Copyright Duration and the Public Domain

By Hank FasthoffJuly 7, 2026

Before you use a photograph, a piece of music, a design, or a passage of text you didn't create, you need to know whether the copyright has expired. Guessing wrong exposes you to statutory damages starting at $750 per work, and believing the work was free to use isn't a defense. Determining public domain status takes more than checking a publication date. The answer turns on when the work was created, whether it was published, who created it, and whether the owner followed formalities that prior versions of the Copyright Act required that the current statute doesn't. Generally speaking (exceptions discussed below), a work created today by an individual author remains protected until 70 years after that author dies. A work made for hire published today remains protected for 95 years.

Understanding copyright duration is essential for two reasons. If you own copyrights, you need to know how long your protection lasts and what happens as expiration approaches. If you want to use someone else's work without a license, you need to confirm it's in the public domain before you use it, because getting it wrong exposes you to statutory damages ranging from $750 to $30,000 per infringed work, or up to $150,000 per infringed work if the use of the work was knowing or intentional.

Works Created on or After January 1, 1978

For works created on or after January 1, 1978 (the effective date of the Copyright Act of 1976, as amended by the Sonny Bono Copyright Term Extension Act of 1998), the duration of the term depends on authorship.

Individual authors own copyright for the life of the author plus 70 years. If a novelist publishes a book in 2026 and dies in 2060, the copyright expires on January 1, 2131 (70 years after the year of death).

Joint works (created by two or more authors who intended their contributions to be merged into a single work) are protected for the life of the last surviving author plus 70 years.

Works made for hire (created by an employee within the scope of employment, or commissioned under a written work-for-hire agreement for one of the nine statutory categories) are protected for 95 years from the year of first publication or 120 years from the year of creation, whichever expires first. A corporate marketing brochure published in 2026, for example, would enter the public domain on January 1, 2122.

Anonymous and pseudonymous works follow the same 95/120-year rule as works made for hire, unless the author's identity is later revealed in Copyright Office records, in which case the term reverts to life plus 70.

Works Published Before January 1, 1978

Works published before 1978 were governed by the Copyright Act of 1909, which used a fixed-term system rather than a life-plus-years system.

Under the 1909 Act, copyright lasted for an initial term of 28 years from the date of publication, renewable for a second term. Congress extended the renewal term several times, culminating in the Sonny Bono Act's extension to 67 years, producing a maximum total term of 95 years (28 + 67) for works that were properly renewed.

As of January 1, 2026, all works published in the United States before January 1, 1931, have entered the public domain. Works from 1930 joined the public domain on January 1, 2026, after their 95-year terms expired. Works from 1931 will follow on January 1, 2027, and this annual cycle will continue until works published in 1977 enter the public domain on January 1, 2073, the last works covered by the fixed 95-year term.

Failure to renew under the 1909 Act is where many works fell into the public domain earlier than their owners intended. Before 1978, copyright owners were required to file a renewal registration with the Copyright Office during the 28th year of the initial term. If the owner missed the renewal deadline, the copyright expired at the end of the initial 28-year term. Studies estimate that only about 15% of copyrights registered between 1923 and 1963 were renewed, meaning approximately 85% of works from that era entered the public domain after 28 years. For works published between 1964 and 1977, Congress made renewal automatic, so the renewal failure problem doesn't apply.

The Copyright Notice Requirement

Before March 1, 1989 (the effective date of U.S. adherence to the Berne Convention), publication without a proper copyright notice (the © symbol or the word "Copyright," the year of first publication, and the name of the copyright owner) could inject a work into the public domain.

For works published before January 1, 1978, publication without notice generally placed the work immediately in the public domain.

For works published between January 1, 1978, and March 1, 1989, the Copyright Act provided a five-year cure period. If the copyright owner discovered the omission and registered the work within five years of publication, the copyright could be preserved. If the owner didn't cure the omission within five years, the work entered the public domain.

Since March 1, 1989, copyright notice is optional. Omitting the notice doesn't affect copyright protection, though including it prevents an infringer from claiming "innocent infringement" as a defense to reduce statutory damages.

Government Works

Under 17 U.S.C. § 105, copyright protection isn't available for any "work of the United States Government," defined as a work prepared by an officer or employee of the U.S. government as part of that person's official duties. Federal government reports, regulations, judicial opinions, legislative materials, and works created by federal employees in their official capacity are in the public domain from the moment of creation.

Section 105 applies only to works of the federal government. State and local government works may be copyrighted under state law, and many states do assert copyright in their publications, reports, and other materials. Some states go further with disclosure. California, for example, makes computer-stored public records disclosable under Gov. Code § 7922.585 (formerly § 6254.9), though the statute preserves any copyright in those records, so disclosure there doesn't place the material in the public domain, and treatment varies by jurisdiction.

Federal government works that incorporate copyrighted material from non-government sources (a government report that includes a licensed photograph, for example) don't place the non-government material in the public domain. Only the government-authored portions are unprotected.

Sound Recordings Have a Different Timeline

Sound recordings and musical compositions have separate copyrights and separate duration rules, which is one of the most common sources of confusion in public domain analysis.

A musical composition (the written melody, harmony, and lyrics) published before 1931 is in the public domain as of January 1, 2026. But the sound recording of a performance of that composition may still be under copyright, because sound recordings follow different rules.

Sound recordings fixed in a tangible medium (a record, digital file, etc.) on or after February 15, 1972, are protected under federal copyright law for the same terms as other works (life plus 70 or 95/120 for works made for hire).

Sound recordings fixed before February 15, 1972, fall outside the general federal copyright system. Congress first extended federal copyright to sound recordings through the Sound Recording Amendment of 1971, but only for recordings fixed on or after February 15, 1972. Earlier recordings were left to a patchwork of state statutory and common law that varied by jurisdiction. The Music Modernization Act of 2018 addressed this through the Classics Protection and Access Act, codified at 17 U.S.C. § 1401, which created a new chapter 14 extending federal infringement remedies to pre-1972 recordings and setting a phased schedule for their entry into the public domain. Chapter 14 doesn't grant these recordings full federal copyright, it extends federal remedies to them. Recordings first published before 1923 entered the public domain on January 1, 2022. Recordings first published between 1923 and 1946 receive a term of 95 years from publication plus an additional 5 years, so a 1925 recording entered the public domain on January 1, 2026. Recordings first published between 1947 and 1956 receive 95 years plus an additional 15 years, putting their entry between 2058 and 2067. All remaining recordings fixed before February 15, 1972, including unpublished recordings and those first published between 1957 and February 15, 1972, enter the public domain on February 15, 2067.

A business that wants to use a pre-1931 song in a commercial must confirm that both the composition and the specific recording it wants to use are in the public domain. Using a public domain composition performed by a 1940s orchestra, for example, may still require a license for the sound recording.

Safely Using Public Domain Material

Confirming that a work is in the public domain requires more than checking the publication date. Here are some of the steps in evaluating whether a work is in the public domain:

• Verify the publication date. "Published" under copyright law means distributed to the public by sale, rental, lease, or lending, or offering copies for distribution. A work that was created in 1925 but not published until 1960 has a different copyright term than one published in 1925.
• Check for renewal (works published 1923-1963). If the work was published between 1923 and 1963 and the copyright wasn't renewed, it entered the public domain after 28 years. The Copyright Office renewal records (available online through the Copyright Office and Stanford University's Copyright Renewal Database) can confirm whether renewal was filed.
• Distinguish the work from derivative works based on it. A novel published in 1920 is in the public domain, but a film adaptation made in 1955 may still be under copyright. The public domain status of the underlying work doesn't extend to later adaptations, translations, or arrangements that added copyrightable expression.
• Confirm the country of origin. Works published abroad may have different copyright terms under their country of origin's law, and international treaties (the Berne Convention, the TRIPS Agreement) can affect whether a foreign work is in the public domain in the United States.

Practical Recommendations

If your business uses content from the public domain (stock photographs, historical texts, classic designs, vintage music), verify the public domain status of each work before use. A mistake can produce statutory damages of $750 to $30,000 per infringed work, or up to $150,000 for knowing or intentional infringement, and "I thought it was in the public domain" isn't a defense.

If your business owns copyrights in works created before 1978, check whether renewal was filed. If renewal was missed (works published 1923-1963), the copyright may have expired decades ago, and the work may be in the public domain regardless of its age.

For music licensing, confirm both the composition and the recording are in the public domain before using them. A public domain composition performed and recorded in 1945 may still carry a sound recording copyright, because a recording first published between 1923 and 1946 receives 95 years from publication plus a 5-year transition period under 17 U.S.C. § 1401, which puts a 1945 recording in the public domain on January 1, 2046.

If your business is acquiring a content library, catalog, or archive, evaluate the copyright status of each work as part of due diligence. Works whose copyrights have expired, were never renewed, or were published without proper notice may be in the public domain, which affects the value of the acquisition and the buyer's ability to enforce exclusivity.