You see them in the video stores. Movies that always seem to be available from a wide variety of different companies, TV shows in cheap packaging such as Burns and Allen and Sherlock Holmes. Most of these productions are in the public domain, but how did they get there?

This is a topic I’ve studied up on as we’ve added public domain movies to the Podcast. I’ve learned just because it’s old doesn’t mean it’s in the public domain. There are two ways that movies enter the public domain:

1) The Copyright has expired

Prior to the passage of the Copyright Act of 1976, movies and TV shows had a copyright term of 28 years, which was renewable for another 28 years. The Copyright Act of 1976 extended the term of all works that had been renewed and were not already in the public domain for an additional 19 years. In 1992, Congress gave all works that were made before 1978 and had not entered the public domain an automatic renewal for 47 more years. In  1998, Congress approved the Sonny Bono Copyright Term Extension act which further extended copyrights already in existence for 20 more years.

So, what does this mean? There are several classes of films.

Films made before 1923 are almost certainly in the public domain. If a film was made in 1922 and renewed its copyright in 1950, and then been given a 19 year extension of copyright by the Copyright of 1978, the film would have entered the public domain in 1997.

For films made between 1923-1964, it’s a bit more tricky. It depends on if the film’s copyright was renewed or not. If a film was made in 1923, the copyright was renewed in 1951 and given a 19 year extension by the ’78 Copyright Act, it would have come into the public domain in 1998, except for Congress’ extension which means it won’t come into the public domain until 2018.

If on the other hand, a TV episode was made in 1963 and never renewed, it would have fallen into the public domain in 1991.

A copyrighted movie or TV show made after 1964 would have had its term extended from 28 years to 95 years through acts of Congress even if the owners had long since abandoned the work.

This doesn’t mean all works made after 1964 aren’t in the public domain. There’s another a class of works that includes more recent films.

2) The Homer Simpson Class of Works

Okay, this isn’t a term of law. However, the explanation of how the work ended up in the public domain would have earned an appropriate, “Doh!”

Before March 1, 1989, all works were required to have a copyright notice included. If you didn’t have a valid notice, the work wasn’t under copyright protection. This is really a small class of films. The most famous was the horror classic, Night of the Living Dead.  Those films that were made after 1964 that are in the DVD bin are mostly made for TV movies. Made for TV films with few exceptions have rarely had big resale values, and many of the films didn’t bother to take time to copyright something that would be watched today and forgotten tomorrow.

Of course, this doesn’t mean all films without a copyright notice made prior to 1989 are in the public domain. (No, that would be too simple.) After the passage of the Copyright Act of 1976, copyright owners had five years to correct the problem.

And of course, this doesn’t even begin to touch on the issues of foreign films, which is actually making its way through the courts. Or other little exceptions that some clever lawyers for multinational corporations can find if they put their minds to it, but this gives you the general idea of how it happens.