Leagal ease: Copyright clearance

Q: Recently someone claimed to still own the American rights to the Sherlock Holmes stories and threatened to withhold them.  What is copyright law as regards a work like this?  I used a book published in 1912 by Earl Derr Biggers and made into a play by George M. Cohan in 1913 as the basis for a play of my own, specifically because I thought both would be well into the public domain.  Do I need to worry about copyright clearance for something that old?  Biggers died in 1933 and Cohan in 1942.

A: The material you're working with is almost as old as Clint Eastwood.  To give you an idea how ancient it is - in 1912 (the year little Clint was Bar Mitzvahed), there were no federal income taxes in the United States, US Senators were appointed by state legislatures (not elected by the people), and most grandparents of this blog's readers had not been born yet.  Of course, nothing this old can or should still be protected by copyright or star in movies, right?

A book or other material published (or registered for copyright) in the United States before 1923 is now in the public domain and can be freely used by anyone.  Your book was published in 1913, and since it was published before 1923, it is now in the public domain.  Congratulations!  But don't celebrate quite yet.  You need someone with the deductive powers of Sherlock Holmes to figure out the rest. 

As you know, I think people think of me as a legal Sherlock Holmes, even though in my mind's eye, I look like Jude Law's identical twin, not Robert Downey, Jr.  While the play opened in 1913, it doesn't mean that the play was "published" or registered for copyright in 1913.  It was common not to publish the text of plays back then, and often the plays were not registered for copyright.  And the actual performance of the play in front of live audiences does not necessarily mean it was "published."  So if the text of the play was not published and the play was not registered for copyright, then the rule that publication before 1923 means the work is now in the public domain does not apply.

And if the play was never published and never registered for copyright, the rule is that the copyright protection lasts for life of the author plus 70 years.  Since George M. Cohan died in 1942, that means that his estate may still own the copyright to the play until 2012!

But I'm not done making you sweat - more potentially bad news.  If the play was actually published after 1923, which is not unlikely, then the copyright protection may last even longer, depending on when the play was first published.  For example, if it was first published between 1923 and 1963, the copyright will last for 95 years after first publication.

So while the book is in the public domain, it's unclear if the play is also in the public domain.  Now some good news.  Since the book is in the public domain, you can use it freely.  And even if the play is not in the public domain, the only parts of the play that might still be protected by copyright are the parts that are original to the play and are not in the book. 

For example, let's say this book is about a novelist (Anne Brown Rice) who bets she can write a best-seller in 24 hours (on average, a typical good best-seller today takes much longer to pen, about 36 hours; for comparison, this blog takes about four minutes).  But the play changes the book's plot: it's about a playwright (Dan Amber) who bets he can write a four-act play in under 30 minutes.  These original changes to the plot and main character in the play might be protected by copyright.

To figure out if the play is still protected by copyright, you'd need to order a copyright search report and have it reviewed carefully by a good copyright lawyer.  Without knowing more (e.g., if and when the play was published, if it was published, whether all the formalities were complied with (proper copyright notice, etc.)), it's impossible to know if the play is in the public domain.

Finally, another thing to keep in mind:  Many movies have been made based on this book (as I happen to know).  At least some of these movies are still probably protected by copyright.  While you can use the book, you can't use any original elements of the movies that are still protected (just like if the play is still protected by copyright, you can't use original elements of the play).

The bottom line: Just because Clint Eastwood has already passed into the public domain (on the same day as Don Quixote, coincidentally), not everything almost as ancient is also in the public domain.    

Discussion comes from Film Independent.