The question frequently arises as to when a copyright goes into the public domain so that the material may be freely copied. The answer is not a simple, straightforward   one since there have been a number of changes to the United States Copyright law that have made the answer depend upon when the work was originally published or registered.

In this regard, it is initially important to note that a copyright that was originally taken out or published in another nation may have a different expiration date than one originally taken out or published in the United States. And works that originally were published in the United States but which may have been translated in other nations may have yet another copyright date on the translated version. And there may be separate copyrights on what are called "derivative works" that may be independent of the copyright in the original work and that may cloud the expiration issue.

And so one preliminary question to be answered is when is a work published. This is the definition of "publication" under the law:

"Publication" is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.
Thus, under the old copyright law, once a work was published with the proper copyright notice, the time period for the duration of its copyright protection began, although under the old copyright law, some works could be copyrighted before publication.  (For a discussion of whether or not a work is published when it is posted to various places on the Internet, please read my article "Electronic Rights and the Potential Loss of First Serial Rights" on my web site).

You should keep in mind, however, that there is another category of work to be considered, one that covers works created before 1978 but never published or registered. As to these copyrights, the term is the life of the author plus 70 years (or 95 or 120 years in the instances where the work has been created as a work made for hire or by an anonymous or pseudonymous person (see discussion below)) except that these copyrights remain in effect at least until December 31, 2002 and if they are published before that date, the copyright term in those works is as above or until December 31, 2047, whichever is longer.

There are several categories of  works and the date they go into the public domain varies as follows:

For works originally created by a natural person on or after January 1, 1978:

These works are automatically protected from the moment of their creation and fixation in a tangible medium of expression and are ordinarily given a term of protection equivalent to the life of the author plus 70 years. If the work is one created by two or more joint authors who did not create it as a work made for hire, the term lasts for 70 years after the last surviving author's death. (For a definition of "joint work" see "Who Owns The Copyright in Your Website?")

For works made for hire, corporate, anonymous and pseudonymous works originally created on or after January 1, 1978:

These works are protected for 95 years from publication or 120 years from creation, whichever is shorter. However, in the instance of an anonymous or pseudonymous work, if the author's identity is revealed in Copyright Office records, then the term becomes the life of the author plus 70 years, as above. (For a discussion of "work made for hire" see the article by that name. "Work Made For Hire Agreements")

For works originally created and published or registered before January 1, 1978:

If you believe the law was complicated before you got to this place, here is where it really gets complicated.

Effective January 1, 1978, the United States Copyright law was changed substantially. Previously, a work's period of protection began either when it was published with a proper copyright notice or registered if the work was registered in unpublished form. 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.

When the 1976 law came into effect, the statute extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, making these works eligible for a total term of protection of 75 years and now under the new law, that term is extended for a total term of 95 years. But the copyright owner had to file an appropriate renewal application in order to obtain this extended protection. As a result, a person inquiring as to the status of the copyright of works falling into that time frame has to search the records for that renewal certificate.

In 1992, when the law was amended again, it automatically extend the term of copyrights that had previously been published with a copyright notice from January 1, 1964 through December 31, 1977 to the further term of 47 years and eliminated the requirement to file a renewal application, even though filing such a renewal provides certain benefits. And now, all works published with a copyright notice after January 1, 1964 but before December 31, 1977 have an additional term of 20 years from the previous 47 and a total term of protection of 95 years.

Under the current law, if a work was first published in the United States on or before December 31, 1922, then it is likely to be in the public domain. But you should never rely solely on this date alone since there may be other factors to consider. And, as you can see, if a work was published after that date, then an analysis of the above factors is required in order to determine if its copyright has expired. And if that copyright would not have expired under the prior statute, then its term is now extended for an additional 20 years from when it otherwise would have expired.


In addition to the above rules, there are other issues related to expiration and/or renewal that deal with who can do the renewing of older copyrights and compliance with those rules may affect the validity of the copyright now. Additionally, there are rules that allow for the grant certain copyrights to be terminated and thus, even if a copyright is still existing, determining who owns that copyright may be an issue.  Read the articles on my site under the link "Terminations of Transfers."

And so, when attempting to make a determination as to whether a work originally protected under the Copyright Law of the United States has fallen into the public domain, you must initially know when the work first came under the protection of that law, if the original copyright was required to be renewed and if so, when it was and by whom, and who created it, whether by a "natural" person or some other category of author. It is highly advisable to always do a copyright search and always consult with an attorney who can advise you of the intricacies of the law.

Copyright © 1996, 1999 Ivan Hoffman.  All Rights Reserved.



This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.



No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.



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