Copyright and Preservation
E. Determining the Copyright Status of a Work
As noted above, works published prior to 1915 can be presumed to be in the public domain. Similarly, works published after 1978 can be presumed to be protected. For works published between those dates, some research at the Copyright Office is likely to be necessary to determine whether the work was registered, by whom, and whether or not it was renewed. Eventually, for works published after 1978, research will also be needed to determine the date of death of the author.
The starting point is the work itself. Assuming that it was “published”, the work should be checked to determine whether or not the requisite notice is present. If not, it can be presumed to be in the public domain. If the notice is present, the date in the notice provides the first clue. If the work is older than 28 years, the records of the Copyright Office should be searched since the work should have been registered in order to renew the Copyright.77 If a renewal registration was not made, the work is in the public domain; if it was made, then the work is protected for 75 years from the date of first publication.
The basic file at the Copyright Office is the Catalog of Copyright Entries, which includes both initial registrations made during the covered period and renewals. The catalog is organized into different parts according to the different classes of works. These classes include “Nondramatic Literary Works”, “Performing Arts”, “Motion Pictures and Filmstrips”, “Sound Recordings”, “Serials and Periodicals”, “Visual Arts”, “Maps”, and “Renewals”. Before 1978, the Catalog was similarly divided into the classes contained in the statute at that time. Renewals, however, were at the back of each class, rather than in a separate section of their own. The Catalog of Copyright Entries is available for purchase from the Government Printing Office, and is also available for selection through the Depository Program. It is, therefore, likely to be available in many libraries. In addition, the staff at the Library of Congress is working on a retrospective conversion project for this file, and it may eventually be available online.
The Copyright Office also maintains files and indexes covering the assignment and ownership of copyright. These may be searched at the Copyright Office, or the staff there will search the records for a $10 per hour fee. The records of ownership are extensive and useful, but there is no recordation requirement for copyright transfers, so they cannot be thought to be complete.
One problem is that even with all of this, the searches may not be conclusive.78 As noted before, works need not be registered to be protected (except after renewal). The information known about a work may not be sufficient to identify it in the records of the Office or it may also have been registered under a different title or as part of a larger work. Similarly, copyright owners may have transferred some or all of their rights in ways that are difficult to trace. Unless a way can be found to provide some certainty (see section on possible solutions, infra), it would be wise to presume that a work is protected unless it can be shown that it is not. (One may certainly choose not to take such a conservative approach, but that is certainly the approach of least risk.)