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A Possible Exception for the Pre-1929 Public Domain Rule

In my FAQ on How Can I Tell Whether a Book Can Go Online? I state that books published before 1929 are generally in the public domain in the United States. While that's generally true, a controversial 1996 ruling in the US Ninth Circuit may imply that certain foreign works published between July 1, 1909, and December 31, 1928, are still subject to copyright, if they had neither been published in the US, nor published with a copyright notice recognized by US law, prior to 1929. The jurisdiction of the Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and Guam and the Northern Mariana Islands.

US law regarding duration of copyrights for works published before 1978 states that copyright runs for a fixed period of time "from the date it was originally secured". In general, publication has often been considered the time at which either copyright was secured or a work fell into the public domain. However, in Twin Books v. Walt Disney Co. (83 F. 3d 1162), the Ninth Circuit in 1996 held that the copyright to Bambi had not actually been secured until 1926, even though the work was first published in 1923, in Germany. (See the text of the decision, courtesy FindLaw.com.) In the court's opinion, Bambi's US copyright commenced at the time it was first published with a copyright notice recognized by US law.

Note that Bambi got this copyright reprieve only because it had not been published in the US prior to that time. Any publication in the US would have either commenced copyright (if there were proper notice), or thrown the work into the public domain (if there were not proper notice).

One possible implication of this decision is that, in the Ninth Circuit at least, certain works published before 1929 may still be copyrighted. If they are, they are only copyrighted if all of the conditions below apply:

The work was first published on or after July 1, 1909 (the effective date of the 1909 Copyright Act, which gave equal protection to foreign authors).
The work was never published prior to 1929 with a copyright notice recognized by the US. (To be valid in the US, a copyright notice must include the word "copyright", the abbreviation "Copr.", or the c-in-a-circle symbol, and must include the year of copyright and the name of the copyright holder or registrant.)
The work was never published prior to 1929 in the United States. (Any work published in the US without a proper copyright notice in that time period immediately fell into the public domain. The copyright restorations of GATT would not revive these copyrights now, since the effect of the GATT rules in this case would be to retroactively commence the copyright at some date prior to 1929, and that retroactively established copyright would have expired by now.)

In addition to the above, it may be that the work had to be in a language other than English. (English language works were required to be printed in the US, under the manufacturing clause of the 1909 Copyright Act, in order to protected by US copyright during the time that Act was in force.) The issue is a bit murky, in part because there's argument over whether failure to meet the manufacturing clause terms puts a book in the public domain or simply "suspends" copyright. (The Twin Books case did not deal with this, since Bambi was originally published in German.)

All of this is rather complicated, as you can see, and rests on the assumptions that the Ninth Circuit ruling is good law, and that the GATT restorations don't push back copyright before the first US publication. The Ninth Circuit ruling is controversial, and other courts have ruled differently on similar questions concerning the copyrights of foreign authors. And to the best of my knowledge, no US court (either inside or outside the Ninth Circuit) has actually ruled that any work published before 1929 is still copyrighted.

Given all of this, for the purposes of listings on The Online Books Page, I will still consider any book published before 1929 to be in the public domain in the US. However, if you're especially careful about copyright issues, you may want to be aware of the ruling above and its possible implications, when you put books online.

Thanks to Stephen Fishman for first informing me of this issue. Any errors in the analysis above, however, are solely mine. Readers should keep in mind that I am not a lawyer, and should not be relied on for legal advice. For more information on copyright term and the public domain in the US, see Peter Hirtle's summary at Cornell's Copyright Information Center.

John Mark Ockerbloom, Editor

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