When Copyright Records Are "Not Found" An Item May Still Be
Copyrighted
If there is no
registration for 1923 -1978 items, or no renewal for 1923 -
1963 items in the files, does this mean the image is public domain?
Usually, (see below "Is
'Not Found' the Best You Can Do?") but not always
. According to
the U.S. Copyright office, "the complete absence of any information about a work
in the office records does not mean that the work is unprotected." Reasons
for this include:
By law, some items have been given Copyright protection
without the paper trail of registrations or renewals. They will not be found in
the catalogs of The U.S. Copyright Office, but are Copyrighted just the same.
These include:
Foreign Editions of a U.S. Work
Items with a Copyright notice may be foreign editions of a U.S. Copyrighted
work that somehow found its way here. A check on the foreign edition
may come up with nothing. But the underlying Copyright for any U.S.
edition may be in force. (Copyright Office Circular
22)
A Work of Foreign Origin
Foreign Copyrights were
retroactively and automatically granted in the U.S.. In addition, if you
distribute the work in other countries, it may be under Copyright
protection there. (Copyright Office Circular
22)
Unauthorized or "Bootleg" Editions
An unauthorized copy may mislead you
from finding the correct records for the authorized
work Copyright still in force (Copyright
Office Circular 22)
Unpublished Works
Pre-1978 Unpublished
works were given automatic Copyright protected for
the author(s) life plus 70 years. (Copyright Office
Circular 22)
Errors
A simple error by a Copyright Researcher could cause them
to overlook the records.
You may have not looked in all the year divisions of the catalog
necessary; Works published with notice prior to 1978 could register at any
time within 28 years for protection. For example, a work published with a
Copyright notice of 1944 could register at anytime until 1972, and would have
to be searched separately in the each of four different card
catalogs covering the years
The information you used to look up the search may have been incomplete or
not specific enough to identify the work. The authors registered using his
real name when you are looking for his pseudonym, or vice versa
The Company name you are looking for has various forms, divisions,
or abbreviations you were unaware of The work may have been
registered under a different title. Some producers, like Castle Films, were
not consistent in how they listed titles on registrations and renewals. Often,
British films had an "American" title, different from their "British" title.
Cartoons are notorious for having many alternative titles.
The work may have been Copyrighted as part of a larger work. Individual
works, such as some photographs, stories, poems, articles or musical
compositions that were published as contributions to a Copyrighted periodical
or collection, are usually not listed separately by title in the records,
making it difficult to track down a Copyright.
Some works were registered more than once, and the renewals and original
registrations may not match up during a search.
The information could be misfiled and unfindable among the millions of
registrations and renewals.
The file is open to the public, so it is conceivable records may have been
stolen or destroyed. The catalog may not contain recent registrations.
If a computer is used for the searching, there is a possibility of
hardware or software error preventing records from being found or
displayed.
Is "Not Found" the Best You Can
Do?
After accounting for the possible exceptions, you may
feel you have a legitimate public domain work, but want more confidence.
Unfortunately, you cannot prove a negative; you cannot prove a Copyright was not
filed. All you can prove is a search was done and did not find a valid
Copyright. For most purposes, this will suffice, and is routinely
accepted by the legal departments of film studios, television networks, and
publishers. It is always a good idea for a double check. Consider using
a professional
researcher to confirm your findings. You can reduce but not
eliminate any legal exposure if you get a Certified Search Report by
the U.S. Copyright Office.
There's More than Copyright to Consider to Use Images
Legally
An Item May Still Be
Copyrighted
