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PUBLIC DOMAIN: UNDER U.S. LAW

GREG CRAM, NYPL - [email protected] / @GREGCRAM

Note that this is about public domain under the laws of the United States

© 2017 by Greg Cram

Going to talk about duration of copyright protection---Why is labeling the public domain so important?Because copyright is significant barrier for many of our usersNo formal registry held by the copyright office of public domain worksInstead, we have to figure it out on our own

Public Domain: US• Overview of Relevant Statements • Copyright Duration Over Time • Public Domain: Formalities • Public Domain: Term Expiration • Public Domain: US Government Work • Examples

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Relevant statementsThree of them

This work has been identified as being free of known restrictions under copyright law, including all related and neighboring rights.

Another CC tool is the original rights statementAs you saw, no vanilla PD statement in RS menuCC recommends applying a PDM only to works that are free of known copyright around the worldVery old worksNot recommended for works that are in copyright in foreign jurisdictions

OUT OF COPYRIGHT WORKS

Public domain in the United States

UNDETERMINED

Third is No Known Copyright--missing key fact

By identifying works in the public domain, you can do some interesting thingsNYPL’s public domain release in January 2016Received some nice press from this, including a story in the New York TimesBut one key part of the public domain release you should knowWe’ve marked over 220,000 images as public domainKeep in mind: Despite being live with these statements for nearly two years, have not had a public domain determination disputed by a rightsholderWe HAVE had hundreds of users thank us for making it a little easier for them to build upon the work of othersEnabled some new and interesting uses, such as new art that compiles the images on the periphery on maps

Built series of images from the periphery of those maps

And in an effort to bring that back to the Library, we featured her work in an Electric Objects screen in our Maps reading roomAnd asked her to present her project to the public

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Before we get into key differences, going to talk about what makes up the public domain in the U.S.

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Copyright Duration Over TimeSo what’s in the public domain today?

Unfortunately, the Copyright Office in DC doesn’t maintain [click] some magical registry or database of public domain itemsThere is no official database of identified works in the public domainInstead, we have to make the determinations ourselves

Life + 70

In the US, copyright lasts for the life of the author + 70 yearsBut this has changed over time

1790

1831

1909

1998 Life + 70

1976 Life + 50

28 + 28

28 + 14

14 + 14

Extending © Duration

[will start automatically]In the US, our copyright duration started as 14+14 from publication, not from the author’s lifeBut Congress saw fit to extend the duration of copyright protection all the way to Life+70Term of copyright protection has, so far, only gone one way—Congress also added some complexity when trying to calculate how long something will be protected by copyrightWhen we moved from protection beginning at publication to automatic protection, left some gaps in our lawToo complicated for this conversation, but it means we often need important facts that are difficult or impossible to ascertain—-

1923

1923 is a great starting point for published itemsBut if we stick with 1923, then missing some opportunitiesDespite what you may have heard, there is a lot of material published after 1923 that is in the public domainHave to do some work to verify it, but it’s possible—-1923 and CRMS: Michigan used many of the same tools we’re going to discuss today to push past the 1923 barrier – looking carefully at formalities

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Formalities

Formalities

What do we mean by formalities?

Accordance with required or traditional rules, procedures

Before you drive...

Need one of these

Ticket, or worse

In US copyright, we also had formalitiesFailing to comply also came with strict penaltiesIn many situations, failure to comply meant that the work entered the public domain immediately upon failure to complyBecause of the harsh nature of these formalities, these rules became known as “traps for the unwary”Going to cover two most relevant formalities

Publication

Copyright owner consents to copies being sold, leased, lent or otherwise made available to general public

“Stack Of Books” CC BY 2.0 Flickr: indi.ca

Important to note that formalities applied only when work was publishedPublication in this case means that the copyright owner authorized a copy to be sold, leased, loaned, given away or otherwise made available to the publicFor a time in our copyright law, publication triggered the two formalities I’ll be focused on

CLASS 4: OWNERSHIP, CONTRACTS, DURATION“Fast musical notes on a music sheet” CC BY 2.0 Flickr: Horia Varlan

Kind of know what it means in music

Yearbook from 1958 for Laboratory School at Indiana State Teachers College in Terre Haute, IndianaEducational Heritage Association collectionPublished?

© 2017 by Greg Cram

First formality is NoticeHad to take the proper form and be placed in the correct placeProper form: Copyright, Date of Publication and Name of rights holderSpecific places: Proscribed by law—-Failure to comply had implications

Notice Requirements• “Copyright”, the abbreviation

“Copr.”, or the symbol © • Name of the copyright owner • Year copyright secured by

publication • On specific places (title page, first

page, etc.)

What was proper copyright notice?

• Remember: Published Works

• 1909-1978, failure to include proper notice = public domain

• 1978-1989, rules relaxed, but still had same impact if not followed

• Post-1989, no more notice requirement

Renewal

Last formality: Renewal

28 years from publication/registration

whichever first

Catalog of Copyright EntriesEvery six months, Copyright Office issued these renewalsMost libraries had these in microfilmNow the Copyright Office, in cooperation with Internet Archive, has digitized them

Here’s the renewal for F. Scott Fitzgerald’s The Great GatsbyRenewed in 1953Also tells us more informationTells us that it was a child that renewed the registration

CCEs currently available through Internet ArchiveAlso in microfilm in most research librariesWork happening now to make these more easily searchable

Use of CCE to search registrations and renewals REQUIRE SPECIALIZED KNOWLEDGE RIGHT NOW – that’s why we hope to develop a searchable version.

Stanford Renewal DatabaseIf interested specifically in books, then Stanford has great resourceCollated all of the renewals for books published in the US and made them searchable

Could also take a trip downstairs to search original recordsOr pay someone to do the search for youExpensive

Applies only to works published in the United StatesIf published outside the US, then these formality rules don’t applyBecause foreign creators not obliged to comply with US law, many foreign works started entering the public domain in the US

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So when does copyright expire?

Published Works• Before 1923 = public domain

• After 1923 = depends on authorship, publication status and/or creation date

Works published before 1923 are public domain in the USWorks published after 1923 are protected for specific lengths of time, depending on publication date

CLASS 4: OWNERSHIP, CONTRACTS, DURATION

Practice Tip: Manuscripts or copies that appear to be unpublished but created before 1923 may, in fact, still be protected by copyrightUnpublished works subsequently published after 1978E.g., this letter from Samuel Clemens is still in copyright today, despite having been written in 1879 because of a quirk in copyright law

Duration rules can be complicated, but others have gone before youChart on left is from CornellChart on right is from a law firm (Sunstein)Charts are great, but you need factual information to make the decisionsOften, this factual information is where we have the most trouble

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US Government Works

There is another set of works in the public domain in the USFederal government works are in the public domain in the USA work prepared by an officer or employee of the federal government as part of that person’s official dutiesE.g., Census Report, Copyright Office RecommendationsNote that the US Government may own rights under foreign copyright laws in foreign countries——

U.S. Government Work• A work prepared by an officer or

employee of the federal government as part of that person’s official duties

Non-Federal Works• State, city and local government

works may still be protected

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US Government Works

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Examples

How We DecideJonah Lehrer2009

Follow the chart down

Also look at Hirtle’s chart

Edward Hand (1744-1802)Served in the Continental Army during the American Revolutionary War

CLASS 4: OWNERSHIP, CONTRACTS, DURATION

Kept a diaryDiary from July 31 to Aug. 13, 1779Unpublished work

Maria Mitchell, Girl AstronomerWritten by Grace Hathaway Melin

Stanford Renewal Database

1954 illustrated by Bette Davis

1960 illustrated by Frank Giacoia

Maria Mitchell book• In © today? • Yes

• How long will it be in ©? • 95 years after publication • Text: 1954 + 95 = 1/1/2050 • Rev ed: 1960 + 95 = 1/1/2056

How many have Sanborn or other fire insurance maps?Bromley map from 1920Published? [yes]

Stereogram of Citizen's National Bank building in IndianapolisDate Created: ca. 187?Published? [yes]

Menu from the second convention of the Du Post Company’s Sales DepartmentTook place at the Claypool hotel on 1905

Indiana Historical Society

Photograph of banquet roomCirca 1942Photograph of the American Red Cross Service Men’s CenterProvided a "home away from home" for people in military service from WWII into the 1960sPrintPublished? no ideaComes from American Red Cross - Indianapolis collection

Artwork by: Astra Wijaya

@GregCram

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