007: License to Infringe

Dear Rich: Ian Fleming's Casino Royale entered the public domain in Japan in 2015, 50 years after his death. The same 50-year rule applies in Canada, where Fleming's character of James Bond is also in the public domain. In 2023, a Japanese musical, Casino Royale - My Name's Bond, based on Ian Fleming's Casino Royale novel, became the first stage play featuring the character of James Bond. (All roles in the play, including Bond, were played by women.) Do you have a list of countries where Casino Royale is in the public domain? Once a work enters the public domain, can it return to copyright? Please clarify this and explain whether this scenario applies to Casino Royale. Additionally, does the public domain status of Casino Royale allow me to use the book title and the character of James Bond in derivative works, such as films? I know that specific elements introduced in the films, such as the Aston Martin DB5 and the Walther PK, remain copyrighted and cannot be used. 

The James Bond books are in the public domain in approximately 100 countries (listed below). These countries terminate copyright fifty years after the death of the author. (As a general rule, the rest of the world terminates copyright 70 years after death.) Because Ian Fleming died in 1964, all James Bond books fell into the public domain in the life + 50-year countries in 2015. However, in countries that terminate copyright 70 years after death (for example, the U.S., U.K., France, Germany, and Australia), the Bond books won't be in the public domain until 2035. 

What can you do now? In the life + 50 years countries, you can reproduce the books or create derivative works; for example, you can produce a musical such as Casino Royale - My Name's Bond using Bond and other book characters. 

What can't you do? You can't sell, manufacture, create derivatives, or distribute James Bond works in countries with life + 70 years duration. So, for example, you could not stage the Japanese musical in the U.S. Regardless of copyright duration (life + 50 or life + 70 years), you cannot use elements that were created for the films but that do not appear in the books. This rule for serialized works was applied in 2013 when Sherlock Holmes stories went public domain. So, for example, in the books, Bond drives an Aston Martin DB Mark III. In the films, he drives a tricked-out Aston Martin DB5. In the films, Ms. Moneypenny is flirtatious and speaks in double entendres, villain Blofeld is bald and has a cat, and Bond shoots a Walter PPK/S. This is different from the books. As a precaution, you should avoid using these cinematic elements.

Can a public domain work acquire copyright protection? "Public domain" refers to creative materials not protected by intellectual property laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can own it. Public domain works cannot revert to copyright protection except for some foreign works that omitted copyright notice and are subject to the Uruguay Round Agreements Act (URAA), passed in 1994.

Jurisdictions where the James Bond novels are in the public domain include: Afghanistan,  Algeria,  Anguilla,  Antigua and Barbuda,  Aruba,  Bahrain,  Barbados,  Belarus,  Belize,  Benin,  Bermuda,  Bhutan, Bolivia, Brunei,  Burundi,  Cambodia,  Cameroon,  Canada*,  Cape Verde,  China,  Democratic Republic of the Congo,  Republic of the Congo, Cuba,  Curaçao,  Djibouti,  El Salvador,  Eswatini,  Ethiopia,  Fiji,  Gambia,  Guyana,  Hong Kong,  Iran,  Iraq, Japan**, Jordan,  Kazakhstan,  Kenya,  Kiribati,  Kosovo,  North Korea,  Kyrgyzstan,  Laos,  Lebanon,  Lesotho,  Liberia,  Macau,  Madagascar,  Malawi, Malaysia,  Maldives,  Mali,  Micronesia,   Monaco,  Mongolia, Morocco,  Namibia,  Nauru,    Nepal,  Caribbean Netherlands,  New Zealand,  Niger,  Pakistan,  Palau,  Papua New Guinea, Philippines,  Qatar,  Saint Helena,  St. Kitts and Nevis,  St. Lucia,  San Marino,  Saudi Arabia,  Seychelles,  Sierra Leone,  Sint Maarten,  Solomon Islands,  South Africa,  Sudan,  Suriname,  Syria,  Taiwan (Republic of China),  Tanzania,  Thailand,  Timor Leste,  Togo,  Tonga,  Trinidad and Tobago,  Tunisia,  Turkmenistan,  Tuvalu,  Uganda,  United Arab Emirates,  Vanuatu,  Yemen,  Zambia, and Zimbabwe.

* Life+50 years for authors who died before 1972.

** Japan had a life+50 years prior to 2018 

Publicly Posted PowerPoint ≠ Public Domain

Dear Rich: I run a volunteer-run/non-profit educational program for students who have failed the Naplex several times. I saw PowerPoints posted publicly on a school's website, which I thought would be useful. They are available publicly for everyone to see and download. The website does not have a notice about not being allowed to use them. I intended to cite the source and include the author's name in the title. Is it still considered copyright infringement to use them?  How do you tell if materials are public domain or fit under fair use? 

For readers who are unaware, the NAPLEX is "a 250-question, multiple choice, computerized examination designed to determine whether candidates have the knowledge, judgment and skill necessary to practice pharmacy at entry-level competence." As for your concerns: 

The PowerPoints are publicly available. The PowerPoint slides may be available, viewable, and even downloadable, but that does not give you the right to copy and republish them. There's a difference between authorized end-user activity and unauthorized copying. 

There is no statement forbidding copying. Under U.S. law, a copyright owner does not need to include a copyright notice on published works, nor does the owner need to post notices barring the use of the work. You should presume works are protected by copyright unless proven otherwise. 

Citing the source. Attribution is a thoughtful gesture, but providing the author’s name or source will not excuse someone from a charge of infringement (or qualify the use as a fair use). That said, judges and juries may take attribution into consideration. For example, an author who provides attribution may be considered more favorably when  a judge or jury makes a fair use determination or awards damages. Occasionally attribution backfires, for example, if the author doesn't want to be associated with your program or if the author was otherwise unaware of the copying and was alerted to it by the attribution.  

How do you tell if materials are public domain or fit under fair use? Any work of authorship not protected under copyright law is said to fall within the public domain. This means anyone can use the work without obtaining permission from the author or the author’s heirs. There are  several common reasons why works may be considered to be in the public domain as demonstrated by this chart. Because the PowerPoints were created within the past few decades, we doubt whether they are in the public domain.

Your copying may qualify as fair use, but that depends on whether your unauthorized use is excused because the work is being used for a transformative purpose such as research, scholarship, criticism, or journalism. When determining whether an unauthorized use should be excused based on fair use, a court will use several factors, including the purpose and character of the use, the amount and substantiality of the portion borrowed, and the effect of the use on the market for the copyrighted material.

It’s important to understand that fair use is a defense rather than an affirmative right. This means that a particular use only gets established as a fair use if the copyright owner decides to file a lawsuit and the court upholds the fair use defense. There is, therefore, no way to find out in advance whether something will or won’t be considered a fair use. Of course, if you obtain permission from the PowerPoint copyright owner, then the uncertainty surrounding the use goes away.

Baby (Has Finally) Come Home!

Listen to Bessie Smith

Dear Rich: I'm trying to determine if a recording of a song from 1923 is in the public domain for use as background music in a film scene. The song is 'Baby Won't You Please Come Home' by Bessie Smith. It was recorded on April 11, 1923, and written by Clarence Williams. My understanding is that this recording is now in the public domain because of the Music Modernization Act of 2018.

You are correct! Both the composition (the song) and the sound recording (the record) are in the public domain. The song was written by Clarence Williams (though others have claimed songwriting credit), and published in 1919. As for the sound recording, the Music Modernization Act retroactively awarded 100 years of copyright protection to pre-1972 recordings (which would place this 1923 recording safely in the public domain).

Use Frida's Paintings? (Yes!) Use Frida's Name? (Maybe)

Frida Kahlo age 12 (1919)

Dear Rich: I'm filming a romantic comedy in San Miguel de Allende, Mexico, and refer to the artist Frida Kahlo in two scenes and show a photo of one of her paintings (self-portrait) hanging on the wall. Do I need permission to use her name and photo of her self-portrait? 

You don't need permission to refer to Frida Kahlo in your film's dialogue. Free speech guarantees your right to reference a historical figure. More importantly, deceased figures cannot be defamed or have their privacy invaded (the two common basis for lawsuits involving the use of real people in fiction). 

The painting. Mexican copyright law placed Kahlo's works in the public domain 25 years after her death, so you don't need authorization to include a photo of her painting in your film.

The Kahlo name. Certain rights associated with Frida Kahlo were retained (and disputed) by her family, most importantly, the right to use her name for commercial purposes -- for example, Mattel licensed the name for its Frida Kahlo Barbie doll. Although you're free to use Kahlo's artwork in your film, crafts artists should beware that use of the Kahlo name in connection with Kahlo-inspired works sometimes can cause a problem.        

Take What You Want From Sherwood Forest

Dear Rich: I am writing a historical fantasy novel, and I want to incorporate elements from Henry Gilbert's Robin Hood (1911). Despite the publication date, I can't tell if this book is in the US public domain. It appears to have been only published in the UK, and I've seen evidence the copyright was renewed in the 30's. I have a recent UK copy of the book, and it has no copyright notice. But the book is also not in Google Books or Gutenberg, which leads me to believe it's still under US copyright. 

Like Robin Hood, copyright law takes from the rich and gives to the poor.  Because it was published prior to 1928, Henry Gilbert's Robin Hood is in the U.S. public domain where it can be reproduced or modified without permission. The book is available from the Internet Archives and is preserved by Google Books as part of its public domain project.

Civil War Letters Still Copyrighted?

Ulysses S. Grant -  Virginia, June 1864

Dear Rich: I am writing a book about the Civil War. I would like to include certain quotes from letters of Civil War soldiers. The question is, when were they first published? I have two cases where they were published in book form in the 1990s, but those letters were copied from university libraries where apparently the originals are on display. According to  your book, "publication" includes "offering for public display." If I can determine that said letters have been on display at those libraries since before 1927, can I conclude that the first publication occurred before 1927, thus placing them in the public domain?

You should be fine reproducing the letters. Here's some guidance to help you decide. Divide your letters into three categories:

• Unpublished letters as of January 1, 2003. All unpublished works by individual authors who died in 1932 or earlier are in the public domain.
• Letters published as of 2003 without the authority of the copyright owner. Same as above. "[A]n unauthorized distribution of copies or phonorecords does not constitute publication." Copyright Compendium. That's also true for unauthorized displays or performances. Therefore, unless the two publications you cite were with the authority of the author's estate, those letters are also public domain.
• Letters published before 2003 with the authority of the copyright owner. These letters will have copyright protection until 2047 or until 70 years after the author's death, whichever is greater.

       

Can I Claim Publishing for Public Domain Song?

Dear Rich: I have an album project where I have two "traditional" songs that are being performed in an original manner. Can I list myself as the publisher? 

It would be improper to list yourself as the publisher of a public domain song (we assume that by "traditional" you're referring to PD music). However, you may be able to acquire copyright protection for your unique arrangements. 

You can't list yourself as the publisher. A music publisher is a company that owns songwriting copyrights and collects money from people who sell, perform or modify the songs. Because public domain songs are not protected by copyright (they are free to the public) no one can claim ownership of these compositions. Publishers who claim ownership of PD music and try to enforce their claims are subject to lawsuits. One workaround is to add new lyrics to a public domain melody. Elvis and Ken Darby wrote new lyrics (Love Me Tender) for a civil war song (Aura Lee) and their music publisher can stop anyone from using their derivative version (though they can't stop anyone from using the Aura Lee music and lyrics). 

You can claim rights to a public domain arrangement. Although you cannot claim ownership of a public domain composition, you may be able to claim copyright of your arrangement. However, in order to assert affirmative rights (that is, go after infringers), the arrangement must be more than a trivial variation of the original. As one case established, "To extend copyrightability to minuscule variations would simply put a weapon for harassment in the hands of mischievous copiers intent on appropriating and monopolizing public domain work." Perhaps more importantly, royalty collection organizations enable you to get paid for your public domain version. For example, the MLC allows you to register public domain works, as do Songtrust, CDBaby and other rights organizations.

Can I Get an ISBN for Public Domain Book?

Dear Rich: I am part of an organization that is over 130 years old. One of the founders wrote and published a book in 1899 (in the USA and in France). The author has no known living relatives. A few years ago, we found out a publishing company had republished the book as part of their classics series. We were wondering if we can republish the original design of the book (along with the French Title page/picture cover) for the 125th anniversary of the book. Or would we need to get permission from the publisher that republished the book as part of their classics series? Also will we be able to get a new ISBN number? 

No, you don’t need permission, and yes, you can get a new ISBN. 

Public domain. The French and English books were published before 1926 and are in the public domain and you are free to reproduce everything from those two versions. You do not need to ask the "classics publisher" for permission unless you are using some of the publisher’s original text — for example, a forward, introduction, or footnotes. 

ISBNs. International Standard Book Numbers (ISBNs) identify the publisher, title, edition and format for a book. ISBNS are required by booksellers and distributors and you should purchase one if you will be distributing your book through retail outlets. Bowker sells ISBNs in the U.S.

When Collective Works Are Made From the Public Domain

Speaking of the public domain, the Public Domain Review has an informative essay
(“The Mark of the Beast”) about the first anti-vaxxers

Dear Rich: I wish to reproduce photographs from a website. I want to use them in a book I've written. It is almost certain that any pre-existing copyright on these photos, all taken before 1963, has lapsed. The site itself is being deliberately obtuse about answering questions. How can I determine if I'm prevented from reproducing these photos by a "collective works" copyright?

If the photos are in the public domain and the website hasn’t substantially modified them, you are free to copy them. A collective works copyright doesn’t remove the photos from the public domain. It merely prevents you from copying the website’s original selection and arrangement of the photos. The keyword is “original” because copyright won’t shield collections of works selected by typical sorting criteria (Top Ten Lists, Greatest Hits, or alphabetization). If you don’t copy the selection and arrangement of the photos on the website, you should be fine.

Pre-1964 photos. We assume copyright lapsed because the owner of the photographs failed to renew copyright (a requirement for all works published from 1926 through 1963). If the photographs were first published within books, you can verify public domain status at Stanford’s Copyright Renewal Database.

Are Postage Stamps Public Domain?

Dear Rich: Which (if any) US postage stamp images are in the public domain? I have read that stamps issued prior to 1978 are in the public domain. Is this true?

According to the Copyright Office, U.S. postage stamps issued before 1971 are definitely in the public domain. In 1971, the U.S. Post Office (a federal agency) became the U.S. Postal Service (an independent agency of the executive branch). The new agency's status permitted it to register copyright in stamp images. 

Or did it? There is some confusion surrounding the copyright status of postage stamps issued between January 1, 1971(when the USPS was created) and January 1, 1978 (the year the revised copyright law was enacted). Wikipedia, for example, states that U.S. stamps are "public domain if issued before 31 December 1977." Because we are unable to verify the public domain status of stamps issued during this seven-year period (1971-1978),  the prudent course would be to assume these stamps are protected by copyright. The USPS has a system established for granting rights and permissions for the reproduction of stamps.

How Can I Make Sure I Get Credit for My Work?

Dear Rich: I want to copyright a report I researched and wrote and hope to sell to a museum. My report includes my collection of 19th-century photographs, most of which are extremely rare. When researchers use the report, I want them to credit me. How do I do that? When I tried to register my report at the Copyright Office, I was told that I could not claim copyright in the photos, only the text. Should I let the Copyright Office switch my registration to merely text and lose all ability to include photographs? 

Let's start with the things you can't do. 

• You can't claim copyright in photos published before 1925 or in unpublished photos taken by photographers who died before 1950. These photos are in the public domain and free for anyone to copy.
• You can't claim copyright solely based on your ownership of a photo. Purchasing a print is not the same as purchasing the copyright.
• You can't register your report with the Copyright Office unless you declare whether your book contains pre-existing works. Pre-existing works might include your public domain photos, a foreword by a third party, or any previously registered or previously published works that are included in your book. The goal is to show what you contributed (the text).
• You can't require attribution unless you have an agreement such as a license that requires it. (You can sue under the Digital Millennium Copyright Act, however, if the infringer removes copyright management information (CMI).)   

The Creative Commons License. If attribution is your primary concern, you may wish to pursue a Creative Commons license. (You can use their License Chooser to determine the best match for you.) You don't give up your copyright and you don't need a copyright registration. Instead, you permit users to freely copy your text and as a quid pro quo for the free use, the Creative Commons license requires a specific attribution. If the user doesn't provide attribution, the copyright owner can sue for violation of the Creative Commons license agreement, copyright infringement, and violation of the Digital Millennium Copyright Act.

A Movie Falls Into the Public Domain ....

Dear Rich: If a movie falls into the public domain, are all of the individual images in it also public domain? What if the image is of a movie star?

Yes, you are free to copy the individual frames or images from a public domain movie without permission. Film elements such as music or promotional photos are also usually public domain as well although, on rare occasions, they may be under separate copyright.

What about movie stars? You are free to copy a movie star's image from a public domain movie without permission (and use it for informational purposes). You need to be careful in one particular instance -- when you are using the movie star for a commercial purpose (that is to endorse a product). That's because all living celebrities and some deceased ones have a right of publicity that permits them exclusive rights for endorsement purposes. 

How Lulu Lost Her Mark

Dear Rich: A company in Florida filed a trademark on "Louise Brooks" and has used that to remove all Louise Brooks items off of Etsy in order for its company to sell its own Louise Brooks products. My understanding is that all publicity photos taken back in the 1920s and 1930s were never copyrighted, therefore, in the public domain, especially if the photographer is unidentified. Is this legal for a company to suddenly do this? Louise Brooks has never had an active estate before ... to the best of my knowledge.

It's a tribute to Mary Louise "Lulu" Brooks (who would have been 114 this year), that merchandise with her image is still popular. It's probably attributable to her jazz icon persona, the availability of public domain imagery, her always-stylish bob haircut, and the fact that her estate has not exerted control over the sale of Brooks goods (the estate is not behind the series of takedowns you mentioned). Instead, vendors had operated laissez-faire, selling a wide range of goods until December 2019, when a Florida company acquired the exclusive right to use the Louise Brooks trademark on over 40 types of merchandise (listed below). 

The story behind the trademark. A company from Coral Gables, Florida applied for the Louise Brooks trademark in 2018. The application seemed doomed in February 2019, when the USPTO trademark examiner issued a final office action (FOA) denying registration. The rejection was based on Section 1502(a) of the trademark law -- registration is denied to marks that falsely suggest a connection with a person or an institution (and includes a four-part test). In this case, the examiner stated that "the applied-for mark shows a false suggestion of a connection with the famous actress, Louise Brooks ..."). An FOA rejection is usually the end of the road for most applicants but in August 2019, the Florida company sought reconsideration (on the basis that Brooks had left no estate to assert rights to her name) and the USPTO reversed its stand and approved the application. This gives the Florida company the right to halt sales of listed goods sold under the Louise Brooks trademark. We contacted the USPTO for guidance as to why the FOA was reversed but the examining attorney directed us back to the documentation. Hmmm.

The public domain. You're correct that Louise Brooks publicity photos are probably public domain. Any published photos pre-dating 1925 are automatically public domain (although Brooks' career didn't begin until 1925). Publicity photos published after 1924 were rarely renewed (a requirement for works published before 1964) and they often did not include a copyright notice (a requirement for works published before March 1989). So, many, if not most of the popular Brooks photos appear to be public domain.

Here's where things go south. Most vendors of Louise Brooks merchandise are not using "Louise Brooks" as a trademark -- that is, they're not using the name to indicate the source of the goods. They're using it to describe the goods -- for example, to identify Brooks as the person in the poster or on the t-shirt. Under the trademark law, there's no infringement if "Louise Brooks" is "used fairly and in good faith only to describe the goods or services of such party." 15 USC Sec. 1115(b)(4)  This legal subtlety is lost when companies such as Etsy and eBay issue takedowns at the behest of trademark owners. Their approach is to issue blanket takedowns and to let the parties sort it out under the DMCA or similar laws. So, the combination of trademark ownership and online retail practices has in effect, granted the Florida company the equivalent of Louise Brooks' right of publicity.

What to do? Federal law permits you to use public domain imagery of Louise Brooks and to use "Louise Brooks" to describe it. But that may not help if you are forced to defend yourself in a lawsuit, or if an online store turns a deaf ear to your predicament. That's why some Louise Brooks vendors use variations on the name, for example, Lulu, Mary Louise, Flapper Icon, or "Retro Woman," because those names are unlikely to be confused with the "Louise Brooks" trademark. It's a wonky workaround but it should suffice.

  

List of goods that are part of the Louise Brooks trademark registration.

(1) “Works of creative expression, namely, photographs, paintings and printed matter, namely, graphic design prints; art prints; graphic and printed art reproductions; lithographic works of art; calendars; greeting cards; photo albums; books featuring art reproductions and graphic prints; magazines featuring art reproductions and graphic prints; pictures; portraits; postcards; posters; stationery; stickers; decorative stickers; iron-on and plastic transfers; bumper stickers; decals; wrapping paper; pens; business cards,” in International Class 16; and (2) “Clothing, namely, jackets, T-shirts, shorts, pants, aprons; chefs’ clothing, namely, aprons; clothing for sports, namely, jackets, pants, short pants, jerseys, hats and shirts; drawers, gloves, headbands, hoods; ready-made clothing, namely, jackets, sport coats, pants, short pants and shirts; belts, footwear, sneakers, basketball sneakers,” in International Class 25.

That's a laundry list of goods and much of it is available at the trademark owner's website. 

Do I Need Clearance in the U.S. if I Acquire Rights from a Public Domain Source Abroad?

 

Dear Rich: I'm really hoping you can answer my question. I'm in the process of publishing a book that will contain lots of images, mostly of artworks by one artist in particular. The artist is French, I am British, and my publisher is based in the U.S. The artist died over 70 years ago, and in Britain and Europe, his works are out of copyright. But in the U.S., there's a copyright extension on the works. If I, the British author, am getting images from European suppliers, for my American-published book, do I have to pay for copyright clearance?

Yes, you will need U.S. clearance for some of the works. Although most countries have placed the artist's works in the public domain (based on the life+70 years rule), the U.S. follows a different course. A work first published outside the U.S. (before 1978) is protected in the U.S. for 95 years from publication. That puts all of the artist's works published before 1925 in the public domain in the U.S. Because your publisher is distributing the book in the U.S. you will need clearance for all works published after 1924, regardless of where you obtained the source artwork.

Is Attribution Needed When Using Public Domain Materials?

Dear Rich: I have just finished writing a fantasy novel. I have used public domain quotes within the novel (from Aristotle, Lincoln, etc.), but because the world of the novel is not Earth, I claim the quotes are from some nonexistent book that fits in the novel's world. Is this hinky?

Your suggested use is not hinky. According to the Supreme Court, there is no legal requirement to provide attribution when public domain works are copied and placed into new works.

Is "The Naked Kiss" Missing Copyright Notice?

Criterion's pristine version
of "The Naked Kiss"

Dear Rich: I'm having a debate over the legitimacy of a chain of title of the motion picture, "The Naked Kiss" (1964). There are very clear records in the post-1978 Copyright Office database indicating copyright ownership but this person is insisting it is an invalid copyright because there is no “©” insignia anywhere on head or tail. I’ve found a lot of confusion about this, but my understanding is that even without an insignia, its creator could have copyrighted it. Does the absence of the insignia mean that the film is public domain?
Nowadays, the publication of a film without copyright notice won't effect ownership, but in 1964, the penalty was draconian. If the copyright owner failed to include a copyright notice on "The Naked Kiss," then it would likely be in the public domain. This was the rule until March 1, 1989, when the notice requirement was terminated.
Is the copyright notice missing? Distributors of public domain films have considered "The Naked Kiss" as PD for at least twenty years. Ditto for online sources such as the Internet Archives. The IMDB entry states, "No copyright year is shown at the beginning/end credits." [Link may require a subscription.] A proper copyright notice includes (1) the copyright symbol © or the word, "copyright", (2) the year of first publication, and (3) the copyright owner's name. Under the copyright law effective when "The Naked Kiss" debuted, a notice was defective if the date was missing.
What about the copyright records? Documents filed at the Copyright Office as recently as 2011 indicate that various parties controlled copyright to "The Naked Kiss". Yet, if they control copyright why do they permit so many vendors to distribute the film freely? It may be because a lawsuit over the film (we couldn't find any) would officially designate it as PD thereby denying future licensing revenue.

Is "War with the Newts" in the Public Domain?

Dear Rich: Is the 1936 novel, War with the Newts, by Karel Čapek copyrighted? Can I write (or legally sell) a screenplay based on the book?
War with the Newts fell into the public domain in most countries on January 1, 2009, 70 years after Karel Čapek's death in 1938. The book had been in the U.S. public domain, but copyright was restored in the United States until January 1, 2032. In other words, you'll need permission currently to sell your screenplay in the U.S.
Why isn't it in the public domain in the U.S.? When the United States passed the Uruguay Round Agreements Act (URAA), it restored copyright in foreign works like War with the Newts that, as of 1996, had fallen into the public domain in the U.S because of a failure to comply with U.S. formalities (apparently the U.S. publisher failed to renew War with the Newts). Copyright was restored in works like this, and they were given a copyright term of 95 years from first publication. To qualify for this extended term: (1) the author had to be a non-U.S. citizen, (2) the book could not have been published in the U.S. within 30 days after its publication abroad, and (3) the book needed to still be in copyright in Czechoslavakia as of January 1, 1996. We believe that War with the Newts meets these qualifications and that copyright protection lasts for 95 years from first publication. 
What about the translation? The 1937 translation of War with the Newts qualifies for separate copyright protection and would also qualify for a 95-year copyright term. For more information on determining public domain status, check out Steve Fishman's The Public Domain, The: How to Find & Use Copyright-Free Writings, Music, Art & More.

How Can I Stop Colorizers From "Stealing" My Antique Photo Collection?

Dear Rich: I have an extensive collection of original antique photo prints. Some are art photos, some are amateur/snapshot photos, some are news photos from Acme and other agencies. I foolishly posted a few on Pinterest a long time ago without watermarks. There are colorizers who swipe images without permission, colorize them, then present the result as their copyrighted art. Instagram has stopped removing colorizations of my photos when I report them saying I can't prove I hold the copyright to the original. I realize the news photos are copyrighted by Getty most likely (they charge $100 per hour to find out), but what about the art photos and private amateur photos? How do I establish copyright to protect my collection?
Owning a photographic print may have value as a vintage collectible but in order for you to stop colorizers from copying and modifying your collection, you need to acquire copyright in the photos. That's unlikely for two reasons: (1) most of the photos are likely in the public domain in which case, no one can claim copyright, and (2) if copyright still existed for some of the photos, you would need to track down the owner (the photographer or the person or company who acquired it from the photographer) and buy the rights. That's a considerable expenditure of time and money.
If the photos are public domain, how can Getty claim copyright? As the Library of Congress explains (in regard to Acme photos), news photos published before 1963 are likely public domain because they weren't renewed. Getty cannot assert copyright in public domain pictures but they may be betting that users would rather pay the licensing fee versus proving that copyright has expired. In short, users are paying to access high-quality scans of vintage photos.
If the photos are public domain, how can colorizers claim copyright?
As we explained a few years ago, it is possible to register a colorized black and white photo with the Copyright Office provided that the results "reveal a certain minimum amount of individual creative human authorship." Analogizing as to how the Copyright Office processes colorized motion pictures, the colorizer would have to demonstrate (1) numerous color selections made from an extensive color inventory; (2) a range of additional colors that is more than a trivial variation, and (3) that the overall appearance of the picture must be modified. A colorized image is considered a derivative work and the copyright extends only to the color choices. If the underlying work is not in the public domain, the colorizer will need permission from the copyright owner to reproduce or sell the derivative (or risk a charge of infringement).

Is D.H. Lawrence Poem in the Public Domain?

Dear Rich: We are publishing a book in conjunction with a museum exhibit. The artwork in the exhibit was inspired by D.H. Lawrence's poem, "Whales Weep Not!" On the website, Poets.org, they indicated the poem may still be under copyright by the poet's estate (Copyright © 1964, 1971 by Angela Ravagli and C. M. Weekly, Executors of the Estate of Frieda Lawrence Ravagli. Used by permission of Viking Penguin, a division of Penguin Books USA Inc.) Is the poem in the public domain or do we need permission? 
If the copyright for "Whales Weep Not!" was renewed, it is still under copyright and will not fall into the public domain for several years. The poem was published posthumously in 1932 in the collection, "Last Poems" (Lawrence died in 1930). Copyright law protects such works for 95 years from first publication, provided that it was timely renewed. However, we couldn't find evidence of renewal of "Last Poems" at the Stanford Renewal database. That's not conclusive ("Absence of evidence isn't evidence of absence") and may be due to an error in data conversion or imprecise searching. (The estate had been diligent in renewing Lawrence's other works, including his poetry.) The only definitive proof would be to pay for a certified Copyright Office search.

Can I Sell Cecil Aldin Coloring Book?

British illustrator Cecil Aldin (1870 - 1935)
 with one of his furry subjects

Dear Rich: Can I sell black and white images by Cecil Aldin? I would like to sell them to potential customers who could color them in?
Yes, you're free to sell the animal illustrations of Cecil Aldin. Except for his imagery for "His Apologies" (Rudyard Kipling's 17-page poem about a Scottish Terrier puppy), all of the artwork by Aldin (sometimes mistakenly spelled "Alden") is public domain. The works were either published before 1924 or were not timely renewed (according to the Stanford Renewals database). "His Apologies" was renewed in 1959, and the drawings are under copyright until 2027.