Copyright: Patron Guide to Copyright and Historical Materials

While the term published is not explicitly defined in the copyright law before 1976, the 1976 Copyright Act defines it as follows:

“Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication.”

The authorization of the creator is required for an item to be considered published.
The following facts are drawn from the U.S. Copyright Office circulars listed above:

• Works published or registered with the U.S. Copyright Office in the U.S. before 1923 are now in the public domain.
• According to the Copyright Act of 1976, works registered for copyright or published with a copyright notice are protected for a maximum of 75 years, assuming the copyrights were renewed (28 years for the first term plus 47 for the second, if renewed). In October 1998 Public Law 105-298 increased the maximum to 95 years (28 years for the first term and 67 for the second, if renewed). Before 1998 the longest amount of time a work could be protected was 75 years, so works before 1923 are no longer protected (1998 minus 75 years equals 1923). When the law changed, the 1923 date was “frozen” and will remain so until 2018 (2018 minus 95 equals 1923). Starting in 2018 the date that works are no longer protected will again change yearly, being calculated as the current year minus 95 years.
• Works published with a copyright notice or registered with the U.S. Copyright Office in the U.S. from and including 1923 through 1963 are now in the public domain, unless copyright was renewed at the U.S. Copyright Office, in which case they are protected for 95 years from the copyright or publication date.
• A copyright search is required to establish if the item was copyrighted and if that copyright was renewed. See Conducting Your Own Rights Evaluation.
• Works published with notice or registered with the U.S. Copyright Office between January 1, 1964 and December 31, 1977 are protected for 95 years.
• In some interpretations the fact that no copyright notice is on an item published from 1923 through 1977, means that the item has passed into the public domain (see Cornell’s chart for more information on when works pass into the public domain). The pre-1978 copyright law required a copyright notice be placed on a work to alert potential users that permission was needed. The criterion of the copyright notice is easy enough to apply to books, but is more difficult with images, since the original work may have had a copyright notice not reproduced on subsequent copies, or the copyright notice may have been on the work in which the image appeared, rather than on the image itself. The U.S. Copyright Office states that “Before March 1, 1989, the use of the notice was mandatory on all published works. Omitting the notice on any work first published before that date could result in the loss of copyright protection if corrective steps are not taken within a certain amount of time.”

The term unpublished refers to material which has not been published, or which was distributed without the creator/copyright owner’s authorization.
Works created before January 1, 1978 but not published or registered by that date are protected by copyright law for the life of the creator plus 70 years. This is the same term that applies to works created on or after January 1, 1978.

One complicating factor is when someone creates an item for someone else (a work made for hire). The U.S. Copyright Office information states that works made for hire are protected by copyright of the employer, not the employee. The duration of copyright for works for hire and for anonymous and pseudonymous works is 95 years from publication or 120 years from creation, whichever is shorter.

For use within the United States:

• Works published outside the United States before July 1, 1909 are considered to be in the public domain.
• Works published outside the U.S. with a U.S. Copyright notice before 1923 are considered to be in the public domain.
• Works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain.

For use outside the United States:
If your use is going to take place outside the United States, you will need to be aware of the laws of the country in which you will be using the material and of the treaties and conventions in which the country participates. Through various international treaties, most nations have established reciprocity with regard to copyright protection. According to the U.S. Copyright Office, "Protection against unauthorized use in a particular country basically depends on the national laws of that country. However, most countries offer protection to foreign works under certain conditions that have been greatly simplified by international copyright treaties and conventions." (Circular 38A [pdf], “International Copyright Relations of the United States,” page 8.)

Some items lack the information (particularly the date of creation or the name of the individual or firm that created the item) to help with rights evaluation. These items, sometimes called orphan works, are the most vexing when trying to determine rights status. You will need to consider what you know about when and why the item was created, how you plan to use the item, and then assess the risk of using it for that purpose.

• Consider whether the item has been published by other researchers. Repeated publication without a rights holder making a claim may lessen the liability of users.
• Request a copyright search, even if you have little information to go on. The paperwork from the U.S. Copyright Office could show your good faith effort to establish the rights status of the item.
• Document the searches you have conducted including what you did or did not find to demonstrate that you used due diligence in searching for the rights holder.

The problem is so vexing that the U.S. Copyright Office recently opened an examination of issues related to orphan works, which it defined as those whose owners are difficult or even impossible to locate. (http://www.copyright.gov/orphan)

After gathering whatever the available facts are about the rights associated with the item, consider how you plan to use the item.

• Can your use be considered fair use? Section 107 of the U.S. Copyright law contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research.
• How commercial is your use? In general, the more money you make, the more you are at risk. One of the rights accorded to the copyright owner is the right to reproduce, or to authorize others to reproduce the work and thereby benefit economically. However, the language of copyright law (https://www.copyright.gov/title17/92chap1.html#107) makes clear that the commercial vs. nonprofit educational purpose of a work is only one factor to consider when making a fair use determination. Accordingly, the mere fact that a use is educational and not for profit does not insulate it from a finding of infringement, any more than the commercial character of a use bars a finding of fairness. (U.S. Supreme Court Campbell v. Acuff-Rose Music, Inc., 1994.)
• If you are using an item for advertising, using an item of a well-known person to make money, or using an item in a way that may misrepresent or embarrass a living person, you need to consider privacy and publicity rights. (See Privacy and Publicity Rights.)

Websites:

• U.S. Copyright Office website at http://www.copyright.gov.
• Public domain chart by the Cornell Copyright Information Center.
• Crash course in copyright at http://copyright.lib.utexas.edu/

Books:

• Scott Tambert: How to Use Images Legally
• John Schultz and Barbara Schultz, Picture Research: A Practical Guide. N.Y.: Van Nostrand, 1991.
• Stephen Fishman, The Public Domain: How to Find & Use Copyright-free Writings, Music, Art & More. 2nd ed. Berkeley, CA: Nolo, 2004.