I’m working on a television pilot and want to use a 10 second clip from an old black and white movie from the 1950s. A producer friend of mine says the movie is in the public domain, but I heard pd starts in the 1920s. Help!

Answer by Brandon Blake, Entertainment Lawyer:

With all of the extensions of copyright law in the United States, it is easy to get confused about when exactly a work is officially in the public domain. It is true that there are in fact movies from the 1950s and even the 1970s that are in the public domain, while other works from the early 1920’s are still solidly protected by copyright law. Let’s start with the basics first and then analyze how things got so mixed up.

The term of U.S copyright is presently the author’s life plus 70 years, or for works made for hire 95 years from publication or 120 years from creation, whichever is shorter. That being said, this is only the most recent term of copyright, and the term in the past has been substantially shorter. If a work is privileged enough to get in under one of the many extensions of copyright, the term can be extended, provided that the work is not yet in the public domain. However, this process creates a huge diversity of copyright terms between various works.

So, now that we have gotten the basics out of the way, lets dig into the details of how to determine if a work is in the public domain. To do that, we need to distinguish between works first filing copyright registrations after January 1, 1978, versus works that already had a copyright before 1978.

Works Copyrighted Since 1978

For works created after January 1, 1978, copyright automatically affixes to the work, no filing is necessary (although many benefits come from copyright filing).  For these works, the start of the copyright clock is the moment of creation, and the term is the life of the author plus 70 years. For a joint work, the term is the life of the last surviving author plus 70 years. For works-made-for-hire, the term is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author’s identity is later revealed in Copyright Office records, which then reverts the term to the life of the author plus 70 years.)

A second category of works are those that were created before 1978, but not copyrighted or published. Long lost Mark Twain manuscripts and re-discovered Beetles compositions can fall within this category. In general, the term is the same as above, but all works in this category are guaranteed at least 25 years of statutory protection. In addition, if a work in this category was published before December 31, 2002, the term extends another 45 years, through the end of 2047. 

Works Copyrighted Before 1978

Provided you have followed along to this point without problem, here is where it starts to get tricky. That is because the copyright term of older works is determined by the particular copyright act in existence at the time the work was created, unless the term was specially extended by a subsequent act. These works breakdown between the 1909 Copyright Act, the 1976 Copyright Act, and the 1998 Copyright Term Extension Act.

Duration Under 1909 Copyright Act

Under the 1909 Act, the work was not automatically protected by copyright, but instead copyright protection dated from either the first publishing of the work, or otherwise from the first registration of the work. The term of copyright was only a single 28 year period, but that could be extended for a second 28 year term in the 28th year of the preceding term. So that is why early works vary so much in the term of copyright protection. Many works in fact were not correctly extended for a second term, and at that point the works entered the public domain.

Duration Under 1976 Copyright Act

The 1976 Copyright Act continued the system of the 1909 copyright act, requiring a second renewal of copyright in the 28th year. However, the length of the renewal term was increased from 28 years to 47 years. 

Duration Under 1998 Copyright Term Extension Act

The 1998 Copyright Term Extension Act increased the renewal term another 20 years, to 67 years. The effect of this second Copyright Extension Act was to increase the copyright protection for works already copyrighted by January 1, 1978, from the original 56 years, to 95 years (a first term plus 67 years). 

So The copyright term for any one work will depend on the date that it was either created, published, or filed for copyright, and for works before 1978, whether or not the copyright was properly extended for a second term. However, one thing is certain, which is that all works published in the United States before January 1, 1923 are in the public domain. That is not based on the present term of extended copyright, which would actually protect a work through 2018, but instead on the fact that a work with a copyright that expired by 1997 must now be in the public domain, because it missed the 1998 extension.

 In addition to these rules regarding the maximum term of copyright, there are many works, including feature films, music, books and even television shows that have fallen into the public domain since 1923, including works created as recently as the early 1970s. 

To determine with certainty the length of copyright in any one particular work, some substantial copyright research is required. As with any entertainment matter, please do not make a decision about complex matters without consulting an experienced entertainment lawyer first. I have been representing feature film projects, television series, and recording artists for more than 16 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer