Unpublished Diaries and Copyright

Q.  I’m writing a historical mystery set in World War I, and want to include portions of an unpublished soldier’s diary.  Is the diary in the public domain?  What are the rules?

A.    Public domain works are, simply, anything NOT protected by copyright.  Such works may be used freely by anyone without permission from the author.

The numerous changes Congress has made to the term of copyright duration, however, have made it difficult to determine the copyright status of a work.  There are different standards for literary works, photographs, sound recordings, and foreign works.  In sum, the rules — once simple — have become complex to a ludicrous degree.

Let’s stick with the basics of literary (text) works.  Under the 1909 Copyright Act, copyright for a work began either when (1) it was published with a copyright notice or 2) registered, if the work was unpublished.  The law defined “publication” as “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies . . . to a group of persons for purposes of further distribution, public performance, or public display constitutes publication.”

Works that neither were published nor registered – such as your soldier’s diary — did not enjoy statutory copyright protection, although they were protected under common law in perpetuity as long as they remained unpublished and unregistered. But under the 1976 Copyright Act, works that were created but neither published nor registered in the Copyright Office before Jan. 1, 1978, lost their common law protection and acquired a statutory term of protection that was the life of the author plus 50 years, amended in 1998 to life plus 70 years.  Therefore, if the author of the WW1 unpublished diary died before 1943, it now is in the public domain (life + 70 years).  If, however, he died (for example) in 1995, it would not be in the public domain, and you would need permission to use the excerpt from the soldier’s heirs (unless it qualified as “fair use” – another subject entirely).

Other rules: Any work published before 1923 is in the public domain (with some exceptions for certain works published in 1922).  Any work published between 1923 and 1977 without a copyright notice is in the public domain.  Any work published with a copyright notice between 1923 and 1963, but copyright was not renewed, is in the public domain.

In contrast, any work created after January 1, 1978 is protected by copyright for the life of the author plus 70 years, whether or not it was published or registered.  Work-for-hire or pseudonymous works are protected for 95 years from publication or 120 years from creation, whichever is shorter.

Confusing?  You bet.  For more detailed information on copyright term, check out Cornell University’s excellent chart at http://copyright.cornell.edu/resources/publicdomain.cfm.  Also go to  www.copyright.gov and download Circular 15, “Renewal of Copyright”; Circular 15a, “Duration of Copyright”; and Circular 15t, “Extension of Copyright Terms.”