Q&A: Copyright In Old Novel

Q.  I have discovered an old novel I would like to rewrite, using the characters and the plot.  Is this legal?

A.  Not if the novel still is under copyright; if so, your rewrite would be an infringement.  The question then becomes how “old,” because if the book is NOT under copyright, it is in the public domain.  Let’s examine the duration of copyright in the United States –  a complex subject that may make your eyes spin   Different standards apply depending on when the original copyright was secured, whether the novel was published or unpublished, and whether a renewal registration was required.

If the novel was created on or after January 1, 1978, whether or not published, the work automatically has copyright protection for the author’s life plus 70 years (for anonymous and pseudonymous works, 95 years from first publication or 120 years from creation, whichever is shorter.)

If the novel existed but was not published or registered before January 1, 1978, the duration of copyright is the same as works created after January 1, 1978: life plus 70 years.  Therefore, as of 2010, any unpublished novel whose author died before 1941 is in the public domain.

If the novel was published or registered before January 1978, copyright was secured either on the date a work was published with a copyright notice, or on the date of registration if the work was registered in unpublished form.  In either case, the copyright endured for a first term of 28 years from the date it was secured.  During the last (28th) year of the first term, the copyright was eligible for a second renewal term of an additional 28 years. If no application was filed for renewal, the work would enter the public domain after the initial 28 year term.

The 1976 Copyright Act, as amended, extended the renewal term from 28 to 67 years for copyrights that existed as ofJanuary 1, 1978, making these works eligible for a total term of protection of 95 years. Works originally copyrighted after 1922 and renewed that were in their second term between December 31, 1976 and December 31, 1977, were automatically extended for a total term of 95 years (first term of 28 years plus renewal of 67 years).  BUT copyrights in their first 28 year term (those copyrighted between January 1, 1950 and December 31, 1963) still had to be renewed to be protected for the second term of 67 years; if not, protection was lost.  Works originally copyrighted between January 1, 1964 and December 31, 1977 have their original 28-year term automatically renewed for 67 years.

Applying these standards, all works published before January 1, 1923 are in the public domain.

Confusing?  Very.  For help, see http://copyright.cornell.edu/resources/publicdomain.cfm, which specifies dates of copyright expiration for all categories. For more detailed information on renewal of copyright and the copyright term, go to www.copyright.gov and download Circular 15, “Renewal of Copyright”; Circular 15a, “Duration of Copyright”; and Circular 15t, “Extension of Copyright Terms.”

© 2010 Daniel Steven