Untangling Copyright, Publication, and the Public Domain

Every year when the clock strikes midnight on January 1, while most people are singing Auld Lang Syne and partying with their loved ones, copyright lawyers and librarians celebrate a different occasion: the annual expansion of the public domain, AKA Public Domain Day. All copyrights expire on December 31, and this year, works that were published in 1929 or earlier, other than sound recordings (which follow their own rules on duration and will be the subject of another post), are now in the public domain. This includes novels like A Farewell to Arms by Ernest Hemmingway, movies like The Coconauts by the Marx Brothers, and musical compositions like "Ain’t Misbehavin’." Hurray!

Unfortunately, however, as with seemingly everything in copyright law, determining if and when a work was “published” within the meaning of the law isn’t as simple as it seems. Part of the confusion stems from the continuing relevance of the Copyright Act of 1909.

Publication and the Copyright Act of 1909

In 1976, Congress passed our current copyright law — the Copyright Act of 1976. Under the 1976 Act, copyright protects all creative works created after January 1, 1978, whether they are published or not. Today, after some amendments to the law, copyright lasts for 70 years after an author dies, rounded up to the end of the year.  

But, of course, many works were created before 1978; what about those? Before 1978, the Copyright Act of 1909 granted copyright protection only to published works. Only state law protected unpublished works. The copyright for most works under the 1909 Act lasts for 95 years after publication. As such, many works that gained protection under the old law are still protected by copyright.  

The 1976 Act also gave copyright protection to works that were created but never published before 1978. The duration of those works follows the 1976 Act’s rules.  

As the above implies, publication was the trigger event for copyright protection under the 1909 Act. But publication alone wasn't enough. Authors received federal copyright protection if they published their works and included copyright notice on those works. Notice looks like this: © 2025 Stephen M. Wolfson. After publication, if an author failed to put notice on their work, they lost all protection for it, state or federal, and it fell into the public domain.

Limited v. General Publication

Perhaps ironically, given the relative importance of publication under the 1976 and 1909 Acts, only the 1976 Act clearly defines the term. The 1976 Act defines “publication” in 17 USC 101: “The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” The 1909 Act, however, did not include a similar provision.  

Without a clear statutory definition of "publication," courts looking at publication under the 1909 Act developed the concepts of “limited publication” and “general publication.” Because of how significant the impact of publication was, courts were reluctant to use a broad definition of the term that could deprive someone of federal rights merely because they made their work available to other people. Accordingly, they came up with "limited publication," which would not put a work into the public domain if an author failed to put notice on it as long as the rightsholders distributed their works to a limited group, for limited purposes, and with restrictions on the use of the works. Meanwhile, "general publication" — when an author made their work available to the public without specific or implied use restrictions — would divest a rightsholder of their rights if they did not include notice on a published work.  

The case, Academy of Motion Picture Arts v. Creative House Promotions, illustrates the concept of limited publication. It looked at whether the Academy for Motion Picture Arts lost copyright protection over the Oscar statue by sending it out to winners between 1929 and 1941 but failing to include copyright notice on the statue. Did distribution to numerous Academy Award winners over more than a decade constitute “general publication”? The court said “no.” Even though the Academy sent the statue to many different people over the years, this only constituted limited publication, and did not inject the work into the public domain. The distribution was to a selected group — academy award winners — for a limited purpose — to reward the winners and to promote the arts — and with an implied restriction on further distribution. As such, the Academy did not lose its copyright in the statue.

Does Publication Abroad Count as Publication?

But what if an author published their work abroad without notice? Does that matter under the 1909 Act? Could it put a work into the public domain in the United States even if it was never published in this country?

Once again, the 1909 Act was unclear on this issue. Section 9 of the 1909 Act, the section that established the requirement for publication with notice, held that: “any person … may secure copyright for his work by publication thereof with the notice of copyright.” Clearly it doesn’t say anything about publication location, but typically copyright laws do not apply abroad unless the law states otherwise. So should we assume that this law means “publication in the United States” even though it does not say that?  

In fact, one case, Twin Books v. Walt Disney Company, held that publication abroad without copyright notice could not put a work into the public domain because copyright usually does not have an “extraterritorial” effect. In this case from 1996, the Court of Appeals for the 9th Circuit held that even though Bambi, A Life in the Woods was published in Germany in 1923 without notice, this did not put the work into the public domain. Instead, it gained U.S. copyright protection when it was published with notice of United States copyright three years later, in 1926.  

So, then, publication location matters for copyright protection under the 1909 Act, right?  

Not so fast. Twin Books is controversial, and only courts in the 9th Circuit have to follow it. Moreover, the two most well-respected treatises on copyright law, Nimmer on Copyright and Patry on Copyright, both believe that this decision is incorrect, noting that even other cases in the 9th Circuit have been skeptical of it. Patry also writes that a draft version of section 9 required publication in the United States for copyright protection, but that was removed for the final version. The fact that the final version removed this phrase suggests that publication without copyright notice anywhere could divest an author of their rights in the United States.  

Furthermore, Twin Books conflicts with the goals of another part of copyright law that directly applies to foreign works: 17 USC 104a. In 1994, Congress passed the Uruguay Round Agreements Act to implement several treaty obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights. As part of this, Congress created 17 U.S.C. 104a, which restores the copyrights of some foreign works that fell into the public domain for failure to follow “formalities.” Formalities are acts that rightsholders must take to secure copyright protection for their works, like registering or renewing a work with a governmental body, making deposit, or publishing with copyright notice. If Twin Books is correct, then someone who published a work in a foreign country before 1978 without notice would have never lost their U.S. copyright protection and would not need to have their copyright restored. Under the 1976 Act, we would treat those works as works that were unpublished on January 1, 1978, and they would receive a copyright duration of the author’s life plus 70 years. Twin Books would narrow the scope of 104a because it would treat any work that was only published abroad as an unpublished work, which would apply to a vast number of works. This seems contrary to Congress’s intentions with 104a.

What Should We Do?

I think the most sensible reading of section 9 of the 1909 Act is that publication without a copyright notice anywhere in the world could put a work into the public domain, but I can’t state this for sure. Twin Books is the law in the 9th Circuit, and it’s possible that the other Circuits could follow its logic. So what do we do?  

Unfortunately, this is one of the hard parts of the law. Legal practice often involves trying to figure out, and arguing over, how confusing and/or conflicting rules should apply. Sometimes that means having to operate with a degree of uncertainty. Sometimes that means choosing the best of bad options.  

Often, fear about uncertainty can mean assuming the worst and avoiding unnecessary risks. Several years ago, a few colleagues and I argued in an amicus brief to the Supreme Court in Golan v. Holder that restoring copyright protection for foreign works that had fallen in the public domain would make it more difficult for companies to work with copyrighted works because no one could ever be sure when Congress would take works out of the public domain again. Similarly, without clear, uniform guidance for how we should understand “publication” for works from before 1978, this uncertainty can chill the use of pre-1930 works that should be in the public domain. For example, the first stories with the character Tintin were published in Belgium in 1929. Those stories should be in the public domain now, whether or not they were published with a U.S.-compliant notice on them. But it is hard to say for sure. In fact, the company that manages the intellectual property rights to Tintin, Tintinimaginatio S.A., has recently claimed that Tintin is not, in fact, in the public domain in the United States. While this has not been tested in courts, yet, it would be risky to make these works available to the public and risk triggering a lawsuit.  

This is unfortunate. The purpose of the public domain is to provide the material for us all to enjoy and build new works from without worrying about legal problems. But until the Supreme Court or Congress tells us for sure exactly how we should understand what “published” means, this uncertainty will remain.