Intellectual Property
Aug. 20, 2002
Creators Must Publish Older Works or Lose 45 Years of Copyright Protection
Focus Column - Intellectual Property - By Katherine Spelman and Katherine Keating - Clients might be about to lose 45 years of copyright protection to which they didn't even know they were entitled.
Intellectual Property
By Katherine Spelman and Katherine Keating
Clients might be about to lose 45 years of copyright protection to which they didn't even know they were entitled. An arcane section of the Copyright Act extends the term of copyright protection for an additional 45 years for works that were created before 1978 and that have never been published - but only if the works are published before Dec. 31.
Before Congress passed the Copyright Act of 1976, statutory copyright protection began with the publication of a work. Common-law copyright protected unpublished works. To establish certainty about copyright protection for these unpublished works, the 1976 Copyright Act folded common-law copyright protection within the exclusive jurisdiction of federal copyright law.
Under the 1976 act, older, unpublished works (for example, manuscripts, letters, journals) were given a specific, measurable term of federal copyright protection. Although the term of protection for newly created works under the 1976 act is the life of the author plus 50 years, applying that formula to works formerly protected by common law would have immediately and irretrievably plunged into the public domain a vast body of unpublished work created by authors who died before 1928.
Once a work has entered the public domain, any member of the public is free to reproduce, distribute, perform, display and otherwise use the work without limitation. The work is permanently up for grabs.
To prevent such a sweeping loss of copyright protection for older unpublished works, Congress established a minimum term of protection of an additional 25 years for unpublished works created before 1978. This minimum term expires on Dec. 31.
After that, unpublished works created before 1932 will pass forever into the public domain. Works created between 1932 and 1978 will begin to pass into the public domain as each work's life-of-the-author-plus-70-years term expires as a matter of course.
As an incentive for people to publish these older works, however, Section 303 of the 1976 Act includes a bonus term of 45 years of protection for works that are published on or before Dec. 31. In other words, if the proprietor of an old, unpublished work publishes it before 2003, not only will the work not fall into the public domain but federal copyright law also will protect it until 2047.
Meeting the deadline could mean 45 years of productive use of works that otherwise would lose protection at the end of this year. Even works created between 1932 and 1978 can benefit from this publication-triggered term extension, because it gives works that otherwise would fall into the public domain some time after 2002 extended copyright protection until 2047.
For example, Booker T. Washington lived from 1856 to 1915. His unpublished journals remain protected by copyright until Dec. 31. If the owners of the journals fail to act by Dec. 31, the journals enter the public domain. But if the owners publish the journals, federal copyright protects the journals' contents until 2047.
This is an excellent time for clients and organizations to dig through their archives and family storage lockers for material that they might want to make public. Doing so before Dec. 31 will allow almost 50 years of viable exploitation of the work. Failing to publish before the deadline, however, means that the proprietor of the work will not be able to exercise any control of the material if it is ever released into the public. Here are a few examples:
• The adult daughter of a prolific letter-writing father wishes to assemble the letters in a compilation, edited to tell the story of what it was like to be a reporter on the West Coast in the 1900s. The father's letters are engaging, articulate, funny and insightful. The adult daughter has been meaning to assemble the letters for publication for the last five years.
• A professional photographer and Antarctic researcher has access to journals of people who lived and worked in Antarctica before 1930. He also has access to photographs that no one outside of certain Antarctic research teams has ever seen. He is wondering whether he can create a documentary movie using the text and photographs.
• A library in a remote, rural area of the United States finds in its archives several boxes of glass photography plates taken by a young man who lived in the town in 1879 in order to take the cure for a highly contagious disease. The photographs have never been printed from these plates, and the library would like to post these photographs on its Web site. The images are a particularly compelling recital of what life was like in the 19th century when the town was known as a cure center.
• The journal of the first woman to serve as general counsel of a leading American political party tells the riveting story of what it was like to be a woman practicing law during the political upheaval of her tenure. The journal spans the years of 1920 forward. The surviving daughter would like to publish the journal with an eye toward creating a derivative work in the form of either a novel or a movie.
Copyright protection for all of the above works will end this year. After that, the proprietors of the works may lose any financial incentive to bring them into the public.
Unfortunately, the 1976 act does not clearly define what constitutes publication. It is established, at least, that publication is different from mere display of the work. Posting the work on the Internet does not qualify as publication. The integral component to publication is making copies of the work available to the public.
Creating a booklet or binder from one of the now easily accessible on-demand publishers and making them available either for free or for sale should satisfy the publication requirement. Posting the work on a Web site with a mechanism to allow people to obtain physical copies of the work also would constitute publication.
Finally, if you or your client decides to publish, register the work with the U.S. Copyright Office, because registration is the only way to guarantee the strongest rights to the work. A copyright registration gives the owner such critical rights as the right to sue for copyright infringement, the presumption that all facts stated in the registration are true and the right to seek statutory damages and attorney fees in an infringement suit. A copyright registration can be filed without the assistance of an attorney for a reasonable $30 filing fee. For more information on copyright registration, visit the Copyright Office Web site at www.copyright.gov.
Publish or perish is truly the rule for these older, unpublished works. Perhaps the promise of 45 years of copyright protection will incite you to scramble around for those valuable, unpublished family treasures. The gift of time is rare, and the days in which to claim it are almost gone.
Katherine Spelman is a partner at Steinhart & Falconer who practices in both the intellectual property transactional and litigation groups of the firm. Katherine Keating is an associate at the firm who practices trademark, copyright and intellectual property law.
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