Christine Kohler

July 5, 2017

In the last blog article I talked about advantages of using mixed genres within a work. However, if you use copyrighted materials without permission, you can find yourself in expensive legal trouble. Today, Media Attorney Aimée Bissonette has generously shared

her expertise by writing a guest blog article on how to determine if a work is copyrighted on in public domain.

Aimée Bissonette has worked as a lawyer, teacher, and writer since 1987. Through Little Buffalo Law & Consulting, she helps her clients make smart decisions about licensing their creative works. Her practice focuses on copyright, trademark, contract review and negotiation, and intellectual property rights licensing. She is the author of several books for children and educators. Aimée Bissonette holds a J.D. from the University of Minnesota.

Q: How does one find out if a work is in public domain or under copyright?

Bissonette: By law, certain works are not eligible for copyright protection. These works are considered to be in the “public domain.”
Because they are not protected, there are no copyright restrictions on the use, photocopying, and reproduction of these works. Works in the public domain include works that never were copyrightable, as well as works for which the copyright has expired. Unprotected works fall into the following categories:

• Government publications. Works prepared by an officer or an employee of the U.S. government as a part of that person’s official duty are not copyrightable. Works of other governmental bodies, such as states, counties and cities, are copyrightable, however, and can only be reproduced in accordance with law.

• Non-copyrightable works. Works not fixed in a tangible medium of expression or that employ less than “minimal creativity” are not copyrightable. For instance, copyright protection does not apply to slogans. Non-copyrightable works include principles, ideas, processes, concepts, discoveries, procedures, systems and methods of expression.

• Works excluded from protection by statute. In some instances, works that may otherwise be protected may be used without permission because the particular use being made of them falls within a statutory exception to the copyright law.

• Works for which copyright protection has expired. Trying to determine whether and when copyright protection expires is tricky. The laws have changed many times over the years. The only sure rule of thumb is that all works published before 1923 are in the public domain. (Because of legislation passed in 1998, no new works will fall into the public domain until 2019, when works published in 1923 will expire.) Lolly Gasaway of the University of North Carolina has composed an excellent reference chart that details the duration of U.S. copyright protection for works created at various times given the laws in effect at the time of their creation.

Here is Bissonette’s version of the chart:
DATE OF WORK PROTECTED FROM TERM

Published before 1923 -- In public domain -- None

Published from 1923 through 1963 -- When published with notice -- 28 years + could be renewed for 47 years, now extended by 20 years for a total of 67 years. If not so renewed, in the public domain.

Published from 1964 through 1977 -- When published with notice -- 28 years for first term; now automatic extension of 67 years for second term.

Created before 1/1/1978, but not published 1/1/1978, the effective date of the 1976 Act that eliminated common law copyright -- Life + 70 years or 12/31/2002, whichever is later.

Created before 1/1/1978, but published between then and 12/31/2002 -- 1/1/1978, the effective date of the 1976 Act that eliminated common law copyright -- Life + 70 years or 12/31/2047, whichever is later.

Created 1/1/1978 or after -- When work is fixed in tangible medium of expression -- Life + 70 years (or if corporate authorship, the shorter of 95 years from publication or 120 years from creation).

Q: Are headlines copyrighted?

Bissonette: Works that employ less than “minimal creativity” are not copyrightable. Accordingly, headlines are not protected by copyright.

Q: What problems arise with getting permission to reprint a portion, besides being cost prohibitive by the publisher?

Bissonette: Sometimes the biggest problem is identifying the owner of the copyrighted work. There are several different ways to identify copyright owners: contact publishers; conduct internet searches using the author’s name; or contact one of the many online organizations that assist in identifying copyright owners and securing permission from them. The U.S. Copyright Office also maintains records of all registered copyrighted works and offers an online search feature for copyright registrations from 1978 to the present. Tutorial on conducting online searches

Another problem? The time it can take to get a response. Build in a lot of lead time. There is no “right way” to contact an owner, but some owners have preferred or required procedures for permission requests. Failure to follow these procedures may lead to a delayed response or no response at all, so follow all instructions and use permission request forms where provided. If there is no prescribed method, specifically describe your proposed use (how you plan on using the work, the right you are seeking, whether you want to use the entire work or only a portion of it, etc.); agree to identify and acknowledge the owner in whatever manner the owner prefers; and specify the amount of time for which you would like to use the work. The more information you provide for the owner’s consideration, the more likely the owner will be to grant permission. Keep copies of your requests for permission, maintain detailed records of your attempts to secure permission, and save all responses from owners.

If you are unable to obtain permission to use the work, consider using an alternative work or use the selected work in a more limited manner that keeps you within the limits of “fair use.”

A huge merci beaucoup to Aimée Bissonette for this information! In the next blog article Aimée will give guidelines to determine “fair use.”