MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco. He is also Co-President of California Lawyers for the Arts. www.calawyersforthearts.org www.calawyersforthearts.org Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!
Bo, several of your bLAWgs have mentioned that once a copyright term has expired, the works are then in the Public Domain. Are my mother’s illustrations from the 1940s still subject to copyright so I can license them as copyrighted works, or are they in the Public Domain?
Thank you! Janet
Good question, Janet! It gives me the opportunity to provide more particulars regarding the extension of copyright terms under the 1909 Act – applicable as to artworks published before 1978, as allowed by the 1976 Act.
The Copyright Act has been amended several times since the first was passed by Congress. I think the original term under the first US Copyright Act from 1790, copied from Great Britain’s, was for only 14 years, plus a renewable 14-year term! Then again. people did not live as long in those days, did they? As of 1900, the Term was extended to 28 years plus an additional 28-year renewal right.
That Term remained in effect until the “new” Copyright Act of 1976 came into effect Jan. 1, 1978. The Term was extended under the 1976 Act to conform with those of many other countries: The lifespan of the Author plus 50 years. The 1976 Act also addressed with particularity how the Terms for works copyrighted under the 1909 Act would be treated under the new Act.
The question of whether your mother’s 1970 artworks are still copyrighted depends upon whether or not they were ever published. If they were published with a copyright notice as required under the 1909 Act, the Term became 95 years from date of publication. (If the copyright had been renewed, 67-year renewal term is deemed added to the initial 28-year term.)
If the original copyrights were not renewed by your mother or her heirs, her published works from the 1940s would be in the public domain.
So, if my calculations are right, if all of your mother’s works were published for the first time in 1940 with a copyright notice, her copyright on those illustrations will not expire until 2035.
If your mother’s illustrations were never published, those works are entitled to a Term of copyright protection through the 70th calendar year after her death, whenever that may occur.
In 1998, just as the Term of Walt Disney’s copyrights on its Mickey Mouse character were about to expire, Congress passed the Copyright Term Extension Act (CTEA) sponsored by Congressman Sonny Bono, better known as “Cher’s first husband.” This Act amended the Copyright term to the life of the Author plus 70 years instead of 50. For Disney and other works created by corporate entities or under “work made for hire” agreements the Term was extended to 120 years after creation or 95 years after publication, whichever endpoint is earlier. For the time being, Mickey was saved from ignominious treatment in the Public Domain!
The effect of CTEA was to "freeze" the advancement date of the Public Domain in the US for works covered by the older fixed term copyright rules. Under CTEA, works made in 1923 or afterwards that were still protected by copyright in 1998 will not enter the public domain until 2019 or afterward (depending on the date of the publication). For works created by authors who died in 1932 or earlier, that day was January 1, 2003.
However, as mentioned last month, any artwork published before 1923 was deemed to be in the Public Domain. Anyone can use such works here in the US for any purpose, without any license or permission.
Since I want my bLAWgs to be super helpful, here is a chart that spells out the different operative Copyright terms:
If you have a special case that needs to be analyzed, let me know. We’ll see if we can figure out whether or not that work is still subject to copyright protection or in the Public Domain.
Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com