Public Domain Clearance Checklist: Publication Date, Formalities, Renewal, Restoration, Derivative Layers, and Documentation

By Casey Scott McKay · 2023-09-27

This checklist clears a work for use and produces a memorandum rather than an answer, in the order the research has to happen. It starts by identifying the specific artifact and listing its layers, because most errors are identification errors rather than arithmetic ones. It determines publication, examines notice on an actual first-edition copy, and runs the renewal search by every plausible name across three years - documenting the negative result with enough particulars to be worth something years later. It then runs the restoration analysis that reverses the answer for foreign works, handles the unpublished branch and the separate sound recording regime, and treats orphan searches as risk mitigation rather than defence. It closes with the trademark, publicity, and contract overlay, the six-part memorandum, and how to handle a determination that cannot be resolved.

IP and Technology > Copyright | Checklist | Published 27 September 2023 - Updated 7 August 2026 | Casey Scott McKay - marksy.us

Summary. This checklist clears a work for use and produces a memorandum rather than an answer, in the order the research has to happen. It starts by identifying the specific artifact and listing its layers, because most errors are identification errors rather than arithmetic ones. It determines publication, examines notice on an actual first-edition copy, and runs the renewal search by every plausible name across three years — documenting the negative result with enough particulars to be worth something years later. It then runs the restoration analysis that reverses the answer for foreign works, handles the unpublished branch and the separate sound recording regime, and treats orphan searches as risk mitigation rather than defence. It closes with the trademark, publicity, and contract overlay, the six-part memorandum, and how to handle a determination that cannot be resolved.

Keywords: artifact identification · layer listing · publication determination · notice examination · first edition copy · renewal search protocol · negative result documentation · restoration analysis · source country · unpublished branch · sound recording split · government works · orphan search · trademark overlay · publicity overlay · supply terms · risk memorandum · indeterminate handling · determination file · annual boundary

How to use this checklist

| Phase | What it covers | |---|---| | 1 | Identify the artifact | | 2 | List the layers | | 3 | Determine publication | | 4 | Place it on the timeline | | 5 | Examine notice | | 6 | The renewal search | | 7 | Documenting a negative result | | 8 | The restoration analysis | | 9 | The unpublished branch | | 10 | Sound recordings | | 11 | Categorical public domain | | 12 | Derivative layers | | 13 | Orphan work searches | | 14 | The trademark overlay | | 15 | The publicity overlay | | 16 | Supply terms | | 17 | The memorandum | | 18 | Handling indeterminate | | 19 | The determination file | | 20 | Re-check triggers | | 21 | Sector boxes | | 22 | Annual review |

Boxes marked [Gate] must clear before a conclusion is stated or the work is used.

The matter. A publisher asked whether a 1931 novel was free. The arithmetic took ten minutes; the renewal search took three days; and the constraint that shaped the project was that the publisher held a later edition with new editorial apparatus.

Phase 1. Identify the artifact

[ ] [Gate] Describe in one line the specific thing the client will use. Edition, version, layer, and provenance — not the work in the abstract.
[ ] Ask which work. A film, its underlying novel, the screenplay, the score, the poster, and the stills are separate works with separate terms.
- Trap. "The movie is public domain" is frequently right about the film and wrong about the novel.
[ ] Ask which version. First edition, revised edition, annotated edition. The client almost always has a later one.
[ ] Ask which copy, and where it came from.
[ ] Ask whether it is domestic or foreign. Foreign triggers Phase 8, always.
[ ] Record the answer as the scope of the engagement.

Phase 2. List the layers

[ ] [Gate] List every layer before checking any date, and run each as its own determination.
[ ] Underlying work — novel, composition, painting.
[ ] Adaptation — screenplay, translation, arrangement.
[ ] Edition — editorial matter, notes, selection, apparatus.
[ ] Restoration — a restored film print or remastered recording.
[ ] Recording — a particular performance, which is its own work.
[ ] Photograph or reproduction of a public domain original, which raises a contested originality question.
[ ] Note the practical point. Protection in the new material does not revive the underlying work, but the client usually holds only the derivative — which makes the underlying work's status true and unhelpful.

Phase 3. Determine publication

[ ] Apply the copyright meaning: distribution of copies to the public by sale or other transfer of ownership, or by rental, lease, or lending; and offering to distribute to a group for further distribution.
[ ] Note what is not publication: public display, public performance, and limited distribution to a defined group for a limited purpose.
[ ] Establish the date and place with evidence — a first edition, a deposit record, a contemporaneous advertisement, a catalogue entry.
[ ] [Gate] Where publication cannot be established, move to Phase 9.
- Trap. Do not assume publication because that branch is easier to research. That is guessing in the wrong direction.
[ ] Check for earlier foreign publication, which changes the analysis and triggers Phase 8.

Phase 4. Place it on the timeline

[ ] Before 1929 — expired. Confirm the date and stop.
[ ] 1929-1963 — notice and renewal required. Ninety-five years from publication if both satisfied.
[ ] 1964-1977 — notice required; renewal automatic. Ninety-five years from publication.
[ ] 1978 - 28 February 1989 — notice required, curable under 17 U.S.C. § 405. Terms under 17 U.S.C. § 302.
[ ] 1 March 1989 onward — no formalities. Terms under § 302.
[ ] Apply the § 302 terms: life plus seventy for a natural-person author; ninety-five from publication or one hundred and twenty from creation, whichever expires first, for works made for hire and anonymous or pseudonymous works.
[ ] Remember 17 U.S.C. § 305 runs all terms to the end of the calendar year.

Phase 5. Examine notice

[ ] [Gate] Examine an actual copy of the first published edition.
- Trap. A later printing tells you nothing about the first, and reproductions frequently add a notice the original lacked.
[ ] Look for the elements under 17 U.S.C. § 401: the symbol or word, the year of first publication, and the copyright owner's name.
[ ] Locate a copy through institutional collections, deposit copies, or digitized scans with documented provenance.
[ ] For 1978 to February 1989 works, check the cure provisions at 17 U.S.C. § 405 — registration within five years plus reasonable effort to add notice.
[ ] Record the copy examined, specifically.
[ ] Check notice before renewal. A defective notice is fatal regardless of any later filing, and it is the cheaper research.

Phase 6. The renewal search

[ ] [Gate] Required for any work first published 1929 through 1963. This search is the determination.
[ ] Look for a renewal registration filed in the twenty-eighth year after publication by a claimant within the statutory class.
[ ] Search the year either side, since filings were made early and late.
[ ] [Gate] Search by every plausible name — the author in variant forms, the publisher, the proprietor, and corporate successors.
- Trap. A renewal filed under a publisher's corporate name will not surface on an author search.
[ ] Search the underlying work separately where the artifact is a derivative.
[ ] Read the scanned catalogues for periods that are not fully queryable. This is research, not a lookup.
[ ] If a renewal is found, note the ninety-five year term and check the Stewart v. Abend problem — a renewal right passing to statutory successors can constrain continued exploitation of a derivative work authorized in the first term.

Phase 7. Documenting a negative result

[ ] [Gate] Record databases searched, terms used, years covered, and the date of the search.
- Why. "No renewal found" without those particulars is not evidence of anything, and the file will be relied on for decades.
[ ] List the name variants searched, so a successor can see what was not covered.
[ ] Note any catalogues that were incomplete or unavailable.
[ ] State the residual risk explicitly — a renewal filed under a name not searched would change the conclusion.
[ ] Sign and date it.

Phase 8. The restoration analysis

[ ] [Gate] Run it for every foreign work, always, and record it even when it changes nothing.
- Why. 17 U.S.C. § 104A restored copyright automatically with no filing, so nothing in any American record reveals it — and its absence from an old file is invisible.
[ ] Check the conditions: at least one author a national or domiciliary of an eligible source country at creation; the work not in the public domain in its source country through expiry; and entry into the United States public domain for a specified reason — failure of formalities, lack of national eligibility, or the pre-1972 sound recording gap.
[ ] Determine the source country and the work's status there, which frequently requires foreign counsel scoped narrowly.
[ ] Note that Golan v. Holder closed the constitutional argument.
[ ] Check reliance party accommodations only where the client's use predates restoration.
[ ] Note Eldred v. Ashcroft for the related point that term extensions apply to existing works, so an old determination may be wrong for that reason too.

Phase 9. The unpublished branch

[ ] Apply 17 U.S.C. § 303 to works created before 1978 and not published or registered as of then.
[ ] The term: life plus seventy, with a floor — protection did not expire before the end of 2002, and if published before the end of 2002, not before the end of 2047.
[ ] [Gate] Establish the author's death date, which is the whole determination on this branch.
[ ] Test the publication assumption carefully — a photograph supplied to a newspaper, a speech delivered publicly, a film screened but not distributed, an artwork exhibited.
[ ] Consider the institutional route. Archive supply terms frequently provide the practical answer where the copyright position cannot be established.

Phase 10. Sound recordings

[ ] [Gate] Treat the composition and the recording as two determinations.
- Trap. A public domain composition inside a protected recording is the most common expensive error in this area.
[ ] Recordings fixed before 15 February 1972 were outside federal copyright, protected by state law until federal treatment was extended on a staged schedule keyed to publication date.
[ ] Recordings fixed on or after that date follow 17 U.S.C. § 302, with works made for hire treatment applying to most commercial recordings.
[ ] Foreign recordings engage 17 U.S.C. § 104A expressly.
[ ] Check what the client holds — a remastered reissue may carry a claim in the remastering.
[ ] Licence rather than determine where the stakes justify it. See the Music Clearance Checklist.

Phase 11. Categorical public domain

[ ] United States government works under 17 U.S.C. § 105 — federal officers and employees in official duties.
- Trap. Not contractors. Not state or local governments. Not copyrights assigned to the government.
[ ] Government edicts under Georgia v. Public.Resource.Org and Banks v. Manchester — judges and legislators cannot be authors of works created in their official capacity.
[ ] Ideas, facts, and systems, excluded by 17 U.S.C. § 102(b) rather than expired.
[ ] Works dedicated to the public, requiring clear evidence of the dedication and its scope.
[ ] Check the state position separately, since several states assert copyright in materials the federal government could not.

Phase 12. Derivative layers

[ ] Apply 17 U.S.C. § 103 — protection in a derivative work extends only to the new material.
[ ] Confirm the underlying work is not revived by the derivative's protection.
[ ] Identify which layer the client actually holds, and clear that one.
[ ] Watch restored film prints and remastered recordings, which carry a claim in the restoration work.
[ ] Watch critical editions, where editorial matter, notes, and selection may be protected even though a new setting of the text alone generally is not.
[ ] Watch photographs of public domain works, where originality is genuinely contested — the prudent course is documented provenance or institutional supply terms permitting the use.

Phase 13. Orphan work searches

[ ] [Gate] Understand there is no statutory solution — no exception, no compulsory licence, no safe harbour.
[ ] Search: registration, renewal, and assignment records; publisher and successor research; author biography and estate research; trade databases and clearance organizations; institutional holdings and provenance records.
[ ] Document every source with dates.
[ ] Understand what it buys. Not a defence, but a material input to willfulness under 17 U.S.C. § 504 and to a fee award under 17 U.S.C. § 505.
[ ] Add a documented cease-on-notice commitment and, where the value justifies it, a reserve.
[ ] Consider the alternatives first: a substitute work, an institutional licence with indemnity, or a use supported by fair use under 17 U.S.C. § 107.

Phase 14. The trademark overlay

[ ] [Gate] Run it every time. "Public domain" answers the copyright question and only that one.
[ ] Check for marks in the title, character names, and visual depictions, which may be protected indefinitely under 15 U.S.C. § 1125.
[ ] Note Silverman v. CBS — public domain scripts could be used while unabandoned trademark rights in characters still constrained confusing uses.
[ ] Note Warner Brothers Entertainment v. X One X Productions — public domain publicity materials did not licence reproducing characters as depicted in protected works.
[ ] Distinguish the depiction in the expired work from later development.
[ ] Avoid uses suggesting sponsorship or endorsement, which is where the constraint bites.

Phase 15. The publicity overlay

[ ] Identify any recognisable real person in the work.
[ ] Determine the applicable state law and its duration, including any post-mortem term.
[ ] Distinguish editorial from commercial use, since the analysis differs.
[ ] Obtain releases where the use is commercial and the person or estate is reachable. See the Name, Image, and Likeness Clearance Checklist.
[ ] Note that a public domain photograph is not a licence to use the subject's likeness in advertising.

Phase 16. Supply terms

[ ] [Gate] Read the terms under which the copy was obtained.
[ ] Note they bind the person who accepted them regardless of the underlying copyright status.
[ ] Check whether the supplier makes any representation about copyright. Usually it does not.
[ ] Check whether indemnity is available, which frequently makes licensing the practical answer even for public domain material.
[ ] Record the terms and the version in the determination file.
[ ] Prefer documented provenance as a sourcing standard, since it converts a determination problem into a contract problem.

Phase 17. The memorandum

[ ] One: the artifact — one line, with edition, version, layer, and provenance.
[ ] Two: the facts established — publication date and place with evidence; notice with the copy identified; renewal search with databases, terms, years, and dates; authorship and nationality; derivative status.
[ ] Three: the analysis — which timeline row, restoration for any foreign element, and each layer separately.
[ ] Four: the conclusion — public domain, protected, or indeterminate. No "probably" without saying what would resolve it.
[ ] Five: the overlay — trademark, publicity, and contract constraints on the intended use.
[ ] Six: residual risk and assumptions — what was not searched, what could not be established, and the exposure if the conclusion is wrong.
[ ] [Gate] Sign, date, and file it centrally.

Phase 18. Handling indeterminate

[ ] [Gate] Say "indeterminate" plainly rather than delivering a hedged yes.
[ ] State exactly what would resolve it — a first-edition copy, a complete catalogue, an author's nationality, a contested publication date. Naming the missing fact converts an open question into a priceable task.
[ ] Quantify the exposure rather than describing it.
[ ] Reduce it — documented search, cease-on-notice commitment, and a reserve.
[ ] Offer the routes around it — substitute, institutional licence, or a narrower use under 17 U.S.C. § 107.
[ ] Record who decided, since the choice is commercial and belongs to someone with authority to accept the risk.

Phase 19. The determination file

[ ] [Gate] Keep it centrally indexed by work, not in the matter it was produced for.
- Why. Determinations outlive matters, are reused across projects, and are inherited by people who will not know which matter to look in.
[ ] Hold: the artifact description, the evidence, the searches with dates, the conclusion, the overlay, and the residual risk.
[ ] Record the date of the determination and who made it.
[ ] Note any indeterminate status and when it was last tested.
[ ] Link related determinations — underlying work, editions, adaptations.

Phase 20. Re-check triggers

[ ] A foreign element discovered later, requiring restoration analysis that may never have been run.
[ ] A determination predating a change in practice, particularly one made before restoration became standard.
[ ] A different edition or copy coming into use, which is a different artifact.
[ ] A new use, since the overlay analysis is use-specific.
[ ] Revised supply terms from an institution.
[ ] A newly available record — a digitized catalogue or indexed collection — that could resolve an indeterminate status.

Phase 21. Sector boxes

[ ] Publishing. Pre-1964 reissues; renewal search is the engagement; watch later editions, translations, and cover art.
[ ] Documentary and film. Archival footage, photographs, and music, each its own determination; insurers frequently require the memorandum.
[ ] Games and interactive. Characters and settings, where the character-development limit and trademark overlay shape the design more than duration does.
[ ] Museums, libraries, and archives. Holding rather than clearing; the supply agreement is the practical instrument, and asserting rights in public domain material through contract is a policy choice with reputational consequences.
[ ] Education and scholarly publishing. Fair use under 17 U.S.C. § 107 is frequently the better and cheaper route.
[ ] Design and consumer products. The trademark overlay is usually the binding constraint.
[ ] High-volume, low-value publishing. A sourcing standard plus documented takedown-on-notice, rather than per-work determinations.

Phase 22. Annual review

[ ] Refresh determinations for works still being exploited.
[ ] [Gate] Re-run restoration on any work whose foreign element was never examined. The most productive re-check, because the step was not always standard and its absence is invisible.
[ ] Check for new editions or sources the client has begun using.
[ ] Review supply terms, which institutions revise.
[ ] Update the overlay — trademark registrations are filed and abandoned; publicity rights expire.
[ ] Re-test indeterminate determinations against newly available records.
[ ] Compile the 1 January additions, since 17 U.S.C. § 305 moves the boundary annually and the material entering the public domain is a commercial opportunity.

Outcome. The artifact was identified as the 1931 first edition rather than "the novel," which turned out to matter because the publisher held a 1968 edition with a new introduction and revised text. Notice was examined on a first-edition copy located through an institutional collection and was proper. The renewal search ran across 1958 through 1960 under the author's name in three variant forms, the publisher's name, and two corporate successors, and returned nothing — recorded with databases, terms, years, and date. The author was a United States national and the work was first published in New York, so restoration under 17 U.S.C. § 104A did not apply, and that analysis was recorded rather than omitted. No trademark registration was located for the title and no identifiable living person appears. The conclusion was that the 1931 text is in the public domain, with the express caveat that the 1968 edition is not, and the publisher re-sourced accordingly. Total elapsed time: three days, almost all of it the renewal search.

Phase 23. The determination table

The skeleton of the memorandum. Every row after the first requires research rather than arithmetic.

| First publication | Formality required | Term if satisfied | What to check | |---|---|---|---| | Before 1929 | — | Expired | Confirm the date and stop | | 1929-1963 | Notice and renewal | 95 years from publication | Notice on a first-edition copy; renewal in the 28th year | | 1964-1977 | Notice; renewal automatic | 95 years from publication | Notice on a first-edition copy | | 1978 - 28 Feb 1989 | Notice, curable | 17 U.S.C. § 302 terms | Notice, and whether cure was satisfied | | 1 Mar 1989 onward | None | § 302 terms | Authorship; work made for hire status | | Unpublished, pre-1978 | — | 17 U.S.C. § 303 | Author's death date; later publication | | Foreign, any row | Restoration analysis | May be restored | 17 U.S.C. § 104A; source country |

[ ] Note there is deliberately no "probably fine" column. Where research does not resolve it, the deliverable is a risk assessment.
[ ] Note which two rows carry the work — 1929-1963, where the renewal search is the determination, and the foreign row, where restoration can reverse an answer relied on for decades.

Phase 24. Model memorandum

Public Domain Determination Artifact: Title, first edition published [place], [year]. Client will use the text of that edition only, sourced from [provenance]. Prepared: [date]. By: [name].

1. Facts established. First publication: [place], [date]; evidence [source]. Notice: examined [copy identified]; present in the form [description]. Renewal: searched [databases], terms [list], years [range], on [date]; result [none found / registration number]. Authorship: [name], national of [country] at creation. Derivative status: [original / derivative of X].

2. Analysis. First published in [year], engaging the [row] regime requiring [formalities]. Notice was present. No renewal located on the search described. First term expired [year]; work entered the public domain in the United States. Restoration under 17 U.S.C. § 104A: [not applicable, with reasons / analysis and source-country status]. Layers: [description].

3. Conclusion. The [year] text is in the public domain in the United States.

4. Overlay. No trademark registration located for the title. No identifiable living person depicted. The client's copy is sourced from [institution] under terms which [permit / restrict] the intended use; those terms bind independently of copyright status.

5. Assumptions and residual risk. Assumes the renewal search was complete; a renewal filed under a name not searched would change the conclusion. No earlier foreign publication located; one would require restoration analysis. Exposure if wrong: statutory damages under 17 U.S.C. § 504 and potentially fees under 17 U.S.C. § 505.

6. Recommendation. Proceed with the first-edition text. Do not use the later edition without a separate determination.

[ ] [Gate] Use this form every time. It separates fact from analysis from conclusion, records the searches so a successor can check rather than repeat, addresses the overlay, and puts the residual risk in front of the decision-maker.

Phase 25. Three worked determinations

The 1931 novel.

[ ] Published New York 1931 with proper notice, verified on a first-edition copy from an institutional collection.
[ ] Renewal searched 1958-1960 under the author's name in three variant forms, the publisher, and two corporate successors. Nothing found; particulars recorded.
[ ] Author a United States national, work first published domestically with notice — restoration analysis run and recorded as inapplicable.
[ ] The finding that mattered: the publisher held a 1968 edition with a new introduction and revised text, carrying its own protection. The clearance covers the 1931 text only, and the publisher re-sourced.

The 1955 photograph.

[ ] Publication status uncertain — an image circulating only as a press print may never have been published, moving it to 17 U.S.C. § 303 and a term measured from the photographer's death.
[ ] Notice and renewal both indeterminate on the available record.
[ ] The library's scan may carry its own claim, and the supply terms impose obligations regardless.
[ ] A recognisable person appears, triggering a separate publicity analysis with its own duration.
[ ] The practical outcome: a library licence, obtained because the contract and the sourcing require it rather than because copyright does.

The 1920s character.

[ ] First appearance in a 1928 story now in the public domain; the character as depicted there may be used.
[ ] Later development in still-protected stories may not — the Warner Brothers Entertainment v. X One X Productions limit.
[ ] The name and visual depiction may function as source identifiers that Silverman v. CBS confirms copyright expiry does not extinguish.
[ ] The advice: use the 1928 depiction and traits, import nothing later, avoid any use suggesting sponsorship — considerably narrower than "the story is public domain" conveys.
[ ] What the three share. The arithmetic was easy, the research was expensive, and the binding constraint came from somewhere other than duration.

Phase 26. Scoping and the client conversation

[ ] Scope honestly at intake. A post-1989 work is a ten-minute determination. A 1930s work with an ambiguous publication history and a possible foreign author is days of research.
[ ] Price the renewal search separately and explain what it buys — the difference between a conclusion and an assumption.
[ ] Offer the alternatives — a substitute work, an institutional licence with indemnity, or a fair use analysis under 17 U.S.C. § 107. One is frequently cheaper and more certain than the determination.
[ ] Set expectations about the deliverable. A memorandum with a conclusion, an evidence base, an overlay analysis, and a residual risk statement. A client expecting a yes will be disappointed by a good memorandum and reassured by a bad one.
[ ] State the downside as a number — statutory damages and fees against a client who is the defendant. That figure justifies the research budget.
[ ] Name who decides on an indeterminate work, since the choice is commercial rather than legal.
[ ] Check the insurer's requirements first where errors and omissions coverage is involved, because a determination that does not meet the policy standard has to be redone.

Phase 27. Client statements and the response

[ ] "It's from 1935, so it's free." Only if published without notice, or with notice and never renewed, and only if restoration does not apply. Three questions, each requiring research.
[ ] "It says public domain on this website." Somebody's conclusion, not a determination. Ask what they searched and when.
[ ] "Nobody has claimed it in seventy years." Non-enforcement is not abandonment; copyright does not lapse through disuse.
[ ] "We found it in an archive." The supply terms are a contract that binds regardless of status, and the archive usually makes no representation about copyright.
[ ] "The film is public domain." Possibly — and the novel, the score, and the restored print you can obtain each raise separate questions.
[ ] "It's a government document." 17 U.S.C. § 105 covers federal officers and employees in official duties. Not contractors, not states, not assigned copyrights.
[ ] "The character is out of copyright." As depicted in the expired work, perhaps. Later development is not, and the name may be a mark that never expires.
[ ] "Can we just credit the author?" Attribution is good practice and not a licence — and Dastar v. Twentieth Century Fox confirms there is no federal attribution right either.

Phase 28. Quarterly and annual metrics

For a business doing this at volume.

[ ] Determinations completed with a signed memorandum, as a proportion. Target: all of them.
[ ] Determinations recorded as indeterminate, and when each was last re-tested against newly available records.
[ ] Foreign works cleared with a recorded restoration analysis. Target: all of them. A gap here is the highest-value finding available, because the omission is invisible in an old file.
[ ] Renewal searches with complete particulars — databases, terms, years, name variants, date.
[ ] Works in use whose determination predates the current sourcing standard, and are therefore for a different artifact than the one being used.
[ ] Overlay analyses completed, as a proportion of determinations. This is the step most often skipped once the copyright answer is favourable.
[ ] And the annual 1 January compilation of works entering the public domain, which for a business built on this material is a commercial opportunity rather than a compliance item.

Phase 29. Working with other advisers

[ ] Insurers. Errors and omissions coverage frequently requires a clearance opinion, and the policy's requirements shape the scope. Ask what it requires before scoping.
[ ] Archivists and researchers. They know the publication history, the editions, and the provenance better than counsel will. Involve them at Phase 1 rather than sending questions afterwards.
[ ] Foreign counsel, scoped narrowly to the source-country question under 17 U.S.C. § 104A — whether the work was in the public domain there on the relevant date, not a general opinion.
[ ] Rights clearance agencies. Efficient for licensing, unhelpful for determinations. Use them to source, not to conclude.
[ ] The client's business team, who decide whether to proceed on an indeterminate work and need the exposure quantified.
[ ] And the client's future counsel, who will inherit the determination, assume the analysis was complete, and need to see what was searched and what was assumed. The memorandum is written for them as much as for the client.

Phase 30. The one-paragraph brief

Give this to anyone at the client who will ask the question.

[ ] Public domain status depends on four things: when and where the work was first published; whether the formalities then in force were satisfied; whether a foreign work was later restored; and which layer of the artifact you actually hold.
[ ] The arithmetic is easy and the research is not. Most of the cost is establishing facts from catalogues, deposit records, first editions, and foreign registers.
[ ] The answer has been reversed once by statute. 17 U.S.C. § 104A took a category of foreign works back out of the public domain, automatically, with nothing in any American record to show it.
[ ] Copyright is the first of four questions. Trademark, publicity rights, and the terms under which you obtained the copy are the others, and on many projects one of those is the binding constraint.
[ ] [Gate] Ask for the memorandum rather than the answer. A yes with nothing behind it is the version that fails in three years.

Key Authorities at a Glance

| Authority | Proposition | |---|---| | 17 U.S.C. § 302 | Duration for works created after 1977 | | 17 U.S.C. § 303 | Unpublished works created before 1978 | | 17 U.S.C. § 304 | Renewal and extended terms | | 17 U.S.C. § 305 | Terms run to year end | | 17 U.S.C. § 104A | Restoration of foreign works | | 17 U.S.C. § 105 | United States government works | | 17 U.S.C. § 103 | Derivative works | | 17 U.S.C. § 102 | Subject matter; ideas excluded | | 17 U.S.C. § 401 | Notice requirements | | 17 U.S.C. § 405 | Omission and cure | | 17 U.S.C. § 107 | Fair use as an alternative route | | 17 U.S.C. § 504 | Statutory damages | | 17 U.S.C. § 505 | Attorney fees | | Golan v. Holder | Restoration upheld | | Eldred v. Ashcroft | Term extension upheld | | Stewart v. Abend | Renewal term and derivative works | | Twin Books v. Walt Disney | Foreign publication without notice | | Silverman v. CBS | Trademark constraints | | Warner Brothers Entertainment v. X One X Productions | Character development limits | | Georgia v. Public.Resource.Org | Government edicts | | Banks v. Manchester | Judicial opinions | | Dastar v. Twentieth Century Fox | No attribution right | | 15 U.S.C. § 1125 | Trademark overlay |

The five things people get wrong

Clearing the work rather than the artifact. A film, its underlying novel, the score, and the restored print the client actually holds are four separate determinations. "The movie is public domain" is frequently true and useless, because the copy anyone can obtain carries a claim in the restoration and the novel behind it may still be protected.

Skipping the restoration analysis for foreign works. 17 U.S.C. § 104A restored copyright automatically, with no filing, in works that had been in the United States public domain for decades. Nothing in any American record reveals it, Golan v. Holder closed the constitutional challenge, and the step's absence from an old file is completely invisible.

Recording a negative renewal result without particulars. "No renewal found" is worth nothing years later. Databases searched, terms used, years covered, name variants, and the date are what make it evidence — and what let a successor see what was not covered rather than re-running the whole search.

Checking renewal before notice. A defective notice is fatal regardless of what was filed twenty-eight years later, and examining a first-edition copy is the cheaper research. Doing them in the wrong order wastes the expensive step.

Stopping at copyright. Trademark rights in a character name never expire, publicity rights attach to real people with their own durations, and the terms under which the copy was obtained bind the client regardless. On many projects one of those three is the binding constraint, and a clearance that ends at duration has not finished.