Public Domain Works
by Daniel Steven

        Q.  What is a public domain work, and how can I use it?

         A.  Every writer, fiction or nonfiction, should be familiar with a central tenet of copyright law: the doctrine of “public domain” work.  Public domain works are, simply, anything NOT protected by copyright.  Such works may be used freely by anyone without permission.
The numerous changes Congress has made in the term of copyright duration, however, has made it difficult to determine the copyright status of a work   The rules -- once simple -- have become complex to a ludicrous degree.
Before the changes made by Congress in the 1976 Copyright Act, copyright for a work began when either (1) it was published with a copyright notice or 2) registered, if the work was unpublished.  The law defined “publication” as “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies . . . to a group of persons for purposes of further distribution, public performance, or public display constitutes publication.”

The period of protection lasted for an initial term of 28 years and could be extended for a second period of 28 years if the copyright was appropriately renewed during the initial 28th year.  The 1976 Copyright Act and later amendments made numerous extensions to this original 28 years’ renewal period, depending upon when the original work was published, or created, and whether appropriate renewal were filed.

As the law stands today, any work created after January 1, 1978 is protected by copyright (whether or not it was published or registered).  The duration of that copyright is the life of the author plus 70 years.  Other rules apply to work-for-hire or pseudonymous works  -- these are protected for 95 years from publication or 120 years from creation, whichever is shorter.   (For pseudonymous works, if the author's identity subsequently revealed in Copyright Office records, then the term becomes the life of the author plus 70 years.)

 Any work created, but not published (e.g., letters or diary) by an known author who died before 1937 now is in the public domain (life + 70 years).  Any work that was published before 1923 is in the public domain.   Any work published between 1923 and 1977 without a copyright notice is in the public domain.  Any work published with a copyright notice between 1923 and 1963, but copyright was not renewed, is in the public domain.

Confusing?  You bet.  But if the work truly is in the public domain, then anyone in the public may do anything they want with the work, with or without attribution to the author.  Be aware, however, that many other countries, especially in Europe, have “moral rights” laws that give certain rights to the original author or his heirs, even after copyright expires.

For more detailed information on renewal of copyright and the copyright term, go to www.copyright.gov and download Circular 15, "Renewal of Copyright"; Circular 15a, "Duration of Copyright"; and Circular 15t, "Extension of Copyright Terms."
Daniel Steven is Chairman of the MWA Contracts and Grievances Committee and a publishing and media attorney (www.publishlawyer.com).  This column provides general legal information; consult an attorney for application of the law to your specific circumstances. 

© 2008 Daniel Steven