“A Landslide of Classic Art is About to Enter the Public Domain” asserts a recent article in The Atlantic. Why this is so requires explaining the complexities of calculating the terminal date of a pre-1978 copyright under the dual system created by the 1976 Copyright Act. This explanation relies mainly on examples drawn from the work of acclaimed American playwright Neil Simon, who died in August of this year at the age of 91, and whose prolific career, conveniently for this purpose, stretched from the 1960s to the 2000s.
The 1976 Copyright Act significantly changed U.S. copyright law on the measurement of the term of a copyright, in a (belated) step to conform to the long-standing international standard embodied in the Berne Convention of 1886. Under the previous governing U.S. law — the Copyright Act of 1909 — copyright protection began at publication (or registration) and lasted for a term of years from publication (or registration). The 1976 Act, in contrast, provided that copyright would begin at the time of creation instead of publication or registration (neither of which is necessary for copyright to attach under the 1976 Act). Also, instead of a fixed term of years, copyright would last the entirety of the author’s lifetime, plus 50 years after the author’s death. The Sonny Bonny Copyright Term Extension Act (“CTEA”) of 1998 later extended that period to 70 years after the author’s death. 17 U.S.C. Section 302(a). (For anonymous works, pseudonymous works, or the special category known as “works for hire,” the period of protection is 95 years from publication or 120 years after creation, whichever occurs first. 17 U.S.C. Section 302(a)).
Under the 1976 Act, then, a copyrightable work created after the Act’s effective date of Jan. 1, 1978 is still in copyright at least through 2048, and calculation of the actual terminal date of copyright is straightforward. If the (known) author is alive, then the expiration clock has not started running. If the author is deceased, then you add 70 years to the year of the author’s demise to get the expiration date. For instance, Neil Simon’s plays from the 1980s, such as “Brighton Beach Memoirs” and “Biloxi Blues,” will remain in copyright until 70 years after his death, meaning they are copyrighted through December 31, 2088 (under 17 U.S.C. Section 305, the term of a copyright lasts the entire calendar year of the year in which it set to expire).
The change to a “life + n years” system in the 1976 Act, though, was prospective. The Act provided that works already copyrighted as of January 1, 1978 are still governed by the pre-1976 system of a term of years from date of publication or registration, although, as discussed below, the term is now longer than it was originally under the 1909 Act. Congress also kept in place for a time certain formal requirements frowned upon by the Berne Convention. Congress thus created a dual system for term of copyright, and greatly complicated determining whether and for how long a work published before 1978 is copyrighted.
Under the Copyright Act of 1909, copyright protection began when a work was published, and lasted for an initial 28 year term, plus an additional 28 year term, if the copyright owner renewed it. The 1976 Act extended the term on pre-1978 works by 19 years. Copyrights in their first term as of January 1, 1978 were allowed a 47-year second term, and any copyright that was already in its renewal term as of January 1, 1978 was given a term of 75 years from its original copyright date. The 1998 CTEA extended the renewal term another twenty years, from 47 years to 67 years, and the term for copyrights in their initial term as of Jan. 1, 1978 from 75 to 95 years. 17 U.S.C. Section 304. For instance, Neil Simon’s 1965 play, “The Odd Couple,” was originally granted a term through 1993 with the possibility of renewal through 2021, which in 1976 became the possibility of renewal through 2040, and in 1998 became an extension through 2060.
Thanks to the extensions, a pre-1978 copyrighted work needs to be nearly a century old to have lapsed into the public domain due to expiration of its maximum statutory term. Only works copyrighted before 1923 are unquestionably in the public domain today.
How about copyrights from 1923 to 1977? Copyrights from 1923 were set to expire in 1998, but were granted a last minute reprieve by the 20-year extension in the CTEA. That 20 years ends December, 31, 2018. Contrary to the prediction of opponents of the CTEA, who raised the specter of an unending series of copyright extensions, in contravention of Congress’ constitutional authority to grant copyright for “limited times” (Constitution, Art. I, Section 8, Clause 8) (Eldred v. Ashcroft, 537 U.S. 186, 208 (2003)), there has been no subsequent statutory extension, and none seems to be on the horizon. Thus, as alluded to by the article cited in the first paragraph of this post, in a few months — Jan. 1, 2019 — copyrighted works from 1923 will enter the public domain. They will be followed by works from 1924 on Jan. 1, 2020, then by works from 1925 (like “The Great Gatsby”) on Jan. 1, 2021, and so on. For Neil Simon’s heirs, this encroachment of the public domain is not an immediate concern, since the copyright on Simon’s earliest play, 1961’s “Come Blow Your Horn,” will not expire until Dec. 31, 2056.
Nevertheless, a general principle to keep in mind is that some works published after 1923 are in the public domain due to formal requirements applicable at the time of their creation. One such formality required by the 1909 and 1976 Acts was filing a renewal registration. The window for renewing was within one year of the expiration date. For instance, Neil Simon’s play “Barefoot in the Park,” which debuted on Broadway in 1963, required the affirmative filing of a renewal registration in 1991 to get its second term. If a renewal registration form was not timely filed on a work, then it would lose its copyright status, a fate that occurred to a number of well‑known films, such as “It’s a Wonderful Life”: released in 1946, its copyright was not renewed (although technically the film is not entirely in the public domain, since it was a derivative work of a short story whose author renewed the copyright).
Also, the right party had to renew, in order to keep the copyright status. The author of the lyrics of a song beginning “warm kitty, soft kitty,” published in 1937 in a book called “songs for the Nursery School,” recently sued the creators of the TV show “The Big Bang Theory” for using a version of the song, arguing that the lyrics were protected by the timely renewal application filed by the owner of the copyright on the book in 1964. The court, though, ruled that renewal under the 1909 Act required that the owner of the copyright on the specific copyrighted work renew. In this instance, the owner of the copyright on the book had filed for renewal, but the author of the song had not, so the claim was dismissed. Charles v. Warner Bros Entertainment Inc., 247 F. Supp. 3d 421, 426-27 (S.D.N.Y. 2017).
Works copyrighted from 1964 to 1977 have been made exempt from the renewal requirement: in 1992, renewal was made automatic for all copyrights whose initial 28-year term expired after Dec. 31, 1991. 17 U.S.C. Section 204(a). Thus, for instance, in contrast to “Barefoot in the Park,” the copyright on Neil Simon’s 1968 play “Plaza Suite” automatically renewed (in 1996) and consequently will not expire until Dec. 31, 2063.
Another formality that could land an otherwise copyrightable work in the public domain was the requirement that the publisher use the copyright symbol — © (c and a circle) — and list the year, and who was copyrighting, for the copyright to be valid. In 1968, when, just before its release, the title of the movie “Night of the Flesh Eaters” was changed to “Night of the Living Dead,” the distributor accidently omitted this copyright notice from the revised credits, causing that horror classic to enter the public domain.
The copyright notice requirement was later removed, in 1989, in accordance with Congress’ adoption of the Berne Convention Implementation Act of 1988 (changing “shall” to “may” in the notice statute (17 U.S.C. Section 401)). Neil Simon’s 1991 Pulitzer Prize-winning play “Lost in Yonkers” is thus entitled to copyright protection regardless of whether the publisher affixed to it a copyright notice.
As a general rule, though, in a lawsuit or a licensing transaction involving a purportedly copyrighted work published or registered before 1978 (and in some cases, works published after 1978), an attorney interested in determining whether the work is still copyrighted needs to be familiar with these now-superseded formalities and with the old way in which the term of copyright was calculated.