Chapter 7: Copyright Duration

The duration and nature of the copyright term has changed dramatically over the years. For one thing, prior to the 1976 Act the copyright term began with publication of the work (or registration, which can be thought of as a form of publication); today, under the 1976 Act, copyright becomes effective as soon as the work is fixed. The term (i.e., duration) of copyright protection has also gotten much longer over the decades. The original copyright term was 14 years, with a possibility of renewal for another 14 years. Today it is closer to a century. In particular, under the 1976 Act copyright begins with fixation in a tangible medium of expression, and remains in force until 70 years after the author dies (or, in the case of a joint work, until 70 years after the last surviving author dies). In the case of works “made for hire,” such as by an employee of a corporation, the term is 95 years from the date of publication, or, in the case of an unpublished work made for hire, 120 years from the date of creation. 17 USC § 302.

Prior to the 1976 Act, the 1909 Act provided a 28 year term beginning at the date of publication. The owner of the copyright could renew the copyright for an additional 28 years, resulting in a maximum copyright term of 56 years. Note that this was an opt-in system—in order to receive the additional 28 years of copyright, the author had to take the affirmative step of applying for renewal with the Copyright Office. Many authors did not renew their copyright, either inadvertently, or because they did not perceive sufficient value in renewing it. Perhaps they wanted to make the work accessible to all, with no strings attached. In any event, the result was the same—after 28 years, the work would enter the public domain.¹ Significantly, the requirement that authors apply for renewal to the Copyright Office provided notice to third parties that the copyright had been extended. On the other hand, an interested party could conclude that a work that was published with notice more than 28 years ago was in the public domain and available to all, if a search of Copyright Office records showed that the copyright had not been renewed.

The rules governing copyright duration have changed substantially since Congress enacted the 1976 Act (which became effective on January 1, 1978), as a result of provisions in the 1976 Act as well as other subsequent legislative amendments of the Act, including, but not limited to, the Sonny Bono Copyright Term Extension Act of 1998. Some of these changes are addressed in the following Supreme Court decision, which addresses various policy concerns associated with copyright term extension.

Some things to consider when reading Eldred:

1. The plaintiff is arguing that the Copyright Term Extension Act of 1998 (CTEA’s) provision of 20 additional years of copyright term for pre-existing works is unconstitutional. Which specific provisions of the Constitution does the plaintiff assert have been violated, and why does the Supreme Court reject these arguments?
2. Why does the Court find that previously enacted copyright statutes are significant in resolving the constitutional questions raised by this case?
3. The plaintiff does not argue that the 20 year extension of copyright is unconstitutional as applied to future works, only pre-existing works. Why?
4. On what basis does the plaintiff argue that the CTEA violates the First Amendment, and why does the Supreme Court reject this argument?

Eldred v. Ashcroft

537 U.S. 186 (2003)

Justice GINSBURG delivered the opinion of the Court.

This case concerns the authority the Constitution assigns to Congress to prescribe the duration of copyrights. The Copyright and Patent Clause of the Constitution, Art. I, § 8, cl. 8, provides as to copyrights: “Congress shall have Power … [t]o promote the Progress of Science … by securing [to Authors] for limited Times … the exclusive Right to their … Writings.” In 1998, in the measure here under inspection, Congress enlarged the duration of copyrights by 20 years. Copyright Term Extension Act (CTEA). As in the case of prior extensions, principally in 1831, 1909, and 1976, Congress provided for application of the enlarged terms to existing and future copyrights alike.

Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain. They seek a determination that the CTEA fails constitutional review under both the Copyright Clause’s “limited Times” prescription and the First Amendment’s free speech guarantee. Under the 1976 Copyright Act, copyright protection generally lasted from the work’s creation until 50 years after the author’s death. Under the CTEA, most copyrights now run from creation until 70 years after the author’s death. 17 U.S.C. § 302(a). Petitioners do not challenge the “life–plus–70–years” timespan itself. Congress went awry, petitioners maintain, not with respect to newly created works, but in enlarging the term for published works with existing copyrights. The “limited Tim[e]” in effect when a copyright is secured, petitioners urge, becomes the constitutional boundary, a clear line beyond the power of Congress to extend. As to the First Amendment, petitioners contend that the CTEA is a content-neutral regulation of speech that fails inspection under the heightened judicial scrutiny appropriate for such regulations.

In accord with the District Court and the Court of Appeals, we reject petitioners’ challenges to the CTEA. In that 1998 legislation, as in all previous copyright term extensions, Congress placed existing and future copyrights in parity. In prescribing that alignment, we hold, Congress acted within its authority and did not transgress constitutional limitations.

I

A

We evaluate petitioners’ challenge to the constitutionality of the CTEA against the backdrop of Congress’ previous exercises of its authority under the Copyright Clause. The Nation’s first copyright statute, enacted in 1790, provided a federal copyright term of 14 years from the date of publication, renewable for an additional 14 years if the author survived the first term. The 1790 Act’s renewable 14–year term applied to existing works (i.e., works already published and works created but not yet published) and future works alike. Congress expanded the federal copyright term to 42 years in 1831 (28 years from publication, renewable for an additional 14 years), and to 56 years in 1909 (28 years from publication, renewable for an additional 28 years). Both times, Congress applied the new copyright term to existing and future works, to qualify for the 1831 extension, an existing work had to be in its initial copyright term at the time the Act became effective.

In 1976, Congress altered the method for computing federal copyright terms. For works created by identified natural persons, the 1976 Act provided that federal copyright protection would run from the work’s creation, not—as in the 1790, 1831, and 1909 Acts—its publication; protection would last until 50 years after the author’s death. In these respects, the 1976 Act aligned United States copyright terms with the then-dominant international standard adopted under the Berne Convention for the Protection of Literary and Artistic Works. For anonymous works, pseudonymous works, and works made for hire, the 1976 Act provided a term of 75 years from publication or 100 years from creation, whichever expired first.

These new copyright terms, the 1976 Act instructed, governed all works not published by its effective date of January 1, 1978, regardless of when the works were created. For published works with existing copyrights as of that date, the 1976 Act granted a copyright term of 75 years from the date of publication, a 19–year increase over the 56–year term applicable under the 1909 Act.

The measure at issue here, the CTEA, installed the fourth major duration extension of federal copyrights. Retaining the general structure of the 1976 Act, the CTEA enlarges the terms of all existing and future copyrights by 20 years. For works created by identified natural persons, the term now lasts from creation until 70 years after the author’s death. 17 U.S.C. § 302(a). This standard harmonizes the baseline United States copyright term with the term adopted by the European Union in 1993. For anonymous works, pseudonymous works, and works made for hire, the term is 95 years from publication or 120 years from creation, whichever expires first. 17 U.S.C. § 302(c).

Paralleling the 1976 Act, the CTEA applies these new terms to all works not published by January 1, 1978. §§ 302(a), 303(a). For works published before 1978 with existing copyrights as of the CTEA’s effective date, the CTEA extends the term to 95 years from publication. §§ 304(a) and (b). Thus, in common with the 1831, 1909, and 1976 Acts, the CTEA’s new terms apply to both future and existing copyrights.

B

Petitioners’ suit challenges the CTEA’s constitutionality under both the Copyright Clause and the First Amendment. On cross-motions for judgment on the pleadings, the District Court entered judgment for the Attorney General (respondent here). 74 F.Supp.2d 1 (D.D.C.1999). The court held that the CTEA does not violate the “limited Times” restriction of the Copyright Clause because the CTEA’s terms, though longer than the 1976 Act’s terms, are still limited, not perpetual, and therefore fit within Congress’ discretion. The court also held that “there are no First Amendment rights to use the copyrighted works of others.”

The Court of Appeals for the District of Columbia Circuit affirmed. 239 F.3d 372 (2001).

We granted certiorari to address two questions: whether the CTEA’s extension of existing copyrights exceeds Congress’ power under the Copyright Clause; and whether the CTEA’s extension of existing and future copyrights violates the First Amendment. We now answer those two questions in the negative and affirm.

II

A

We address first the determination of the courts below that Congress has authority under the Copyright Clause to extend the terms of existing copyrights. Text, history, and precedent, we conclude, confirm that the Copyright Clause empowers Congress to prescribe “limited Times” for copyright protection and to secure the same level and duration of protection for all copyright holders, present and future.

The CTEA’s baseline term of life plus 70 years, petitioners concede, qualifies as a “limited Tim[e]” as applied to future copyrights. Petitioners contend, however, that existing copyrights extended to endure for that same term are not “limited.” Petitioners’ argument essentially reads into the text of the Copyright Clause the command that a time prescription, once set, becomes forever “fixed” or “inalterable.” The word “limited,” however, does not convey a meaning so constricted. At the time of the Framing, that word meant what it means today: “confine[d] within certain bounds,” “restrain[ed],” or “circumscribe[d].” S. Johnson, A Dictionary of the English Language (7th ed. 1785); see T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (“confine[d] within certain bounds”); Webster’s Third New International Dictionary 1312 (1976) (“confined within limits”; “restricted in extent, number, or duration”). Thus understood, a timespan appropriately “limited” as applied to future copyrights does not automatically cease to be “limited” when applied to existing copyrights.

To comprehend the scope of Congress’ power under the Copyright Clause, “a page of history is worth a volume of logic.” History reveals an unbroken congressional practice of granting to authors of works with existing copyrights the benefit of term extensions so that all under copyright protection will be governed evenhandedly under the same regime. As earlier recounted, the First Congress accorded the protections of the Nation’s first federal copyright statute to existing and future works alike. Since then, Congress has regularly applied duration extensions to both existing and future copyrights.

Congress’ consistent historical practice of applying newly enacted copyright terms to future and existing copyrights reflects a judgment stated concisely by Representative Huntington at the time of the 1831 Act: “[J]ustice, policy, and equity alike forb[id]” that an “author who had sold his [work] a week ago, be placed in a worse situation than the author who should sell his work the day after the passing of [the] act.” The CTEA follows this historical practice by keeping the duration provisions of the 1976 Act largely in place and simply adding 20 years to each of them. Guided by text, history, and precedent, we cannot agree with petitioners’ submission that extending the duration of existing copyrights is categorically beyond Congress’ authority under the Copyright Clause.

Satisfied that the CTEA complies with the “limited Times” prescription, we turn now to whether it is a rational exercise of the legislative authority conferred by the Copyright Clause. On that point, we defer substantially to Congress.

The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain. As respondent describes, a key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a copyright term of life plus 70 years. Consistent with the Berne Convention, the EU directed its members to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts. The CTEA may also provide greater incentive for American and other authors to create and disseminate their work in the United States.

In addition to international concerns, Congress passed the CTEA in light of demographic, economic, and technological changes,² and rationally credited projections that longer terms would encourage copyright holders to invest in the restoration and public distribution of their works.

In sum, we find that the CTEA is a rational enactment; we are not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be. Accordingly, we cannot conclude that the CTEA—which continues the unbroken congressional practice of treating future and existing copyrights in parity for term extension purposes—is an impermissible exercise of Congress’ power under the Copyright Clause.

B

Petitioners’ Copyright Clause arguments rely on several novel readings of the Clause. We next address these arguments and explain why we find them unpersuasive.

1

Petitioners contend that even if the CTEA’s 20–year term extension is literally a “limited Tim[e],” permitting Congress to extend existing copyrights allows it to evade the “limited Times” constraint by creating effectively perpetual copyrights through repeated extensions. We disagree.

Nothing before this Court warrants construction of the CTEA’s 20–year term extension as a congressional attempt to evade or override the “limited Times” constraint. Critically, we again emphasize, petitioners fail to  show how the CTEA crosses a constitutionally significant threshold with respect to “limited Times” that the 1831, 1909, and 1976 Acts did not. Those earlier Acts did not create perpetual copyrights, and neither does the CTEA.

2

Petitioners dominantly advance a series of arguments all premised on the proposition that Congress may not extend an existing copyright absent new consideration from the author. They pursue this main theme under three headings. Petitioners contend that the CTEA’s extension of existing copyrights (1) overlooks the requirement of “originality,” (2) fails to “promote the Progress of Science,” and (3) ignores copyright’s quid pro quo.

Petitioners’ “originality” argument draws on Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991). In Feist, we observed that “[t]he sine qua non of copyright is originality,” and held that copyright protection is unavailable to “a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Relying on Feist, petitioners urge that even if a work is sufficiently “original” to qualify for copyright protection in the first instance, any extension of the copyright’s duration is impermissible because, once published, a work is no longer original.

Feist, however, did not touch on the duration of copyright protection. Rather, the decision addressed the core question of copyrightability, i.e., the “creative spark” a work must have to be eligible for copyright protection at all. Explaining the originality requirement, Feist trained on the Copyright Clause words “Authors” and “Writings.” The decision did not construe the “limited Times” for which a work may be protected, and the originality requirement has no bearing on that prescription.

More forcibly, petitioners contend that the CTEA’s extension of existing copyrights does not “promote the Progress of Science” as contemplated by the preambular language of the Copyright Clause. Art. I, § 8, cl. 8. To sustain this objection, petitioners do not argue that the Clause’s preamble is an independently enforceable limit on Congress’ power. Rather, they maintain that the preambular language identifies the sole end to which Congress may legislate; accordingly, they conclude, the meaning of “limited Times” must be “determined in light of that specified end.” The CTEA’s extension of existing copyrights categorically fails to “promote the Progress of Science,” petitioners argue, because it does not stimulate the creation of new works but merely adds value to works already created.

As petitioners point out, we have described the Copyright Clause as “both a grant of power and a limitation,” Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 5 (1966), and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist, 499 U.S., at 349. The “constitutional command,” we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a “system” that “promote[s] the Progress of Science.” Graham, 383 U.S., at 6.

We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives. The justifications we earlier set out for Congress’ enactment of the CTEA, provide a rational basis for the conclusion that the CTEA “promote[s] the Progress of Science.”

On the issue of copyright duration, Congress, from the start, has routinely applied new definitions or adjustments of the copyright term to both future works and existing works not yet in the public domain. Such consistent congressional practice is entitled to “very great weight, and when it is remembered that the rights thus established have not been disputed during a period of [over two] centur[ies], it is almost conclusive.” Burrow–Giles Lithographic Co. v. Sarony, 111 U.S., at 57. Indeed, “[t]his Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given [the Constitution’s] provisions.” Myers v. United States, 272 U.S. 52 (1926). Congress’ unbroken practice since the founding generation thus overwhelms petitioners’ argument that the CTEA’s extension of existing copyrights fails per se to “promote the Progress of Science.”

Closely related to petitioners’ preambular argument, or a variant of it, is their assertion that the Copyright Clause “imbeds a quid pro quo.” They contend, in this regard, that Congress may grant to an “Autho[r]” an “exclusive Right” for a “limited Tim[e],” but only in exchange for a “Writin[g].” Congress’ power to confer copyright protection, petitioners argue, is thus contingent upon an exchange: The author of an original work receives an “exclusive Right” for a “limited Tim[e]” in exchange for a dedication to the public thereafter. Extending an existing copyright without demanding additional consideration, petitioners maintain, bestows an unpaid-for benefit on copyright holders and their heirs, in violation of the quid pro quo requirement.

We can demur to petitioners’ description of the Copyright Clause as a grant of legislative authority empowering Congress “to secure a bargain—this for that.” But the legislative evolution earlier recalled demonstrates what the bargain entails. Given the consistent placement of existing copyright holders in parity with future holders, the author of a work created in the last 170 years would reasonably comprehend, as the “this” offered her, a copyright not only for the time in place when protection is gained, but also for any renewal or extension legislated during that time. Congress could rationally seek to “promote … Progress” by including in every copyright statute an express guarantee that authors would receive the benefit of any later legislative extension of the copyright term. Nothing in the Copyright Clause bars Congress from creating the same incentive by adopting the same position as a matter of unbroken practice.

Accordingly, we reject the proposition that a quid pro quo requirement stops Congress from expanding copyright’s term in a manner that puts existing and future copyrights in parity.

III

Petitioners separately argue that the CTEA is a content-neutral regulation of speech that fails heightened judicial review under the First Amendment. We reject petitioners’ plea for imposition of uncommonly strict scrutiny on a copyright scheme that incorporates its own speech-protective purposes and safeguards. The Copyright Clause and First Amendment were adopted close in time. This proximity indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with free speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free expression. As Harper & Row observed: “[T]he Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”

In addition to spurring the creation and publication of new expression, copyright law contains built-in First Amendment accommodations. First, it distinguishes between ideas and expression and makes only the latter eligible for copyright protection. Specifically, 17 U.S.C. § 102(b) provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” As we said in Harper & Row, this “idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression.” Due to this distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication. See Feist, 499 U.S., at 349–350.

Second, the “fair use” defense allows the public to use not only facts and ideas contained in a copyrighted work, but also expression itself in certain circumstances. Codified at 17 U.S.C. § 107, the defense provides: “[T]he fair use of a copyrighted work, including such use by reproduction in copies …, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The fair use defense affords considerable “latitude for scholarship and comment,” Harper & Row, 471 U.S., at 560, and even for parody, see Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569 (1994) (rap group’s musical parody of Roy Orbison’s “Oh, Pretty Woman” may be fair use).

The CTEA itself supplements these traditional First Amendment safeguards. First, it allows libraries, archives, and similar institutions to “reproduce” and “distribute, display, or perform in facsimile or digital form” copies of certain published works “during the last 20 years of any term of copyright … for purposes of preservation, scholarship, or research” if the work is not already being exploited commercially and further copies are unavailable at a reasonable price. 17 U.S.C. § 108(h). Second, Title II of the CTEA, known as the Fairness in Music Licensing Act of 1998, exempts small businesses, restaurants, and like entities from having to pay performance royalties on music played from licensed radio, television, and similar facilities.

IV

If petitioners’ vision of the Copyright Clause held sway, it would do more than render the CTEA’s duration extensions unconstitutional as to existing works. Indeed, petitioners’ assertion that the provisions of the CTEA are not severable would make the CTEA’s enlarged terms invalid even as to tomorrow’s work. The 1976 Act’s time extensions, which set the pattern that the CTEA followed, would be vulnerable as well.

As we read the Framers’ instruction, the Copyright Clause empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause. Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms. The wisdom of Congress’ action, however, is not within our province to second-guess. Satisfied that the legislation before us remains inside the domain the Constitution assigns to the First Branch, we affirm the judgment of the Court of Appeals.

__________

Check Your Understanding – Eldred

Question 1. How did the 1976 Act change the duration of copyright?

Question 2. True or false: By extending the baseline United States copyright term to life plus 70 years, Congress sought to ensure that American authors would receive greater copyright than their European counterparts.

Question 3. Which of the following did the Court point to as supporting its determination that the CTEA complies with the Copyright Clause’s “limited Times” prescription?

Question 4. Which of the following did the Court point to as supporting its rejection of the First Amendment challenge to the CTEA?

As summarized in Eldred, the 1976 Act dramatically altered the copyright term, and in 1998 the CTEA extended copyright terms an additional 20 years. In between those Acts, the Copyright Amendments Act of 1992 instituted automatic renewal of copyright, which impacted the copyright term, as discussed below. Today, as a result of this legislation, the rules for calculating copyright duration can best be explained by breaking down copyrightable works into three categories: (1) works created on or after January 1, 1978; (2) works created but not copyrighted, and not in the public domain, as of January 1, 1978; and (3) works published before January 1, 1978. Each of these categories is addressed below.

Works created on or after January 1, 1978

Section 302 sets forth the rules for determining the copyright terms for works created on or after January 1, 1978, the effective date of the Copyright Act. The copyright term of a work created by a single, identified natural person (an individual author) is the life of the author plus 70 years. In the case of a joint work, by two or more identified natural persons, the term consists of the life of the last surviving author plus 70 years.³ For works made for hire, anonymous works, and pseudonymous works, the term is 95 years from publication, or 120 years from creation, whichever is shorter.

Section 305 of the Copyright Act provides that copyrights extend to the last calendar day of the year in which they expire pursuant to the rules set forth above.

Works created but not copyrighted and not in the public domain as of January 1, 1978

Section 303(a) of the 1976 Act provides:

Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302. In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047.

Recall that prior to the 1976 Act, unpublished works were not covered by federal copyright law, but were eligible for state common law copyright, which was perpetual. Upon publication, the work would no longer be protected by state common law copyright, but would either enter the public domain, if published without notice, or become the subject of federal copyright protection if published with proper notice. Pursuant to § 303(a) of the 1976 Act, works created prior to the Act’s effective date, but that were not published or entered into the public domain prior to that date, were afforded a term of copyright protection equal to the term provided for works created on or before January 1, 1978, e.g., the author’s life plus 70 years. Under §§ 102 and 103, state common law copyright in fixed works was abolished.

Section 303(a) further provided that all previously uncopyrighted works would enjoy copyright protection until no later than the end of 2002. Thus, no matter how old an unpublished work was at the time the 1976 Act went into effect, it would be afforded a minimum of 25 years of federal copyright protection, i.e., January 1, 1978 to December 31, 2002.

In addition, if a previously unpublished work is published prior to December 31, 2002, § 303(a) provides that the term of copyright will extend to no later than December 31, 2047. Presumably, Congress intended to incentivize publication of these previous unpublished works, by granting up to 45 years of additional copyright as a reward for publication.

Works published before January 1, 1978

Recall that under the 1909 Act the copyright term was 28 years from the date of publication, plus an additional 28 years for authors who successfully renewed their copyright, resulting in a maximum duration of 56 years. The 1976 Act and other subsequent legislation has extended the term of these works predating the 1976 Act.

To summarize, the 1976 Act added an additional 19 years to the renewal term of all works whose copyright was still in force on December 31, 1976, and in 1998 the CTEA added an additional 20 years to any works still protected by copyright at that time, resulting in a total term of 95 years from the date of publication.

Initially, this additional 39 years (19 + 20) was only available for copyright owners who filed for renewal registration in a timely manner. However, in 1992 Congress amended § 304 to make the renewal of works published prior to January 1, 1978 automatic. This automatic renewal only benefits copyright owners whose copyrights were in force as of 1992, i.e., it only applies to works published from 1964 through 1977.⁴ This is because, in 1992 the copyrights had already expired in works that were published prior to 1964, and whose owners had not registered for renewal; Congress did not revive those copyrights. Works published after 1978 are not covered by the 1909 Act.

As a consequence of § 304, the term of a work published between 1964 and 1977 is a total of 95 years: a 28 year initial term and a 67 year, automatic renewal term. The term of a work published prior to 1964 will depend upon whether it was properly renewed. If the copyright was renewed, the term of copyright is a total of 95 years: the 28 year initial term plus a 67 year renewal term. However, if the copyright was not renewed, it expired after its initial 28 year term, i.e., sometime prior to 1992.

Determining what is or isn’t in the public domain can be a complicated and lengthy process. Cornell University Library maintains a chart that can be a helpful resource for determining a work’s copyright term, and whether (or when) the work will enter the public domain, which as of the time this casebook is being revised could be accessed at the following URL: Cornell University Library: Copyright Term and the Public Domain in the United States (https://guides.library.cornell.edu/copyright/publicdomain).

FOOTNOTES: