Why Are Some Relatively Recent Works in the Public Domain?

Halloween season means a lot of things to a lot of people, but to horror film buffs, it’s also the season of the horror DVD packs. These packs contain 5, 10, 20, 40 or more movies on them, all at a discount price.

However, you don’t have to shop long to realize that the same movies keep reappearing. Films like Night of the Living Dead, The Satanic Rites of Dracula, Carnival of Souls and Dementia 13 are on nearly every single one.

The reason is that the films, like many other horror films, are in the public domain and can be distributed without paying a license. But while these movies aren’t new, most made in the 50s and 60s, they definitely come after 1923, the magic year where everything published before is definitely in the public domain (even if there are still exceptions).

So why did so many books, TV shows and movies between 1923 and 1977 fall into the public domain? The reason is because obtaining copyright protection wasn’t automatic until 1978 and many content creators, either through error, ignorance, negligence or just lack of concern, lost copyright protection in their work.

So just how did those works lose copyright protection? The answer requires looking at a bit of copyright history.

Carnival of Errors

Before the Copyright Act of 1976, which took effect in 1978, the governing law was the Copyright Act of 1909, which was a very different copyright act in several key ways.

One of the most important was in how copyright was affixed to a work. Where, today, copyright protection is granted to a work the moment it is fixed into a tangible medium of expression, in the 1909 act, copyright was only applied after the work was published and if it carried a copyright notice.

Unpublished works were handled under state laws, much like pre-1972 sound recordings, but published works, with or without the notice, were under federal protection (or lack thereof). Some copyrighted works, usually by accident, were published without a copyright notice and, as a result, were immediately placed into the public domain. This is what happened to The Night of The Living Dead.

Copyright notifications were eventually removed as a requirement in 1989 under the Berne Convention Implementation Act, which removed all formalities, including notice, for copyright protection to be applied. However, this means that works into the late 80s were losing copyright protection because they were published without proper copyright notices.

However, the 1909 law also had another quirk, the the copyright had to be renewed by making a filing of with the U.S. Copyright Office. Works were automatically given a 28 year term but could receive a second term of equal length if the owners simply filed for a renewal. However, after 28 years, many of the companies went out of business, paperwork was lost and deadlines were missed. As a result, many copyrighted works published following the 1909 act were not renewed, giving the just a 28 year term.

Those renewals were a fact of copyright law until very recently, specifically the Copyright Renewal Act of 1992, which allowed copyright holders with still-protected works that were due for renewal to forgo filing.

However, any work that properly published and renewed (or didn’t need to renew) has had their copyright extended to the same terms that newer works have. Meaning that a work published by a corporation (work for hire) in 1960, if it was renewed properly, will remain in copyright until 2055, 95 years after publication.

But many works didn’t make it to that point and it’s easy to see why.

The Copyright Vanishes

To recap, prior to 1978, to receive the full 56 year copyright term under federal law, a copyright holder had to do three things:

1. Publish the Work: Meet the legal criteria for publication of the work.
2. Place a Copyright Notice on the Work: But a compliant copyright notice onto the work that was published.
3. Renew After 28 Years: Renew the copyright and gain the second 28 years of the term.

If you do all of this, you are guaranteed 56 years of copyright protection under the Copyright Act of 1909. Obviously though, even with the full 56 years, copyright doesn’t reach into the newer laws for every work. This is where the 1923 date comes from. Any work published before then expired before the Copyright Act of 1976 took effect and was unable to have their copyright extended.

Later works could have, if they completed all of the requirements, remained in copyright until 1978 and then had their term extended well into the future.

But many didn’t do that and their works lapsed into the public domain before it was necessary.

However, it’s more or less impossible for a work published after 1964 to lapse into the public domain due to a lack of renewal and it’s impossible for any work published after 1989 to lapse into the public domain due to an error or omission by the creator at all. As such, the bulk of the early public domain works are from between 1924 and 1964, when there were the most opportunities for mistakes though there are more rare cases in the 70s and 80s where works were published without notices and lapsed instantly.

That being said, there are still ways that works published after 1989 could (functionally) enter the public domain. One common way is for the creator or copyright holder to just dedicate it to the public domain, something some have done. However, it is unclear just how enforceable those dedications actually are.

Other licenses, such as Creative Commons can give away many of the rights people want from public domain works without the legal dubiousness.

Another way a work can be placed into the public domain is if it is a work of the U.S. government. Works created by the federal government in the United States are never protected by copyright.

Still, for the vast, vast majority of works published after 1989, they are under copyright protection and no error or mistake by the copyright holder is going to change that.

Bottom Line

While copyright renewals and notices were definite worries for content creators the 1950s and 60s, they are not worries for those in the new century. While registration is still a good idea for many reasons, not registering your work or failing to include a notice doesn’t mean your content is in the public domain.

But while many public domain advocates applaud the increase material available for free, the complexities of pre-1978 law made determining the copyright status of a work much more complex, as this flow chart shows. While some better-known works lapsed into the public domain on mistake, basic copyright research on works from this era is a great deal more complicated.

On the other hand though, it does mean that your Halloween (or other holidays) can be filled with public domain movies that you can legally download for free or purchase copies of for a very small fee.

For better or worse, those films, books and songs will likely be the last non-federal works to enter the public domain against their creator’s will for a while. The next time the public domain in the U.S. is expected to grow is in 2019, other than federally-created works.