For the first time in 20 years, a massive volume of artwork, books, films, music, and other works of authorship that were first published in the United States in 1923 entered the public domain on January 1, 2019. A federal copyright law enacted in 1998 postponed the release into the public domain of works whose copyright term would have otherwise expired two decades ago. This is the largest entry of works into the public domain in the digital age, and will likely have a substantial impact on creativity and culture.
The term “public domain” generally refers to creative works or materials that are unprotected by intellectual property (IP) rights and laws, such as copyright, patent, trademark, or trade secret laws. For purposes of copyright law, a work of authorship is in the public domain if it is no longer subject to copyright protection or failed to meet the requirements for copyright protection.
U.S. copyright law protects rights in original works of authorship that are fixed in a tangible medium of expression, such as advertisements, photographs, drawings, paintings, music, videos, poetry, screenplays, computer programs, website content, blog articles, logo artwork, sculptures, product packaging, jewelry, fabric designs, and other works that meet the legal requirements for protection. These protections include exclusive rights to control copying and distribution of protected works, subject to exceptions and limitations, and remedies for infringement of copyright rights.
Copyright Act of 1976
U.S. laws governing the scope and duration of copyright rights are complex, and have been subject to change by legislation. The Copyright Act of 1976 (1976 Act) became effective on January 1, 1978, and provides the basic framework for current copyright law. Different standards apply depending on whether federal statutory copyright protection was secured before or after the effective date of the 1976 Act and other factors. Several amendments enacted after the 1976 Act also affect the duration of copyright protection.
Copyright Term Extension Act of 1998
The Copyright Term Extension Act of 1998 (CTEA) (also referred to as the Sonny Bono Copyright Term Extension Act, the Sonny Bono Act, or derisively as the Mickey Mouse Protection Act) amended the 1976 Act and extended the duration of copyright protection in the U.S. The CTEA effectively froze the release of works into the public domain for two decades. The last release to the public domain occurred in 1998, covering works first published in the U.S. in 1922.
Duration of Copyright
As a general rule, depending on the nature of authorship, copyright protection for works created and fixed in a tangible medium of expression on or after January 1, 1978 endures from the moment of creation until: (A) 70 years after the author’s death; (B) 70 years after the last surviving author’s death if the work is a joint work prepared by two or more authors who did not work for hire; or (C) the earlier of 95 years from the year of first publication or 120 years from the year of creation if the work is a work made for hire, anonymous work, or pseudonymous work (unless the author’s identity is later revealed in Copyright Office records, in which case the copyright term becomes the author’s life plus 70 years). For works that were first published before 1978, or were created but neither published nor registered before 1978, the duration of copyright protection varies depending on several factors.
“Publication” is a legal term of art with a technical meaning in copyright law. According to the 1976 Act, “Publication is 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. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication.” However, under the 1976 Act, “A public performance or display of a work does not of itself constitute publication.” As the United States Copyright Office (USCO) explains in Circular 40:
A work of art that exists in only one copy, such as a painting or statue, is not regarded as published when the single existing copy is sold or offered for sale in the traditional way, such as through an art dealer, gallery, or auction house. A statue erected in a public place is not necessarily published.
Public Domain Pitfalls
Even if a work is in the public domain, collections of public domain works may be protected under copyright law. New or revised versions, or derivative works, may also be protected under copyright law. Although song lyrics or sheet music may be in the public domain, a sound recording or new arrangement may be protected. In some circumstances, works that are in the public domain in the U.S. may still be protected in foreign countries.
Other Intellectual Property Rights
Copyright law may not be the only form of legal protection for creative works. For example, even if a work has entered the public domain under copyright law, other IP rights may be protected under various legal theories, such as state or federal laws governing trademark infringement or dilution, unfair competition, rights of privacy, or rights of publicity.
A wealth of material has entered the public domain for the first time in two decades, which should significantly impact creativity and culture in the digital age. Before copying, incorporating, adapting, or otherwise using works that you believe may be in the public domain, consider consulting with experienced IP counsel to minimize your risk of liability for infringement or misappropriation of IP rights or violation of applicable laws, and also to assess options and strategies to protect your own IP rights in material that you create or hire others to create for you.