Monday, February 21, 2011

Can copyright in Freud's work be restored?

Dear Rich: I was reading a book on the public domain that has two statements: "there are some foreign works that don't qualify for copyright restoration. These are works that are no longer under copyright in their home countries because the copyright in their home countries has expired ..." and "Thus if the author of the foreign work died long ago, the work may not have qualified for copyright restoration in the United States." Does this mean that all works written by, for example, Sigmund Freud (who died in 1939, and then his works are in the public domain in Europe) are in the public domain in the US since January 2010 even if they were published in the 30s and renewed in the 60s? According to our research, you are correct that the writings of Sigmund Freud are now in the public domain in the European Union.
Here's where it gets complicated. As to U.S. protection, the short answer is that Freud's work is likely still protected in the U.S. if it was published after 1923 and with proper notice. Here's why. If Freud's works, first published in Europe, were published with a copyright notice, then they are protected in the U.S. for 95 years from the date of first publication. If they were not published with a copyright notice, or if they were republished before 1978 with valid copyright notice, then U.S. courts may differ as how to treat them but, according to author Steve Fishman (whose book you cited) the best approach as to such works is:

"A work first published outside the U.S. without a copyright notice before 1978, and never republished before 1978 with valid notice, would be treated as in the public domain only if (1) the author has been dead more than 70 years (the same rule as for unpublished works); and (2) the work was first published before 1923 (the same rule as for works published outside the U.S. with a valid notice).
What's this got to do with restoration? Not much. Restoration is the process by which previously public domain works in the U.S. are resurrected and are awarded copyright protection. The U.S. agreed to permit restoration of certain works as a condition to joining an international treaty in 1994. We don't believe restoration is relevant to Freud's work because restoration applies to works that have already fallen into the public domain in the U.S. because they were works published:

  • between January 1, 1923 and March 1, 1989 without a proper copyright notice, or
  • during the years 1923-1963 but never had their copyrights renewed by filing an application with the U.S. Copyright Office during the 28th year after publication, or
  • in countries with which the United States had no copyright relations.
So unless Freud's U.S. publications dropped into the public domain for one of the reasons listed above, it would not need to be restored. Speaking of which, do you think it's unheimlich (as Freud might say) that the authors we're discussing today -- Sigmund Freud and Steve Fishman --  have the same initials!