Does Renewal Apply to Both Published and Unpublished Works?

Dear Rich: A song was first copyrighted in an “unpublished” form in 1950, and subsequently, in the same year, the same song was copyrighted in “published” form. The published registration was renewed in a timely fashion. The unpublished copyright was not renewed. Does the renewal of the published work protect the rights of the composer? Or does failing to renew the unpublished version put the song in the public domain?

If the copyright was renewed, it’s protected for 95 years from the first publication. If the music was published in 1950, it wouldn't become public domain until 2045. It doesn't matter that the unpublished version was never renewed unless the unpublished version contains material that differs from the published version. For example, if the unpublished version contains an intro that's not present in the published version, the intro would be public domain.

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.

Obtaining 1960 Song From Copyright Office

Dear Rich: My husband published and obtained a copyright on a song and music in 1960. He subsequently misplaced his copy of the material. How would he go about receiving a copy of his song and music from the Copyright Office? 
Because it's been almost 60 years since the song was deposited at the Copyright Office, we think it will be difficult, if not impossible to access your husband's "deposit materials" (as they are known in copyright parlance). Here's why.
The material may not be under copyright. At the time (1960) that your husband's song was registered, works had to be renewed after 28 years. So, unless your husband renewed the registration in 1988, the song is no longer under copyright.
The deposit materials may have been destroyed. In order to reconcile "the storage limitations of the Copyright Office with the continued value of deposits," the Register of Copyright is empowered to destroy deposit materials when necessary. In other words, decades-old deposits without historical value are typically destroyed.
Your husband may not qualify to request deposit materials. The Copyright Office will only furnish a copy of deposit materials if the materials are the subject of litigation, a court has ordered a copy, or "written authorization is received from the copyright claimant of record or the owner of any of the exclusive rights in the copyright..." Because a lack of renewal may have terminated copyright, your husband is no longer the copyright owner.
How to obtain deposit materials. If you still want to try for your deposit materials, follow the instructions at the Copyright Office site and pay the search fees required.

Can I Use Promo Photos from The Virginian?

Dear Rich: I was one of the co-stars in The Virginian TV series and a friend who is creating a Wiki page for me (about to publish my first novel) and asked if the publicity photos taken of me back in the mid-60s were my property or had the copyright to them expired. I know they aren't my property, but don't know about expired copyrights and wondered if you could shed some light on whether I need to contact NBC for use of the photos on Wiki?
We can't say for sure who owns the rights to The Virginian's publicity photos, but if they're like many other publicity photos from that time (The Virginian ran from 1962-1971), there's a good possibility that they're in the public domain.
The Wind and the Wizard.  Works published before March 1, 1989, were required to include copyright notice so if the Virginian's publicity stills were distributed without a notice (the word "copyright" or "©" and the name of the owner), you're free to use them. It wasn't uncommon for stills to lack notice.

"An issue of recurring application is publicity photos for motion pictures from the 1920's through 1970's. The films themselves from that era were routinely protected as validly noticed and registered works; but much less care was typically exercised during production and in the publicity office. (1-4 Nimmer on Copyright § 4.13[A][3].)

In some situations, the lack of notice might have been deliberate. A notice might have discouraged reproductions and the whole point of these 8 x 10 glossies was to get publicity. In one case that arose over the use of posters and promo photos from the films The Wizard of Oz and Gone with the Wind, the Eighth Circuit Court of Appeals ruled the materials entered the public domain when they were distributed without a copyright notice.
Before 1964?  If any of the stills were distributed before 1964 it's likely they entered the public domain. Works published before 1964 had to be renewed and only a small percentage (estimated to be less than11%) met that requirement.
If it is still under copyright ... there are a few things to consider:

• Who owns the copyright? It's probably either NBC or the production company that created the show (or an assignee of either of the two). It's possible but unlikely that the rights for promo photos were transferred to a third party stock photo house such as Getty. That's easy enough to check using Google's Reverse Image Search
• Will the copyright owner learn of your use, and if so, will they care? If a reverse image search confirms several unauthorized uses, that may indicate that either (1) the copyright owner is not trolling the web for old promo photos, or (2) the copyright owner doesn't care about those reproductions. If the owner of the photos also owns rights to the TV series, it wouldn't be good publicity to go after a former star of the show while the show is still in syndication.
• Does your posting of the picture constitute fair use? Based on the four fair use factors, we think you have a strong fair use argument. However, as we always warn, fair use is a defense made when the case is being litigated --  already an expensive proposition.

Wants to Quote Vintage Clothing Ads in Song

Dear Rich: I have a song, part of a musical project, within which I'm quoting vintage clothing ads from the '60's. HIS, LEVIS, Dexter Shoes, Danskin, etc. Am I correct in assuming I can't do this or do you think claiming ' Fair Use' might allow it? It's possible that a company may complain but we don't imagine that quoting 50-year old clothing ads will cause much problem. First, there's the issue of whether copyright still protects many of these ads. Ads published before 1964 would have to have been renewed (and only a small percentage were). Even if renewal were not required, there might be some issue as to who owns copyright (and can prove it). Finally, there's the issue of whether the owner will hear your song and choose to do anything about it -- that is, is it worth it financially and from a public relations POV to pursue you. So, we think the coast is relatively clear. Who knows ... your potential pursuers may even coopt your use?

Searching the Copyright Renewal Database

Dear Rich: A friend of mine's husband had a book published in 1962 (listed as copyright 1962). He later reprinted a new edition of it in 1975 himself. When he died the rights were assigned to his wife. In looking at reprinting it again, I find that the Hathi Trust at U. of Michigan is making it available on their website as being in the public domain. I assume this is because they did not see a renewal for a second 23 years on the govt. copyright renewal website and assumed it fell into public domain. The thing is, his wife feels sure he did renew the book for a second 23 years, which would bring it to 1977 and thus be extended. However she is not able to find any paperwork on it. So I suppose my question is how complete is the Copyright extension database as accessed on the web? I know its possible they are missing one or two records, but is it known if there are gaps in their records? And is there a better way to make sure it was/was not renewed other than the web search? You're correct that the work would have to have been renewed for protection to continue but as one reader pointed out, you're looking at the wrong year for renewal information. A work that's published with notice in 1962 would have to be renewed in 1990, and if it was renewed, would then receive another 47 years of protection.
Renewal information. You're correct that not all renewal information migrated to the online database. As the folks at the Stanford Library explain, some of the renewal information was slow to move from the Copyright Office print card catalog into the searchable database. (You can read more about the card catalog here.) Stanford sought to correct that with its alternative renewal search system for books. Check that out as well as Rutger's database, and the University of Pennsylvania's online attempt to organize copyright renewal records by year. The most thorough (and expensive) way to verify renewal information is to hire someone to perform a copyright search. You can hire the Copyright Office for $165 an hour, or you can hire a private company to perform the card catalogue search.

Wants to Use Ladies in Pool Picture

my mom as a teenager

Dear Rich: I am taking an assemblage class and mix different medias including photos. One image I created included a photo of ladies in a pool from the 1930's. I've seen it in magazines and on greeting cards, etc. A lot of people loved my collage. I think if I give them away it's probably okay, but if it goes further and people want to "buy" my collages, can I get in trouble for including a photo that I didn't take? As we've noted before, infringement occurs whether the works are distributed for free or sold for a profit. The distinction probably shouldn't matter in your case because if the photo was published in the 1930s, it would only be protected under U.S. copyright if it had been renewed. (Less than 15% of works were renewed.) In other words, odds are good that the work is in the public domain. Checking the copyright status of pre-1978 works, particularly photos, is difficult and you would need to track down the source or original publisher of the image. If we were a betting blog, we'd bet that you won't have any problems with your planned use.
What about the copyright exception for photos of women in swimsuits? Because of the immense popularity of photos of women in swimsuits, male lawmakers in 1983 created an exception to copyright law known as the Anderson Rule (named after Baywatch star, Pamela Anderson), which permits limited reproductions of photographs of swimsuit-clad women if the use is not-for-profit and proper attribution is provided. (After a case was brought by Victoria's Secret, it was established that the rule does not apply to women in lingerie.) Following an outburst by women's groups, the Anderson rule was expanded in 1987 to include men, as well. Of course, none of this is true but we just wanted to keep you on the page as long as possible to improve our SEO.

Trademark Renewal Scams

Dear Rich: I have a trademark registered at the USPTO. I got a letter from a trademark renewal service in Washington, D.C. warning that my trademark has to be renewed right away. But according to your books, my trademark doesn't need to be renewed for another 9 months. Who's right? You know those people who are busy protecting your inheritance in Nigeria? Apparently they are also watching out for your trademark. We believe your letter is one of many trademark renewal scams. Typically, it starts with a pseudo-official letter from some company that sounds like it's affiliated with the government (scroll down for a list of possible offenders). They've mined your information from the USPTO database and the reason you're hearing from them so far in advance of the actual renewal date is that they want to pre-empt any mail you might get from a legitimate source such as your attorney.
Other scams. There are other trademark scams. For example, the Dear Rich staff got a letter a couple of weeks ago from this company offering to "publish" our registered trademark data on the Internet in return for $589 payment. Wait ... for the price of a Droid Bionic, the TMP crew will duplicate what the USPTO and Trademarkia already do for free. (Our favorite part of the letter --  a pathetic and ineffective attempt to avoid U.S. jurisdiction -- said, "It shall be pointed out that TM Publisher Corp. has its headquarters in Switzerland and the postal address in the USA serves the customers to handle payments ... ") BTW, one law firm has recently gone after an alleged TM scammer.
Two post-registration dates you need to know. Just so you know, if you miss two keys dates, your federal registration will be canceled.

• Continued Use. Sometime during the fifth year after federal registration -- that is sometime between the fifth and sixth anniversary of federal registration -- you must file a "Declaration Of Continued Use Or Excusable Nonuse Under Section 8." The requirements are here. So if your mark was registered on July 1, 2007, sometime between July 1, 2012 and July 1, 2013, you must file the Section 8 declaration.
• Renewal. File within six months prior to end of the tenth year of registration. 

If you miss either of the deadlines, there is a six-month grace period to correct the error, provided you pay additional fees.