Copyright Law Guide

How long does a copyright last? This is an important question not just for authors and composers who retain the copyright in their works, but also for publishers who obtain copyrights from authors and composers by a transfer or assignment. In addition, users of literary or musical materials often have an interest in knowing if the copyright in a particular work is still effective, or if it has expired.

A copyright does not last for an indefinite or unlimited time. The provision in the United States Constitution giving Congress authority to create copyright protection specifies that such protection shall be only “for limited times.” The “limited times” vary depending upon the circumstances.

3.1 Works Published Prior to 1978

two 28-year terms 

Under the copyright law in effect before 1978, copyright was secured either on the date a work was published (with an appropriate copyright notice), or on the date of registration if the work was registered in unpublished form. In either case, the copyright lasted for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. If renewed, the copyright was extended for a second term of 28 years. If not renewed, the copyright expired at the end of the first 28-year term and the work entered the public domain, meaning that it no longer enjoyed copyright protection and could be used and copied by the public without limitation.

Example. A hymn was first published on July 1, 1930 (with a valid copyright notice). Copyright protection lasted for 28 years, expiring on June 30, 1958. The copyright owner could register the work for an additional 28-year renewal term during the 28th year of the first term.

For some copyrights, the second term was extended beyond 28 years by special legislation. The treatment of Mary Baker Eddy’s Science and Health with Key to the Scriptures (“Science and Health”) is an interesting case in point. By 1971, all of the editions of Science and Health (the basic religious text of Christian Science) had lost their copyright protection except a 1906 edition whose term had been extended from year to year by special “interim” legislation. Then, in 1971, Congress enacted a statute extending until the year 2046 for the copyright term of the 1906 edition of Science and Health (and all other editions)—a total term of 140 years! This special law was challenged by dissident church members on the grounds that it violated the amendment’s first nonestablishment of religion clause. A federal appeals court agreed, noting that there was no legitimate justification for granting preferred status to a religious text.²

B. Effect of the 1976 Copyright Act on Existing Copyrights

Copyright Act of 1976

The old system of computing the duration of protection was carried over into the 1976 Copyright Act with one major change: the length of the second or renewal term was increased to 47 years for copyrights in existence on January 1, 1978, making such works eligible for a total term of protection of 75 years. Congress enacted legislation in 1998 further extending the second or renewal term an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years. In summary, the maximum total term of copyright protection for works already protected by federal law is increased from 56 years (a first term of 28 years plus a renewal term of 28 years) to 95 years (a first term of 28 years plus a renewal term of 67 years). The specific situation for works copyrighted before 1978 depends on whether the copyright had already been renewed or was still in its first term on December 31, 1977.

(1) works originally copyrighted before 1950 and renewed before 1978

95 years 

These works have automatically been given a longer copyright term. Copyrights that had already been renewed and were in their second term at any time between December 31, 1976, and December 31, 1977 do not need to be renewed again. They have been automatically extended to last for a total term of 95 years (a first term of 28 years plus a renewal term of 67 years) from the end of the year in which they were originally secured.

Key point. If copyright protection could persist for a maximum of 56 years prior to 1978, is it not therefore necessarily true that any work bearing  a copyright date before 1922 is automatically in the public domain (i.e., its copyright protection has expired) ? Unfortunately, the answer is no. Here’s why. Congress began considering a major revision of the copyright law as early as 1962. Since it did not know how copyright terms would be affected by the eventual legislation, it began providing for a series of “interim” extensions of existing copyrights whose second 28-year term would otherwise have expired. These extensions continued up until the effective date of the current copyright law (January 1, 19.78). The result was that any work whose second 28-year copyright term would otherwise have expired between September 19, 1962 and December 31, 1977 was automatically extended for if period of 75 years from the date of the original copyright (in 1998, this 75-year term was increased to 95 years). This means that most works published before 1978 enjoy a copyright term of 95 years from the date copyright protection was originally secured. Of course, works that were not renewed prior to 1962 were not covered by this provision.

Example. Pastor Owens, the minister of music at First Church, wants his choir to sing a hymn in a morning worship service. Pastor Owens locates the hymn in the church hymnal, and decides to duplicate a copy for each member of the choir since the hymn bears a copyright date of 1917 Pastor Omens cannot safely assume on the basis of the copyright date alone that the work is in the public domain, since the work may be protected for up to 95 years. To be safe, Pastor Owens would have to check on the copyright status of the work. This procedure is discussed later in this chapter.

(2) works originally copyrighted between January 1, 1950, and December 31, 1963

67-year renewal

Copyrights in their first 28-year term on January 1, 1978, still had to be renewed in order to be protected for the second term. If a valid renewal registration was made at the proper time, the second term will last for 67 years. However, if renewal registration for these works was not made within the statutory time limits, a copyright originally secured between 1950 and 1963 expired on December 31st of its 28th year, and protection was lost permanently.

(3) works originally copyrighted between January 1, 1964, and December 31, 1977

optional renewal term

In 1992, Congress enacted an amendment to the Copyright Act that makes renewal registration optional. The copyright is still divided between a 28-year original term and a 67-year renewal term, but a renewal registration is not required to secure the renewal copyright. The renewal vests on behalf of the appropriate renewal claimant upon registration or, if there is no renewal registration, on December 31 of the 28th year.

While owners of works that were first copyrighted between January 1, 1964 and December 31, 1977 are no longer required to secure a renewal copyright to qualify for the second term of protection of 67 years, there are several important advantages to pursuing the optional renewal registration during the 28th year of the original term of copyright. Consider the following:

1. The renewal copyright vests in the name of the renewal claimant on the effective date of the renewal registration. For example, if a renewal registration is made in the 28th year and the renewal claimant dies following the renewal registration but before the end of the year, the renewal copyright is secured on behalf of that renewal claimant, and the 67 years of renewal copyright becomes a part of that individual’s estate.

2. The renewal certificate constitutes prima facie evidence as to the validity of the copyright during the renewed and extended term and of the facts stated in the certificate.

3. The right to use the derivative work in the extended term may be affected. For example, if an author dies before the 28th year of the original term and a statutory renewal claimant registers a renewal within the 28th year, that claimant can terminate an assignment made by the deceased author authorizing the exploitation of a derivative work. If a renewal is not made during the 28th year, a derivative work created during the first term of copyright under a prior grant can continue to be used according to the terms of the grant. Therefore, an author or other renewal claimant loses the right to object to the continued use of the derivative work during the second term by failing to make a timely renewal, but any terms in the prior grant concerning payment or use (such as a royalty) must continue to be honored. This exception does not apply to a new derivative work which can only be prepared with the consent of the author or other renewal claimant. A renewal registration made after the 28th year will not confer the benefits mentioned above but will confer other benefits denied to unregistered works. For example, renewal registration establishes a public record of copyright ownership in a work at the time that the renewal was registered.

4. Renewal registration is a prerequisite to statutory damages and attorney’s fees for published works not registered for the original term.

Termination of Grants

For works already under statutory protection before 1978, the length of the renewal term has been increased to 67 years. This means that, in most cases, 39 years have been added to the end of a renewal copyright (previously, 28 years). The copyright law allows an author or specified heirs of the author to file a notice terminating any grant of rights trade by the author and covering any part of that added period. This right to reclaim ownership of all or part of the extended term is optional; it can be exercised only by certain specified persons in accordance with prescribed conditions and within strict time limits.

In cases where no original registration or renewal registration is made before the expiration of the 28th year, important benefits can still be secured by filing a renewal registration at any time during the renewal term. These benefits would include, for example, statutory damages and attorney’s fees in any infringement suit for infringements occurring after the renewal registration is made. Also, it is a requirement to get into court in certain circumstances under section 411(a), and it creates a public record both to defend against innocent infringers and to facilitate easier licensing of the work.

Form RE 

Forms for renewal registration (Form RE) are available from the Library of Congress, Copyright Publications Section LM-455, 101 Independence Avenue, S.E., Washington. D.C. 20559-6000, or by calling the Forms and Publications Hotline at 202-707-9100. You also may access and download Form RE and other information from the Copyright Office Website at loc.gov/copyright.

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3.2 Works Originally Created on or after January 1, 1978

For works that are created and fixed in a tangible medium of expression for the first time on or after January 1, 1978, the Copyright Act of 1976 as amended in 1998 establishes a single copyright term and different methods for computing the duration of a copyright. Works of this sort fall into two categories:

life plus 70

For works created after its effective date, the U.S. copyright law adopts the basic “life-plus seventy” system already in effect in most other countries. A work that is created (fixed in tangible form for the first time) after January 1, 1978, is automatically protected from the moment of its creation and is given a term lasting for the author’s life, plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from first publication 120 years from creation, whichever is shorter.

Works that had been created before the current law came into effect but had neither been published nor registered for copyright before January 1, 1978, automatically are given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for new works: the life-plus-70 or 95/120-year terms will apply to them as well. However, all works in this category are guaranteed at least 25 years of statutory protection. The law specifies that in no case will copyright in a work of this sort expire before December 31, 2002, and if the work is published before that date, the term will emend another 45 years, through the end of 2047.

Example. Mary composes a religious song in January of 2002. The copyright in the song will last for Mary’s life plus an additional 70 years. This is so whether Mary retains the copyright or if she assigns the copyright to a music publisher. Thus, if Mary dies on July 1, 2003, the copyright will expire on December 31, 2073 (the last day of the year in which the 70th anniversary of the author’s death occurs).

Year-End Expiration of Copyright Terms

The copyright law provides that all terms of copyright will run through the end of the calendar year in which they would otherwise expire. This affects the duration of all copyrights, including those subsisting in either their first or second terns on January 1, 1978. For works eligible for renewal, the renewal filing period begins on December 31st of the 27th year of the copyright term.

Example. Pastor Kim, an employee o First Church, composes a religions song that is properly characterized as a work made for hire. Since it is a work made for hire, the “author” of the work is deemed to be the employer (First Church). Since the employer-author of most works made for hire is a corporation or other organization, it is not realistic to use the author’s “life” in the computation of the copyright term. Accordingly, the copyright in a work made far hire lasts for 95 years from first publication or 120 years from the creation of the work, whichever is shorter.

Example. 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. These second-term copyrights cannot he renewed again. Under the law, their extension to the maximum 95-year term is automatic and requires no action in the Copyright Office.

Example. A work was first copyrighted on July 29, 1950, and a renewal registration was made on September 1, 1977. The second term of copyright was automatically extended through the end of 2045 without the need of any further renewal.

Example. A work that was first entered for copyright on October 5, 1907, and renewed in 1935, would formerly have fallen into the public domain after October 5, 1963. However, Congress enacted a series of laws extending copyright protection in such works, and the Copyright Act of 1976 established the copyright term as 75 years from the end of the year in which the copyright was originally secured. The 75-year term was later expanded to 95 years.

presumption of death

Obviously, any reference to the author’s life in the computation of a copyright term may create problems. What if it cannot be determined when an author dies? This problem will be especially acute for large publishers that will need to track the lives of hundreds or perhaps thousands of authors. Fortunately, the copyright law responds specifically to this concern by providing that “after a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that [Copyright Office records] disclose

Copyright Duration in a Nutshell

• Works Published or Copyrighted Before January 1, 1964. Works published with notice of copyright or registered in unpublished form prior to January 1, 1964, had to be renewed during the 28th year of their first term of copyright to maintain protection for a full 95-year term.

• Works Originally Copyrighted Between January 1, 1964, and December 31, 1977. These works are protected by copyright for the 28-year original term and the 67-year renewal term without the need of a first terns or a renewal registration.

• Copyrights in their second term on January 1, 1978, These works were automatically extended tip to a maximum of 95 years, without the need for further renewal.

• Works already in the public domain. These works cannot be protected under the 1976 law or under the amendments of 1992 and 1998. The Act provides no procedure for restoring protection for works in which copyright has been lost for any reason. Note, however, that copyrights in certain foreign works whose U.S. copyright protection had been lost because of non-compliance with formalities of U.S. law were restored as of January 1, 1996, under the provisions of the Uruguay Round Agreements Act (URAA). Such works may be registered using Form GATT.

nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years.”³ To help implement this provision, the Copyright Office is directed to maintain records of information relating to the death of authors based on recorded statements submitted by persons having an interest in particular copyrights.

Example. Apex Music Company is a publisher of religious music. In 2000 it publishes a song composed by Andrew in the same year Assuming that Apex loses track of Andrew, and is not aware of the date of his death, the copyright in the song will expire in the year 2095 (95 years from the date of its first publication). This assumes that after a period of 95 years from the date of first publication Apex receives from the Copyright Office a certified report stating that Copyright Office records disclose nothing to indicate that the author is living, or died less than 70 years before.

3.3 How to Check on the Copyright Status of a Particular Work

Let’s assume that your church would like to duplicate a particular religious song for use by the choir. You realize that such duplication will amount to an infringement of the copyright in the work if the copyright has not expired. But if the copyright has expired, then the work is in the public domain and ordinarily can be duplicated at will. How do you know whether or not the copyright has expired? There are several ways to investigate whether a work is under copyright protection. The main ones are listed below.

(1) examine a copy of the work for such elements as a copyright notice, place and date of publication, author and publisher

examine the work itself

For example, the omission of a valid copyright notice from any published copy of a work first published before1978 generally indicates that the work is not protected by copyright. However, there are a number of exceptions to this rule. The date in the copyright notice is also helpful in determining the copyright status of a work. Generally, the copyright in any work published or copyrighted more than 95 years ago (95 years from January 1st of the present year) has expired by operation of law, and the work has permanently fallen into the public domain. For example, on January 1, 2002, copyright in most works published or copyrighted before January 1, 1907 will have expired. The copyright notice (or any other information presented in the work) usually gives enough information about the publisher that you will be able to contact that person or organization to obtain information about the copyright in the work. However, note that in examining a copy, it is important to determine whether that particular version of the work is an original edition of the work or a “new version.” New versions include musical arrangements, adaptations, revised or newly edited versions, translations, abridgements, compilations, and works republished with new matter added. The law provides that such “derivative works” are independently copyrightable and that the copyright in such a work does not affect or extend the protection, if any, in the underlying work.

Example. Bruce knows that the copyright in a particular book expired in 1987. He therefore copies significant passages from the book in a book of his own. However, Bruce was not aware that while the copyright in the original edition of the copied book expired in 1987, the author published a second edition of the work in 1960 (the copyright in which extends until the year 2055). Therefore, if the materials used by Bruce appeared in the second edition as well as in the original edition, Bruce is guilty of copyright infringement.

(2) make a search of the Copyright Office catalogs and other records

search Copyright Office records yourself

If you are near Washington, D.C., you may wish to search in the Library of Congress. It is open to the public, and you can search free of charge.

Copyright Office records, including registration information and recorded documents, are available through LOCIS (Library of Congress Information System) at the Copyright Office website, loc.gov/copyright. Two files, COHM and OOHS, contain records for materials registered for copyright since January 1978. These materials include books, films, music, maps, sound recordings, software, multimedia kits, drawings, posters, sculpture, serials, etc. A third file, COHD, has references to documents that describe copyright legal transactions, such as name changes and transfers. The LOCIS Usage Guide has more information on these files.

For information on searching paper and microfiche records from 1790 through 1978, see Copyright Office Circular 22 and Circular 23.

Key point. LOCIS was developed in the 1970s long before the advent of Windows and other current computer technology. All commands are entered from the keyboard. The mouse is not used in this system. Many of the commands and search techniques are not “user friendly.” The Copyright Office currently is developing stateof-the-art software to replace this system.

Please consult the LOCIS Usage Guide before conducting your search, as only limited HELP screens are available once you begin. The guide gives detailed instructions on how to search, select, and display information contained in the databases. The guide can be accessed from the Copyright Office website. 

The Copyright Office does not offer LOCIS search assistance or help with software, hardware, or other computer-related problems. If you are unable to connect to LOCIS, contact your Internet service provider 

(3) have the Copyright Office make the search for you

have the Copyright Office perform a search

Upon request, the Copyright Office staff will search its records at the rate of $65 for each hour or fraction of an hour consumed. The Copyright Office will send you a typewritten report or, if yon prefer, an oral report by telephone. Your request, and any other correspondence, should be addressed to the Library of Congress, Copyright Office, Reference and Bibliography Section LM-451, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000. Or, you may call 202-707-6850.

The more detailed information you can furnish with your request, the less time-consuming and expensive the search will be. You should try to provide as much of the following information as possible: (1) the title of the work, and any possible variations, (2) the name of the author; (3) the name of the probable copyright owner (which may be the publisher); (4) the approximate year when the work was published or registered; (5) the type of work involved (book, song, sound recording, etc.) Unless your request specifics otherwise Copyright Office searches include records pertaining to registrations, renewals, and assignments. The Copyright Office has developed a form that persons can use to submit a search request. This form is available without charge from the Copyright Office.

Searches of Copyright Office catalogs and records are useful in helping to determine the copyright status of a work, but they cannot be regarded as conclusive in all cases. The complete absence of information about a work in the office records does not mean that the work is unprotected. For example, works published on or after January 1, 1978 need never be registered to ensure copyright protection. Many authors and composers do not register their works, and accordingly no amount of searching Copyright Office materials will disclose the existence of such a work, though it in fact enjoys copyright protection.

(4) contact the Chnreh Music Publishers Association

Church Music Publishers Association

Contact the Church Music Publishers Association at 615-791-0273, or the Music Publishers Association at 212-327-4044. These organizations maintain information on the copyright status of several musical compositions.

Endnotes

1 U.S. Constitution, Article 1, Section 8,

2 United Christian Scientists v. Christian Science Board of Directors, First Church of Christ, Scientist, 829 F.2d 1152 (D.C. 1987). This special legislation was the first copyright law to be invalidated by the courts.

3 Copyright Act section 302(c).