The ins and outs of public domain

One of the questions I frequently get from the AAN Legal Hotline is whether a publisher can copy an image created by someone else.

Almost always, the answer is yes, you can publish IF YOU HAVE PERMISSION OF THE COPYRIGHT OWNER.

But surely, you say, this art is so old it must be in the public domain! And it is true, anything published before 1923 is now in the public domain. It is also possible that works published in 1923 or after that could be in the public domain, if the copyright owners failed to renew the copyright. However, one can’t know that without checking with the Copyright Office.

Furthermore, we now operate under the Sonny Bono Copyright Term Extension Act, which means that no new works will enter the public domain until 2019.

Here’s an illustration of the way that operates, taken from the Copyright Office: “A work that was first copyrighted on April 10, 1923, and renewed between April 10, 1950 and April 10, 1951, would formerly have fallen into the public domain after April 10, 1979. The current law extends this copyright through the end of 2018.”

But this term, Supreme Court of the United States considers a case called Eldred v. Ashcroft, where publishers of public domain works have challenged the constitutionality of those long extensions.

The federal constitution gives Congress the power to protect the original work of authors for a “short interval” and then creative works are to fall into the “public domain,” a condition that allows anyone to make a copy freely.

However, Congress has extended the copyright term 11 times in the past 40 years. The Sonny Bono amendment added 20 years to all copyrights. Consider that under the original copyright plan, a copyright term lasted only 14 years and could be renewed only if the author were alive. The duration of a copyright is of such moment, nearly 40 amicus briefs were filed with the Supreme Court. In the meantime, the duration sections of the Copyright Act remain difficult to apply. Your newspaper published today is protected by copyright for 95 years from the date of publication.

Work done by individuals and published today is protected for the author’s life plus 70 years. However, works originally copyrighted before 1950, 1964 and 1978 have different renewal requirements. Some of those works could have “fallen” into the public domain for lack of attention from their owners.

Here is what is always true: if an image, music or words are fixed in a tangible form of expression and if someone else is the creator, you need permission to copy, to make an altered copy, to distribute, display, or perform, unless the work has passed into the public domain.