For all practical purposes on Wikipedia, the public domain comprises copyright-free works: anyone can use them in any way and for any purpose. Proper attribution to the author or source of a work, even if it is in the public domain, is still required in order to comply with relevant policies.[1]
The public domain is generally defined (e.g. by the US Copyright Office) as the sum of works that are not copyrighted, i.e.
However, there is no such thing as the public domain on the Internet. International treaties, like the Berne Convention, are not self-executing and do not supersede local law. There is no globally valid "International Copyright Law" that would take precedence over local laws. Instead, signatory countries of the Berne Convention have adapted their laws to comply with the minimum standards set forth by the treaty, often with stronger provisions than required. Whether or not something is copyright-free in some country depends on the individual country.
The Wikimedia Foundation, the legal body responsible for Wikipedia, is based in the US state of California. Although legislation is sometimes unclear about which laws are to apply on the Internet, the primary law relevant for Wikipedia is that of the United States. For re-users of Wikipedia content, it is the laws of their respective countries.
In the US, any work published before January 1, 1929, anywhere in the world[2] is in the public domain. Other countries are not bound by that 1929 date, though.[3] Complications arise when special cases are considered, such as trying to determine whether a work published later might be in the public domain in the US, or when dealing with unpublished works. When a work has not been published in the US, but in some other country, that other country's copyright laws also must be taken into account. Re-users of Wikipedia content also might find the explanations here useful.
The US Copyright Law explicitly makes clear that the Berne Convention is just a treaty, not some "super-law" that would take precedence over US law: 17 USC 104(c) states that
When discussing copyright issues informally (and all such discussions on Wikipedia are informal), one may nevertheless argue in terms of the Berne Convention: writing "according to §y of the Berne Convention..." is then just a short-hand for writing "according to §x of country's copyright law, which implements §y of the Berne Convention, ...". However, one should bear in mind that some paragraphs of the Berne Convention are optional, and that any country may go beyond the minimum standards specified by the Berne Convention for the most part.
There are some other documents related to copyright issues that one occasionally comes across, but they are generally less important for Wikipedia's purposes.
US federal government works—defined as any "work prepared by an officer or employee of the United States Government as part of that person’s official duties"[4] and including works prepared by the governments of the District of Columbia, Puerto Rico,[5] and US organized territories[6]—are not eligible for copyright protection, although the federal government can "receiv[e] and hold[] copyrights transferred to it by assignment, bequest, or otherwise".[7] It is not clear whether this applies world-wide.[8] The US government themselves state that they "may assert copyright outside of the United States for U.S. government works".[9]
In practice, this means that much material on *.gov and *.mil, as well as material on some *.us web sites (such as the sites of the US Forest Service), are in the public domain. Please note that not all such material is in the public domain, though:
Under US law, laws themselves and legal rulings also form a special class. The US Supreme Court has held that judicial opinions of both federal and state judges—being a form of case law—cannot be copyrighted.[16] It has never addressed whether copyright can be claimed in other forms of law, such as statutes, legal codes, or municipal ordinances. Lower federal and state courts have varied on whether other forms of law, beyond judicial decisions, can be copyrighted.[17][13] The position of the US Copyright Office is that all "edicts of government", both domestic and foreign, cannot be copyrighted and won't register such works.[18] Since copyright protection is automatic and doesn't require registration with the Copyright Office, their position may not be authoritative in a court of law, so the copyright status of laws (including laws incorporating copyrighted works by third-parties, e.g. building codes) remains unclear until settled by the US Supreme Court.
The United States Copyright Office, in its Compendium of U.S. Copyright Office Practices, has stated its position that works of the US Postal Service are not "works of the U.S. government" and thus are subject to copyright.[6] Works of the United States Post Office Department before the formation of the US Postal Service are still considered government works and are in the public domain.[citation needed]
Most other countries’ governments do hold copyrights, and their works are copyright protected. At the same time, many countries declare their edicts, as well as those of other countries, such as laws and court decisions, to be exempt from copyright. Such exemptions are typically narrowly defined and cannot be construed to mean “any publication by a government office”.
Works of the United Nations or its agencies or of the OAS are subject to copyright.[18] Some UN documents are in the public domain; see Works of the United Nations.
A second category of works that in general cannot be copyright protected are those that have no (or no significant) creative content: they do not pass the threshold of originality. In the US, the classic example is a telephone directory. The names and numbers therein are, in the doctrine of case law (e.g. Feist v. Rural), "facts that were discovered", rather than the result of a creative expression or judgment. The US has explicitly rejected the position that the amount of effort involved in the discovery of a fact can justify its protection. As a result of this doctrine, addresses, phone numbers, most scientific data, sports scores, the results of polls, and similar facts are exempt from copyright.
While the facts themselves are exempt, other creative elements in a compilation of facts may warrant copyright protection. For example, Eckes v. Card Prices Update established that the specific selection of which facts to include in a list, when done as the result of a creative act, merits protection even when the individual elements do not. (See also 17 USC 103(b).) The WIPO Copyright Treaty is an international treaty that follows this concept; it has been adopted also by the European Union (EU) in its EU Database Directive, a sui generis protection that prohibits any significant "extraction" or "re-utilization" of information from a database created by significant effort. In all these cases, the copyright is on the database as a whole, i.e. the selection of the collection. The individual items in such databases still have their own copyright, which may have expired.
Similarly, though scientific data are usually exempt from copyright, the specific figures and styles of presentation used to present that data will in most cases merit copyright protection. Also, in some cases facts that are exempt from copyright may still be protected as a result of patent law.
Another class of uncreative works which are unable to claim copyright protection in the US are those resulting from mechanical reproduction. Following Bridgeman Art Library v. Corel Corp., a simple reproductive photograph of a two-dimensional artwork does not give rise to a new copyright on the photograph. Many other countries (but not all!) recognize a similar ineligibility for copyright for reproductive photographs of two-dimensional public domain works.
Common to all these cases is that only works created by a human are eligible for copyright.[19]
Works created by non-human animals (such as a photograph produced by a chimpanzee)[19] or machines[19] are not copyrightable, although in the case of drawings produced by a computer program, the program itself of course may be copyrighted. In certain cases, even graphics produced by computer programs may be copyrightable; see e.g. Stern Electronics, Inc. v. Kaufman.
Descriptions (including diagrams) in patent applications in the US are "published into the public domain" by the US Patent and Trademark Office.[20] Portions may contain the non-obligatory notice of copyright © or mask work Ⓜ protection, but the patent applicant must state in the text of the description that the owner of the rights in the protected part agrees to allow anyone to make facsimile reproductions of those portions of the description, but otherwise reserves all rights 37 CFR § 1.71(e).
Photographic reproductions, as a form of derivative work, may inherit the copyright of the original work. If that artwork is in the public domain, then so is the photograph.[21] If, however, the depicted work is copyright protected, then, although there is no independent copyright on the photo itself, it cannot be considered to be in the public domain as the original rights holder still has the authority to control how reproductions of his work, including photographs, are made and distributed. The same applies to digitized images.
It should also be noted that the exemption of reproduction photographs extends only to two-dimensional artwork in the US. A photograph of a three dimensional statue may acquire copyright protection even if the statue itself belongs to the public domain. Such rights derive from the creativity involved in the positioning of camera, lighting, and other variables.
In the US, the Compendium of U.S. Copyright Office Practices of the US Copyright Office gives some concrete examples and hints at under what conditions a work is sufficiently original to be eligible for copyright.
Under US law, typefaces and the characters they contain are considered to be utilitarian objects whose utility outweighs any merit that may exist in protecting their creative elements. As such, typefaces are exempt from copyright protection in the United States (Code of Federal Regulations, Ch 37, Sec. 202.1(e); Eltra Corp. vs. Ringer). However, this finding was limited in Adobe Systems, Inc. v. Southern Software, Inc., wherein it was held that scalable computer fonts, i.e., the instructions necessary to render a typeface, constitute a "computer program" for the purposes of copyright law and hence are subject to protection. Hence the computer file(s) associated with a scalable font will generally be protected even though the specific design of the characters is not. Furthermore, a rasterized representation (e.g. bitmap) of the characters in a scalable font is not protected by copyright in the United States. According to the Compendium of U.S. Copyright Office Practices, typography and calligraphy are not copyrightable in themselves in the US.[22][23] This treatment of fonts is not very unusual with respect to international law, and most other jurisdictions do not consider fonts subject to copyright either (with the notable exception of the UK, which however also only covers typefaces as such, as they are for example employed in fonts, and not their actual use[24]). However, typefaces as such may be protected by design patents in many countries (either automatically, or by registration, or by some combination thereof). A prominent example is the European Union,[25] where the automatic protection (without registration) expires after three years and can be extended (by registration) up to 25 years.[26]
Like the duration of copyright, eligibility to copyright in the first place is governed by national laws. The Berne Convention, §5(2) Archived 2012-09-01 at WebCite explicitly states that
In other words: a work that is not copyrightable in one country (even if that country is its country of origin) can still be copyrighted in other countries, if the work is copyrightable there. An example of this is File:Christoph Meili 1997-nonfree.jpg: this image is not copyrightable in its country of origin (Switzerland) by a decision of the Swiss Federal Supreme Court.[27] However, in all likelihood it fulfills the criteria in other countries: it would pass the threshold of originality in the US; and it would probably also be eligible for copyright in the EU.
Mere ideas, procedures, methods of operation or mathematical concepts as such are not copyrightable as per article 2 of the WIPO Copyright Treaty.[28]
In the following, we will frequently refer to the "publication" of a work. A work is published when copies of the work are made accessible in some non-ephemeral form to the public at large with the consent of its author or copyright holder. Ephemeral forms of making the work accessible do not constitute publication. To quote the Berne Convention, §3.3 Archived 2012-09-01 at WebCite:
The US Copyright law defines "publication" in 17 USC 101 in basically the same way using different words:
"Public display" includes broadcasts and other transmissions. The US Copyright Office states in its Circular 40:
Thus, a work is unpublished unless copies (which may be print publications, photos, postcards, lithographs, but also non-print publications such as replicas of a statuette) of it are published. It is of course implied that such a distribution of copies occurred legally, in particular with the consent of the copyright holder. An illegal distribution of copies (for instance one that itself would be a copyright violation) does not constitute a publication of a work. The right to publish a work is an exclusive right of the copyright owner (17 USC 106), and violating this right (e.g. by disseminating copies of the work without the copyright owner's consent) is a copyright infringement (17 USC 501(a)), and the copyright owner can demand (by suing in court) that copies distributed against his or her will be confiscated and destroyed (17 USC 502, 17 USC 503).
Notwithstanding the quoted paragraph from the Berne Convention, broadcast and public performance of literary or dramatic works may constitute publication in other countries, e.g. Australia (see Infosheet G023v16: Duration of Copyright (February 2012, pg. 11)).
For works that were made available to the public in the form of sound recordings (i.e. phonograph records), it should be noted that the publication of a sound recording before January 1, 1978, does not constitute publication of any underlying musical or dramatic or literary work.[29] Movies and TV shows are subject to special issues with regard to publication status; see the "Movies" and "TV shows" sections for more detail.
We will get back to this issue in the sections "Published works" and "Unpublished works" below.
The Berne Convention was designed to ensure that works protected in the country of origin were also protected in all other signatory countries without the rights holder having to register claims in each and every one of these countries. Thus the laws of the originating country of a work determine whether something is copyright protected at all, and if so, the Berne Convention ensures that it is automatically copyright protected in all other signatory countries, too, under their respective laws (§5(1) of the Berne Convention).
(The originating country or country of origin is that country where the work was initially published, or in the case of unpublished works, defined by the author's nationality or "habitual domicile". See §3 of the Berne Convention. If a work is published within 30 days in several countries, it can have multiple "countries of origin".)
Copyright protection is granted only for a certain period—barring pathological cases where some work is placed under a perpetual copyright protection. Different countries have different copyright terms: in some countries, copyright expires 50 years after the author's death (also called "50 years p.m.a.", post mortem auctoris; this is the minimum standard required by the Berne Convention), others have a 70-year period (70y p.m.a.), Mexico even 100y p.m.a. Archived 2006-03-27 at the Wayback Machine Many countries also have special rules, depending on when a work was first published, whether it was first published in that country or not, whether the author is known or not, and other things. For instance, a work published with a © notice in the US between 1963 and 1977 (inclusive) is copyright protected in the US until 95 years after the date of the initial publication. Peter Hirtle has compiled a very useful chart (also available at Commons:Hirtle chart) showing when and under what conditions the copyright of a work expires in the US. The default rule in the US for works published since 1978 or for unpublished works is 70 years p.m.a. If a work is a "work made for hire", it has corporate authorship and is protected to the shorter of 95 years from publication or 120 years from creation. Many countries also know or at least knew different copyright terms for text and photographic works.
Basically all countries in the world specify that when a copyright expires, it does so at the end of the year. Thus, works of an author who died on June 27, 1937, did not become copyright-free on June 28, 2007, but only on January 1, 2008, under a "70 years p.m.a." rule.
The following table is only for works registered or first published in the United States (where works registered up to 1977 count as published works).[30] Note that works of employees of the U.S. federal government prepared as part of their official duties are always in the public domain regardless of the table below, and that copyright terms for sound recordings, architecture, and works first published outside the US are different; a separate table for sound recordings first published in the United States is also shown below.
Green - All works are in the public domain due to copyright expiring
Yellow - Some works are in the public domain due to copyright expiring
Orange - Some works are in the public domain due to failure to conform to technicalities
Red - No works are in the public domain
Copyright term
Note: all specific dates are the first day that works are in the public domain.
PD - All works are in the public domain due to copyright expiring.
95/100/110 - Copyright expires the specified number of years after publication.
95++ - The later of 95 and 16 Feb 2067
S - Copyright expires 70 years after author's death; but if the work is anonymous or made for hire, or the author or the author's death date is unknown, copyright expires on the earlier of 95 years after publication or 120 years after creation.
S+ - The later of S and 1 Jan 2048
S++ - The later of S and 16 Feb 2067
16 Feb 2067 - Copyright term ends on specified date.
Conditions
R - Copyright was renewed in the 28th year after publication.
N - A compliant copyright notice was included.
N* - A compliant copyright notice was included, or the work was registered within five years of publication.
Notes
U - For works that are anonymous, made for hire, or where the author's identity or death date is unknown, works created 1903 and earlier are in the public domain.
D - For works not made for hire where the author's identity and death date are known, works whose author died 1954 or earlier are in the public domain.
While the Berne Convention does harmonize bringing works under copyright protection in the first place, it does not similarly harmonize the expiration of copyright. The Berne Convention prescribes a minimum standard for copyright terms any signatory country must adhere to (50y p.m.a.), but any signatory is free to prescribe longer durations in its laws. To be fair, §7(8) of the Berne Convention does specify a "rule of the shorter term", which says that the copyright term can in no case exceed the copyright term in the originating country of a work. However, signatory countries have the right to "opt out" from this rule, and it depends on individual countries' implementation acts whether they do follow this rule. The copyright on a work may thus expire in one country and enter the public domain there, but the same work may still be copyrighted in other signatory countries.
The United States does not recognize this "shorter term" rule while 17 U.S.C. 104(c) reads: "Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto." Furthermore, 17 U.S.C. 104A(a)(1)(B) may restore copyright on a work published outside the USA for the remaining American copyright term even if its copyright may expire sooner in its source country.
The European Union does, however, adopt such a rule vis-a-vis non-EU members (see §7(1) of the EU directive 93/98/EEC). Within the EU itself, however, the contrary is true: §10(1) states that longer terms already running remained in effect, and §10(2) states that the 70 year p.m.a. applied to all works protected in at least one member country. As a result, there is a transitory phase in which works that were already out of copyright in one EU country suddenly became copyright protected again in that country on July 1, 1995, because they were still protected in some other EU country. See "World-War II images" below.
In East Asia, Japan, Macao, and Taiwan also honor the rule of the shorter term. See §58 of the Japanese Copyright Law Archived 2005-12-16 at the Wayback Machine, Article 51 of Decree-Law n.o 43/99/M of Macao, and Article 106bis of the Copyright Act in effect in Taiwan administered by the Republic of China.
However, some countries make exceptions to this rule. A notorious case is Germany, which has had a bilateral treaty with the US governing copyright since January 15, 1892. That treaty, which is still in effect, defined that a US work was copyrighted in Germany according to German law irrespective of the work's copyright status in the US, and it did not contain a "rule of the shorter term". In one case, a German court therefore decided that a US work that had fallen into the public domain in the US was still copyrighted in Germany in 2003 in spite of §7(1) of the EU directive.
See also OpenFlix for a useful list of countries and areas that do or do not honor the rule of the shorter term.
Because copyright expiry is governed by local laws, some special noteworthy cases exist, in particular for photographs. These cases are interesting for Wikipedia if a work was not published in the US, because then, the law of the originating country must be examined. There is a whole slew of country-specific image copyright tags for precisely that purpose; see the list of image copyright tags. However, being in the public domain in its home country does not automatically mean that the work was also in the public domain in the US because the US does not follow the "rule of shorter term". Wherever these country-specific tags are used, they should be accompanied by a rationale explaining why the image is thought to be in the public domain in the US, too. (Remember that Wikipedia is primarily subject to US law!)
Some examples of such country-specific rules are:
For an exhaustive list of the current situation in many countries, see Wikipedia:Copyright situations by country. This may help dealing with such cases. UNESCO also maintains a collection of copyright laws from many countries around the world. For works (photographs and others alike, but excepting sound recordings made before February 15, 1972) not published in the US, the following rule applies:
January 1, 1996, is the effective date for the copyright restorations of the US Uruguay Round Agreements Act (URAA).[31] The URAA implemented TRIPS, part of the Uruguay Round of the GATT negotiations, in US law. The URAA essentially is codified in US law in 17 USC 104A. It had the effect of automatically restoring copyrights of works that were still copyrighted in their country of origin but whose copyright had lapsed in the US due to non-compliance with technical formalities such as proper registration of the copyright with the US Copyright Office or that were not protected in the US due to a lack of international or bilateral agreements with the country of origin. Since works that have entered the public domain in their country of origin before January 1, 1996, are not eligible to this copyright restoration, such works remain in the public domain in the US. This, however, is valid only in cases where the US federal copyright law (17 USC) applies. There are some specialized cases that are subject to state law, where other rules may apply (see the section on sound recordings below). If the country of origin became a member of the Berne Convention or the two WIPO treaties or the WTO only after January 1, 1996, the URAA still applies and that country's earliest adherence date to any of these treaties or organizations must be taken as the URAA copyright restoration date instead of January 1, 1996.
For the above cases, this means:
Additionally, because of the rule of the shorter term, such photographs are likely to be also in the public domain in Europe and in Japan, unless published there. (For the EU, one may probably even apply the 1955 and 1949 cut-off dates.)
The obvious difficulty here is to show that any particular work was indeed not published in the US, especially when considering works by Canadians. Even worse, one has to show that the work was indeed first published in Australia or Canada, respectively. If it was published in the US, the whole deliberation about copyright expiry in other countries does not come to play at all—the work is copyrighted in the US (unless it was published before 1929, or in a few very specific, difficult to verify cases, see "published works" below). If the work was published first in some third country—such as the United Kingdom—that third country is the country of origin, and consequently, one has to apply that country's copyright regulations to determine whether the work's copyright had expired by January 1, 1996. There are some other problems, too:
In summary, the rules in the US for works published abroad are as follows:
While the author of a photograph can often be determined quite easily, it may be rather difficult to ascertain where and when a particular image was first published. And strictly speaking one would also have to verify that a non-US work was not covered by copyright in the US by virtue of some bilateral agreement of the US and the foreign country (see [3] Archived 2014-07-04 at the Wayback Machine and "Circular 38a" in the "external links" section below). Country-specific public domain tags must therefore be used with the utmost care only.
Crown copyright is a special form of copyright on governmental works (including works made by employees of government agencies in the course of their duties) that exists in the United Kingdom and a number of other Commonwealth realms. Crown copyright for published works generally lasts for 50 years since the first publication (this is true for the United Kingdom, Canada and Australia with certain exceptions such as those outlined in the section below). When Crown copyright expires on a work in its country of origin, the work enters the public domain in that country, but it may still be copyrighted in other signatory countries of the Berne Convention because these other countries apply their own laws, which may have longer copyright terms and not even know the concept of a "Crown copyright". (See e.g. Sterling 1995 towards the end, section titled "Protection of Crown copyright in other countries". However, also note "Finally, a decision needs to be made as regards the protection of Crown copyright as between one "Crown copyright" country and another such country. Since, for example, the Crown is the owner of Crown copyright arising in Canada, can the Crown claim to be the owner of such copyright in the U.K.? If not, who could claim such copyright? These questions await resolution.")
An exception to this is UK Crown copyright. Although UK works on which the Crown copyright has expired also could still be copyrighted elsewhere, the British Office of Public Sector Information (OPSI), which manages all Crown copyrights on behalf of the copyright holder (the Crown), has explicitly stated in an e-mail to Wikipedia that they consider UK Crown copyright expiry to apply world-wide. A similar declaration has been made for Australia.
There is a flowchart explaining the precise rules for UK Crown copyright expiry. For photographs the rules are as follows:
There is the template {{PD-BritishGov}} to tag images which are claimed to be in the public domain under these rules.
Companies House - When downloading accounts for a Company listed, they are free of copyright and may be posted on any website. They are public record and statutory. The situation is the same for birth and death certificates. There is no copyright for this type of public record. Please see www.companieshouse.gov.uk.
Within Canadian Copyright law there is one exception however under section 12 of the Copyright Act which states that Crown copyright expires after 50 years "Without prejudice to any rights or privileges of the Crown",[32] which is further supported by the fact that "No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment".[33] In this way Crown Copyright held under the Royal Prerogative "is not subject to the usual statutory copyright term. The royal prerogative is referenced at the start of section 12 of the Copyright Act".[34] Further, the common law "prerogative right of the Crown to the exclusive printing of Acts of Parliament, Orders in Council, state papers, and other public documents is well established. The Crown prerogative, unlike rights under the [Copyright] Act, continues in perpetuity and is not limited to the term specified in the Act".[35] Professor David E. Smith further reinforces this point, stating "that this exclusive right to certain works by prerogative amounts to a perpetual term of copyright protection".[36] Subsequently, in certain cases such as when rights are held under the Crown prerogative, copyright can be "said to be perpetual...and not to lapse through non-use or non-assertion",[37] and that a "right to certain works by prerogative amounts to a perpetual term of copyright protection".[38]
When attempting to determine copyright status, "the following facts should be kept in mind. First, section 12 grants Her Majesty rights in works prepared or published by or under her direction or control...Second, the rights granted in section 12 generally limit the protection to 50 years following the first publication of the work whereas it is arguable that Crown copyright under the Crown prerogative is perpetual. Put another way, Crown copyright under the Crown prerogative is wider in scope and duration than what section 12 provides".[39]
Works of the United Nations or one of its bodies are generally copyrighted.[40][41] In the interest of facilitating dissemination, the UN explicitly excludes some categories of its works from this general copyright and places them into the public domain: UN parliamentary documentation as well as public information material published under the UN document symbol and not offered for sale.[41] Such documents are in the public domain. UN parliamentary documentation comprises a broad set of official reports prepared by the UN secretariat and the UN official records.[42] UN official records are
UN resolutions are therefore in the public domain world-wide. Concerning images one should bear in mind that the UN may include in their publications (in print, on the Internet, or otherwise) images from third parties for which the UN has obtained an appropriate license.[41] Such third-party images retain their copyright, even if published in an otherwise public domain UN document as mentioned above. Only UN images appearing in such documents may be assumed to be in the public domain.
Under the Berne Convention, copyright is automatic: no registration is needed, and it is not even necessary to display a copyright notice with the work for it to be copyright protected. Prior to the US adopting the Berne Convention (by amending its copyright law through the Berne Convention Implementation Act Archived 2011-04-06 at the Wayback Machine, effective March 1, 1989), this was not the case in the United States. A work was only copyrighted if published with a copyright notice, which could be as simple as a line saying "© year copyright holder". For US works there are therefore some special cases that place even works published after 1929 in the public domain. However, the necessary conditions are hard to verify.
Even if a work was published in the US between 1929 and 1977 without a copyright notice, there would need to be proof to that effect. The proof must contain a valid resource justifying the claim in order for the US copyright office to accept it.
For works not published in the US but published first in some other country, see "country-specific rules" above.
Works originally published in the US after 2002 (with or without copyright notice or registration) are protected until 70 years after the author's death (70 years p.m.a.); anonymous works, works made for hire, works of unknown authors or where the author's death date is unknown are copyrighted until the shorter of 95 years since the first publication or 120 years since their creation. See 17 USC 302.
So far, we have only considered published works. To re-iterate from the Berne Convention, §3.3 Archived 2012-09-01 at WebCite:
As long as a work is not published, it is unpublished. (Also note that by publication, the work must be made accessible to the general public, not only some closed audience. Furthermore, the publication must have had the consent of the author/creator or copyright holder of the work.)
Why is this important at all for Wikipedians? How could you come across an unpublished work?
Actually, that can happen easily with photographs in archives. Remember that "publication" requires the consent of the rights holder (initially the photographer). Many historic photos may thus actually be unpublished works, unless it can be shown that they were published in olden times. Especially items like private letters or family photographs, or photos found in some album, may well be unpublished. There are special exemptions in copyright law for libraries and archives that allow them to reproduce (even for the general public) such works for non-commercial uses, but that does not constitute "publication" unless done with the authorization of the rights holder.
The University of Wyoming's American Heritage Center has a three-page primer on the issues involved with unpublished works. Archives often do not hold the copyright to the items in their holdings. An archive only owns the copyright in a work if the copyright itself (not just the physical document embodying the work) has been transferred to the archive in a signed writing. In practice, many archive holdings may be so-called orphaned works, i.e. works where the current copyright holder, if any, is unknown. For such orphaned works, the US Copyright Office seems to push for a change in US Copyright law (see [4] for a brief summary) and a bill (HR 5439) for the Orphan Works Act of 2006 Archived 2008-10-07 at the Wayback Machine has been introduced in the United States House of Representatives on May 22, 2006, but no law has been passed yet.
Unpublished works are subject to copyright, too. To determine the copyright status of works published by archives that were not published elsewhere before, one will need to consider the rules for unpublished works. Until the US Copyright Act of 1976 became effective on January 1, 1978, US federal law only covered published works and unpublished works that were registered at the Copyright Office. Unpublished unregistered works were covered by state law. This "common law copyright" in most states granted unpublished works a perpetual copyright, valid until an eventual publication of the work.[44][45] Since 1978, US federal law also covers unpublished works (and preempts state law, see 17 USC 301). This gives the following situation in the US:
Another important class of possible unpublished works are artworks, in particular paintings. Because an artwork is not published by being exhibited, and also neither by being created or sold, one needs to know when reproductions of the artwork (photos, postcards, lithographs, casts of statues, and so on) were first published. That constitutes publication of the artwork, and from then on, the work is subject to all the rules for published works.
For most artworks, a year is usually given, but this is normally the year the work was made, not the year it was published. Figuring out whether and if so when a particular painting was published can be difficult.
In the case that an artwork created before 1978 is not published until 2003 or later, it comes into the public domain 70 years after the author's death. However, if it is first published between 1978 and 2002 (inclusive), it will still be copyrighted in the US until the end of 2047.
Proof of publication is mandatory; uploaders making a "public domain" claim on (a reproduction of) an artwork are required to prove with verifiable details that the work was first published before 1929, or first published after 2003 with an artist who died more than 70 years ago. To show that a work was published, one could look for printed works that contained reproductions of the artwork: art prints, art books, a catalogue raisonné of the artist's works, exhibition catalogs, and so on (although it is not clear when publishing a thumbnail constitutes publication of the original work). Reasonable effort should be made to find the earliest publication. If any is found from before 1929, that's good enough and the work is in the public domain. Remember, though, that "publication" means "lawful publication", which implies the consent of the author of the original.
If only a publication of 1929 or later can be asserted, the work should not be assumed to be in the public domain without evidence. If it was published before 1978 and had no copyright notice or if it was published before 1964 and the copyright was not renewed it should be in the public domain. Works published abroad rarely complied with US formalities but may still be copyrighted if they were copyrighted in their home country on January 1, 1996, when the URAA restored copyrights in foreign works.
The Berne Convention leaves it to any signatory country to make its own rules regarding unpublished anonymous works (see §15(4)). Unpublished works by a known author, however, are subject to the same minimum protection (50 years p.m.a) as published works. But this is only a minimum protection. Individual countries can and do make their own rules regarding unpublished works, and often go beyond this minimum. Some cases to illustrate the possible complexities are:
Such cases may be important when trying to determine whether a non-US work was copyrighted on January 1, 1996. See "country-specific rules" above.
"Sound recording" and "phonorecord" are the terms used in the US federal copyright law for records of music and speech alone, i.e. not together with images: videos, for instance, do not fall in this category. A "phonorecord" is the physical medium (LP, tape, CD, or other) on which a sound recording is fixed. Sound recordings, including digital recordings, are a very complex special case in US copyright law. (Note: although "sound recording" encompasses also non-musical sounds, the topic is discussed here in the context of music recordings without loss of generality.)
A sound recording is different from a musical work. A musical work would be a composition (notes and words). Publicly performing a musical work does not constitute "publication" in the sense of the copyright law. (Presumably, a musical work is published when the score sheets are published.) The publication of a sound recording before January 1, 1978, does not constitute publication of an underlying musical or dramatic or literary work (17 USC 303(b)).[29] Making a sound recording of a performance of a musical work requires the permission of the performer. (17 USC 1101) Performing a musical work requires the authorization of the copyright holder of that musical work. (17 USC 106(4)) Distributing phonorecords made from a performance of a musical work also requires the authorization of the copyright holder of the work performed (17 USC 106(3)). A sound recording is copyrighted separately from the musical work it records. Publicly distributing phonorecords of the sound recording constitutes publication of the sound recording. (17 USC 101)
So there are four different copyrights to be considered for a sound recording:
In the case of broadcasts, there's also the copyright of the broadcaster on the broadcast to consider. The copyrights of performers/record producers/broadcasters are called the "neighbouring rights" or "related rights" in many countries. All of these have to have expired before the work enters the public domain.
As of October 2018, there have been significant changes to US sound recording copyright as a result of the Music Modernization Act (see [5] and [6]). Prior to the passage of the law, sound recordings made before February 15, 1972, were not covered by US federal copyright law, but were subject to state laws instead, effectively meaning that no sound recordings could be considered to be in the public domain, no matter how old. Under the Music Modernization Act, the situation is as follows:
On an international level, sound recordings are not covered by the Berne Convention. §2(1) of the Berne Convention only lists musical works, but not recordings of performances of such. Internationally, sound recordings are brought under the auspices of copyright protection by the Rome Convention, the WPPT, and the Geneva Phonograms Convention (in full: "Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms"). The US has never signed the Rome Convention, but has signed and ratified the WPPT (entry in force in the US was on March 20, 2002). Additionally, the US has ratified the Phonograms Convention in 1973, it entered in force on March 10, 1974.
An illustrative case in the US showing some of the complexities of determining the copyright status of even old recordings is Capitol Records v. Naxos of America, decided by the New York Court of Appeals, the highest court of the state of New York, on April 5, 2005. Briefly, that decision about old recordings that were made in the United Kingdom in the 1930s and that had entered the public domain there in the 1980s (50 years after their creation) stated that these were still eligible for copyright protection under the common law of the state of New York, even though they were in the public domain in the UK prior to January 1, 1996, and thus not eligible for copyright restoration under the URAA. The reason given was precisely that records from the 1930s were not covered by federal law and the URAA and its cut-off date did not apply to state law.
Despite sound recordings not being covered by the Berne Convention, and despite the fact that the US in 1996 was a member of neither the Rome Convention nor the WPPT, the URAA does cover sound recordings (17 USC 104A(h)(6), in particular sub-points (C)(iii) and (E)). The usual copyright term for performances/records/broadcasts in many non-US countries is 50 years, counted from the creation (performance, fixation of the record, original broadcast), but if the performance or record is published within these 50 years, the term runs until the end of 50 years after that first publication. (The minimum term defined in the Rome Convention is just 20 years, but many countries go further.) As a result, the URAA generally restored federal copyright on foreign sound recordings made 1946 or later, even though domestic records from 1946–1971 do not benefit from such federal copyright. As far as foreign records are concerned, common law copyright applies only to pre-1946 records. Later records are covered by federal law. And, as the Capitol v. Naxos case showed, absence of federal copyright due to non-restoration does not mean the foreign recording were in the public domain in the US.[47]
In the United Kingdom, the copyright of a sound recording expires 50 years after it was made. However, from 1 November 2013, the copyright of a sound recording expires 70 years from the end of the year of publication, when it was first played in public or communicated to the public, whichever event occurred first.[48]
Prior to November 2013, the copyright of a sound recording expired 50 years from the end of the year of publication, when it was first played in public or communicated to the public, whichever event occurred first. Therefore, any work which copyright expired on 1 January 2013 or prior will not be affected and remain in the public domain.[49]
Movies are called "motion pictures" in the US Copyright law and belong to the class of "audiovisual works". A movie comprises both the sequence of images and the accompanying sound, if any.[50] (Incidentally, a movie soundtrack is not a "sound recording", 17 USC 101.) They are subject to the same copyright rules as other works, with a few extras. Among the exclusive rights of the copyright holder on a movie are the rights to display publicly the movie or individual images from it. Therefore, even the display of a single frame from a movie is subject to the copyright on the film.
For movies, the question of whether a movie is a published work may arise, because public showings in theaters do not constitute publication. At the same time, the process of disseminating a movie involves (or used to involve) a distributor placing copies of the movie in its branch offices (which were sometimes called "exchanges" or "regional exchanges") from where they would be rented to exhibitors.[51] According to legal writer Stephen Fishman, the legal consensus is that a movie is published for the purpose of copyright once the distributor has made copies available in its exchanges.[51] In particular, there is the court case American Vitagraph, Inc. v Levy, 659 F.2d 1023 (9th Cir. 1981). As such, a film that has been distributed and then shown in movie theaters to the general public can be treated as being published.
The matter of movies is complicated when the movie itself is a derivative work of some earlier work, for instance a previously published novel. As with all derivative works, the copyright on both the derivative and the underlying base work must have expired before the film is truly in the public domain. If only the rights on the film have expired, publication of the movie is still subject to the consent of the rights holder of the underlying work.
A similar case occurred with the film It's a Wonderful Life, which was thought to be in the public domain when its copyright owner failed to renew its copyright in 1974. However, in 1993, the copyright owner determined that it still held the rights to the underlying story.[52]
The situation gets even more confusing if the effects of renewals are taken into account. In particular, what about the status of derivative works created during the base work's initial copyright term, i.e., created before the renewal of the copyright on base work? In 1990, the US Supreme Court ruled in Stewart v. Abend (495 U.S. 207 (1990)) that the continued exhibition and distribution of the Hitchcock movie Rear Window was a copyright infringement on an underlying short story, on which the copyright had been renewed. On the other hand, this applies only to explicit copyright renewals, i.e. all pre-1964 renewals and those made voluntarily after 1964. As per 17 USC 304(a)(4)(A), it does not apply to automatic copyright renewals (since 1964).[53] See also Circular 15: Renewal of Copyright Archived 2007-08-29 at the Wayback Machine by the US Copyright Office.
Other issues that may arise with movies include the situation where a movie's footage shows items of preexisting artwork that are copyrighted separately from the movie.[54] (In some circumstances, such as if the artwork appears momentarily or is obscured or out of focus such that it is unidentifiable, the depiction of the artwork may be permissible under fair use.) In addition, though publication of a movie also constitutes publication of the underlying screenplay elements that the movie incorporates (see Shoptalk, Ltd. v Concorde-New Horizons, Corp., 168 F.3d 586 (2d Cir. 1999) and Batjac Productions, Inc. v Goodtimes Home Video Corp., 160 F.3d 1223 (9th Cir. 1998)),[55] it is not legally clear as to whether the publication of a movie constitutes publication of musical works that are included in the audio portion of the movie.[56]
Note that in most countries, all this is not an issue at all. As movies are granted the same copyrights with the same terms as the underlying work(s), the copyright on the underlying work typically expires first. But in the US, it is quite possible that the copyright on a movie was not renewed (or the movie was published without copyright notice) while the book on which it is based was properly copyrighted and renewed. In such cases, the movie will be in the public domain only when the book is in the public domain, too.
With cartoons, a slightly different issue may arise. Cartoon characters are, themselves, objects of copyright,[57] as they themselves are works of art and not a phenomenon of nature. The most famous example is, most likely, Mickey Mouse. He appeared in 1928 in the animated movies Plane Crazy and Steamboat Willie, and was copyrighted at that time. The copyright was properly renewed and, because of the terms of the Copyright Term Extension Act, its copyright runs for 95 years since the original publication and is currently set to expire at the end of 2023. The Mickey Mouse case is complicated even more because the character has become a trademark of The Walt Disney Company, which means that even "fair use" of the character must be carefully evaluated to avoid trademark infringement.[58]
Similar to the above, an animated movie enters the public domain only when the copyrights on both the movie and the character have expired. Even if there were a Mickey Mouse movie that was not under copyright due to non-renewal or other reasons, that movie would not be in the public domain until the end of 2023, when the copyrights on Plane Crazy, Steamboat Willie and on Mickey Mouse will have expired.
The same applies, of course, to other cartoon characters such as Donald Duck, or the Warner Bros. characters such as Daffy Duck. It also applies to comic strips and comics characters, such as Superman.
Many TV shows may in fact be unpublished works for the purpose of copyright because wireless broadcast does not constitute publication. In addition, it is not clear as to whether syndication of a TV show constitutes publication for the purpose of copyright.[59] Two rulings from US federal trial courts (Paramount Pictures Corp. v Rubinowitz, 217 U.S.P.Q. 48 (E.D. N.Y., 1981) and NBC v Sonneoborn, 630 F.Supp 524 (D. Conn, 1985)) held that syndication of TV shows under restrictive agreements did not constitute publication, though it is not clear as to whether other courts would come to the same decision.[59]
Buildings are works subject to copyright in the US according to 17 USC 102(a)(8) since the Architectural Works Copyright Protection Act was passed in 1990. It applies to all buildings that were completed (not begun) after December 1, 1990, or where the plans were published after that date. However, the US federal copyright law explicitly exempts photographs of such copyrighted buildings from the copyright of the building in 17 USC 120(a). Anyone may take photographs of buildings from public places. The photographer holds the exclusive copyright to such an image (the architect or owner of the building has no say whatsoever), and may publish the image in any way. In German copyright law, this is called "Panoramafreiheit". Not all countries recognize this right; in France and Greece for instance, there is no such freedom of panorama and thus the copyright holder of a building has the right to control the distribution of photographs of the building.
17 USC 120 applies only to architectural works, not to other works of visual art, such as statues. In many other countries, this freedom of panorama extends also to works of the visual arts that are permanently located in public places, but that is not the case in the United States. In many countries, taking photographs of military installations is also illegal or it is illegal to reproduce cultural heritage without the permission of its owner (but that prohibition is independent of copyright).
A work that is derived or adapted from a public domain work can itself be protected by copyright only to the extent that the derived work contains elements of originality contributed by the author of the derived work. For example, an abstract painting of a famous photograph would be protectable, as is the distinctive rendition of the Star Spangled Banner performed by Jimi Hendrix. The protection available to these works does not remove the underlying work from the public domain, and the author of the derivation has no cause of action against another person who makes a derivation of the same public domain work.
A work that is merely a "slavish copy", or even a restoration of an original public domain work is not subject to copyright protection. In the case of Hearn v. Meyer, 664 F. Supp 832 (S.D.N.Y. 1987), an illustrator attempted unsuccessfully to claim copyright on his restored versions of original Wizard of Oz illustrations. The illustrations were in the public domain, and the court found that the act of rendering them with bolder and more vibrant colors was not an original contribution sufficient to remove the restored works from the public domain.
The Supreme Court of the United States has explicitly rejected difficulty of labor or expense as a consideration in copyrightability in Feist v. Rural. See also "Non-creative works" above.
Public records are not necessarily in the public domain. Citizens generally have the right to access many items in the government's public records, but this right to access does not include a right to republish or redistribute the works so accessed. In general, copyright is neither lost nor waived when a work becomes part of the public record. Being in the public record and copyright are two independent concepts. Uses of works from the public record must comply with copyright law.[60]
Many items in the US public records are in the public domain as works of the US federal government, such as court decisions by federal courts. The constitution and statutes of some states, such as California and Florida, generally do not permit public records to be copyrighted.[61][62] Other kinds of works in the public record (third-party works, works and software created by contractors for a state or local government) may be copyrighted, though;[11][12] even when they have become part of the public record.
In the United Kingdom, many items in the public records are copyrighted. Official works in the UK are under Crown copyright, and this copyright subsists if the item was published before it was placed in a public record repository. Only for works that were placed in such repositories without having been published before, the Crown waives its copyright.[63]
Common sense would suggest that once the copyright of a particular work has expired in a country and it had thus entered the public domain in that country, it would always remain in the public domain there. Unfortunately, this is not always true. It is possible that the copyright laws of a country are changed such that works already out of copyright under the old law become copyrighted again under the new law. Such copyright restorations complicate considerably the matter of deciding whether a work is indeed in the public domain.
There are several examples of such laws restoring copyrights. In the EU, the Directive on harmonising the term of copyright protection, which is binding for all EU members and which became effective on July 1, 1995, makes any work that was copyrighted in at least one EU member on January 1, 1995, copyrighted in all EU members, even if that work's copyright had already expired there (see §10(2) of the directive). Because Spain has had a strict copyright law with a long copyright term of 70 years p.m.a. (or even 80 years for some time) and no rule of the shorter term since 1879, this effectively means that throughout the EU, one has to apply 70 years p.m.a., irrespective of shorter terms that may have existed in historic laws of a particular EU member. For an example of this, see the case of German World War II images below. In the US, the Uruguay Round Agreement Act (URAA) mentioned above is another such copyright restoration to the US copyright law. It suddenly makes works copyrighted in the US that previously were in the public domain there. Examples of such copyright restorations also exist in other countries.
Such copyright restorations typically are not ex post facto laws. (Briefly, an ex post facto law is one that retroactively criminalizes or punishes more severely acts done before the law was passed.) The EU directive explicitly says in §10(3) that the directive "shall be without prejudice to any acts of exploitation performed before the...[effective date, i.e. July 1, 1995]. Member States shall adopt the necessary provisions to protect in particular acquired rights of third parties." The URAA, to take the other example discussed above, only makes continued or new unlicensed uses of works whose copyright has been restored a copyright violation. Unlicensed earlier publications of the work (while it was still in the public domain in the US) are not punished "after the fact", i.e. ex post facto. For continued uses, 17 USC 104A requires even that the holder of the restored copyright file a so-called "Notice of Intent to Enforce Restored Copyrights" (in short: NIE) with the US Copyright Office for such continued uses to be considered copyright infringements (see 17 USC 104A(c)). For existing derivative works, 17 USC 104A(d)(3) stipulates that a "reasonable compensation" must be paid for continued use.
Because the URAA became effective only on January 1, 1996 (half a year after the EU directive), any copyrights restored in the EU by the directive also became restored in the US.
According to Circular 38a of the US Copyright Office, as of January 2021, Eritrea, Ethiopia, Iran and Iraq have no copyright relations with the US.[64] Works published in one of these countries by a resident citizen of that country thus are not copyrighted in the United States, irrespective of the local copyright laws of these countries.[65]
On Wikipedia, such works may be used under a "public domain" claim only if their copyright in the country of origin has expired, even though legally the work is in the public domain in the US.[66] Furthermore, it also avoids future problems with images on Wikipedia if some of these countries should enter a copyright treaty with the US, because then suddenly such works will become copyrighted in the US by virtue of the URAA (see above) if they are still copyrighted in their country of origin. Previously uploaded images might then have to be reevaluated. As an example, consider Iraq, which is a WTO observer and is in the process of applying for WTO membership. If and when Iraq does become a WTO member, the URAA suddenly will apply, and Iraqi works that are copyrighted in Iraq at that time will become copyrighted in the US.
The issue of German photographs from World War II has created some confusion. Are they still copyrighted? What about governmental images (such as propaganda)? What about images seized by Nazi Germany?
The copyright situation in Germany concerning such images is in itself confusing. Originally, these images were subject to the 1907 Kunsturhebergesetz (KUG) Archived 2012-12-31 at the Wayback Machine, which provided for a copyright term for photographs of 10 years from publication, or 25 years p.m.a. for unpublished works. In 1940, the KUG was modified to provide a copyright term of 25 years from publication, also applicable to all works that were either still unpublished or still copyright protected (§26). In 1965, the first version of the German Urheberrechtsgesetz (UrhG) became effective, again with a copyright term for photographs of 25 years from publication, or 25 years from creation, if the image had not been published in that time (§68). As a result, copyright on photographs from the World War II expired at the end of 1970.[67]
However, with the 1993 EU Directive on harmonising the term of copyright protection, which became effective in Germany on July 1, 1995, and is implemented in German law in §137f, these works suddenly became copyright protected again, until 70 years p.m.a! This was caused by Spain's longer copyright term of 80 years p.m.a. (see section on copyright restoration).[68] This suddenly superseded Germany's old "25 years"-rule that had governed World War II images. As a result, an image published in 1943 that had been in the public domain in Germany since 1968 became copyrighted again in 1995 with the EU term of 70y p.m.a.[69]
As a result, such images were copyright protected on January 1, 1996[70] (which is the critical date as far as US copyright law is concerned), and therefore, they are copyrighted even in the US.
The situation of German World War II photographs found in US governmental archives is controversial. They might fall (in the US only) under 17 U.S.C. 104A(a)(2), which exempts from the URAA copyright restorations works on which the copyright was seized and administered by the US Office of the Alien Property Custodian and on which a restored copyright would be held by a foreign government.[71] It is unclear to what works exactly this provision would apply,[71] as it can be argued that copyright of hardly any of the WWII works at all were owned by the German government and the Nazi party, but by private people and organizations. Most of these seized copyrights were returned to their foreign owners in 1962 by public law Pub. L. No. 87–846,[71][72] but on motion pictures, the US retained the right "to reproduce, for its own use, or exhibit any divested copyrighted motion picture films."[71] There is also the Price vs. United States (69 F.3d 46) ruling that at least places serious constraints on the practical enforceability of copyrights on such works in the US.[73] The United States Holocaust Memorial Museum even tags some such images as "© USHMM". It is also unclear what the US position on "official" images of the Nazi regime is. It should be noted that even the NARA acknowledges the presence of copyrights from the war era on some of its holdings remaining with the institutions and individuals who own the artwork, as opposed to their Nazi plunderers.
Another example are German newsreels, a kind of weekly news shown in movie theatres before the advent of television. Most such Wochenschau films are still copyrighted; the rights are held by Transit Film GmbH in Germany. In the US the copyright on these films from 1914 until the 1940s had expired due to non-compliance with US formalities; the copyright was then restored in 1996 by the URAA on those published after 1929. The Transit Film company then even filed so-called "notices of intent to enforce" (NIEs) with the US Copyright Office and can now even enforce its copyrights against parties who used their films (rightfully!) before the URAA became effective. The same is also true for most UFA films; the rights holder in this case is the Friedrich Wilhelm Murnau Foundation [7]. The song Lili Marleen is another such case; the rights holder is Schott Music International [8].
In the United Kingdom, confiscated German works brought into the country between September 3, 1939, and July 9, 1951, had all German interests, both physical ownership and intellectual property rights such as copyrights or patents, extinguished by the Enemy Property Act of 1953. This expropriation affected only the status of such works within the UK; the international rights on German works were left untouched.[74] This act was repealed in 1976, but the copyrights on such seized works were not restored in the UK.[75][76]
As a matter of longstanding public policy, the U.S. Copyright Office will not register a government edict that has been issued by any state, local, or territorial government, including legislative enactments, judicial decisions, administrative rulings, public ordinances, or similar types of official legal materials. Likewise, the Office will not register a government edict issued by any foreign government or any translation prepared by a government employee acting within the course of his or her official duties.... A work that does not constitute a government edict may be registered, even if it was prepared by an officer or employee of a state, local, territorial, or foreign government while acting within the course of his or her official duties.
To qualify as a work of 'authorship' a work must be created by a human being.... Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings.... Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.[dead link] The Compendium lists several examples of such ineligible works, including "a photograph taken by a monkey" and "a mural painted by an elephant".
The copyright law does not protect typeface or mere variations of typographic ornamentation or lettering.
As a general rule, typeface, typefont, lettering, calligraphy, and typographic ornamentation are not registrable.
Section 104(b)(5) of the Act states that works first published by the United Nations or any of its specialized agencies, or first published by the Organization of American States are eligible for copyright protection in the United States.
General:
Copyright renewals in the US:
