Welcome to 1922! (FAQ)

(These FAQ are related to the Welcome to 1922! series I wrote for teleread. They list and describe some notable literary and artistic works produced between the years 1923 and 1931). I am not a lawyer and am not giving advice. I am merely sharing what I think to be accurate information at the time.

How do I find out about which sound recordings from that year are in the public domain?
How do I find paintings/visual works of art produced in an individual year? And how do I find public domain art in general?
How can I find out if my congressman voted for this Freeze-the-public-domain legislation?

How do I find out about which sound recordings from that year are in the public domain?

A: You can’t. Until 1972, musical recordings were governed by different laws–not federal copyright law at all, but contractual law for the state in which the music was recorded. That means you have to look at the specific contract, as well as the state in which the contract was signed. You won’t have any way of knowing for sure whether American music will go into the public domain until 2067. (See this article by Jon Noring about the issue). A Council on Library and Information Resources study found that a significant percentage of early jazz works and blues music are protected (about 90%). In fact, a few dozen sound works still protected go back all the way to Thomas Edison’s time in the 19th century.

Some groups have gotten together to do the research on the recording contracts and identify whether the copyright owner still exists to make a claim. So far the leading organization to do that is archive.org. They have identified hundreds of early releases. Try this cylinder record search termor the 78rpm search term to get started.

On a positive note, things look bright for non-Americans, Jon Noring says:

The copyright terms for sound recordings in most developed countries are reasonable and rational. For example, in Canada, Australia, New Zealand, and most of the European Union countries, the term is 50 years after the year of fixation or of first public release. Thus, in these countries most (if not all) of the recordings from the pre-WW2 era are in the Public Domain, including those recorded in the United States. Other countries have slightly longer terms for sound recordings (e.g., 60 years in India, 70 in a few) — in such countries many to most pre-WW2 U.S. recordings are also Public Domain.

Another article mentions that Elvis Presley songs are starting to enter the public domain in certain EU Countries. Americans may not realize this, but the many musical recordings still under copyright here (Frank Sinatra, Ella Fitzgerald, Benny Goodman, Louie Armstrong, Andrew Sisters and Roy Eldridge) are and have been legal for free listening/distribution in Europe for some time. The only industrialized nation that isn’t allowed to share this music is the one that produced these songs in the first place!

How do I find paintings/visual works of art produced in an individual year? And how do I find public domain art in general?

A: Update: I wrote on this subject previously, but after reading up some more, I am still not precisely sure what the law is. I am sharing what I found:

Update Number 2: Gee, it looks like I was wrong when I thought I was right. I’ve written a more succinct summary of my findings here (Sept 4 2007)

The key way to look up death date is here: Art Renewal lets you search by the year the artist has died. (Select the dropdown box to Sort by Date of Artist’s Death ). See also the Wikimedia browsable index by date

I’ll summarize in two points:

1. All art by an artist who died 70 years ago is in the public domain in almost every country except the U.S.
2. With the U.S., if first publication date falls between 1978-2003, then copyright is Publication Date + 95. If first publication is unknown or if it is before 1977, then public domain depends on the Artist’s Death + 70 criteria in the US.
3. Art Renewal lets you search by the year the artist has died. (Select the dropdown box to Sort by Date of Artist’s Death ). See also the Wikimedia browsable index by date

Update June, 2008: My most recent understanding is reflected on this teleread article I wrote about Wikipedia, images and copyright

(Debateable point): The key question is whether copyright protection starts from the day of the first photograph of a painting, or the creation of a painting. (Also, the date when the photograph was first published seems to be an important detail). As long as the painting was created on 1922 or before, it doesn’t matter when the photograph was taken. So, for example, you could legally scan a photograph of a 1921 painting which was snapped in the year 2004. The case in question is Bridgeman vs. Corel (and it is discussed in depth here). One law professor explains the rationale:

Professor Ochoa’s response is reasonable and apt, particularly this comment: ‘Where the public does not have access to the original painting, the ONLY way it has to reproduce the painting itself is to reproduce a reproduction of it. Unless we hold that the Bridgeman photographs can be freely copied, the painting, as a practical matter, is not in the public domain.’

In other words, unless museums are willing to allow people to photograph the original work, the paintings are not truly in the public domain. I do disagree with his closing comment, in which he attempts to distinguish between US copyright law and other nations. The concepts of ‘fair use’ and ‘public domain’ are recognized on an international level. Also, is a person making a slavish photographic reproduction of a work of art truly the author of the photograph? This point was discussed in the Bridgeman decision. The term copyist is far more appropriate, despite the amount of work involved in taking the photograph. An apt comparison is this (earlier discussed with the example of Keats’s poetry) – if a photographer who merely reproduces a work of art is the author of the reproduction, then someone who copies a novel out word-for-word is also its author. Clearly, this cannot be the case. Yet the amount of work required to photograph the painting is the same as the work involved in copying out a book by hand. In other words, labor does not imply originality, or a creative spark. You can take three minutes or three days to make a reproduction. You can use a camera or Martian technology. It doesn’t matter. You are merely copying the work. If it seems as though I’m being simplistic here, rest assured that I am – and it is deliberate. This issue is very simple and analogies help reveal the simplicity.

Here’s a wikipedia post on the subject:

In the case that an artwork created before 1978 is not published until 2003 or later, it comes into the public domain 70 years after the author’s death. However, if it is first published between 1978 and 2002 (inclusive), it will still be copyrighted in the U.S. until the end of 2047.

Proof of publication is mandatory; uploaders making a “public domain” claim on (a reproduction of) an artwork are required to prove with verifiable details that the work was first published before 1923. To show that a work was published, one could look for printed works that contained reproductions of the artwork: art prints, art books, a catalogue raisonné of the artist’s works, exhibition catalogs, and so on. Reasonable effort should be made to find the earliest publication. If any is found from before 1923, that’s good enough and the work is in the public domain. Remember, though, that “publication” means “lawful publication”, which implies the consent of the author of the original.

If only a publication after 1922 can be asserted, the work should not be assumed to be in the public domain without evidence. If it was published before 1978 and had no copyright notice or if it was published before 1964 and the copyright was not renewed it should be in the public domain. Works published abroad rarely complied with US formalities but may still be copyrighted if they were copyrighted in their home country on January 1, 1996 when the URAA restored copyrights in foreign works.

The implications to me here are threefold:

1. having a likeness of the image published would indicate that it falls under copyright.
2. If the artist/publisher publishes something between 1923 and 1978, but did not renew the copyright, then the art falls in the public domain.
3. For artworks that were never published, they are in the public domain as long as the artist died before 1937 (which is Death + 70).
4. If first publication date was between 1978-2003, then Death + 70 does NOT apply. Instead, copyright protection lasts until 2047 (regardless of when the artist died).

But here’s the catch to the catch. Is a photograph of a painting appearing in a book a corporate work or an individual work? Isn’t this a case of corporate ownership, (meaning the copyright lasts 95 years from publication, or 120 years from time of creation)? I honestly don’t know. And of course, everything is different for foreign-published works.

My short answer: photographs of images is such a nebulous issue that I think this is one of the few cases where you could actually get away with claiming ignorance/confusion as an excuse. Also, I tend to doubt that publishers of art books would be out for blood (recognizing the complexity of it all). Even if they were, I doubt they could locate infringement except in certain extraordinary cases. With the Harry Potter books, it’s easy to do a google or p2p search for the title and file a takedown notice. But many artists create thousands of works of art. It would be next to impossible for a photographer to keep track of them (even in this web-enabled age). Also, for ebooks, one could easily swap out images if infringement was proven. Worst case scenario for an ebook publisher would be that the publisher files a takedown notice and drops the matter after the publisher takes it down (especially if the website/ebook is CC noncommercial ). It is now next to impossible for me to know about prior published art unless someone points it out to me. Juries might sympathize. The ability to hotswap out an infringing image in an ebook would be another indirect advantage of publishing things as ebooks.

(The thought occurs to me that you could use Google Book Search to search for occurrences of the name of artist and painting. By searching using a compound query (NAME OF ARTIST + TITLE), you could establish whether a photograph of the painting appeared before 1923. You might also be able to establish whether an artbook contains a photograph between 1922 and 1978 (meaning that the 95+ rule applies).

Random Observation: After doing the research, I’ve grown to admire the simplicity of the Death + 50/70 rule for Berne Convention countries. It’s easy to understand, easy to verify.

Related Readings:

• Curator talks about whether owners of unpublished pre-1923 artworks could claim ownership of a work if they published it today. The answer: yes.
• Wikipedia discussion of the passage quoted above: what constitutes publication?. The commenters conclude that the complexity of the issue makes it easier just to issue a blanket “Died before 1937” rule). See also the discussion of When is an Artwork published?

The next question is where can you find good sources of public domain paintings. I’ve compiled a list of web resources you can use to browse paintings. The Wikimedia Painting section has a browsable index by date, and although you can’t do this on Art Resource Center, this site is the biggest most comprehensive site with gorgeous graphics and dates on all paintings. You just can’t browse by date. Check also Wikimedia Painting home page and other web resources. I’ve noticed that wikipedia has started to include category listing pages by year for Art although there’s not much there yet.

How can I find out if my congressman voted for this Freeze-the-public-domain legislation?

You can’t. Congress passed the Copyright Extension Act of 1998 (the “Sonny Bono Act”) using a voice vote, making it impossible for Americans to know who opposed it and who supported it. Therefore, one should hold ALL congresspersons responsible for passing this law.

How do I report an error/addition?

Send to idiotprogrammer AT fastmailbox.net .