January 1, 2003: The Birth of the Unpublished Public Domain and Its International Implications

On January 1, 2003, a small, quiet historic transformation took place throughout the United States: unpublished works in mass came into the public domain for the first time. Section 302 of the 1976 Copyright Act created a unified system of duration, whereby unpublished and published works carry a term of life of the author plus seventy years. In order to aid with a transition from a state common law perpetual system to a limited Times federal statutory system, the 1976 Copyright Act built two mechanisms for change in the form of Section 303(a). First, Section 303(a) guarantees that no work would go into the public domain until after December 31, 2002, regardless of how long the author had been deceased. Second, the Copyright Act in Section 303(a) provided an incentive for unpublished works created but not published before 1978. If the unpublished work was published for the first time between January 1, 1978 and December 31, 2002, the new published work (protecting therefore the published portions of the unpublished work) would be granted further protection until December 31, 2047. What this means is that as of January 1, 2003, all unpublished works, by authors who had been deceased longer than seventy years, or in other words, had been deceased before January 1, 1933, were now in the public domain. This paper explores the legal elements of this change, both in a domestic as well as international context

Copyright Law v. Trade Policy: Understanding the Golan Battle Within the Tenth Circuit

The Tenth Circuit seems to be in a battle with itself over the meaning and definition of our copyright system. In the last two years, the Tenth Circuit defined the public domain as a constitutionally protected component of the copyright system, and then reversing itself, defined copyright (ignoring the public domain) as a tool for international trade, where treaty obligations outweigh tradition. The Golan case stands at the center of competing priorities and definitions. How are we to understand the "physics" of the public domain within contemporary copyright law? Does copyright have principles and an internal logic to foster creativity, or is copyright to be seen as malleable tool for trade and international relations? Judge Henry in the 2007 Tenth Circuit Golan v. Gonzales stated that under the traditional contours of copyright, what comes into the public domain, stays in the public domain. With this came a First Amendment right to use public domain works, and he remanded the case back to the district court to further determine whether the statute in question required content-based or content-neutral First amendment analysis. This decision marked the first time a part of the copyright law had been found unconstitutional, and it also marked a moment where the public domain appeared to be protected by the U.S. Constitution. Upon appeal from the district court remanded decision, the Tenth Circuit appeals court—albeit with a different chief judge—found the same statute not in violation of the First Amendment, and perfectly in line with the United States' treaty and international obligations. In this opinion, works in the public domain were fair game, particularly because their restoration would somehow help American authors indirectly. Copyright was merely a tool for trade law, and, because of this, any alteration was acceptable and necessary

January 1, 2003: The Birth of the Unpublished Public Domain and Its International Implications

On January 1, 2003, a small, quiet historic transformation took place throughout the United States: unpublished works in mass came into the public domain for the first time. Section 302 of the 1976 Copyright Act created a unified system of duration, whereby unpublished and published works carry a term of life of the author plus seventy years. In order to aid with a transition from a state common law perpetual system to a limited Times federal statutory system, the 1976 Copyright Act built two mechanisms for change in the form of Section 303(a). First, Section 303(a) guarantees that no work would go into the public domain until after December 31, 2002, regardless of how long the author had been deceased. Second, the Copyright Act in Section 303(a) provided an incentive for unpublished works created but not published before 1978. If the unpublished work was published for the first time between January 1, 1978 and December 31, 2002, the new published work (protecting therefore the published portions of the unpublished work) would be granted further protection until December 31, 2047. What this means is that as of January 1, 2003, all unpublished works, by authors who had been deceased longer than seventy years, or in other words, had been deceased before January 1, 1933, were now in the public domain. This paper explores the legal elements of this change, both in a domestic as well as international context

Kamil Kubik: The Artist and Copyright Observed

For over 60 years—from the time he fled his native Czechoslovakia in 1948 until his death in August 2011—Kamil Kubik created amazing oil paintings and pastels. His art graces the walls of The Breakers in Palm Beach, Florida, the Old Ebbett Grill in Washington, DC, and the homes of Presidents, Governors, and celebrities. Many of his works were also printed as lithographs and serigraphs, and sold at more affordable prices than the four-to-five figures that he received for the originals. Fortunately, he was not dependent on the sale of these prints, as most of the original works were unprotected by copyright, and many of the prints were unauthorized reproductions. Copyright law is the key protection for the artistic and economic interests of an author. For a working artist, copyright law can be a vital tool in defending his personal property interests. As such, the result of the particular copyright law in effect at a specific point in time is dramatic and binary—a work is either under copyright or in the public domain; there is no middle ground. This essay examines the parallel relationship between Kamil’s biography and the copyright law that affected his works. What role did copyright law play, and how did his relationship with copyright provide insight into our own relationships with copyright law? Kamil’s life, as seen through the lens of copyright presents an opportunity to observe how the law interacted with an artist during the mid-20th through early 21st century. He produced artwork that spanned several distinct eras of United States copyright law, and his works created abroad add an additional dimension to their legal quagmire. The laws of copyright dramatically changed in the United States alone at least three times during Kamil’s lifetime. The complexity of the interaction between copyright law and Kamil’s work is not unique. Though this article chronicles his travels, his art, and how his copyright rights changed through time and space, it could be the story of many visual artists. The essay is important for 20th century visual artists themselves and their estates, and may provide valuable insight to museums and others interested in digitizing artists’ works. By focusing on Kamil’s journey, we hope to illuminate the intricacies, peculiarities, and sorrows that make up the copyright story of 20th century artists

Kamil Kubik: The Artist and Copyright Observed

For over 60 years—from the time he fled his native Czechoslovakia in 1948 until his death in August 2011—Kamil Kubik created amazing oil paintings and pastels. His art graces the walls of The Breakers in Palm Beach, Florida, the Old Ebbett Grill in Washington, DC, and the homes of Presidents, Governors, and celebrities. Many of his works were also printed as lithographs and serigraphs, and sold at more affordable prices than the four-to-five figures that he received for the originals. Fortunately, he was not dependent on the sale of these prints, as most of the original works were unprotected by copyright, and many of the prints were unauthorized reproductions. Copyright law is the key protection for the artistic and economic interests of an author. For a working artist, copyright law can be a vital tool in defending his personal property interests. As such, the result of the particular copyright law in effect at a specific point in time is dramatic and binary—a work is either under copyright or in the public domain; there is no middle ground. This essay examines the parallel relationship between Kamil’s biography and the copyright law that affected his works. What role did copyright law play, and how did his relationship with copyright provide insight into our own relationships with copyright law? Kamil’s life, as seen through the lens of copyright presents an opportunity to observe how the law interacted with an artist during the mid-20th through early 21st century. He produced artwork that spanned several distinct eras of United States copyright law, and his works created abroad add an additional dimension to their legal quagmire. The laws of copyright dramatically changed in the United States alone at least three times during Kamil’s lifetime. The complexity of the interaction between copyright law and Kamil’s work is not unique. Though this article chronicles his travels, his art, and how his copyright rights changed through time and space, it could be the story of many visual artists. The essay is important for 20th century visual artists themselves and their estates, and may provide valuable insight to museums and others interested in digitizing artists’ works. By focusing on Kamil’s journey, we hope to illuminate the intricacies, peculiarities, and sorrows that make up the copyright story of 20th century artists

Kamil Kubik: The Artist and Copyright Observed

For over 60 years — from the time he fled his native Czechoslovakia in 1948 until his death in August 2011 — Kamil Kubik created amazing oil paintings and pastels. Many of his works were also printed as lithographs and serigraphs, for sale at more affordable prices than the four-to-five figures that he received for the originals. He was not dependent on the sale of these prints, which was a good thing — most of the original works were unprotected by copyright, and many of the prints were unauthorized reproductions. Copyright law is the key law that protects the artistic and economic interests of an author. For a working artist, copyright law can be a key tool needed to protect and defend his personal property interests. As such, the result of the particular copyright law in effect at a specific point in time is dramatic and binary — a work is either under copyright or in the public domain; there is no middle ground. This article looks at the parallel relationship: the artist’s biography and the copyright law that affected his works. What role did copyright law actually play, and how did his relationship with copyright bring insight into our own relationships with copyright law? Kamil’s life through copyright presents an opportunity to observe how the law interacted with an artist during the mid-20th through early 21st century. He produced artwork that spanned several distinct eras of United States copyright law, and his works created abroad add an additional dimension to their legal quagmire. The rules of copyright change at least four times during Kamil’s lifetime. The diversity of Kamil’s relationship with copyright rights and his art work are not unique. Though this article chronicles his travels and his art and how his copyright rights changed through time and space, it could be the story of many visual artists. The essay is important for 20th century visual artists themselves and their estates, and may provide valuable insight to museums and others interested in digitizing artists’ works. By focusing on Kamil’s journey, we hope to illuminate the intricacies, incredible finds, and sorrows that make up the copyright story of 20th century artists

Formalities

This panel will discuss the important role played by formalities under the 1909 Act, including the concepts of general and limited publication, and the role of copyright notice and registration