If a work doesn’t have a copyright symbol on it, is it in the public domain?

Copyright notices on published works (which may or may not include the copyright symbol) became optional in the US when Congress enacted the Berne Convention Implementation Act. It took effect March 1, 1989. Since then no works — published or unpublished — need a notice. (The copyright notice has never been required on unpublished works.)

So today, lack of a copyright symbol (or other appropriate notice) doesn’t mean the work is in the public domain. Just because there’s no copyright notice, don’t assume it’s public domain. Because prior law did require a valid copyright notice on published works, though, its presence or absence is still relevant to the copyright status of older works.

Let’s take a look.

When works needed a copyright notice ... or else

Works first published in the US before 1923 are in the public domain, so there’s no need to look for a copyright notice on them.

A work published before March 1, 1989, without a valid copyright notice may be in the public domain (if the lack of notice was not excused, that is). For example, the classic horror film Night of the Living Dead (1968) is in the public domain for this reason.

Works published before January 1, 1978, are governed by the previous copyright law (the 1909 copyright act). Under the 1909 Act (which covers works published from July 1, 1909 through December 31, 1977), copyright generally came into being upon publication with notice. If a work was published under the copyright owner’s authority without a proper notice of copyright, all copyright protection for that work was permanently lost in the United States.

Note: That’s the general rule, anyway. The 1909 Act includes a section that says, basically, that if the notice was omitted by accident or mistake from a small number of copies, the copyright was still valid. The copyright owner must have attempted to comply with the notice requirement, though, and those who were misled by the lack of notice weren’t liable for damages.

Under the current copyright law (which governs works published on or after January 1, 1978), copyright arises automatically, as soon as the work is fixed in a tangible medium of expression ... but notice was still required until March 1, 1989.

Works published without notice between 1978 and March 1, 1989

If a work was published without a copyright notice between January 1, 1978 and March 1, 1989, the copyright was still valid if:

the notice was missing from a “relatively small number” of copies; or
within 5 years after discovering the problem, the copyright owner registered the work with the Copyright Office and made “reasonable efforts” to add the notice to new copies; or
the notice was omitted in violation of a written agreement stating that the notice had to be included on publicly distributed copies of the work.

Innocent infringers misled by the lack of notice aren’t liable as long as they can prove that they were misled and their copying happened before they discovered that the work was registered with the Copyright Office. If it was, that is.

Copyright notice examples

The form of the copyright notice used for “visually perceptible” copies — that is, those that can be seen or read, either directly (such as books) or with the aid of a machine (such as films) — is different from the form used for phonorecords of sound recordings (such as CDs or DVDs).

Visually perceptible copies

Three elements must be included for the notice to be valid:

the copyright symbol ©, the word “Copyright,” or the abbreviation "Copr."
the publication year date, and
the name of the copyright owner (you don’t have to put “by” before your name).

Note: The year may be omitted when a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or useful articles. Also note that the © symbol was allowed for all types of works in 1955. Before that date, only pictorial, graphic, and sculptural works could use it.

Phonorecords of sound recordings

Three elements must be included for the notice to be valid:

the symbol (the letter P in a circle); and
the year of first publication of the sound recording; and
the name of the copyright owner.

Example: 2004 XYZ Records, Inc.

A brief warning about foreign published works

The Uruguay Round Agreements Act of 1994 (URAA) (P.L. 103-465) modified the effect of publication without notice for certain foreign works. Under this Act, copyright was automatically restored, effective January 1, 1996, for certain foreign works that were in the public domain because of lack of proper notice or noncompliance with other legal requirements. More on this later in the tutorial. (If you’re impatient, go here.)

To sum up

Okay, enough with the examples. Here’s the bottom line: if the work was first published in the US from 1923 through March 1, 1989, without a valid copyright notice (copyright symbol, etc., as explained above) ... it’s most likely in the public domain. For those works the copyright clock never started ticking — they never got a term of protection at all.

Speaking of copyright terms, when do they expire? Let’s tackle that question next.