decision) The next section of this One Page Guide provides more details about conflicting information in copyright notices.
The same resources which provide the renewal dates for copyright registration also show the dates of original copyright, so at one glance you will be able to see the dates controlling the validity of both the first and second terms.  More information about resources for researching copyright status is given further down the page of this One Page Guide.
Documentation and more information on court verdicts are elsewhere on this web site: page on renewal window (term period) calculation.
Defects in a copyright notice can take away copyright protection from a work that would otherwise enjoy one or more full terms of copyright protection.
It should be pretty obvious to even a casual observer whether there is a copyright notice on any particular work. This question is one that anyone should be able to answer without any additional comment from the propietor of this site. However, a defective copyright notice might be assumed to be an enforceable copyright notice by someone who doesn’t know what factors would invalidate the notice and thereby deprive the work of copyright protection.
In general, copyright law mandates three components to a copyright notice: (1) the copyright symbol or word “Copyright” spelled out or the word “Copyright” abbreviated in a letter combination accepted by the Copyright Law, such as “Copr.”; (2) the year that copyright took effect on this work; and (3) the name of the claimant.
Below are examples that illustrate defects in each of the three mandated components:
The above examples are indications of violations of the general rules which in these cases were breaches which resulted in loss of copyright protection. However, the general rules don’t apply across the board. Art works do not have as stringent requirements as literary works. Art works needn’t specify the year. This distinction was part of the Copyright Act in 1909, which stated
Movies were not added to the categories of types of works registerable for copyright until 1912, and when movies were given a classification of their own, the law did not add any clause indicating whether the copyright notices on movies should follow the pattern of art works (including photographs) or of literary works. This ambiguity remained in the law for a long time. (see detailed information) Incidentally, before 1912, movie companies surreptitiously got around the lack of category for their product by taking advantage of the provision for registering photographs, submitting copyright registrations for their movies, each accompanied by a copy of the movie printed on photographic paper.
Copyright notices have also been deemed invalid when placed where they are unlikely to be found. A copyright notice on the last page of a booklet was judged insufficient. (United Thrift Plan verdict, 1929) The absence of separate copyright notices on the various separate leaves which made up a haphazard “book” meant that the art work on these pages could be used in advertisements without payment to the creator. (Deward Rich case, 1941) However, another court decided that “a deck of playing cards is a single commercial unit, [so] it is sufficient that copyright noticed be placed only on ace of spades.” (Friedman case, 1973) The U.S. Code and the Code of Federal Regulations cover these issues. Citations and more information on court verdicts: page on copyright notice placement
Copyright notices can deprive a work of copyright protection where the year of copyright stated in the copyright notice is a year other than the actual one. However, this isn’t always so. The Supreme Court of the United States established a precedent in a 1888 decision. A registration was deposited in 1867 although the printed notice in the work stated 1866. The Supreme Court ruled that this mis-statement “could cause no injury to any other person or to the public, because the copyright would expire in twenty-eight years from the expiration of the year stated in the notice in the book, and not in twenty-eight years from the time of the recording of the title.” The copyright holder deprived himself of a year of protection at the end of the term, but the public gained. (Callaghan case)
The current copyright law in §406(b) states that post-dating a copyright notice results in the copyright being made void. An error just one year off is overlooked. (more) Works copyrighted after 1988 are fully exempt from this requirement. This change in the law (brought about by the United States entering the Berne Convention, whereby multiple countries reciprocate copyright protection) was a significant change from a few decades earlier, when a manufacturer who sold dolls in 1961 and 1962 was not allowed to reverse the error with 1964 actions intended to retroactively secure protection. (Scandia House case)
The shape of the copyright symbol within a copyright notice needn’t be exact, so a copyright notice on an early video games (when processing power was far more limited than it has been since) with the “c” within a hexagon instead of a circle was acceptable. The same company nonetheless ran afoul of compliance with the notice requirements when it programmed its copyright notice to display “randomly and infrequently”. (Videotronics case) Likewise, copyright symbols that would not be discovered “without the closest scrutiny and with the use of a magnifying glass” deprived a guide of copyright protection. (Smith case, 1937)
How should the proprietor be identified in the notice? The mere initials of the copyright proprietor was once not an adequate substitute for the proprietor’s name (E.I. Horsman), but forty-eight years later (1970), another court ruled that “TFC Co.” was adequate for identifying Tennessee Fabricating Co. because the company’s “advertising bore the abbreviation.” (Tennessee Fabricating Co. case) In 1967, a company made dolls where the foot had a copyright notice giving the claimant as “U.D. Co., Inc” although the packaging had a copyright notice naming the claimant as “Uneeda Doll Co., Inc”. The court ruled that the two notices “read in conjunction” were satisfactory compliance of the notice requirements. (Uneeda case)
More information—and more pictures of copyright notices—are provided on the illustrations page on copyright notices, the bottom of which contains links to ten additional pages of documentation (seven of which summarize additional court verdicts). To learn how notice requirements differ by the medium of the work, check the table of notice requirements.
Under American law as it was interpreted until near the end of the 20th century, for works published before March 1, 1989, a copyright notice was mandatory for copyright protection. Otherwise, the assumption was that the work was intended to be “dedicated to the public.” Some creators did not intend for the public to benefit at the expense of the would-be owner of copyright, but they faced an almost-certain losing verdict were they to undertake any legal action.
Additional documentation and illustrations are provided on the illustrations page of Absence of Copyright Notice on this web site. Citations to statutes, along with summaries of court verdicts are provided on the citations and summaries page on copyright abandonment. The illustrations page also provides reports on “eleventh-hour” saves of copyrights which otherwise would have been lost owing to absence of copyright notice, along with links to two additional pages of relevant citations and court summaries.
First up, you want to see whether there was a registration filed. The Copyright Office of the United States has since the 19th century published catalogs which list the copyright registrations made during specific time periods; generally, a volume of a specific catalog contain all of the registrations for a one-year, six-month, three-month, or one-month period. It will contain the registrations since the publication of the previous catalog covering the particular type of media listed in that catalog (books, films, dramas, music, etc., are isolated into separate series of catalogs). By looking at the catalog covering a particular type of media for a particular time period, you can attempt to find the work you are researching. If you locate the work within the relevant catalog (which list and/or index works in alphabetical order and by creator name), you will have found alongside that title the registration number, copyright date, and name of original claimant. This information can assist you in further research. If you don’t find the work you are looking for in the catalog, it’s possible that work nonetheless was copyrighted (perhaps listed in a later volume) and that paperwork is in one or more files at the Copyright Office open to the public; it’s also possible that the work was never registered for copyright. If the work is an American work and was published (in a manner that meets the definition of “publication” contained in the law) prior to 1978 (when the law changed), but without copyright registration, it’s likely that the work is not permitted copyright protection. (A later section on this page differentiates what constitutes a work having been published under the legal definitions of publication.)
Further down this page is a section on using research resources to determine copyright status. The United States Code and the Code of Federal Regulations have subsections on registration requirements; failures to properly follow the registration procedures have led to cases ending up in court. These subjects are treated on a page dedicated to citations and summaries of court decisions on copyright registration, including deficient registrations and duplicated registration. The Copyright Office has occasionally rejected a registration or a renewal application, but it is not their function to recognize every possible disqualifying statement on a form submitted by a potential copyright holder. In a later section of this One Page Guide, there is a report on how courts have defined the role of the Copyright Office in this regard. (go there) Readers of this guide should realize that careful examination of some copyright paperwork can reveal that a registration or renewal is not valid and that the work covered by the registration or renewal is thus not eligible for copyright protection despite the appearance of it having such protection. Images of primary source research materials are on the illustrations page on researching copyright status.
Part of making a proper registration is the including of a proper deposit with the registration (or the separate submission of same within an allowable period of time).
Until 1978, loss of copyright protection could occur for failure to deposit copies with the Copyright Office. However, under the 1976 Copyright Act (which went into effect 1978), the worst that can now happen to a copyright owner for failure to deposit copies of the work is a fine of several thousand dollars. The copyright itself is not forfeited, under the current law.
In the past, a copyright could be taken away. The 1909 and 1947 copyright acts “require the proprietor of the copyright to deposit” and state that “default of the deposit of copies of the work” can bring to pass that “the copyright shall become void.”
The Code of Federal Regulations has some exacting specifications about the form that a deposit should take. Movies that are distributed on 35mm film should be deposited on 35mm film, for instance (Q&A chart section on deposit; citations and case summaries page on deposit); some copyright owners have instead submitted VHS cassettes and other formats inferiors to the ideal of 35mm. Courts have made allowances on deposit requirements when cases have come up involving other media. A video game playable only in a huge console as bulky as a full-size pinpall machine, for example, could satisfy the copyright requirements with “alternative identifying material” in the form of “a videotape of the audiovisual presentation in the game”. (Atari)
For many years during Hollywood’s “Golden Age,” the Copyright Office allowed the movie studios to deposit a copy of a film and then to have that copy returned to them quickly. The studios were concerned that they earn rentals from the print by getting it into theaters while audiences wanted to see it. The Copyright Office considered the deposit requirement to have been met by a brief stopover of the print inside the building, and the Office examiners were satisfied that the form submitted with the film properly described the film they were letting leave their keep. (Illustrations on another page show paperwork and studio requests from 1940 relevant to the deposit requirement.)
In recent decades, the Library of Congress has sought to build and maintain a substantial collection ready in advance for researchers who desire to trace the changes in culture during the time that the Library has been existence. Thus, the Copyright Office generally no longer returns to their makers those works likely to reach general audiences, and the Copyright Office even makes diligent efforts to secure better copies of works submitted to it in blemished or flawed copies. Works submitted to the Copyright Office which were published in small print runs may be disposed of, in some cases by transfer to smaller libraries. Such actions do not affect copyright status.
Registration has been contingent upon the Copyright Act permitting copyright for the particular medium that the work was done in. Most types of media have been accorded copyright status long before any of the major works of that medium were created. Computer software was conferred the right in 1980. A table of year of eligibility matched to type of work, which also lists the elements required to be in the notice of each type of work, is available on this web site.
The same copyright catalogs published by the Copyright Office which list copyright registrations (see previous section of this One Page Guide) also have sections in them which list all of the copyright renewals registered during the time periods covered by the particular catalogs. Just as readers wanting to know more about the registration listings should consult the section of this One Page Guide about researching copyright status, so too should those wanting to know about using the copyright catalogs as a resource for determing whether a copyright renewal was filed for a particular work—and whether any such renewal registration is valid.
Widows, widowers and children of deceased authors generally have the right to renew copyrights owned by those authors. In the absence of terms in a will that transfer copyrights to other parties or to specific relatives, the copyrights owned by an author at the time of death go to his spouse and dependents set by a per stirpes formula in the law. (see examples of per stirpes)
It’s never enough to know that copyrighted works from a particular year remain eligible for copyright protection and that in some cases, copyright protection was not renewed or was never in effect owing to some technicalities. You want to know whether the work you are interested in lost protection at renewal time or somehow became one of the few works to never get copyright protection owing to lack of a copyright registration or some other problem.
If the work in question was required to have a registration—whether its original copyright registration or a renewal registration—during 1978 or later, that registration should be part of the Copyright Office’s electronic database and therefore accessible by Internet on the Copyright Office web site. (No costs are involved in accessing the database, which is at http://www.copyright.gov/records/ and http://www.copyright.gov/search/). If both the registration and the renewal are dated before 1978, you will need to consult records that the Copyright Office has never offered in electronic format, having processed and issued these only in paper format. (This will be the case with all renewals of works with first-term copyrights effective 1949 and earlier. The renewals of some 1950 works are also among these paper-based records, because copyright holders who renewed their 1950 copyrights had the choice of doing so in either 1977 or 1978.)
To learn how to investigate the copyright status of a work using the paper-based records in the Copyright Office at the Library of Congress, you may start by reading the page on this web site on Researching the Copyright Status of a Work. Generally, the records for registrations and renewals match easily, and a conclusive answer can be determined with just a few minutes of examining the record books and the documents. Only seldom will the researcher encounter a hiccup in the process.
The creator of this web site has produced a series of videos explaining the process of researching copyright status. Partially shot inside the research room at the Copyright Office, it follows the step-by-step process by which some searches are conducted. Hosted on YouTube, these videos can be viewed for free.
There are rare times when a researcher can profit by carefully considering the information on a registration or renewal certificate, applying his knowledge of the applicable laws, and asking himself if some piece of information disclosed on the forms might indicate that a copyright could not be operative given the facts on this particular work. The prior section touches on the fact that the copyright renewal application for the classic 1950 film D.O.A. submitted by that film’s producer was accepted by the Copyright Office at the time the application was submitted; the application was processed, becoming part of the Copyright Office records. Fourteen months later, the Copyright Office stamped “Cancelled” over that application. Though a renewal number had been assigned, the Copyright Office now realized that the application should never have been processed, that the application had been submitted too late for a valid renewal based upon the 1949 date in the copyright notice on the film itself. Although this error was eventually recognized and confirmed by the Copyright Office, the events indicate that there may be other such errors—perhaps less obvious ones—that have not been caught by Copyright Office personnel nor brought to their attention. Independent researchers who look for such technicalities may profit with the ability to copy the affected works without need of paying royalties to the entities that would otherwise own copyright on these works.
If readers of this page are wondering how it can be that a document might be in the Copyright Office records without that document conferring evidence of a valid copyright, such readers should heed the lesson of the following statement within a judge’s decision:
(The preceding quote is from the decision in Barry Kielselstein-Lord v. Accessories by Pearl, Inc., summarized on this web site here. That summary is part of a page of summaries of court decisions which are concerned with the legal status that Copyright Office opinion is not decisive, final or conclusive.
Why should it be that “Copyright Office opinion is not decisive, final or conclusive”? The Copyright Office processes applications, but is not in the position of deciding who owns the rights to the works being claimed on the certificates and applications. When two opposing parties went to court, each side claiming copyright on the same, single, specific work, the court decision reported, “Both Boosey and Peter Bartok filed renewal applications. The Register of Copyrights permitted the filing of both renewals expressly declining to adjudicate between them.” (quoted from the decision in Bartok v. Boosey, summarized elsewhere on this site)
The operator of a videocassette manufacturing business believed it could legally copy and offer tapes of NBC’s 1960 production of Peter Pan after the company’s owner “consulted two copyright registration books from the Library of Congress … in an attempt to learn if NBC’s Peter Pan was under copyright and found no listing; he also contacted the Library of Congress to learn if there had been a copyright registration filed with it. …” Although he came up empty, he was sued and learned from the judge’s ruling that NBC’s production was under copyright. (Elsewhere on this One Page Guide, it is explained that some broadcasts—this was one—do not require formal copyright registration; Peter Pan was performed but not published, thus bypassing need of formal copyright registration.). The company owner had been diligent to a point: he consulted the records, and seemingly did all he could insofar as the record books were concerned. He made a mistake in not understanding that the records would not include records of a certain type (unpublished works not requiring registration); not having a full understanding of the relevant laws, a verdict was returned against him. (See the summary for this case, National Broadcasting Company, Inc. v. Jonathan Sonneborn, dba Reel Images and dba Video Images, and Reel Images, Incorporated.)
Earlier on this One Page Guide, it is reported that some copyright renewal applications are invalid because the applicant ceased to have any proprietary interest in the work being renewed. (In the case of Babes in Toyland,
Under what circumstances do rights get transferred from distributors and publishers who aren’t permitted to automatically maintain the licensing arrangements operative during the first term of copyright?
Some background is in order. The 1976 Copyright Act (which went into effect at the beginning of 1978) specifies that copyright holders get one single—but very long—term of copyright. This is in distinct contrast to how copyright had been before. Under earlier law, a copyright term of 28 years was eligible to be followed by another, and sometimes then by a third. Under the 1909 Copyright Act, an author was entitled to renegotiate with his publisher (or other assignees) when entering a new term of copyright. Some publishers anticipated the potential problems by contracting for renewal terms within the original contract, but these clauses were not binding on heirs of deceased authors. (If anyone ever doubted that such particular clauses signed by authors and publishers were not to be binding upon an author’s heirs, the matter was later declared so by courts.)
The consequence was that derivative works have sometimes been taken off the market. In other cases, derivative works have remained available to the public only because one party was willing to pay an exorbitant fee to another. It is not as though Congress had not intended for authors and their successors to be able to renegotiate when entering a new term of copyright. The chairman of the committee of the House of Representatives engaged in determining the content of 1909 Copyright Act, testified to the Joint Committee that Mark Twain “told me that he sold the copyright for Innocents Abroad for a very small sum, and he got very little out of the Innocents Abroad until the twenty-eight year period expired, and then his contract did not cover the renewal period, and in the fourteen years of the renewal period he was able to get out of it all of the profits.” (see more) Congress thought it was a good idea for authors to get a “second chance” at negotiating terms.
Soon after the 1909 Copyright Act went into effect, the new and evolving motion picture industry came to adapt established novels and plays into film versions. Many studios anticipated no continued audience interest in films after the original release had exhausted as many engagements as could be booked for one season, and few industry executives anticipated television broadcasts of decades-old films, so contracts with literature authors typically did not make serious provisions for far-in-the-future distribution. Occasionally studios did make provisions for long-term rights, but then it was in anticipation of remakes, expecting later audiences to be interested in established stories only when new actors were performing them.
A possible additional opportunity for heirs?
From the preceding, it is evident that if an author dies before even the opportunity for renewal comes up, the author’s heirs are spared having to honor in the renewal term the kinds of unfavorable terms about which Mark Twain complained. Likewise, if the author is still alive as the renewal term goes into effect, the opportunity for his (eventual) heirs to disavow the author’s contracts never occurs. However, what happens if the author dies during the renewal window? Are his heirs given a clean slate on his copyrights once the renewal term begins? A case went to court and decided the issue. One songwriter of “Good Golly Miss Molly” died during the renewal window, which for this song ran from December 31, 1984, to December 31, 1985. The courts decided that because the song was renewed in the songwriter’s name while he was still alive, in January 1985, he had authorized renewal prior to his death two months later; thus, his heirs were obliged to accept the terms already in effect. The songwriter’s daughters, as his heirs, would have been better served had their dad waited to file until the last days of the first term of copyright, at which time either he would authorize the renewal himself (knowing that he would outlive the first term of copyright) or would be leaving the task of renewal to his heirs, paving the way for them to profit more than he could on the future song rights. No such delay in filing occurred, so any such benefits did not vest. (Marascalco case)
For researchers, knowing whether a death led to the transfer of renewal rights can mean knowing who among multiple interests was eligible to renew copyright—and thus to spot instances where an ineligible party was the only party to file a renewal application. Earlier on this One Page Guide, it is reported that the sole party to file a renewal application on the landmark 1915 movie The Birth of a Nation was found by a court to have not established that it had secured the right to do so. The record is unclear (the renewing party may have had the right, depending on whether director-producer D.W. Griffith had surrendered his rights to distributor Majestic during the first term, but no firm determination could be found in the evidence presented in court) (Epoch case), but the case nonetheless serves as an illustration that when the party who files the only copyright renewal cannot be established as the legitimate proprietor of copyright during the renewal term, copyright protection ceases for lack of a legitimate renewal filing.
By now, you’ve seen that proprietorship over the licensing of a creative work can be transferred from one owner to another. In some cases, this occurs through inheritance upon death, and may occur despite contractual provisions granting a particular publisher rights for as long as a work remains under copyright. In other cases, transfers occur when a set period of time specified in a contract has elapsed, allowing one party to regain control and to negotiate new arrangements. Still other changes in proprietorship occur when a party holding the rights to control a work negotiates to release the other party from the terms of their contract, accepting something else of value so that the other party can become eligible to obligate himself to the terms of new contract.
For the researcher who wants to learn which parties had legitimate rights to renew a copyright at the time of renewal, the answer to his quest would seem to be in a thorough repository of filings that establish the changes in ownership and proprietorship of the relevant works.
If rights are assigned or transferred, must there be a recordation of these facts with the Copyright Office?
The Copyright Act (in its variation versions) and the Copyright Office’s information circulars state that transfers may be recorded in the Copyright Office records. Recordation isn’t mandatory. There can be benefits to recording a transfer, as a movie producer found out, when a court declared him to be sole owner of movie rights about a famous ballet dancer, even though he had been the second of two parties to buy the rights. Neither the earlier purchaser nor that earlier purchaser’s assignee had recorded their assignments in the Copyright Office until after the second purchaser did, so the earlier purchasers lost in court. The court gave preference to the purchaser who had filed, given that he was deprived knowledge and notice of the transactions of his predecessors. (Vidor case)
What if there had been only one purchaser and that purchaser had not made a formal declaration in the records of the Copyright Office? That purchase would be uncontested yet enforceable, and outside parties would be unable learn from records within the Copyright Office whether the purchaser’s claims of proprietorship should be accorded veracity or not. Some have argued that purchasers of copyrights are required to record the transfers in the Copyright Office in the same way that the transfer of ownership of an automobile has to be recorded with state governments. This is just not true. The wording of the copyright statutes make filing optional.
The images shown here illustrate that the new owner of the copyrights in the Betty Boop cartoons altered the copyright notices to reflect the change in ownership. This effort was optional, not legally required for enforcement and continuation of copyright. For additional information, consult the illustrations page on copyright transfer and the citations and summaries of court decisions page on transfer recordation.
The qualifying statements directly below the copyright-durations graph near the top of the page, state that the graph pertains to published works. You may be assuming that it hardly ever happens that this qualification applies, that you know that a manuscript in an attic isn’t something you’re going to rush out and print, that when you contemplate plans to copy other people’s older works, you’re going to concentrate on works that people have already heralded as classics or as having some appraised value. You may be thinking that in limiting your scope to works already experienced by the public that you never cast your gaze on unpublished works. You would be wrong. So you think you know what “published” means? Well, in the copyright law it’s not what seems intuitively so.
These continuums on the illustrations page on publication (go directly to continuums) are designed to provoke readers to think about the less-than-fine-line which separates the status of “published” from the status of “unpublished.”
Knowing whether a work has met the legal definition of “published” is crucial in determining copyright status because unpublished works are treated entirely differently in copyright law from how published works are treated. What’s more, this has been the case for centuries, although the specifics have changed over that time.
Centuries-long periods of copyright for unpublished works are no longer possible. When the Copyright Act was changed in 1976, the new law was worded in such a way that anyone having any century-plus-old unpublished works onhand were nudged to publish them by 2002 in order to take advantage of the last opportunity for copyright protection ever to be accorded works this old. After December 31, 2002, all copyright protection for works controlled by individuals is based on the rule that copyright protection lasts for the life of the creator plus 70 years thereafter. Thus, it’s still possible to publish work by a deceased person and get copyright protection for it—provided the creator died within the seventy years prior to publication. Mark Twain exited from life in 1910, so “new” (i.e., previously unpublished) work by Twain can no longer receive copyright protection.
“Publication” might seem like something everyone understands—so the manner in which this term is used in copyright law can surprise people.
The 1976 Copyright Act defines publication as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.” Left out of this list is exposure of a work by means of broadcast, public performance, or exhibition. What this means is that a teacher’s notes might be mimeographed and then distributed to the students in merely one course in one classroom—and those notes would be regarded under law to have been “published” —yet a professionally-made top-caliber movie could be made expressly for television and then be broadcast over a network of two-hundred stations to an audience of tens of millions—whose combined size nonetheless does not bring about a “distribution of copies” nor “rental, lease, or lending.” A broadcast is not considered a publication in the opinion of the courts.
Incredible? Maybe. But is it true? Yes.
The Copyright Law, when the copyright terms were measured from the publication date of the work, was worded so that only a publication authorized by the legitimate copyright holder counted as publication insofar as the copyright term was concerned. In 1896, the United States Supreme Court decided a case involving an unpublished manuscript that had been surreptitiously obtained from an evaluating committee; this manuscript “had not then been published, although typewritten copies had been made for the examination and use of decision-makers. This circulation of copies did not amount to what the law calls ‘publication.’” The Court concluded: “The exclusive owner or proprietor of an unpublished manuscript has the exclusive right to its possession, and to direct and control its use … The trespasser upon that right is liable in damages.” (Press Pub case) The United States Supreme Court again decided the fate of unauthorized publication of a seemingly-unpublished work in 1907; this time, unauthorized reproductions were made of a painting which had been displayed without copyright notice. Authorized copies of the painting had also been issued, and these copies did bear copyright notice. Furthermore, within the gallery where the painting had been exhibited, guards enforced rules against copying. The Supreme Court decided in favor of the copyright holder; the other side advocated the viewpoint that “paintings, drawings, etc., are published by inspection and observation” but the Court rejecting the idea (with qualifications) (American Tobacco)
One defendant argued that because a work distributed in mimeograph form had not met the definition of publication, his unauthorized copying did not break the letter of the law, but the court hearing his case declared that typewriting and mimeographing are included in “printing” “for the purposes of the copyright act.” (Macmillan case, 1914) Another defendant knew that an author had circulated some of his unpublished manuscripts to persons who wrote to him expressing interest in ideas he wrote about in his published books, although no copy was ever placed in a public library, a book store, a book club, nor offered for sale. A court declared, “These are the distinguishing marks of private distribution.” (Harwood A. White)
Could it be that the court which ruled in King’s favor in 1963 would not have done so had they known that King’s speech had been published in full in a magazine with did not carry a copyright notice? In 1999, another court decided. Perhaps King’s speech would have been thrown into the public domain had King authorized for his famous speech to appear in the September 1963 issue of the Southern Christian Leadership Conference newsletter with no copyright notice, but the estate of King (now long-deceased) contended that King had not authorized publication therein. Both sides in the 1999 lawsuit conceded that had King authorized for his speech to appear in that September 1963 issue, this would amount to a general publication. The term “general publication” was used to distinguish a publication available to all the public from what in law is called “limited publication,” which had also occurred in connection to King’s delivery at the Lincoln Memorial. King had provided news agencies with an advance copy of the speech and permission to use it in their news media. This earlier grant to the press was “to a limited group for a limited purpose” which thus amounted to a limited publication. (Estate of King (1999)
The same principles have provided copyright protection as unpublished works to some television programs that have been shown to large audiences by television networks (and television programs distributed to numerous local stations, each with its own copies on hand). NBC broadcast both a popular prime-time musical version of Peter Pan and the original Star Trek series (owned by Paramount). In both cases, although millions watched the broadcasts, the programs were considered to have not been published, so lack of formal copyright registration did not deprive the programs of copyright protection. (National Broadcasting Company, Paramount v. Rubinowitz)
When CBS broadcast a documentary about Charlie Chaplin in 1977 using extensive excerpts from a montage of Chaplin scenes which had been edited for an Academy Awards tribute in 1972, they did so without contracting for the use of that earlier compilation (nor for the the use of the copyrighted film scenes incorporated into that montage).
Violation of copyright in unpublished works tend to result in smaller fines than for published, registered works. The local NBC station in Denver knew this before it sued over unauthorized sales of videotape copies of the station’s news stories. The station had not registered formal copyrights until after it had filed suit against the infringer, but argued in court that because the station offers tapes of its programs to the public, the specific news story infringed could be said to have been published. The court was not impressed that sales of video copies occurred only when the client initiates contact. The court declared that the station may have been entitled to “remedies ordinarily available to infringement cases” but not to what they sought under the specific complaint filed. (KCNC) The violator of the unpublished Peter Pan broadcast was levied a small fine, and the violator of the Denver station’s news stories was spared a heavy fine, but CBS (which in excerpting the unpublished compilation had also infringed copyright in several published, classic Chaplin movies) was assessed a heavy fine.
In addition to the possibility that a work could have the status of being “published” (in the full sense) or “unpublished,” courts have recognized instances where there had been “limited publication,” as might be said to have been the case with King’s distribution of his speech to the press. Furthermore, courts have recognized that a copyright can be “abandoned” for lack of action in enforcing copyright. Copyright in “The Caisson Song” was declared by two courts to have been abandoned owing to the number of unlicensed publications which the composers allowed prior to attempts to enforce copyright. (Egner) The idea is analogous to the one that title to real estate can be lost to squatters by prolonged default on the opportunity to evict. One violator of Paramount’s copyrights in Star Trek argued in court that there should be a status of “limited abandonment” of copyright. The judge who heard this, writing words that specifically fit Star Trek, wrote: “Recognizing the deficiencies in a traditional abandonment case, Defendants invite the Court to boldly go where no court has gone before and recognize the doctrine of limited abandonment. The Court declines the invitation.” (Paramount v. Carol)
If you are a United States taxpayer, you are paying the salary of the President, the Representatives in Congress, the Senators, the members of the White House Cabinet, and myriad others. You are entitled to exploit the written and creative work originating from the work hours of those personnel. And you can! Legally! Section 105 of the Copyright Act (versions in effect from 1978 to present) specifies that “Copyright protection under this title is not available for any work of the United States Government”.
Be careful! If work of the personnel of the United States Government is intermixed with work of outside, non-governmental parties, only the Government work is free of potential copyright entanglements. Remarks of a Congressman during a panel discussion on Capitol Hill are free to reproduce in full by anyone, but if the only video recording of that session is one produced by a private firm using its own equipment (as is often the case when C-SPAN covers an event where cameras were not provided by Congress), that private firm can claim copyright on the recording (but not the words delivered). C-SPAN makes the point that programs broadcast over their television channels which originate from government-owned and -controlled cameras (such as those in the chambers of the U.S. Senate and the House of Representatives) do not qualify for copyright, whereas events covered by C-SPAN's own cameras (usually the case with events off-site from Congress, for example) do entitle C-SPAN to copyright protection. Be careful about Government works: although copyright protection is not available, the United States Government can enforce laws related to counterfeiting, treason and espionage. (Citations and further information is provided on a dedicated page titled Government work not copyrightable. C-SPAN provides clarification and advice on the re-use of their recordings by outside parties at outside link to C-SPAN policy statement.)
The image of President Barack Obama above left was selected by me (as the CopyrightData.com editor) from a video recording of a speech delivered before Congress. That speech was delivered as part of the President’s job. The Government-owned camera and its operation were under control of the Federal Government. The recording is not subject to copyright protection.
As a private citizen, I shot the picture of Senator John McCain
These images of President Obama and Senator McCain also appear in a video prepared by CopyrightData.com on Fair Use, available for viewing at YouTube.
On April 13, 1954, Congress approved a measure which amended the copyright law then in effect so that to it was added the following:
When the last day for making any deposit or application, or for paying any fee, or for delivering any other material to the Copyright Office falls on Saturday, Sunday, or a holiday within the District of Columbia, such action may be taken on the next succeeding business day.
When researchers consider whether any copyright renewal was filed within the 28th year as required by law, they should consider that a delay of up to a few days past the strict deadline may be excused if a Saturday, Sunday or holiday was the actual day of deadline. Although the statute quoted says nothing about allowing the early filing on a December 31st of a renewal not eligible for renewal until the January 1st which follows it—a renewal which requires that application and payment be made during the calendar year in which the 28th anniversary begins will always have a renewal window which begins on January 1st when a strict reading of the statute is applied—the fact that January 1st is New Year’s Day and thus always a holiday in the United States, may have prompted the expansion of the renewal window to run from the December 31st of the year prior to the 28th anniversary through to the December 31st of the year of the 28th anniversary. The Code of Federal Regulations was revised to specifically state that the renewal window for post-1950 works runs from December 31st to December 31st, a period of one year plus one day.
The amendment by Congress which extended deadlines to bypass Saturdays, Sundays and holidays was Public Law 83-331. Those wanting to read the full text of it can find the full text of this law and every other copyright law passed since 1909 at the amendments page of the law section of the CopyrightData.com web site.
Works on which copyright is sought fall into two broad categories:
In the second set of examples, the works made are considered “works for hire.” Under copyright law, it is expected that the employer owns all rights—including all future rights—and is entitled to any future windfall of profits. The creative people hired by the employer are expected to accept that the guaranteed salaries paid them for performing the work is to make up for their not sharing in any unexpected subsequent financial success.
Readers of this One Page Guide who recall the above section on recognizing instances where the eligible claimant for renewal term of copyright is different than for the first term, may recall that impoverished young authors sometimes earned little from works that made large profits for the publishers who took chances on them, and that for this reason Congress in 1909 changed the law to give them a “second chance” at negotiating terms during the renewal term of copyright. Readers may remember that this policy had the unintended consequence of keeping classic movies such as Rear Window from being seen during the second term of copyright on the adapted work unless the movie companies paid “ransom”-like fees to what were sometimes the speculators who acquired literary rights. (Abend case) Readers need to draw a line in their minds: works for hire do not provide creators with an opportunity to collect another payment on the work that their creative talents were employed to shape and bring into being.
Why should this be? The motivation of Congress to heed a sad experience reported by Mark Twain (related here) was incorporated into the 1909 Copyright Act. Publishers sought afterward to secure the rights to reprint “back catalog” titles well into the future, and the “long arm of Congress” did not prevent authors from contracting for renewal-term reprints in advance, so long as obligations undertaken by authors were not binding upon heirs. The United States Supreme Court in a 1943 decision welcomed the opportunity for authors to judge for themselves whether to sell their renewal-term rights in advance: “If an author cannot make an effective assignment of his renewal, it may be worthless to him when he is most in need. Nobody would pay an author for something he cannot sell.” (Fisher) Apart from the author’s right to judge his financial needs at a given time, as the Court saw it the Congress had voted into law a statute whereby “the next of kin obtain the renewal copyright free of any claim founded upon an assignment made by the author in his lifetime. These results follow not because the author’s assignment is invalid but because he had only an expectancy to assign; and his death, prior to the renewal period, terminates his interest in the renewal” (Miller decision, 1960)
An author or artist struggling in a garret not knowing to whom he will sell his work, is obviously working “on spec” (that is, on speculation), rather than for an employer, yet sometimes the line between a “work for hire” and a work that isn’t, could be uncertain. The United States Supreme Court sought to demarcate between the two types of works when it decided a dispute over whether the copyright on a commissioned sculpture was owned by the artist or by the organization for whom he produced the sculpture. The Supreme Court recognized “nine categories” that indicated whether a work was a “work for hire” (the Copyright Act had recognized these also), but that interpretation was called for in “determining whether a hired party is an employee under the general common law of agency” or “an independent contractor under agency law”. The Supreme Court said that “we consider the hiring party’s right to control the manner and means by which the product is accomplished[;] the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.” (Community For Creative Non-Violence, 1989)
Thoughts to mull over: In the cases of radio programs and the high school mural, it was generally clear that the broadcast company, broadcast sponsor, or the school owned the resulting work; the writers and artist did not. The writers and artist in these cases did not undertake any work until they had been promised payment, and tended to work in spaces provided by the employer. In the case of the radio writers, the typewriters used were likely owned by employer, and office hours were observed.
When the United States joined URAA, GATT, the Berne Convention, and the Universal Copyright Convention, it was among the last of the world’s nations to do so. A table on this web site listing the nations which have become signatories to the international reciprocal-protection copyright agreements (go there) shows that there were nations which entered these agreements in the 19th century, with many more nations signing on early in the 20th century. The copyright protections in foreign countries differ in many respects from those offered under the laws of the United States; a web page on this site, one using “+” and “-” signs to open and close particular passages, enables visitors to compare the laws of twenty countries whose works are the ones which Americans are most likely to be interested in. (See the table of comparisons of the copyright laws of 20 countries.) Resources are linked for visitors wanting more information, including full texts of the laws of most countries.
When earlier work is incorporated into a later work, the work which existed first is called the underlying work. It is entitled to separate copyright protection, and those wanting to use it must see to it that (a) the pre-existing work is in the public domain, (b) permission to use the pre-existing work is obtained from the copyright holder, or (c) use is limited to amounts or circumstances that fit allowances permitted by law.
Some duplicitous persons may imagine that they can incorporate an out-of-copyright work into a new work of theirs, copyright it in their own names, and thereby claim exclusive dominion over something that by right belongs to the public as a whole. This is not allowed. The U.S. Copyright Act has a short but succinct passage which specifies what is and is not covered by a new copyright when works old and new are combined. Although many laymen complain (with justification) that laws are too often written in convoluted terms that only lawyers can understand, the passage of the Copyright Law concerning derivative versions and new matter in new work achieves great clarity in few words:
The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
That’s it. Two sentences—69 words. So little space on the page, yet so many questions answered. (This is quoted from the 1976 Copyright Act, section 103(b), which remains in effect, its words unchanged even as much of rest of the law has been altered. The wording of the counterpart passages in the prior two versions of the Copyright Act—1909 Act, §6, and 1947 Act, §7—make fundamentally the same point.) (The full text of the laws can be read at the law section of this web site.)
The 1909 Copyright Act had as its counterpart of the section 103 of the 1976 Act this text in its section six:
compilations or abridgments, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this Act but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works.
The Supreme Court had already decided a case where the magazine installments by a famous author which made up a series had entered the public domain, but where that author sought to prevent that series from being republished in book form by pointing out that he had a valid copyright on a book which collected the installments, and claiming that his copyright prevented anyone else from offering those installements as a book. (The author was not challenging that the twelve issues of Atlantic Monthly were in the public domain and could be reprinted freely.) The book scarcely had “new matter,” but the author did hope the 1858 copyright on the book version and his 1886 renewal of that book would afford him copyright protection on the collection as a collection, leaving the unauthorized reprinters to republish and offer the separate parts only in piecemeal form as parts divorced from the rest. The U.S. Supreme Court ruled in 1899 against the author, because to do otherwise would be to accept that “the whole is greater than the sum of all the parts.” (Oliver Wendell Holmes)
A century later, a seemingly reverse situation arose, yet the same principles applied. One compiler assembled a volume of Dorothy Parker poems that had not been included in the three volumes that Parker assembled of her own poems. After a rival assembled a collection almost duplicating it, the court declared that the first compiler of the two similar collections could not enforce a claim of copyright infringement against anyone else coming to assemble together the same poems: “the chief principle of Silverstein’s selection—that the poems previously had not been collected—reflects an exercise of judgment by Mrs. Parker, not by Silverstein.” (Silverstein)
New rights sometimes are granted by Congress, and sometimes new opportunities arise to market older material in media not envisioned when the works were originally created and contracted.
The New York Times has kept on staff writers who work on a work-for-hire basis. Their work remains the permanent property of the newspaper to reprint at its discretion. Freelance writers whose articles were published in the print and microfilm editions of the newspaper had not given the newspaper the right to offer those same articles in computer-format media, the Supreme Court decided. (Tasini) Likewise, when National Geographic magazine contracted with freelance photographers to print their photos in the print and microfilm editions of the magazine, the contracts did not give the publisher the right to include these same photos in the computer-format archive of the magazine’s full run. (Faulkner). The rights that Warner Bros. acquired on a 1946 David Goodis novel that permitted the studio to make, distribute, exhibit and broadcast its movie version of the novel (Dark Passage starring Humphrey Bogart, in 1947) did not include the right to “broadcast said Writings by television from performances by living actors.” When the subsequent owner of the rights in the movie developed a filmed television series, the author (and, later, his heir) argued the series to be a violation, inasmuch as the author had retained the rights pertinent to live television adaptations. There had previously been assumptions that (apart from contractually-agreed limitations) certain rights were kept together when sold. After this verdict, there came to be changes in how “indivisibility” was regarded. The court had to look at the fine splits between retained rights and sold rights. (Goodis)
Although copyrights on works that group together contributions by multiple creators (such as an anthology of literature) can have a single copyright that covers the work of all of the authors, it must be the case that the collection reflects the selection of one entity (such as the editor or committee that selects from among the submissions proposed for an anthology). However, the Copyright Act as it has been in place since 1978 does not extend copyright to “advertisements inserted on behalf of persons other than the owner of copyright in the collective work”; otherwise, “a single notice applicable to the collective work as a whole is sufficient to satisfy the requirements … regardless of the ownership of copyright in the contributions and whether or not they have been previously published.” (Quoted from 1976 Act, §404(a)) (Two cases affirm this: Excel Promotions , Inter-City Press.)
Most of the content on this web site enables readers to come to fairly exact understandings of what actions will be legal or not legal. The rules about duration of copyright are cut-and-dry; copyrights expire on specific dates that can be calculated at a moment’s notice. Rules about renewal timeframes, parties eligible to file for renewal, and maintenance of copyright on underlying works, are straightforward.
Precise specifications are not in place that state the maximum limitation on permissible quotations from a copyrighted work, nor for determining how similar a new work may be to an existing copyrighted work, let alone expressing policy on the extent to which a new work might evoke a predecessor copyrighted work. All that this web site can do is to report the advice given by the Copyright Office and to provide readers with summaries of numerous court decisions concerning these dilemmas. The number of summaries of verdicts on this web site of cases concerning similar works and re-use of earlier copyrighted works, is considerably higher than the number of summaries of verdicts on other aspects of copyright law. (This in part is a consequence of the fact that far more copyright disputes concerning similarity and re-use are resolved in court than other types of copyright disputes.) Readers will find a variety of types of cases summarized, the objects of the disputes ranging from famous works to forgotten amateur efforts, spread over a long period of time starting early in the 19th century, with usually several court verdicts represented per decade throughout the 20th century.
There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Nonetheless, there are some general guidelines. It has been proven to be worse under the law to copy from unpublished sources than published ones, all else being equal. The U.S. Supreme Court decided that a magazine that “scooped” a rights-holding competitor to publish portions of President Gerald Ford’s memoirs prior to publication of his book, was required to pay damages that likely would have not been assessed had those same 300-400 quoted words been published after the book reached the market. (Harper) Several cases establish that verdicts have gone against parties that have copied considerably from copyrighted works. (several cases) “Fair use” is permitted, but “fair” entails limits.
Another way of expressing the central concern here: What is the dividing line between someone practicing selectivity sufficiently creative that it warrants copyright protection—as against something too obvious for his efforts to be granted this honor?
Such questions are what the copyright laws on “fair use” attempt to answer.
Although real events are not subject to copyright, when they are combined with fictional augmentations, the new combination is accorded copyright protection that may permit an infringement verdict on the unauthorized appropriation of just the minority of content unique to the new work. When movie studio
Universal’s 1995 movie 12 Monkeys was pulled from theaters after an artist recognized that a colorful drawing of his had been copied as the basis of an intricate set. He received an injunction against further exhibition until the dispute was hastily settled. Although the set was on screen for just five minutes of the 130 minutes of the movie, a substantial part of the copyrighted drawing had been infringed. The movie director admitted that he reviewed a copy of a book that included the drawing and that he and the producer discussed the drawing with the production designer in planning the disputed set. The resulting appropriation cost the studio a payout to the artist, lost playdates, court expenses and lawyer fees. (Lebbeus Woods)
The honesty of director Terry Gilliam concerning 12 Monkeys is in stark contrast to that of some of the disputants pitted against one another when movie studios are sued by outsiders. Many outsiders go to court despite flimsy claims. One unproduced screenplay resembled a completed movie only in that both were variations on Dr. Jekyll & Mr. Hyde—which hardly is justificable grounds for an infringement suit. (Land) Some judges in their opinions have stopped themselves just short of saying that the plaintiff didn’t have any case and had ingenuously sought to sue the “deep pockets” defendant in an effort to unjustifiably gain some of his money. (Bein, O’Brien)
Some formal copyrights bring users of the work to comply with the copyright owner’s licensing fees even as a number of commentators have questioned the validity of a particular copyright. Warner Chappell Music, Summy-Birchard Music, and Time Warner have publicized that copyright is in effect on the song “Happy Birthday to You” (1935) (also known as “Happy Birthday”), which brings substantial royalties every year through fees on performances of the song in movies and television shows. Others contend that because the melody is re-used from the earlier song “Good Morning to All” (1893), and because the bare-bone lyrics of the 1935 song haven’t enough originality to warrant copyright protection, the claim to copyright is spurious. Though the CopyrightData.com web site does not take a position on this controversy, this site does let visitors hear a sound clip of the 1893 song so that visitors can judge for themselves. (Happy Birthday)
How different should one work be from a similar one if its creator is to steer clear of an infringement verdict against him? Consider this:
The movie film that amateur moviemaker Abraham Zapruder shot on the scene of the assassination of President John F. Kennedy—the only movie of that significant news event—is copyrighted. The author of a book explaining its author’s theory of the assassination, knowing that he could not print still frames taken from the movie lest he be charged with copyright infringement, commissioned and published sketches based on frames of the film. As purchaser of the Zapruder film, Time-Life sued. The court found that the sketches copied the camera placement, lens choice, and other elements of the selectivity exercised by Zapruder, and thus there was infringement. Nonetheless, the court recognized that the book was not competing for a market against Time-Life, that the book would be bought on the basis of the author’s theory and not his illustrations, and thus that the sketches posed no injury to Time-Life. (Time)
Walt Disney spent several years making an all-cartoon film adaptation of Alice in Wonderland (1951) from Lewis Carroll’s classic book (1865). He made a point of securing an exclusive right among the major Hollywood studios to use the title, but he had no priority against a French company that had spent several years making a stop-motion version that premiered in the United States within days of Disney’s production. (Disney) Decades passed until the Disney company swore off making cartoon adaptations of out-of-copyright children’s classics, after discovering all too often in the 1990s that cheap knock-off versions of the same fairy tales adapted by the company at great expense were subsequently produced direct-to-video and put on the video market the same day as the Disney versions were, often with deceptively-similar cover art.
The Register of Copyrights in 1961 advocated changes in copyright law (subsequently enacted) permitting the “incidental and fortuitous reproduction, in a newsreel or broadcast, of a [copyrighted] work located in the scene of an event being reported.” What this meant for a television station that broadcast a parade in 1974 is that the performance on the street of a copyrighted song was not an actionable infringement as part of the broadcaster’s news story about the parade. (Italian Book) This tenet is a great relief to the many broadcasters whose on-the-spot news coverage might inadvertently include music in the background while witnesses tell reporters and audiences of the calamities they saw and heard.
News organizations enjoy their receiving greater toleration from the law over their use of copyrighted material, but are themselves subject to the crux of their hard work being appropriated by their rivals. Facts are not copyrightable. The specific wording of a news story is entitled to copyright protection, as is the specific selection of facts made within a copyrighted story. However, the most valued aspect of news reporting—the vital, heretofore-unknown actions and events which occur outside the presence of most of the world—does not remain exclusive to the first reporter to uncover it. A 1918 Supreme Court verdict in a case pitting the Associated Press against a competitor, affirmed this. (go there) Subsequent court verdicts have not recognized appreciable differences. (read cases beneath International/Associated Press case)
State laws did protect sound recordings at a time when the Federal Government did not. In recent years, the Federal Government has considered offering new protections on sound recordings that exceed that for other media, seemingly to make up for the many years that sound recordings didn’t receive any federal protection. (Citations and case summaries page on sound recordings, illustrations page on sound recordings, Is it a copy or a phonorecord?)
Music performance and copying involves legal technicalities not in place in copyright law as it applies to other art forms. When copyrighted literature is reproduced or a copyrighted film clip incorporated into a new work, representatives of the owners of the pre-existing work are contacted by the creators of the new work, and negotiations ensue. Not so with music. When copyrighted music is reproduced, the fees paid per copy or per broadcast are those set in the Copyright Act. Licenses do have to be obtained before a new master recording of a song already introduced (a “cover” version) can be marketed, so some negotiations do take place. The intricacies are beyond the scope of this introductory web page, but several court decisions have honed some of the practices. Readers are referred to the page on this web site of summaries of court decisions concerning music. (citations and case summaries) Readers are especially advised to study the summary of the U.S. Supreme Court verdict in Broadcast Music, Inc. v. Columbia Broadcasting System, Inc. (go there), which incorporates a succinct history of the practices of the music industry as it relates to licensing and copyright. The synchorization of specific pieces of music to specific scenes of a particular movie entails a license for music synchronization, so this web site has a section on music synchronization.
The legitimate purchase of a film or video copy of a copyrighted movie does not permit the purchaser of that authorized copy to show it in all possible venues, or under all possible circumstances. A selection of summaries on court decisions on this subject, including one decision on printed books dating to 1908, as well as court decisions dating back to 1958 on the legitimacy of uses to which legitimate copies of movies were put, are on the citations and case summaries page on first sale.
Merely owning a copy of a film (or song) doesn’t give you the right to show it (or play it) in front of an audience outside your home. For that matter, an unusually-large crowd in your home (say, a party with two-hundred people) is beyond what is permitted without a license. Owners of a restaurant lost in court for playing commercially-made videotapes of copyrighted movies. (Kennebunkport restaurant) A theater owner who owned a lawfully-obtained film print of a movie didn’t have the right to show it in his theater when he made no arrangement with the studio. (Hampton) When the television sets in a bar were tuned to a football game (blacked out in that city), the bar owners were sued by the football league and lost. (St. Louis Cardinals) The Copyright Act gives copyright holders the right to control “performance,” this being defined as “to perform or display [the copyrighted work] at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered”. (See 17 USC §§101,106)
Not quite a decade and a half after the U.S. Supreme Court ushered in an era of home-recording of television—by permitting the continued availability of video-recording machines even while not sanctioning the buiding of home libraries of off-air taped programs—the entertainment and copyright-infringement landscapes changed once again, with the exponential growth of the Internet. Video recorders in the home had had the entertainment industry worried that fans who were already recording their favorites would inch their way to trading tapes with others by mail, dampening potential broadcast licensing deals in localities where particular programs were not yet available on local broadcast stations.
The Internet posed a new threat: persons who came into contact with one copy of a copyrighted work would “rip” a digitally-playable copy that could be (and occasionally was) uploaded to the Internet, reaching a potentially unlimited number of computer users able to download a copy. Strangers who never met, never would meet, and never would be in the same city or even know each others’ names, would enable the mass duplication of copies for one another. Copyright owners might sell one legitimate copy which would then—in the form of digital copies—become part of the queues of the playback devices of thousands of people who had not paid for that one legitimate copy of the work and never would pay to have its digital counterpart. Every major music company and movie studio sued. At first, Napster was their primary target. That company was shut down before the Supreme Court could decide the legality of “file sharing,” so when copycat web sites took the place of Napster, the copyright owners turned their lawsuits on Grokster and Streamcast. The Supreme Court ruled against them. (Grokster) The Court understood that these web sites did not themselves maintain illegal copies of copyrighted works on their own servers, but found them guilty of accessory to infringement, for their role in facilitating the environments by which infringers connected to each others’s hard drives.
After Congress in the Digital Millennium Copyright Act (1998) made illegal software that defeats DVD copy-protection mechanisms, a court of appeals ruled accordingly and affirmed the constitutionality of that Act, declaring illegal some “hacking” software made available for defeating DVD encryption technology intended to thwart in-home copying. (Corley.)
Half a century ago, if one author wanted to satirize a creative work of someone else, doing so by copying enough of the earlier work as to constitute infringement, the later author had to obtain permission (generally, a license) from the originator of the material he wanted to parody, satirize, spoof, goof on. Not any more. In 1994, the U.S. Supreme Court ruled that rap music group 2 Live Crew did not need permission of the copyright holders of Roy Orbison’s rock song Oh Pretty Woman to put onto a 2 Live Crew compact disc a recording that rewrote the lyrics of Orbison’s song in a way that many found demeaned the earlier song. The Supreme Court decision pointed out that legitimate “purposes such as criticism [or] comment” were met by the song, and that parody is “fair use” when it is “transformative,” “altering the original with new expression, meaning, or message”.
“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work,” states the version of the Copyright Act which has been in effect since 1976, in its section 102(b). Those wanting to know more can turn to a dedicated page on this web site about these topics: citations and case summaries page on works not eligible for copyright and on eligibility for copyright. One section of that page is devoted to the topic that copyright is not available for items that should be patented.
The Copyright Act is written in terms that make it a requirement that a work have some minimum amount of creativity—even if a small amount—in order to enjoy copyright protection. The U.S. Supreme Court surprised many people when it ruled that the subscriber listings within telephone directories are not eligible for copyright protection. It does not matter that telephone directories in the pre-computer era were assembled with considerable effort and much expense. The Court declared that the organization of the material into alphabetical order was too obvious to qualify as original, so the Court had to deny copyright protection to telephone directories. (Feist)
It is possible to run afoul of enforceable rights enjoyed by others without strictly speaking stepping on their copyrights. The aforementioned case of the two competing sets of videotapes based on a television documentary series associated with General Dwight D. Eisenhower’s book (Dastar) is an example of where those other types of rights were asserted. Though the second video company was permitted to use the same film footage and the same 1949 editing of that footage as the first company because the documentary footage and the 1949 documentary series did not have copyrights in effect at the time the videos were marketed, the first company reached outside of the Copyright Act to charge its competitor with infractions of law codified in other Titles of the United States Code. (Some of the questions posed by the Supreme Court Justices during oral arguments indicate that the Justices were keenly aware that the expiration of the 1949 copyright had brought about the competition between the firms offering the two similar sets of videotapes.*)
* Oral argument before the U.S. Supreme Court of this case (and many others) is available as an MP3 download from oyez.org; use the link in the “green” section at the bottom of the Citations and Summaries pages of this web site.
More subjects: The final five pages in the “Citations and Case Summaries” section of this web site are on topics that likely will interest only those whose inquiries reach into those most specialized areas of copyright law, areas that generally don’t affect why one particular work enjoys copyright protecion while another doesn’t. Although many might regard the lessons of these pages as involving nitpicky questions that courts generally consider immaterial, issues that would be dismissed in legal judgments, these cases are offered for those interested. The full list of pages in the Citations and Case Summaries section can be viewed at the Table of Contents for that section.
Some technicalities, such as questions raised by the broad usage of a term mentioned in the text of a law, are addressed on the first of these five pages: Authority and boundaries of the law.
Addressed here, also, is whether Congress had the authority to extend the duration of copyrights an additional twenty years in 1998. For most users of this web site, the key fact to consider is that copyright terms were extended and that anyone intent on obeying the law needs to know the number of years that a copyright will be valid. Most readers, presumably, don’t need to know that a legal challenge to that law was filed and that it reached the Supreme Court. Nonetheless, for those wanting to know details, a summary of that court decision is available on this web site. The decision of the Supreme Court was that Congress had acted within its authority. The Court cited several reasons, of which one was this: “A key factor in the [new law]’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts”. (Eldred)
This is a web site about copyright law, not obscenity law. Nonetheless, the two subjects intersect inasmuch as some earlier court decisions were that works considered obscene were not entitled to copyright protection. Those interested in exploiting such works might want to examine a dedicated page on court decisions on this subject at citations and case summaries on obscenity.
Those wondering how much infringers have been ordered by courts to pay upon a guilty verdict, can find such information on the page devoted to financial liability and considerations.
Visitors to this site more interested in a “pictures plus captions” tour through key points of copyright law may prefer to look over each of the illustrations pages on this web site. Although most have been linked in the above sections of this page, there is also a Table of Contents to the illustrations pages.
Those who want to think through the complexities of overlapping legal issues may want to read the several exercises on this web site. In each case, there are multiple aspects of law that must be analyzed before the reader can determine whether the works examined are validly copyrighted. The works and details given are real, each work a movie (including two filmed television series): the movies Chaplin made for First National, The Gold Rush (1925), The Abbott and Costello Show (seasons 1 and 2), The 39 Steps (1935), and The Third Man (1949).
There are a few general rules which guide the continuing copyright status of a given work. These can be addressed through several simple questions:
Keep in mind that the first two questions assume published works. If the work you are interested in was never published, a different set of laws apply. A section of this page covers this. These questions also assume an American work is the subject of inquiry; if instead the work is entitled to American copyright protection as the work of a foreign entity, visitors to this page should see the section on this page devoted to foreign works.
Any work first published as an American work prior to 1923 is no longer entitled to copyright protection. If the work is an American work first published at any time from 1923 to 1977, the person interested in the work should add 95 to the year of first publication, as this number will be the last possible year that copyright protection will be accorded. For works published 1978 and later, there are two possible timeframes for copyright protection:
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