How to Determine When Works Are in the Public Domain

The following guest post was written by Dave Owens, a 2010 graduate of the University of San Francisco School of Law.copyright, copyright law, intellectual property

The public domain refers to works that do not have copyright protection. Thus the public has a right to use the works without permission from the author or the author’s heirs. In other words, you can use the work without having to pay for a license.

There is a lot of confusion about what is actually in the public domain. This confusion partly arises from the fact that the Copyright Act has changed dramatically over the last one hundred years. Whether or not a work is in the public domain largely depends on what year the work was created.

Find Out What’s Actually in the Public Domain

Works Made Before 1923

According to the Copyright Act, works made before 1923 are generally in the public domain. So you are free to adapt or publish Shakespeare’s plays.

But you have to be careful. Works created before 1978 that were not copyrighted, published, and already in the public domain, but were published on or before December 31st, 2002, still have copyright protection.

Sound complicated? It is. Even if a work is very old you should still consult the Copyright Records to make sure it’s in the public domain. If you find the Copyright Records difficult to decipher, the safe bet is to contact an intellectual property attorney to ensure that you are not infringing someone else’s copyright.

Works Made Between 1923-1978

Before 1978, to get federal copyright protection an author had to publish the work and affix notice onto the work. Failure to file or provide proper notice would result in the author losing copyright protection. This is why some works, such Night of the Living Dead, are in the public domain even though they are not that old.

But it doesn’t stop there. A work that was properly registered and contained sufficient notice may have went into the public domain. Works made before 1963 required a copyright holder to renew registration after 28 years. Works made after 1963 received automatic renewal. Once again your best bet is to check the Copyright Records and/or contact an intellectual property attorney.

Works Made After 1978

Works made after 1978 receive copyright protection upon creation. Now the only requirements are (1) originality (courts don’t strain too hard to find originality) and (2) fixation in a tangible medium of expression (it has to be recorded on paper, film, or something else; the creation can’t just exist in your head).

It still benefits a copyright holder to register the work and provide notice. You need federal registration to sue in federal court. Providing notice also prevents the defendant from claiming the use was an innocent infringement.  But their creation does not fall into the public domain simply because they did not register the work, publish it, or provide notice.

Government Works

Works created by the U.S. Government are not eligible for copyright protection and are therefore in the public domain. This means works that were “prepared by an officer or employee of the United States Government as part of that person’s duties.” However, this does not apply to works done by government contractors. You should find out who actually produced the work before assuming it’s in the public domain.

Other Things You Should Know

Derivative and Transformative Works

Just because a derivative work — a work based on a preexisting work  (e.g., a film version of Hamlet) — incorporates material in the public domain doesn’t mean that the derivative work is also in the public domain. An author may get copyright protection for original material that they contribute. Or the author may gain protection if the use of the work is transformative — meaning the new work supersedes the original creation (e.g., Andy Warhol’s Campbell’s Soup paintings). So before you use an orchestra’s version of a classical piece or a reproduction of a Renaissance painting, it’s best to find out whether the new work has a copyright.

Foreign Copyright Law

If you plan on distributing your work in a foreign country, you need to have an understanding of that country’s copyright law. Just because a work is in the public domain in the United States does not mean it’s in the public domain everywhere. Before distributing your work in a foreign country you should consult a lawyer with an understanding of international copyright law.

Dave Owens is a 2010 graduate of the University of San Francisco School of Law.  He can be reached at dao1282@gmail.com.  The information contained in this blog post is provided only as general information for education purposes.

Photo credit: Flickr/Paper Cat

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