[Commons-l] Cool tool that lets you check for copyright renewals on books

[Matthew Brown]

On 4/9/07, Monahon, Peter B. <Peter.Monahon at uspto.gov> wrote:
> I'm not sure I understand the problem in this case.  I think the challenge
> is trying to use an unattributed illustration.  That is happens to appear in
> two different sources encourages at least one person to assume it's in the
> public domain.  Have I got it?

The image may or may not be attributed, but the image has no
independent copyright registration.  In modern, post Berne convention
US copyright law, this situation doesn't really apply; everything is
'born copyrighted' and thus the image has an independent copyright.

In the US copyright law that applied through the late 1960s, things
were only copyrighted if they were only ever published with a
copyright claim and the copyright was registered.  This copyright had
to be renewed periodically to remain in force.  An image would only
have a copyright independently if it had been submitted for copyright
registration in its own right - photographic studios would
periodically register batches of photographs, for instance.
Otherwise, a photograph would be copyrighted when published as part of
a larger work under that work's copyright.

Since under this system, an image that had been published in several
copyrighted works would have no independent copyright, but every
published work it was in would be copyrighted; since all publications
had been copyrighted, the image itself could be considered to be.

The question is what happens if one or more of those works fell out of
copyright due to non-renewal, but others were renewed and remained in
copyright.  Can the image be copied out of the non-renewed work and
considered as public domain due to 'descent' from a now
out-of-copyright source?  Does it matter which publication, in terms
of cronological order of original copyright date, fell out of
copyright?

It is known that if the image was copyrighted in its own right,
independently, that if a work including it fell out of copyright the
image would not.  It's also known that if a derivative work falls out
of copyright, the copyright of the portions covered by the work from
which it was derived remain in force.  However, I'm having trouble
tracking down any US legal precedent or trustworthy authority on
copyright that says what happens in the situation I describe.

-Matt