Copyright law can be confusing, especially with the abundance of misinformation circulated. In a perfect world, artists, art dealers, art lovers and everyone else in the art community would live in harmony and there would never be any conflicts. Unfortunately disagreements do arise. Therefore, in the event of a copyright conflict, artists should be aware of what their rights are. This series of articles will explain, generally, the basics of copyright law for artists.
How long does a Copyright last?
The Copyright Clause of the United States Constitution grants authors the exclusive right to use their creations for a limited time. It is considered a monopoly granted to authors for the purpose of promoting creation; however, it does not last forever. Once a copyright expires, the work becomes part of the public domain and is thereafter available for anyone to use. How long a copyright lasts depends on two things: the date the work was created and what category into which the work falls.
For works created prior to January 1, 1978, a copyright can last a total of 95 years (28-year initial term plus a 65-year renewal); however, there are many factors that determine whether the copyright lasts for all 95 years or not. Unlike under the current law, copyright owners of works created prior to 1978 had to meet several statutory requirements in order to secure the full length of protection, including publication, proper notice and a timely renewal. If they did not comply with any of the requirements, the work automatically fell into the public domain.
Determining whether or not a work created prior to 1978 but after 1893 (any work created before this date is now in the public domain) is protected by copyright can be a complicated process. There are resources available to assist an artist wanting to use a questionable work, such as Cornell University’s Copyright Term and the Public Domain chart, as well as searching the U.S. Copyright Office’s records. However, the safest way is to locate the owner and ask permission. Often, this is not an easy task.
For individual works (meaning works that have only one author) created after January 1, 1978, the copyright lasts for the life of the author plus 70 years after the author’s death. Notice is no longer required (but it does strengthen protection), and there is no longer a renewal term available.
Protection for joint works endures for the life of the last surviving author plus 70 years. A work is deemed a joint work if it is created by two or more authors with the intent for it to be a joint work, and each author’s contribution is eligible for copyright protection on its own (meaning, it meets the requirements discussed in the previous article). For example, a song in which one person writes the music and another writes the lyrics would be an appropriate joint work, so long as both authors intended it to be. Each author owns an undivided, equal interest in the work. Unless stated otherwise, they may use or license the work as they wish, but they must share any profits made.
Unlike individual and joint works, works made for hire have special rules (what specifically qualifies as a work made for hire will be addressed in a subsequent article) regarding duration. In a work made for hire situation, the employer is considered the author. In cases where the employer is a corporation, the life of the author plus 70 years time limit is inapplicable as the corporation may have unlimited life. Therefore, the copyright in a work made for hire lasts for 95 years from the date of publication (meaning, offered for sale or transfer) or, for unpublished works, 120 years from the date of creation, whichever expires first, regardless of whether the employer is an individual, a corporation or any other type of entity.
For works authored anonymously or under an unknown pseudonym, the copyright expires after 95 years, unless the authorship can be established. If the author is established, then copyright lasts for the life of that author plus 70 years.
For more general information regarding anything presented in this article, visit the applicable Circulars presented by the United States Copyright Office.
This article is meant for general, informational purposes only and should not be used in lieu of professional legal advice for individual circumstances. Every situation is unique. If you need legal advice, please consult an attorney. This article in no way establishes an attorney/client relationship between its author and reader.
Cara Dehnert Huffman is a lawyer and passionate supporter of the arts. She teaches entertainment law as well as other courses in the Arts, Entertainment and Media Management department at Columbia College Chicago and is a graduate of its Master in Arts Management program. Along with teaching for Columbia College, Dehnert Huffman is the former executive director of I Am Logan Square and has worked for Lawyers for the Creative Arts, the Illinois Arts Council and other creative Chicago organizations.