Media & Entertainment Law

Asked & Answered: Copyright duration and the public domain.

By Gordon Firemark

Q: If 1977 is the dividing line for copyright laws, is it possible to, say, erase all challenging doubts by merging two pre-1977 stories and create an entirely new work? Such as, say, LITTLE WOMEN (1800s) meets the rogue PAL JOEY (1940). Or must one check to see if Louisa Mae Olcott’s estate still has an active copyright on her classic work, etc?

A: I’m afraid this proposal reveals a fundamental misunderstanding of copyright protection. The change in copyright law  that took effect on January 1, 1978 did not cancel or terminate existing copyrights.  In fact, it expanded the protection of many copyrighted works. Primarily, the 1976 Copyright Act changed  the ways in which copyright protection is obtained, and how long protection lasts.

Copyright duration is a complex analysis that requires an understanding not only of the current copyright law, but also the prior Copyright Acts of  1790, 1831, 1909 and several interim provisions enacted between 1962 and 1974.  So, it’s sometimes very difficult to determine when protection for a particular work expires.  In your example, “Little Women” was actually published in two parts in 1868 and 1869.  Under the copyright law that existed at that time, Ms. Alcott’s work was entitled to copyright protection for two, consecutive 14 year terms.  Assuming she, her estate or her publisher properly renewed the copyright during the 14th year, protection would have expired  in 1896.  “Pal Joey”, on the other hand, is still protected by copyright law until 2035 or thereabouts. ( works  created before 1978 now have a maximum copyright duration of 95 years)

So, combining two older works into a new one is NOT a valid recipe for avoiding copyright concerns.    The best advice I can offer is to consult with a knowledgeable entertainment lawyer or a copyright research service before incorporating third-party material into your screenplays.
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Full post as published by Entertainment Law Update on January 14, 2010 (boomark / email).