When Does Copyright Expire?

Q.  I’m writing an historical mystery and wish to include some previously published material as background.  Is there an easy way to easily determine when a copyright has expired?  And do I have to give credit to public domain material

A. The numerous changes Congress has made to the term of copyright duration have made it ludicrously difficult to determine the copyright status of a work. (To add to the confusion, there can be different standards for literary works, photographs, sound recordings, and foreign works.)

In previous columns, I have explained these complex rules at length, but here’s a different approach — a chart showing the duration of copyright just for literary works:

Published Works Term of Copyright
Published before 1923 Expired – public domain
Published 1923-1977 without copyright notice Public domain (never had protection)
Published 1923-1963 with notice, not renewed Expired –public domain
Published 1923-1963 with notice, renewed 95 years from date of 1st publication
Published with copyright symbol 1923 – 1963, and not renewed Expired – public domain
Published 1964 -1977 with notice 95 years from date of 1st publication
Created before 1978 and published with notice before March 1, 1989 Life of author + 70 years
Published without notice,  Jan. 1, 1978 to March 1, 1989 but without subsequent registration within 5 years of publication Public domain (never had protection)
Published without notice, Jan 1, 1978 to March 1, 1989 but with subsequent registration within 5 years of publication Life of author + 70 years
Created after 1977 and published between  March 1, 1989 and 2002 Life of author + 70 years
Published after 2002 Life of author + 70 years
Unpublished Works
Pseudonymous works, works made for hire, and works where death date of author is unknown 120 years from date of creation
All other works Life of author + 70 years

If the “Term of Copyright” shows “Expired” or “Public domain” it means that you are free to include the material in your book.  You are not legally required to credit the author (the Supreme Court made this clear in Dastar Corp. v. 20th Century Fox Film Corp., (2003)); however you should give attribution to avoid a charge of plagiarism – a moral, not a legal offense.

You also may wonder about the effect under current law of registering copyright with the U.S. copyright office.  As you can see, with one exception (works published without copyright notice between 1978 and 1989), registration is not necessary to obtain copyright protection in the United States (and most countries that have signed the Berne Convention).  Registration is, however, a necessary prerequisite to filing a copyright infringement suit.  In addition, if registration is made within three months after publication of the work or before an infringement of the work, statutory damages (damages without proof of loss specific amounts) and attorneys’ fees will be available to the copyright owner in court actions.  Statutory damages for “innocent” (non-willful) infringement currently range from $750 to $30,000.  If any infringement was committed willfully, the author can obtain up to $150,000 for each infringement.

Still confused?  For more detailed information on copyright term, go to  www.copyright.gov and download Circular 15, “Renewal of Copyright”; Circular 15a, “Duration of Copyright”; and Circular 15t, “Extension of Copyright Terms.”