It's complicated: Unpublished, Work for hire, 1923, known poet, originates in US

[teepeemckay]

I am working on the permissions for a forthcoming academic book being published in the UK. One of the permission items being queried is a piece of advertising copy written by a somewhat famous US poet on the back of a letter to another somewhat famous US poet. We are not using the letter, just a scan of the advertising copy. Writing copy was the poet's day job.

In bullet points:
- The poet was an employee of the company he was writing the advertising copy for which makes it a work-for-hire;
- The advertising copy is, as far as we're unaware, unpublished;
- The date it was written is October 1923;
- The poet died in the early 1930s;

My question is, is this advertising copy still protected by copyright at this point (if it ever was)? The author of the copy is definitely out of copyright at this point but if copyright for this unpublished work for hire applies then does that mean it's in copyright for 120 years from the date of creation? IE would it be in copyright until December 31st 2043?

[AndyJ]

Hi teepeemckay,

As you say, it's complicated.

Assuming you are correct and the work has never been published, then the only applicable law is that of the USA.

The fact that the work was created after 1 January 1923 means that the 1976 Copyright Act, as amended by the Copyright Term Extension Act 1998, provides the relevant law. Section 303 of the Copyright Act says that a work created but not published before 1 Jan 1978 is subject to the term of copyright laid down in the previous section, 302. As you have correctly stated, for works for hire (see Section 302(c)) this is whichever is the shorter of a) 95 years from the date of publication, or b) 120 years from the date of creation of the work.

Obviously if the advertising copy had been published or better still, registered for copyright, back around the time it was created, then the chances are it would be out of copyright now, or at least might be so at the end of this year.

All that having been said, it all depends on the use which you intend to make of this piece of advertising copy. Since it is not for a new advertisement, but for an academic work, it is highly likely that the US doctrine of fair use would allow you to quote the piece, possibly in its enitirety, because the new use would be transformative and would in no way threaten the economic status of the original work. You might just want to get your own legal opinion on that before going ahead, but I think that, pragmatically speaking, you are very unlikely to face a claim for infringement in the circumstances.

The alternative, in the absence of any evidence that the copy has been published, is to try and get permission from the putative current copyright owner. That would very much depend on whether the original agency which commissioned the piece had some legal successor today.

[teepeemckay]

Hi AndyJ,

As I have come to expect (from seeing your responses to others' queries) this is a tremendously helpful response. Thank you.

Best wishes,
Teepeemckay