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Determining Copyright Status

Has the work been published?

Publication has a technical meaning in copyright law. According to the statute, “Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.” Generally, publication occurs on the date on which copies of the work are first distributed to the public (U.S. Copyright Office Definition)

Publication is an important concept because:

  • Publication of a work can affect the limitations on the exclusive rights of the copyright owner. For example, fair use arguments are potentially more difficult to make for unpublished works than for published ones.
  • The year of publication may determine the duration of copyright protection for anonymous and pseudonymous works and for works made for hire. For example, unpublished works where the author is unknown may be protected for 120 years from the date of creation, meaning that an unpublished work created in 1893 is still protected as of 2013, while a published work created at the same time would now be in the public domain.

What is the copyright or publication date?

See this table for a quick means of determining the copyright or publication date of your materials and its impact on the term of copyright protection.

The Library of Congress provides a searchable index of copyrights registered since 1978. Material published between 1964 and 1977 did not require renewal to retain its copyright for the full term. However, determining whether the copyright has been renewed on an item published between 1923 and 1963, when renewal was required, can be rather challenging.

Who is the copyright holder?

Each of the three basic categories has certain copyright implications:

  • Individual author: Unless he/she has assigned the rights or created the work as a part of his/her employment, the creator of a work holds any applicable copyright. These works are currently protected for the life of the author plus 70 years; copyright passes to the author's estate upon death.
  • Multiple authors: If the collaboration is intended to result in an inseparable and interdependent joint work, multiple creators are assumed to share copyright equally and the work is currently protected for the life of the longest-surviving author plus 70 years. If there is no such intent, each author is assumed to hold copyright only to his or her contribution, with each author's contribution currently protected for life plus 70 years.
  • Works for hire: Materials created by employees for their employers as part of their job duties are generally considered "works for hire" for which the employer holds copyright, unless other contractual arrangements are made. These works are currently protected for 95 years after publication or 120 years after creation, whichever expires first.

An "orphan work" is one for which the copyright holder cannot be determined, located, or contacted. There has been considerable controversy and litigation over the reproduction and distribution of orphan works.

Some common misconceptions and misunderstandings

  • A work being out of print does not mean that it is also no longer protected by copyright, although out-of-print status may help justify using a larger proportion of the work than would usually qualify under a fair use argument.
  • While material created by the U.S. Government is in the public domain, this is not necessarily true of materials created by state and municipal governments nor by governments outside the U.S.
  • Transformative uses of public domain material (e.g., translations, annotations, new illustrations, etc.) are usually subject to new copyright protection.
  • While the United States generally recognizes the copyright laws of other countries it has treaties with, there can be discrepancies about when some materials enter the public domain. Since the internet is a global medium, there are potential repercussions relating to material first published in other countries and posted online in the U.S., although no definitive rulings have yet been issued.
  • Sound recordings made prior to 1972 are subject to a different set of copyright regulations and should be treated with care as they may not enter the public domain until much later than print materials created at the same time.
  • Libraries have special latitude in reproducing copyrighted materials but there are very specific limits. Many of these exceptions only apply to materials used within the physical confines of the library.

Disclaimer: This site presents copyright guidelines and resources but should not be considered legal advice.