The myth of the pre-1923 public domain

A truism in American copyright is that works published in the US prior to 1923 are in the public domain.  My copyright chart says it, so does Lolly Gasaway's, and the Google Book Settlement works on this assumption. 

By and large this is true.  Up until 1998, the longest term that a work could receive was 75 years.  That mean that works published in 1922 entered the public domain on 1 January 1998.  Later that year the Sonny Bono Copyright Term Extension Act added twenty years to the term of works that were still protected by copyright, but it did not restore copyright in works that had already entered the public domain.

But things are never clear in American copyright.  I was re-reading Robert Brauneis's justly-praised essay, "Copyright and the World's Most Popular Song."  In it, Brauneis argues that "Happy Birthday," which generates perhaps $2 million a year in licensing fees, is actually in the public domain.  In order to make his case, he undertakes a thorough review of copyright under the 1909 Copyright Act.  Brauneis notes almost in an aside that "Happy Birthday" was published in 1912 in "The Beginners’ Book of Songs" and again in 1915 in "The Golden Book of Favorite Songs."  A library might think that since these editions predate 1923, they could be digitized with impunity.

According to the current owners of the presumed copyright in "Happy Birthday," however, these early publications were unauthorized.  They argue that the first authorized publication of the lyrics to "Happy Birthday" occurred in 1935, and copyright runs from that date.  Digitizing either the 1912 or 1915 volumes would therefore infringe on the copyright first secured in 1935.

As a practical matter, there would likely be little risk in digitizing any pre-1923 edition of a work.  The presumed copyright owner would have to establish with certainty that an authorized publication occurred at a later date.  As time passes, it becomes harder and harder to document authorship of earlier works, and so the likelihood of a complaint or suit diminishes.  But there is a big difference between saying "this is in the public domain" and "this may be copyrighted, but there is little chance that I wll be sued."

In short, just because a work was published in the US prior to 1923 does not mean it is in the public domain.  The first authorized publication needs to have occurred before that date.  This is just one more example of how hard it is to establish with certainty the copyright status of a work.

Comments

[popo]

Unauthorized? Cough. Please. That sounds far too convenient. Where does the burden of proof lie? Is there any evidence of the author attempting to seek a cease and desist of publication?

If proof is not necessary, will the "unauthorized" defense become commonplace?

[Sally J.]

When you're talking about recordings, it's even more complicated... and *far* more restrictive. According to Tim Brooks, we have a situation where preservation copies created by archival institutions are technically illegal. The 1976 Copyright Act specified that it only applied to recordings made after 1972. Any recordings created prior to 1972 remained under state law. In 2005, the NY State Court of Appeals (Capitol v. Naxos) declared that recording copyright was actually governed by common law.

CITATION: Tim Brooks, "Only in America: The Unique Status of Sound Recordings under U.S. Copyright Law and How It Threatens Our Audio Heritage" (American Music, Summer 2009).

http://am.press.illinois.edu/27/2/brooks.html

[Peter]

I suspect it would only apply in cases like the "Happy Birthday" example where a copyright owner later registered a work that had previously been published (but supposedly without authorization). And remember that under 410(c), registration constitutes "prima facie evidence of the validity of the copyright." That means that it would fall upon the presumed infringer to prove that the earlier published version was authorized.

Again, this is unlikely. But it does indicate how difficult it is to say anything with certainty about the public domain status of a work.

[Mary M]

So the burden is on the copyright owner to show that earlier published versions were not authorized? Sounds nearly impossible. How does one prove a negative? There would have to be a smoking gun like a document from copyright owner saying "I do not authorize you to publish this work!"

[Carolus]

There is a crucial omission in the basic outline mentioned here. The melody, originally entitled "Good Morning to All" was first published in 1893 as part of a collection "Song Stories for the Kindergarten." That was a fully authorized publication. The melody, therefore, is public domain.