MJ Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and Entertainment Attorney in San Francisco. He is also a long-time President of California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!
Dear Bo, I was in my mother’s attic and discovered a box of my Great Aunt's personal writings and illustrations. It appears they date from 1880 and earlier to her death in 1925. I don’t think any were published, but I do not know! I would like to publish them. You indicated in a prior bLAWg that works published before 1923 are in the Public Domain. What about unpublished works from that date and earlier? Thanks! Teri
Good question, Teri. The Term of copyright for never-published works does require a different analysis from that we use for published works.
Start with the contemporary Term: the life of the author/artist plus 70 years. Working backwards, if the author/artist died more than 70 years ago – before 1947 – then their unpublished works are in the Public Domain. So, if you knew that none were published, we could conclude with certainty that all her writings and drawings are in the Public Domain (“PD”).
Had any been published, and the copyright registered as required under the 1909 Act, you will recall from my earlier bLAWg, that a registration in its Renewal 28-year Term 1923 through 1963 was granted a Term of 95 years after its original publication date. So, were you able to determine that certain works were published, the 1923 rule applies. Those published in 1923 would have their last year of copyright protection in 2018. Works first published in 1924 would be protected through 2019, and those published in 1925 would lose protection as of January 1, 2021. (See http://annietroe.blogspot.com/2016/09/bos-blawg-copyright-term.html )
I would add that there is a different rule for unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship). In the case of these, the Term is 120 years from date of creation. So, had you found these materials but their author was unknown to you, it is quite possible that those works could still be subject to copyright protection. It is just a matter of knowing when they were created. As of this year, creation before 1897 would make them PD.
Here is an online Chart that addresses this Term information for both published and unpublished works: http://copyright.cornell.edu/resources/publicdomain.cfm
Now, I want to say a few other things about works in the PD. First, while you have an absolute right to use these works any way you want, anyone else who has access to them would have the same right of use. Were you not to grant any third party access – or limit access to those who sign a Non-Disclosure Agreement with you – you could be the first to publish, and thereby have that advantage on any third party who might want to publish or make other commercial use of them. Even better, were you to publish them in a manner that includes contribution of new elements and materials by you, you have an absolute right to claim a new copyright for your additions to the PD material. By publishing a copyright notice with respect to your own contributions, would anyone else necessarily know which is your new material and which your Great Aunt’s? Not necessarily…
More likely, however, even if you made known which was your Great Aunt’s original work, it would be impractical for any third party to ‘separate’ the PD material from your own additions and/or material enhancements. For instance, with your Great Aunt’s pen and ink drawings, were you to add colors, they might make a line of beautiful new greeting cards. While third parties would legally be able to strip out your color and look to add their own color choices, more likely than not, they would honor your copyright notice and published efforts. There would be little economic incentive to go to that trouble since your line is already available for sale.
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