William Fisher on how long US copyrights last: transcript

Key points

• Duration rules are complicated because amendments were only partly retroactive, so different groups of works follow different rules.
• Under the 1909 statute, protection lasted 28 years plus a 28-year renewal term, which was later extended to 47 and then 67 years.
• Since 1978, copyright lasts for the author's life plus 70 years. Anonymous, pseudonymous and work-for-hire works get terms of years instead.
• Two themes run through the history: a gradual shift from opt-in to opt-out, and terms that keep getting longer.
• Works published before 1923 are in the public domain. Those from 1923 to 1963 begin expiring in 2018, though most were never renewed.
• Works from 1964 to 1977 got automatic renewal, and works created from 1978 on will not begin expiring until 2048 at the earliest.

Chapters

1. 0:15Why US copyright duration is so complicated
2. 0:52The 1909 statute and its renewal term
3. 3:00Automatic renewal, the 1976 Act and life plus 70 years
4. 4:42Five categories of works in 2013
5. 6:38Works from 1964 to 1977 and unpublished works
6. 8:16Works since 1978 and the public domain bottom line

Full transcript

0:15In this segment of the lecture, we'll examine the rules that determine how long US copyrights last. You're probably thinking, well, this will be a short segment. How complicated can it be? The answer, unfortunately, is quite complicated. The reason for the complexity is that the relevant rules in the United States have been amended several times, but the amendments have been only partially retroactive. The result is that there are several subsets of copyrighted works that are governed by different sets of duration rules.

0:52Here's how I'll try to untangle this knot. I'll begin by reviewing the history of the pertinent laws. I'll then start over and consider the impact of that history on the duration of different groups of works. The slide in front of you should by now be familiar. This shows the way things worked under the original version of the 1909 copyright statute. As we've seen, the first term of federal protection lasted for 28 years after the date of publication.

1:23If the copyright was properly renewed, it lasted for another 28-year term, commonly known, for obvious reasons, as the renewal term. Here are a few more details we have not yet discussed. The application for renewal could be filed any time during the year preceding the expiration of the initial term. If the author was still alive at that time, he or she was the person presumptively entitled to apply for and receive the renewed copyright. If the author had died, his or her surviving spouse or children could do so. If there were no surviving spouse or kids, the author's executor had the right. If the author had left a will, if he or she had not left a will, then his or her next of kin had the renewal right. A technical point that, as we'll see later, had some important practical effects. The renewal term was not thought of as a continuation of the initial term.

2:24It was said to be a new term, a new estate, that belonged to the person who applied for and received it. With respect to works first published under the auspices of the 1909 statute, this basic structure has remained intact, but the length and mechanics of the renewal term have been adjusted several times. In 1976, the renewal term was extended from 28 to 47 years. In 1998, as part of the Copyright Term Extension Act, it was extended from 47 to 67 years.

3:00In 1992, the renewals of works that, at the time, were still in their first term was made automatic rather than voluntary. The result is that copyrighted works ceased falling into the public domain at the end of their initial 28-year terms. The 1976 general reform of the copyright statute, which became effective, as we've seen at the start of 1978, instituted a radically new regime. As we've seen, works created thereafter acquired federal copyright protection immediately, which lasted for the life of the author plus 50 years.

3:37The Copyright Term Extension Act in 1998 extended that term to its current duration. Life of the author plus 70 years. Measuring duration by the life of the author would not work for anonymous works, pseudonymous works, and works for hire. So these were given terms of years that were meant to approximate the duration of regular copyrights, a century from the date of creation or 75 years from first publication, whichever happened first.

4:08The Copyright Term Extension Act in 1998 also extended those terms by 20 years. Lurking in these details are two general themes. The first I've already mentioned, the gradual transition from an opt-in to an opt-out system. The second, probably obvious, is that copyrights keep getting longer. They never, even prospectively, get shorter. OK, now let's adopt a presentist stance.

4:42It's 2013. How long do U.S. copyrights last? The answer depends upon when and how they were born. More specifically... You need to differentiate five different categories of copyrighted works. The simplest group consists of works published before 1923. Some of these got the benefit of the extension of the renewal term from 28 to 47 years, but all of them fell into the public domain before the Copyright Term Extension Act could rescue them, and the Copyright Term Extension Act did not lift them back up.

5:24The upshot is that the copyrights on these works have expired. The second category consists of works published between 1923 and 1963. These were rescued before their expiration by the Copyright Term Extension Act. The most famous and influential member of this group is Mickey Mouse, a copyrighted character who first appeared publicly in the 1928 cartoon Steamboat Willie. Copyrights in these works will begin to expire in 2018, 95 years after their first publication.

6:02Mickey Mouse himself will fall into the public domain on or about 2023, unless yet another amendment of the statute rescues him again. Not all works published during this interval are still alive, however. Only those that were properly renewed by people eligible to renew them survive. As we've seen, the large majority of works registered during this interval were not renewed. The net effect is that most of the work copyrights in this category of works have expired.

6:38Not so with respect to works first published between 1964 and 1977. Seven, these get the benefit of the change from voluntary renewal to automatic renewal. Who owns these copyrights? Presumptively the same person or persons who are eligible to apply for renewal under the previous regime. Another important footnote. Just because these copyrights are subject to automatic renewal doesn't mean that they cannot be voluntarily renewed. And the system contains some important incentives for people who voluntarily renew.

7:12The upshot, as you might imagine, is that voluntary renewal remained common after 1992. The key point for our present purposes is that works in this third category have not yet fallen into the public domain. They will begin to do so in 2018, like their surviving older cousins. Works in the fourth category overlap the fundamental change in the copyright system caused by the general reform of the statute in 1976.

7:43These were created but not published before 1978. Federal copyright protection for these lasts for the lives of their authors plus 70 years or the end of 2002, whichever is later. In addition, if they were published by the end of 2002, they got an extra lease on life until, at a minimum, the end of 2047. The purpose and effect of this provision was to nudge the heirs of the authors of such things to publish them.

8:16We come finally to the newest set of works, those created in 1978 or later. These, as you now know, last for the life of the author plus 70 years. That means that they will start expiring in 2048 at the earliest. As we've seen anonymous works, pseudonymous works, and works for hire get treated a bit differently. They will begin to expire in 2073 at the earliest. So that's where things stand. The bottom line, if you need to know the status of a particular U.S. work, first ascertain which of these five categories it falls into.

8:55Works in the first box are in the public domain. Works in the second box probably are in the public domain, but you need to check whether their copyrights were timely renewed. Works in the third box are most likely not in the public domain, unless, of course, they were published without the required copyright notice, but their copyrights will begin to expire in 2018. Works in the fourth box could be in the public domain, unless they were published before 2002. You need to check.

9:25And finally, works in the 5th box are probably not in the public domain. The exceptions to this last proposition are those published between 1978 and 1989 without the required statutory notice, and that defect was not cured within 5 years, and works published recently subject to CC0 proclamations. Otherwise, these works will not begin to fall until 2048 at the earliest.

9:58Messy. Very messy.

Source and licence

Recording: File:William Fisher CopyrightX Lecture 6 2.webm by BerkmanCenter (2015-02-14), via Wikimedia Commons. Licence: CC BY 3.0.

The transcript is machine speech-to-text by the TidyTools Audio & video transcriber; the summary, key points and chapters were written by Claude from that transcript. Both may contain errors: check the recording before quoting it.