To the best of our knowledge and belief, the pictures in our art collections are out of copyright in both the UK and the United States. Both countries have had quite different copyright criteria up until recently so I will attempt to clarify the public domain copyright rules here.
Public Domain Copyright Rules in the United Kingdom
Work is ‘out of copyright’ or in the ‘public domain’ when it has been 70 years since the author or illustrator died. If it’s an illustrated book, the words may enter the public domain at a different time to the pictures as they will usually have been produced by a different person.
Copyright will usually expire at the end of the calendar year in question – therefore you’ll need to add 71 years to the year of death to determine the first year that you can re-use the work in question. E.g. Arthur Rackham died in 1939 therefore his work will be out of copyright at the end of 2009. You can therefore re-use his work from 1st January 2010 onwards (i.e. year of death plus 71 years).
This applies in the UK, most of Europe, Australia and all countries that follow the rule of year of death plus 70 years.
Public Domain Copyright Rules in the United States
This is somewhat more complicated than in the UK as various acts did not apply the law retrospectively and older US statutes apply the copyright term from the date that the work was published, rather than from the death of the author. This leads to some confusion for undated works, even if you know who the author (artist) is.
One unusual feature of US copyright law is that before 1st March 1989, all published works had to contain a copyright notice. A work published before 1st January 1978 without a copyright notice automatically entered the public domain at the moment of publication. After 1st March 1989, the law was changed so that any published or unpublished work received copyright protection, even without a copyright notice. This had been the case in other countries for many years.
Copyright terms for works first published in the United States
These rules are working on the assumption that books were published with valid copyright notices.
Up to 1923. Any work first published in the United States before 1923 (i.e. up to the end of 1922) was given a 75-year copyright term which has now therefore expired, putting all US works into the public domain.
1923 – 1963. Any work that was first published in the US between these dates and renewed in a timely manner after 28 years has copyright protection in the US for 95 years after publication. These works were originally meant to have a 28-year extension upon renewal however this was changed by a series of amendments, firstly to extend it to 75 years altogether, then to 95.
If the work was not renewed, that work is in the public domain in the US (but not necessarily public domain in the UK unless it has been 50 years since the author died, as this was the copyright term in place at the time in the UK).
An enactment came into force in 1992 making renewal unnecessary and automatic. It was not, however, retrospective; if a work was already in the public domain before 1992 (i.e. for work up to 1963) because of non-renewal, it remains in the public domain.
1964 – 1977. Any work that was first published between 1964 and 1977 has copyright protection for 95 years from date of publication (renewal term automatic).
1978 and later (whether or not published). For US work published 1978 onwards, the copyright term is lifetime plus 70 years (but if the work is made for hire, anonymous or under a pseudonym, unless the real identity is known, 95 years from publication date or 120 years from creation date, whichever is the soonest).
The term was originally lifetime plus 50 years following the Copyright Act 1976 (effective 1st January 1978) but it was increased to lifetime plus 70 years following the Copyright term extension (Sonny Bono) act, effective 1st January 1978.
There are a couple more rules for unpublished work but as this document is mainly concerned with books and book illustrations which would be published works, we won’t bother with those now.
US Public Domain works in the UK
Once you’ve read and digested the public domain copyright rules for both the UK and the US, it may not seem so complicated but when it sinks in more, you’ll start coming up with questions. For example, a picture-book published in the US in 1922 would be in the public domain there – but what if the illustrator died in 1950? For us in the UK, that poses a problem. US law says that the book is out of copyright but under UK law, the illustrations would not pass into the public domain until the end of 2020.
Before we continue there are a couple of things to establish. Is the book a US work or a UK one? It may be both – many books may have the publisher’s name with both London and New York underneath. Is the author (illustrator) American or English? If he/she is American, it will be US law that is relevant and if they are British, UK law will apply. However, if the publisher is still in business, they may enforce their copyright in either country, so you need to be sure of the rules.
These are the quick and basic guidelines…
US works published before 1900 – public domain in both the US and UK.
US works published 1900-1920 – public domain in the UK as long as no renewal occurred in the 28th year after publication. If renewal was filed, it will be public domain in the UK only if it’s been 50 years since the author died.
US works published in 1921 and 1922 – public domain in the UK regardless of whether renewal occurred in the 28th year after publication or not.
US works published 1923-1927 – if no renewal occurred in the 28th year after publication, it will be public domain in the UK. If renewal did occur, it will only be public domain in the UK if it’s been 70 years since the author died.
US works published 1928-1963 – if no renewal occurred, it will be public domain in the UK if it has been 50 years since the author died. If renewal did occur, it will only be public domain in the UK if it has been 70 years since the author died.
US works published after 1963 – not public domain in the UK until it’s been 70 years since the author died.
The 1927 cut-off date occurs because the UK was following the rule of the ‘shorter term’ in early 1956 (until the Copyright Act 1956 which became effective on 5th November 1956).
Under US law, a work published in 1928 was required to have its copyright renewed in 1956 in the US in order to retain its copyright protection. If it was not renewed, it fell into the public domain in the States on 1st January 1957 as copyright protection always remains in force until the end of the calendar year. Because the Copyright Act 1956 came into effect on 5th November 1956, the rule of the shorter term cannot be applied to this work. Instead it will be the term that UK copyright law specified at the time that this work entered the public domain in the US, which is 50 years from the death of the author.
The rule of the shorter term is explained below.
The rule of the shorter term (or comparison of terms)
The rule of the shorter term is a provision in international copyright treaties that allows signatory countries to limit the duration of copyright they grant to foreign works under national treatment, to at most the copyright term granted to the work in the country of its creator’s origin.
For example, if under one country’s law a particular work would have qualified for a 95 year copyright term but the work originates in a country where the copyright term is only 70 years, the shorter term is the one that would apply in both countries.
There are two treaties that provide such rules – the Universal Copyright Convention and the Berne Convention. Application of this rule is not mandatory, however, and a country may provide otherwise in its legislation, such as in the case of the United States.
The shorter term in the US
The US has chosen NOT to follow the rule of the shorter term, therefore maintaining a more stringent copyright term for some foreign works than would otherwise have been the case under their own law. The exception to this is if the work is public domain in the source country on the date of ‘restoration’, this being 1st January 1996 (see below).
The shorter term in the UK
The UK followed the rule of the shorter term until the Copyright Act 1956 (effective 5th November 1956). After that date it did not follow the rule of the shorter term again until 1996 so there is a 40 year gap in the law when the UK did not follow this rule, the reinstatement of the provision NOT being retroactive.
Restoration in the US
In 1994 many countries signed the General Agreement on Tariffs and Trade (GATT), an extensive treaty dealing with many aspects of international trade. This agreement came into effect on 1st January 1996. The GATT agreement required that the US restore copyright protection on foreign works that entered the public domain because foreign copyright owners failed to comply with certain copyright formalities. US copyright law was re-written to incorporate this. Copyright was therefore restored on foreign works published 1923 – 1989 as long as the following three rules applied:-
- At least one author is resident in a country with which the US had copyright relations.
- The work was first published in a country where the US had copyright relations but not published in the US within 30 days.
- The copyright had not already expired in the originating country.
If the copyright had already expired, it was not revived by this agreement.
For the Copyright Terms of other countries
See this article on Wikipedia with a List of Countries’ Copyright Lengths
I haven’t done any extensive copyright research into the laws of countries other than the UK and US, but you can see the copyright terms at the above link.
