[UPDATE: see the more recent posting that argues that the reasoning in this posting is flawed.]
In a recent exchange with Tim Padfield, the UK’s expert on copyright in unpublished materials, he mentioned that the earliest known published work still protected by copyright in the UK is a poem called The sea girt home, published in Edinburgh in 1859 by Jessie Saxby (1842-1940). Next year it will be an article “The Shoehorn,” also published in Edinburgh, by Dame Sarah Muir (1846-1941), in 1865.
Tim’s message made me wonder: what is the oldest work still protected by copyright in the U.S.? And in what work will copyright endure the longest? These turn out to be a much harder question to answer than I thought.
The oldest work protected by copyright would have to be an early unpublished work that was first published after 1922. The work whose copyright will last the longest would have to have been published before 1978, which would then give the work a theoretical 95 year term from first publication. (I am going to ignore the problematic decision in the Guino v Renoir case in which the court acknowledged that in the 9th Circuit, a newly-discovered ancient work “may be protected today under the ruling of Twin Books.”)
More importantly, the works would also have to have been published under the authority of the copyright owner (most likely, the estate of the author). There are 19th century estates that still assert control over copyright (Mark Twain comes to mind), but the earliest of which I am aware is the Adams Family. In 1956, the Adams Manuscript Trust transferred all copyrights in the papers of John Adams, John Quincy Adams, and other Adams family members to the Massachusetts Historical Society (MHS).
I started by looking for Adams material first published in 1977, and I thought I found a winner. The Papers of John Adams, vol. 1, published in 1977, includes a letter
from John Adams to John Wentworth dated September, 1756. I can’t find any evidence that it was published prior to this, and the staff of the New York Public Library, where the original is held, have no record of prior publication. Was this both the oldest copyrighted work and the one with the most protection – a work whose Federal copyright would expire 95 years after its 1977 publication, i.e. in 2073, or 317 years after it was created?
Looking at the Copyright Offices registration record, TX0000026111, for the published volume revealed two interesting things. First, the MHS stated that the “letters, reports of committees, polemical writings, & state papers of John Adams” were preexisting, and the basis of its copyright claim was therefore only in the new matter: the compilation, editing, and introductory materials. Nevertheless, publication of the letters with a copyright notice would still have afforded the letter Federal protection – but as an unregistered work. Second, the publication date of the volume in the registration record is 10 January 1978, rather than 1977 as it states in the book itself. This means that copyright in this letter will last until 1 January 2048 as per 17 USC 303(a), and not until 2073.
Turning back to the Adams Papers, I looked for what would appear to be the earliest item authored by John Adams and first published before 1978. The Earliest Diary of John Adams, a supplement: 1753–1759, seemed to meet the criteria. The 1753 date is earlier than any other material in either the published papers or in the microfilm edition of Adams papers published in 1955. The diary, the original of which is in the Vermont Historical Society, was unknown until it was discovered in the early 1960s; its publication in 1966 was its first appearance in print. Since it was published in 1966, no renewal of copyright was needed; the 1753 diary is protected until 2062 (1966 + 95), for a total of 309 years of protection.
Is there an Adams document with a longer term of protectection? Prior to the 1977 (and in reality, 1978) volume, the next most-recent publication was volume 3 of the Adams Family Correspondence in 1973. The first work from an Adams in that volume is a letter, the original of which is at the Boston Public Library, from Abigail Adams to John Thaxter dated 9 April 1778. I can’t find evidence that this letter was published previously, and so copyright on it will expire after 2068, for a total of 290 years of protection – still less than the 1753 diary.
It looks likely, therefore, that the 1753 Adams diary is both the oldest work in the US still protected by copyright and also the work whose Federal copyright protection will expire the longest after creation: in this case, over three centuries. Our oldest still-copyrighted work is over a century older than the oldest in the UK, and its copyright will last much longer than any UK competitor.
Does this matter (other than for reasons of national “pride”)? I think it does for two reasons. First, it is a reminder that when one thinks about copyright, it is important not to think just about date of creation, but also date of publication. Wikimedia Commons gets this wrong, insisting that the diary is in the public domain. But secondly, when things get old enough, people tend to stop worrying about copyright – even if technically, works are still protected by copyright.
Let me close by saying this is my best guess: I would love to hear from anyone else who has a better candidate for oldest copyrighted work.