Question 10 – How Do I Determine When a "Private" Works Enters the Public Domain?
This is likely one of the most important questions to answer when dealing with public domain issues.
As mentioned in Question 9, there are 3 broad ways in which a work enters the public domain, including: (1) the United States government created the work; (2) the term of the copyright for the work expired; or (3) the original author of the work failed to renew or satisfy other formal requirements to claim his or her interest in the copyright. And as mentioned in Question 9, if a work was created by the federal government it automatically becomes part of the public domain upon its creation. However, the tougher issues arise in determining when a private work (i.e. not created by the federal government) becomes part of the public domain.
As mentioned in Question 9, the difficulty lies in determining the term of the copyright for the work expired or whether the original author of the work failed to renew or satisfy other formal requirements to claim his or her interest in the copyright (i.e. rules 2 and 3 from the above paragraph). So, how can you make these determinations? A chart will greatly help here. However, we must make an additional disclaimer (i.e. in addition to our disclaimer for the website that this information is NOT legal advice): This chart DOES NOT provide legal advice or act as a substitution for seeking a lawyer or other expert for your particular needs. In other words, talk to a lawyer before you take any action on a work that MAY be in the public domain. With that said, this chart covers works created on or after January 1, 1978 or published before 1923:
| Determining When a Work Enters the Public Domain |
| Date of Work |
Author |
Term of Protection |
Created on or after January 1, 1978 |
Single individual |
Life of author + 70 years |
Created on or after January 1, 1978 |
Work made for hire (e.g. work for an employer) and anonymous and pseudonymous works |
95 years from publication or 120 years from creation, whichever is shorter |
Created on or after January 1, 1978 |
Two or more individuals that did not work for hire |
70 years after last surviving author’s death |
Published before 1923 |
Anyone (i.e. individual or work made for hire) |
None. Work can be freely used (i.e. work is in the public domain) |
So, under this chart, works created on or after January 1, 1978 will enter the public domain after the term of protection expires. And works published before 1923 are in the public domain.
Ok, but what about works created from 1923 to 1978? This is the tricky part. We recommend you consult with a professional for these works and read Circular 15a, Duration of Copyrights, and Circular 1, Copyright Basics, to give you a better understanding of the complexity.
Finally, we’ll conclude with some main points to keep in mind when dealing with the public domain.