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Frost, Cather, and Lovecraft: Coming to a Public Domain Near You!

Presenters:

Gabe Galson

Ana Enriquez

Brandy Karl

Linda Ballinger

Attribution

CC BY

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Welcome!

Agenda-

January 1, 2019: a date to remember
Cultural heritage orgs: opportunities & challenges
Legal overview: published vs. unpublished
New works!
Adapting digitization and metadata creation workflows

Have a Question? Type it into the chat box!

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January 1, 2019

A New Reality!

On this date countless published works from 1923 will enter the public domain
Every subsequent New Year’s Day this date will roll forward: on January 1, 2020, many works published in 1924 will enter the PD
The last mass copyright status shift for published works happened in 1998

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The more things change...

Unpublished works will continue to enter the Public Domain in the manner they have each New Year’s Day.

Also entering the PD on New Year’s Day 2019:

Unpublished works produced by authors who died during 1948
Unpublished works produced in 1898 by anonymous, pseudonymous, or corporate authors

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Why now?

US legislation extending copyright renewal terms:

Copyright Act of 1976

Set the template for modern US Copyright law.
Works published during or after 1978: copyright expires based on author’s death date + a fixed period
Pre-1978 published works: copyright expires based on publication date + a (renewable) fixed period; the Act extended this period’s maximum to 75 years

Copyright Term Extension Act of 1998 (“Sonny Bono Act”)

75 year max term increased to 95
Brought to you by Mickey Mouse?

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So why is this happening for the first time since 1998? Because US legislation has steadily extended the amount of time published works can be held in copyright.

The Copyright Act of 1976 set the template for current US Copyright law, defining concepts such as fair use, and spelling out copyright holder rights. It stipulates that works published after 1978 enter the public domain based on the death date of the author, plus a fixed period of time. Works published prior to 1978 enter the public domain based on the publication date plus a fixed period that can be renewed. Factoring in these renewals, the Act increased the maximum period to 75 years, meaning work published in 1922 could be protected until January 1, 1998.

Then, the Copyright Term Extension Act of 1998 (commonly known as the Sonny Bono Act) tacked 20 more years on to the extension period, meaning works from 1923 could be protected through the end of 2018. Hence, the drought that began in 1998, and the significance of 2019.

The Sonny Bono Act was widely regarded as a way to keep the first Mickey Mouse cartoon, 1928’s ‘Steamboat Willie’, from entering the public domain. While some would say this is an oversimplification, few would argue that the 1998 law was passed largely to protect entertainment industry profits. Protecting this corporate intellectual property came at a price to the public- tens of thousands of published works, including works that were not generating profit for anyone, were nonetheless kept out of the public domain, increasing the burden on cultural heritage organizations and those who want to use those works.

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Cultural Heritage Orgs

New Opportunities

Once a work is in the public domain it can be reproduced, distributed, adapted, resold, and sampled without legal risk.
This facilitates both creative and scholarly production society-wide.
Presents cultural heritage organizations with opportunities and challenges

Education and outreach- how do we let the public know?
How best to facilitate the creative and scholarly work these changes make possible?
Affects digitization, metadata creation, and collection building

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How 1923 Works

Enter the Public Domain

If unpublished, term runs from date of creation or from date of death of the last living author
If published

without notice: PD upon publication
with notice but not renewed: PD after expiration of initial copyright term (January 1, 1952)
with notice and renewed: PD on January 1, 2019 (yay!)

But what is “published”?

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Ana

Going to say a bit about how works enter the public domain. As Gabe said, term of copyright depends on whether the work is published or unpublished. The term for an unpublished work runs for 70 years after the death of the author, or for 120 years after the date of creation in the case of anonymous, pseudonymous, or corporate works.

For a work published in 1923, there are three ways (or times) it could have entered the public domain:

At time of publication, if published without a notice

But copyright restoration for certain foreign works under URAA

On the January 1 following 28 years after the date of publication, if published with notice but not renewed (this would be January 1, 1952)
On this coming January 1, if published with notice and renewed

But what do we mean by “published”?

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What is “published”?

"’the date of publication’ shall in the case of a work of which copies are reproduced for sale or distribution be held to be the earliest date when copies of the first authorized edition were placed on sale, sold, or publicly distributed…”

- 1909 Act § 62

“‘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.”

- 17 U.S.C. § 101

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Brandy

If you’ve noticed, we’ve made the distinction several times between published and unpublished. The legal difference is significant. As you recall, works PUBLISHED in 1923 will become part of the public domain on January First.

Copyrightable works are published when they are distributed to the public by sale, gift, rental, lease, or lending. Trying but failing to distribute copies to the public counts as publication (although a mere performance does not).

Publication is important because under the previous 1909 Copyright Act, the act of publication and notice (or registering the rights) secured the copyright in the work. Publication without notice or failure to publish did not secure the copyright. Publication without notice generally resulted in a public domain work. Unpublished works were not protected by federal copyright law, but under state laws.

The current definition of published is a little different from the 1909 Act, but incorporates many of the judicial decisions regarding publication status that were determined via litigation regarding the status of works after the 1909 Act.

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Examples:

Published vs. Unpublished

Likely published if:

Copies were offered to the public for general sale.
Copies were distributed to the public (even if not for sale).
Copies were sold or offered for distribution, public performance, or display (e.g., to stock photo agencies, broadcasters, movie distributors, television networks).
Copies were made for distribution and offered for distribution, including lending, renting, or leasing.
Original was sold in a public venue (e.g., at auction), even if no copies were made.

Likely unpublished if:

Copies were never for sale and were not distributed to the public
The work was only shown in a gallery and never offered for sale.
The work was always private and copies were never made.
The publication was unauthorized (made without the authority of the copyright owner).
Copies were only distributed to family and friends.

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Brandy

Publication status can be tricky, so we’ve made a chart for you about whether works were likely published or unpublished. Remember, the public domain status of works published in 1923 depends on whether the work was actually published, so taking the step to determine publication status is incredibly important.

Generally, a work is published if it was offered, given, or sold to the public or to a distributor for public distribution. This includes lending and leasing, like in a library, but also other venues like if copies of a film were made and offered to distributors - even if nobody bought it for showing to the public. A work has also been published if a single copy was sold IN PUBLIC - but not private! Publication, in copyright terms, is not as broad of a concept as communication to the public, it is somewhat more narrow.

A work is generally considered unpublished if copies of the work were never for sale to the public, never distributed to the public. Many masterworks of art that would otherwise be public domain are not, because they were shown in a gallery and never offered for sale. If a work was always private, it’s a good bet that it’s unpublished. If the work was published, but done without authorization of the copyright owner, the work is still unpublished.

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Types of Items that are Typically Unpublished

Manuscripts that were not later published (including manuscripts that were sent to publishers)
Letters & Journals
Family photographs
Works that were performed without intent to further distribute copies (e.g., plays, speeches, motion pictures shown in a theater or on television, choreography, songs, lectures) and not offered to the public
Artwork that was displayed in a gallery, museum, or other public place and not for sale
A limited distribution of copies that contained restrictions or limitations as to the further use or distribution of the work
Advertisements on a billboard (vs. advertisements in a newspaper that was distributed to public)
Parts of a work that remain unpublished even if other parts were published

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Brandy

To assist further on the publication status determination, here are some item TYPES that are probably in your collections that are typically not published works. Remember, publication of the work will always trump the item type, these are just useful examples.

Manuscripts that weren’t later published, even if they were sent to publishers in an attempt to get a book deal. Books that were printed and distribution was attempted, even if never sold, those would be published.

Personal letters, journals, and other writings that were never published.

Family photos and other undistributed photographs found in scrapbooks, files, etc.

Public performances of works where there was no intent to further distribute a copy.

Artwork in galleries or other public places that was not offered to or sold to the general public.

Copies that contained notices of restrictions as to further distribution of the work.

This advertisement example comes from a funny case - artwork contained in a newspaper advertisement or perhaps a product being sold became public domain if the copyright claim wasn’t properly noticed and registered, but not true of other public displays of advertisements.

And finally, if part of a work was published, it does not place the entire work in the public domain.

The reason why these are so tricky and sometimes media specific is that in the early 20th century courts struggled with the application of copyright law beyond regular printed works.

Remember - the term of a work for an unpublished work depends on the author’s death date - 70 years - or 120 years if the death date is unknown, or if the author is unknown or a corporate author.

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Coming Soon:

Books Published in 1923

Willa Cather, A Lost Lady
Carl Sandburg, Rootabaga Pigeons
Aldous Huxley, Antic Hay
Edith Wharton, A Son at the Front

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Coming Soon:

1923-published music, plays, poetry, movies, and more!

Music

Frank Silver & Irving Cohn, “Yes! We Have No Bananas”
Cecil Mack & James Johnson, “The Charleston”

Poetry

Robert Frost, “Stopping by Woods on a Snowy Evening”

Movies

Charlie Chaplin, “The Pilgrim”
Cecil B. DeMille, “The Ten Commandments” (first version)
Harold Lloyd, “Safety Last”

Short Stories

H.P. Lovecraft, “What the Moon Brings,” “Hypnos,” “Memory,” “The Lurking Fear”

Periodicals

Norman Rockwell’s “Summer Vacation” cover

Yearbooks

Artwork on product packaging and the product was sold

Leaflets distributed to the public

Catalogs & advertisements distributed to the public

BUT not sound recordings

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Why Sound Recordings are Different

Until February 15, 1972, federal copyright law did not apply to any sound recordings.
This fall, the Hatch-Goodlatte Music Modernization Act retroactively gave federal protection to pre-1972 sound recordings.
Per the MMA:

Sound recordings first published before 1923 will enter the public domain on January 1, 2022.
Sound recordings first published between 1923 and 1946 will get 100 years of protection.
Sound recordings first published between 1947 and 1956 will get 110 years of protection.
Sound recordings first published between 1957 and 1972 and pre-1972 sound recordings that are currently unpublished will get protection until February 15, 2067.

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Examples

HathiTrust

Opening more than 40,000 items in the collection originally published in 1923.
All of these will be viewable in the U.S. and some globally.

Google Books

Anticipating automatic opening of 1923 works

Penn State

Along with other significant items, a set of Sanborn Fire Insurance Maps will be scanned and ready to view the first week of 2019

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Digitization & Metadata

How do the upcoming changes affect digitization, digital distribution, and metadata creation?

Public domain material can be digitized with no risk.
Already-digitized materials may need their rights statements updated.

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Rights Statement Updates in CONTENTdm

Homogeneous collections

Item Administration
Find & Replace
“Change field metadata”
Paste new Rights Statement URI in “to” textbox

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Rights Statement Updates in CONTENTdm

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Rights Statement Updates in CONTENTdm

Mixed collections

Item Administration
Find & Replace
“Find and replace a single field” function
Paste old Rights Statement URI in “Find” textbox
Paste new Rights Statement URI in “replace with” textbox

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For mixed collections, where some items are getting a new Rights Statement, but others in the collection are not, or different items are getting different replacements, more caution is required.

If the collection was already mixed, and you have a straightforward change of one Rights Statement to another, you can still change the metadata in bulk. Let’s say you had a mixed collection where some items were “In Copyright” and some were “In Copyright - Rights-Holder(s) Unlocatable or Unidentifiable”. Later you find enough information to determine that the items in the latter category have become public domain in the U.S.

Instead of “Change field metadata” you’re going to choose the “Find and replace a single field” function. Select the Rights field, paste the original Rights Statement URI in the “Find” textbox and paste the new Rights Statement URI in the “replace with” textbox. Do this for each variation of Rights Statement updates for that collection.

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Rights Statement Updates in CONTENTdm

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Rights Statement Updates in General

Complex collections

Metadata provider exports descriptive metadata into a spreadsheet
Copyright Officer updates rights statements at the individual item level
Copyright Officer adds the new rights statements to the metadata spreadsheet
Metadata provider adds the rights statements to the rest of the item-level metadata�

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Where the metadata changes to be made are more complex, or in repository systems that don’t have find and replace functions, you might need to edit Rights Statements item by item.

If your Rights Statements are assigned by another person, such as a Copyright Officer, you can provide them with the item-level metadata they need to make new Rights Statement selections. You can do this by giving the Copyright Officer editing permissions in the digital content repository system, or by exporting the metadata into spreadsheets.

If the Copyright Officer is working from a spreadsheet, they can make all the changes needed there.

If the Copyright Officer is making changes directly in the digital content repository system, you will need to make sure that they know how your metadata schema maps and formats the relevant fields. And you will need to train them in how to edit metadata in the system.

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Conclusion

Works published in 1923 part of public domain as of 1/1/19
Unpublished work status remains unchanged

Unpublished works by authors who died in 1948 are also entering public domain

Many significant works are now clearly in the public domain!
Already digitized collections that were made available to the public as fair uses or by permission should now have rights statements updated to reflect new legal status

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Brandy

The new entrance of published works into the public domain is an exciting time! We anticipate an explosion of creativity as new uses and reuses of newly public domain material begin.

Significantly, as long as the publication status has been properly determined - and this is easy to do for most works in a collection - you can start to determine the items in your collection that were published in 1923, digitize them, and make them available to patrons. Although many published works from 1923 will have already fallen into the public domain due to lack of copyright renewal, arduous renewal checks for these works are no longer necessary!

You may find that for some of your collections, you have already done the work and determined that a work is in the public domain due to a failure to renew. These statements will not need to be updated, but all other collections containing works published in 1923 should be reconsidered for rights statements updates.

Tweet us or email us with your public domain discoveries!

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Q&A?

If you have further questions, feel free to contact us:

Penn State’s Copyright Portal: Copyright.psu.edu
PA Digital’s rights resources: https://padigital.org/for-contributors/rights-resources/
Galson@temple.edu -Gabe’s email
info@padigital.org -PA Digital contact email

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Many thanks to:

Rachel Appel, Temple University

Linda Ballinger, Pennsylvania State University �Doreva Belfiore, HSLC

Michael Carroll, Temple University

Pam Dinan, IDS-PA

Will Echevarria, Free Library of Philadelphia

Ana Enriquez, Pennsylvania State University

Bill Fee, State Library of Pennsylvania

Leanne Finnigan, Temple University

Gabe Galson, Temple University

Brandy Karl, Pennsylvania State University

Alice Lubrecht, State Library of Pennsylvania

Joe Lucia, Temple University

David McKnight, University of Pennsylvania

Glenn Miller, State Library of Pennsylvania

Chad Nelson, Temple University

Steven Ng, Temple University

Maryam Phillips, HSLC

Stefanie Ramsay, Temple University

Martina Soden, Scranton Public Library

Matthew Strauss, Senator John Heinz History Center

Holly Tomren, Temple University

Cathy Wilt, PALCI

Jennifer Wright, Free Library of Philadelphia

And all our other contributors...

This project is made possible by a grant from the Institute of Museum and Library Services as administered by the Pennsylvania Department of Education through the Office of Commonwealth Libraries, and the Commonwealth of Pennsylvania, Tom Wolf, Governor.

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