EDIT: A previous version of this post had some slightly bad math. Basically, I said nothing had entered public domain for 50 years. That’s not quite right. In 1997 and 1998, works published in 1921 and 1922 entered public domain, respectively. Before that, the last time works entered public domain was 1977, when the copyright for works published in 1920 expired. Still, I think I’m right to call it a “half-century of starvation.” In over 50 years, we only ate twice.

Today is Public Domain Day. That effectively means nothing in the US, where for the past 49 years (basically, see above), no published works have entered the public domain. However, next year, finally, finally, this half-century of starvation will be over.

A work that is in a country’s public domain is a work that anyone can modify, sell, or incorporate into a new work, with no permission needed from anyone. There is no copyright holder for works in the public domain. Originally, US copyright law stated that a work—like a book, a painting, a piece of software, a song, etc.—had to be registered for copyright, after which point the right to copy it would rest solely with the author, for 14 years. The author could renew it for another 14 years after that, if they wanted, and then it would enter the public domain. In 1830, this law was modified so that terms were 28 years, again with the option for renewal.

A century and more later, in 1976, copyright term was dramatically increased to the life of the author plus 50 years. Additionally, the 1976 act set a term of 75 years for any work of unknown origin, or any “work for hire”—a term which would be applied to new works, and works published before 1978. A work for hire would be like a photo created by an employee as part of their job—or, it could be a movie created by a group of people (most movies are works for hire), who all sign a contract to designate the movie as a work for hire. As well, this dumpster fire piece of legislation extended the maximum copyright term of works created before 1976 from 56 years to 75 years.

This is a lot to take in, so let me break it down. Suppose I write a book in 1930, and I’m 30 years old, and I publish it that same year. I would hold the copyright through 1958, at which point I would renew it. I’m still alive after all, might as well make sure people are buying it from me and not anyone else. Then I would hold the copyright term through 1986, and it would expire on January 1st 1987. Now in 1976, I hear about this new copyright act, which allows authors to retain control of their works for as long as they live—and then grants their estates control of the work for 50 years after their death. Well, that doesn’t seem fair to me—I’ll still be alive (possibly) when my copyright expires in 1986, and I still want that money. Good news—the 1976 Copyright Act grants my work a copyright term of 75 years, meaning it will expire in 2006—when I’m 106 (or probably dead.) Hooray! I suppose this is a good scenario, but here’s what could also happen:

Suppose I write a song when I’m 30 in the year 1930, publish the song, and die instantly. Well, my estate would then get to reap the benefits of that song for 75 years. Or, maybe I don’t have an estate—maybe no rightful heir can be found, in which case, this song is stuck in limbo, with absolutely no one benefitting from it, for the better part of a century.

Suppose I write a song in 1920 and it doesn’t matter how old I am. The song remains in the public domain until January 1st 1977, the year before 1976 act goes into effect. It would be among the last batch of published works to enter the public domain, before the 50-year drought that we’re finally reaching the end of now (with the exception of 1997 and ’98.)

But whatever. That’s just some weird bit of business to try and bridge the gap between old copyright law and new copyright law. Let’s see how this would work for an artist working in 1980.

Suppose I make a movie as a work for hire in 1980. A corporation would probably be the copyright holder, and they would hold the rights to the movie for the next 75 years—or, if for some reason they waited a long time to publish it, 120 years. The 1976 act granted copyright for 120 years after creation, or 75 years after publication—whichever comes first. Potentially, a company could wait 119 years to release a movie, and then have it enter public domain the next year. Weird. Anyway, here’s how this works for an individual author:

Suppose I draw a self-portrait in 1980 and die instantly. (I think I would have to publish it too, but I’m not sure. I’ll address how unpublished works are handled in a moment.) My estate will then hold the copyright through 2030.

So this is really bad and I’ll talk about that in a moment, but hold onto your butts for right now because in 1998, the term of copyright was increased to the author’s life plus 70 years, and 95 years for works published before 1978. The term for works for hire was also increased to 95 years, or 120 years after creation (at least they didn’t extend that, I guess.)Read More »