> From: "Amalyah Keshet [akeshet at imj.org.il]" <akeshet at imj.org.il>
> Eve: > > Many thanks not only for the summary of US term of protection, but for the > heads-up about F. Scott Fitzgerald, et al., rising into the public domain on > January 1. Woohoo! > > (And just a reminder: the original query wasn't about postcards published in > 1900, but in the 1920s-1940s. The 1940s + 95 could mean postcards going out > of copyright in 2035 - 2044.) > > Amalyah While I would not pretend to present myself as an IP attorney or copyright expert, I have done more than my fair share of research into the US copyright law. The 95 year term cited often today applies primarily to new things created today and registered as works for hire or by some publishing entity. Items which are copyrighted by an author have a term based on the author's life. For older items, an important factor is the law that was in place at the time they were created. For example, the 1909 Copyright Act gave works a 28-year term of protection from date of publication if and only if a proper copyright notice was given. This notice had to follow a particular format. If a mistake was made or the notice was omitted, there was no copyright protection. Similarly, if the work was not registered, there was no copyright protection. Registration involved a form, a fee, and supplying two copies to the Copyright Office. For books most of these items formed the expanding collection of the Library of Congress. After the first term of protection (28 years) the copyright owner, or heirs or assignees, could renew for a second term of protection (28 years) by filling out a form and paying a fee. The total term of protection was 56 years if renewed. Not everything was renewed because the copyright holders either didn't pay attention, or died and the heirs didn't know what to do, or the publisher ceased operations, or were bought up, etc. Although it is very hard to "prove a negative" and say for certain that someone did not renew the copyright. We can look for evidence for cases when a copyright was renewed. A Google engineer collected many of the sources of this renewal information (themselves public domain because they were issued by the U.S. government) and compiled them in a massive XML file. Fortunately some programmers took this and placed it in a MySQL or similar database that is easier to work with. One such resource is http://incopyright.org It shows books whose copyrights were renewed when the original publication date was in the 1923-1963 range since books not renewed from this period have the potential for being public domain today since their copyright term had ended before any of the extensions of 1976 or thereafter. Of course, http://incopyright.org is not going to be very helpful for this postcard inquiry since they will not be listed in the same copyright class as books. However, since many of the discussions in this thread have been more general, I offer it for those who are interested in books as I am. What is more relevant for the postcard question is whether or not there was a copyright message on the front or back of the card. The normal acceptable form for a book was: Copyright 1922 by Grosset & Dunlap This gives a year and a claimant, the entity that registered the copyright. (In books these copyrights may be immediately assigned back to the author for later renewal. That is much harder to trace.) Under the 1909 law, if there is no properly formed copyright notice, it was not eligible for copyright protection. Since the Copyright Act of 1976 there has been an implied copyright once a form of expression is placed in a fixed form, such a printing it. Registration is not required nor is a copyright notice (further complicating matters) though registration is helpful if a person claiming infringement wants to sue for damages. This aspect of no copyright message was addressed in one of the very first responses to the original post. However, it has blossomed into many directions which apply to currently produced items, unpublished items, and many other areas that don't address the original postcard question (sorry about that). Postcards and similar publications would most likely have been works for hire where a given photographer, illustrator, or colorist would be paid a flat fee for all rights to their efforts. The work would be owned by the publisher and it would be up to them to register the copyright and include the notice if they wanted to receive the protection the copyright law affords creators of works in the U.S. However, if true, this point is important because we are not trying to assess the death date of the photographer or artist, notions which were added to the 1976 law I believe. In a perfect world the penalties for making a false or overreaching claim of copyright one does not really own would be as severe as those for infringing on someone else's copyright. As it stands now, entities with enough attorneys on retainer or staff tend to win by intimidation. An ideal purpose of the rule of law is to level the playing field so that the rules are the same for all. We're far from that in copyright and other IP law areas. James Keeline San Diego, CA
