The “simple version” of the effect of the Copyright Term Extension Act of 1998, which is the one I’ve generally gone with, is as follows: Copyright terms for US works were extended by 20 years. In the ordinary case, that amendment to the US copyright statute extended terms to life-plus-70 years. For works that fall into the category of “anonymous or pseudonymous works or works made for hire,” the general terms were extended from 75 years from date of publication to 95 years.

As with the simple version of most complex matters, this was — while not wrong — not the full story, either.

For a long time – most of the 20th century at least – calculating copyright terms has been a complicated matter. Congress extended the terms a few times, modified requirements for registration and “harmonized” US copyright law according to treaty agreements. Building on others’ initial work, Prof. Peter Hirtle of Cornell developed a clear and readable, chart with the results of this progression, and that chart has been maintained and updated since its first publication in 1999.

Let’s go back to ‘simple but accurate’—An FAQ on the US Copyright Office website, How Long Does Copyright Protection Last? sums up the current rules with precision:

“As a general rule, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.”

This is a statement about the rules for the United States. Except as adjusted (“harmonized”) by treaty, copyright law is managed nationally, by the laws of the local country. Some countries have shorter terms; a few have longer ones.

Taking each of these clauses in turn —

Life of the Author Plus 70: In the case of a work by a single, known author (i.e., a creator, a natural person), published from 1978 on, the copyright will last while that author is alive plus an additional 70 years. Examples include Stephen King’s ‘The Stand’ (novel, 1978), ‘More Songs about Buildings and Food’ by the band Talking Heads (album of original music, 1978); and the acrylic and silkscreen image ‘Self-Portrait’ by Andy Warhol (1978). Stephen King is still quite alive, but Andy Warhol died in 1987. Applying the “life plus 70” rule to this example, the math says … 1987 + 70 is 2057, or 34 years from now. This may be the easiest case, because a work is a work and a creator is a creator. And a rose is a rose and a horse is a horse, of course. These provisions also cover works left unpublished at the death of their author.

Coincidentally, the poem containing the phrase “A rose is a rose is a rose” was first published in 1922 and the term of its copyright has thus expired, as has its creator, Gertrude Stein.

Anonymous/Pseudonymous Works: A work protectible by copyright under the current law (created after January 1, 1978) with no identifiable author gets at least 95 years, and no more than 120 years, of protection. In our time, informed by huge databases and nearly ubiquitous social media, the persistence of  anonymous/pseudonymous authorship seems much more unlikely than perhaps it did in the long-ago; alternatively, if the actual author behind the pseudonymous work decides to register the work with the Copyright Office in their real-life name or is simply otherwise identified in some publicly-accessible way, the work will be treated under the “life plus 70” rules.

However, many works indeed are published without an author attribution. In a “digital first” age without a role in many cases for an intermediary who knows the “secret,” these will only continue to grow in proportion to the whole. One question this implies is, if they remain truly anonymous, who will be able to ‘exploit’ such works economically, such as by collecting them and putting them in a sellable book? Recent examples of works published anonymously include: the author of the 1996 novel “Primary Colors” (later identified as journalist Joe Klein); in the visual arts, the notorious and transgressive Banksy is still anonymous; ‘John le Carré’s oeuvre was written by a former British civil servant of quite a different name; and there are many other well-known and well-published examples.

Work Made For Hire: Both before and since the advent of our digital era, the number of works made and published at the request of corporate entities, the most common, but by no means the only, example of “works made for hire” has proliferated dramatically since the days that all ink-stained wretches and other artists worked alone in their garrets. While such works –have always been part of the mix, nearly every major corporation does a substantial amount of web-based publishing now, as do many, many small-to-medium businesses. Works produced by employees, in the normal course of their employment, are presumptively works-made-for-hire. (For more details on this complicated topic, see Circular 30.)

Unlike natural persons, corporations potentially live forever, as Mark Twain pointed out as long ago as 1906. Some companies founded before 1900 are still in operation. The 120-year (outer) limit applies to the works they control.

Although this mix these rules for various sorts of works under copyright and the challenge of logically applying said rules to any given work may sound confusing, this language from the USCO Circular 15a,  ‘Duration of Copyright’ does clear it up:

For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter.

Though life extension efforts continue, ‘nearly a century’ seems plenty to me, for the social and personal purposes of copyright. Although some may desire it, any form of “perpetual copyright” still seems like a bad idea.

A final, speculative note: US law does not currently recognize the outputs of AI as per se protectible by copyright, unless an underlying human or corporate person is willing, and qualified under the legal rules, to take the credit as author. However, this may change in time. And, while authors die, AIs – while they can be turned off – do not. I could see treating the outputs of generative AI programs under some modification of the existing rules for anonymous creators. We’ll see.


Author: Dave Davis

Dave Davis joined CCC in 1994 and currently serves as a research consultant. He previously held directorships in both public and corporate libraries and earned joint master’s degrees in Library and Information Sciences and Medieval European History from Catholic University of America. He is the owner/operator of Pyegar Press, LLC.
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