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Suppose your client wants to publish a striking old photograph of John Wilkes Booth. The client confidently assures you that the work must be in the public domain because, after all, “it’s more than 100 years old!” Before you agree with this optimistic legal conclusion, be sure to determine at least the following facts: 1. When was the work created? Contrary to your client’s assumption, the creation date of the work is not itself determinative of copyright status because a very old work can still be protected by a copyright if it has never been published or registered in the United States. Still, the creation date of the work can be important for determining which Copyright Act (e.g., the 1909 Copyright Act or some earlier incarnation of the statute) applies for purposes of measuring duration. 2. When was the work initially registered with the U.S. Copyright Office — if at all? If the client doesn’t have a copy of the registration certificate, you should check when the work initially was registered with the U.S. Copyright Office. Because online copyright office records go back only as far as 1978, it will be necessary to hire a commercial service, or local counsel in Washington, D.C., to check the copyright office records manually. 3. When was the registration renewed — if at all? All versions of the Copyright Act prior to the 1976 Copyright Act required a renewal filing before the end of the initial term. If a work was properly published or registered, but not timely renewed, the copyright is no longer valid. 4. When was the work first “published” with the authorization of the copyright owner? This is perhaps the single most important fact. Except in cases in which the work was registered before publication, which are relatively rare, publication is the event that started the statutory clock running on the initial copyright term. Alternatively, if, in violation of the copyright act applicable at the time of publication, no proper copyright notice was affixed to the work, publication is the event that thrust the work into the public domain. In either case, however, if it was done without the copyright owner’s authorization, publication did not have any effect on the work’s copyright. 5. Where did publication occur? Foreign publication does not always start the clock running on the statutory term of copyright. Compare Heim v. Universal Pictures Co., 154 F.2d 480, with Barris v. Hamilton, 51 U.S.P.Q.2d 1191 (S.D.N.Y. 1999). Therefore, knowing the nation in which publication occurred is necessary to determine whether the clock on a copyright’s coverage has begun to run. Knowing the nation in which publication occurred also is necessary to determine whether lack of notice or failure of renewal can be forgiven under the 1994 Uruguay Round Agreements Act, which “restored” copyrights in foreign works but not in U.S. works. 6. Did that publication have the proper copyright notice? Before the U.S. began adhering to the Berne Convention in 1989, for a work to be protected by copyright, it had to have a copyright notice consisting of three elements: the word “copyright,” the symbol “�” or the abbreviation “copyr.;” the name of the copyright owner; and the year of publication. Authorized publication of a work without the required notice was fatal to the copyright and caused the work to lapse into the public domain immediately. In cases in which a work was published as part of a larger work, a single copyright notice in the name of the owner of copyright in the larger work could suffice to keep the work from falling into the public domain. Goodis v. United Artists Telev. Inc., 425 F.2d 397 (2d Cir. 1970). 7. Was there any authorized distribution of copies of the work prior to its “publication?” Copies of the work may have circulated in the form of posters, prints or postcards long before the work appeared in a publication such as a book or magazine. Such distribution usually will count as publication, and, if the copies did not have proper notice, would place the work in the public domain. 8. What was the pre-publication exhibition history of the work — if any? In rare cases, particularly if it took place in public areas with no museum-like restrictions on photographing or copying, the exhibition of a work could be considered a publication under prior law. 9. When was the publication’s copyright renewed — if at all? Whether or not the book, magazine or other larger work in which the subject work appeared was registered with the Copyright Office, the copyright in the larger work had to have been renewed at the end of its initial copyright term for the copyright in the subject work to be valid. See Barris v. Hamilton, 51 U.S.P.Q. 2d 1191 (S.D.N.Y. 1999). 10. Who was the copyright owner at the time of (a) publication/registration and (b) renewal? To determine whether a publication or registration was made with the copyright holder’s authorization, and whether publication or registration, therefore, started the statutory term, it is necessary to know who owned the copyright at the time of publication or registration. The same is true for determining whether renewal was made by the proper party. Therefore, to give a definitive answer about a copyright’s status, it is often necessary to have a copyright’s entire chain of title. Robert Clarida is an attorney at Cowan, Liebowitz & Latman, P.C.in New York.

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