Commons:Assuming worst case copyright

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Civility barnstar 2.svg This page may contain some profanity. If you are PC Principal you probably shouldn't edit this page. Or read it. Try going here instead. Everyone else should probably take this essay with a grain of salt.

Or a truckload.

MagicGopher14~commonswiki: "You'll never find me!"

Say you find an old image, for example a photograph that was taken in 1899. It would be safe to say that you will most probably get away with it when you use it, be it on Commons, in a newspaper article or a television commercial. Whoever made it has probably been dead for decades and even if it is somehow still copyrighted, the heirs are not gonna care. This actually isn't good enough for Commons, but it's unlikely you would ever have to appear in court. Nobody will care and even if they did they may not be able to figure out who User:MagicGopher14~commonswiki is anyway. But that's not why you are reading this.

Anonymous work? Probably not.[edit]

What if you want to be absolutely sure an image is in the public domain (for whatever reason, maybe you want to use a work commercially and have to be absolutely sure you can't get sued) and you know when it was created (or you know it can't be older than some specific date) but you don't know who the author is? This essay is not going to cover Commons:Copyright by country or Commons:Anonymous works because those articles already exist. But you should read them if you haven't yet. This is a quote from the latter:

Anonymous works are different from situations where images on the Internet or elsewhere may simply lack a label, credit line or other appropriate attribution which credits the author. In this situation, more work should be done to find the name of the creator, such as contacting the web host or reviewing the file's metadata.

Too often your search may turn up nothing. But "Google didn't know" does not mean unknown author. Essentially you should never assume the author is anonymous, unless they remained anonymous on purpose, like a whistleblower or this person with a Max Headroom mask. Another option is when the death date is not known. This generally translates to the person has gone missing and the body was never found. Your work does not appear to have been made by a whistleblower, Max Headroom or a missing body? Proceed to step B.

Making sure they are dead, and stayed dead for long enough (a.k.a. step B)[edit]

There are two things we want to know here. How young could the author have been and what age might they have reached? In general I would recommend assuming the author was just 5 (five) years old. A photographer could have picked up their own kid and that kid could have operated the shutter. You may find 5 years old unlikely, but it hardly matters. A 10 year old can do it for sure and we want to be safe. If the image is actually a drawing, don't try to compare to what kids draw nowadays. A 7-year old kid in 1950 drew way nicer pictures than a 7-year old today. On the other hand, that kid from 1950 really sucked at reeling in the Facebook likes for their work. But a nice old drawing may have been created by a kid way younger than you believe to be possible. If you prefer, you can also assume the author was 0. In most cases it won't matter anyway.

The other question is: how old could they have gotten? List of the verified oldest women shows us that Augusta Holtz lived from 1871 to 1986: 115 years old. Before that records were not really reliable. So assuming anyone before that was able to get 115 years old would appear to be safe. If you prefer you can also assume 122, the currently oldest person.

In 2018 this brings us to 2018-70-115+5=1838. Or if you are really paranoid 2018-70-122+0=1826. Any work made before 1838 (or 1826) that is protected by a copyright term of the life of the author plus 70 years must have expired. For life plus 100 years (required in Mexico for example) simply deduct another 30 years: any work before 1808. (or 1796)

Safe year of creation for public domain table[edit]

For this table for 2018, an adult is 18 years old at the time of creating the work. This can be useful if you know for certain the author must have been an adult, for example because of their job occupation. "Adult who died at 100" is included because not everyone finds it reasonable to assume people get 115 years old.

PMA Adult who died at 100 Adult Five year-old Paranoid
70pma 1866 1851 1838 1826
80pma 1856 1841 1828 1816
90pma 1846 1831 1818 1806
100pma 1836 1821 1808 1796

PMA=Post Mortem Author (years after guy/gal who made it kicked the bucket, bought the farm, etc)

But I know when they were born![edit]

Just not when they died? Great. Safe birth years:

PMA Assume died at 85 Assume died at 100 Assume died at 120
70pma 1862 1847 1827
80pma 1852 1837 1817
90pma 1842 1827 1807
100pma 1832 1817 1797

Using work[edit]

Note: it does not matter where the original work was created.

To use a work in the U.S. (unpublished)[edit]

If you are certain the work is unpublished (or not legally published) before January 1, 2003, you want to use it in the US and you do not know who the author is but they are not anonymous the safe date for public domain entrance would be when the work was created before 1838. {{PD-US-unpublished}} applies.

To use a work in the U.S. (published)[edit]

Works published before 1923: {{PD-1923}}. It does not matter where it was published, having been published abroad is sufficient. Copyright could have expired in some cases if it was published later, refer to the Hirtle chart for details.

To not use a work in the U.S.[edit]

If the work was legitimately (with permission from the rights holder or their heirs) first published:

  • In 1923 through 1963 with notice and renewed copyright
  • 1964 through 28 February 1989 with notice
  • 1 March 1989 through 2002 with or without notice

It is still in copyright, no matter how old! It could be a cave painting for crying out loud, if it meets one of these conditions and was legitimately published it would be protected by copyright today.

To use a work in a 70 PMA country[edit]

If you do not know who the author is but they are not anonymous the safe date for public domain entrance would be when the work was created before 1838. {{PD-old-assumed}} disagrees with me, thinking anything more than 120 years old is good enough. That template is disputed, though it is currently accepted.

Further complications[edit]

Depending on the country, if and when the work was published copyright could have expired sooner. Listing every possible exception here is impossible. Also keep in mind that if a work was published but this happened without explicit consent from the rights holder it legally wasn't published. Doesn't matter it's all over 4chan, legally it could be unpublished. You may not be able to verify if a publication was lawful.

In some countries other than the US, even works older than this may be protected by copyright, like a 25-year publication copyright in the UK. Did I mention I'm not lawyer? If you get sued by the heir of a zombie you should consult a real lawyer. You have been warned.