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The term "public domain" refers to creative materials that are not protected by intellectual property laws such as copyright, trademark or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it.
An important wrinkle to understand about public domain material is that collections of it may be protected by copyright. If, for example, someone has collected public domain images in a book or at a website, the collection as a whole may be protectible, even though individual images are not protected. You are free to copy and use individual images but copying and distributing the complete collection may infringe what is known as the "collective works" copyright. Collections of public domain material will be protected if the person who created it has used creativity in the choices and organization of the public domain material. This usually involves some unique selection process, for example, a poetry scholar compiling a book, The Greatest Poems of e.e. cummings.
There are four common ways that works arrive in the public domain:
- expiration of copyright: the copyright has expired.
- failure to renew copyright: the owner failed to follow copyright renewal rules.
- dedication: the owner deliberately places it in the public domain.
- no copyright protection available: copyright law does not protect this type of work.
Let's look at each of these routes into the public domain more closely.
1. Expired Copyright
Copyright has expired for all works published in the United States before 1923. In other words, if the work was published in the U.S. before January 1, 1923, you are free to use it in the U.S. without permission. As an example, the graphic illustration of the man with mustache was published sometime in the 19th Century and is in the public domain, so no permission is required to include it within this book. These rules and dates apply regardless of whether the work was created by an individual author, a group of authors or by an employee (the latter sometimes referred to as a "work made for hire.")
Because of legislation passed in 1998, no new works will fall into the public domain until 2019 when works published in 1923 will expire. In 2020, works published in 1924 will expire and so forth. If a work was written by a single author and published after 1977, the copyright will not expire until 70 years after the author's death. If a work was written by several authors and published after 1977, it will not expire until 70 years after the last surviving author dies.
| Year-End Expiration of Copyright Terms |
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Copyright protection always expires at the end of the calendar year of the year it's set to expire. In other words, the last day of copyright protection for any work is December 31. For example, if an author died on June 1, 2000, protection of the works would continue through December 31, 2070. | |
2. The Renewal Trapdoor
Thousands of works published in the United States before 1964 fell into the public domain because the copyright was not timely renewed under the law in effect at that time. If a work was first published before 1964, the owner had to file a renewal with the Copyright Office during the 28th year after publication. No renewal meant a loss of copyright.
If you plan on using a work that was published after 1922, but before 1964, you should research the records of the Copyright Office to find if a renewal was filed. Chapter 13 describes methods of researching copyright status.
3. Dedicated Works
If, upon viewing a work, you see words such as "This work is dedicated to the public domain, " then it is free for you to use. That's because sometimes an author deliberately chooses not to protect a work and dedicates the work to the public. This type of dedication is rare and unless there is express authorization placing the work in the public domain, do not assume that the work is free to use. For example, many people mistakenly assume that shareware and freeware are in the public domain (see Sidebar, below).
An additional concern is whether the person making the dedication has the right to do so. Only the copyright owner can dedicate a work to the public. Sometimes, the creator of the work is not the copyright owner and does not have authority.
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Shareware and Freeware |
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Shareware is a system of marketing software. It is distributed at no charge on a trial basis and if the recipient likes the software and intends to use it, a fee is paid. Freeware is software that is made available to the public for free. Unlike shareware, there are no fees. Both of these forms of software are protected under copyright law and you cannot reproduce or distribute these programs unless authorized by the copyright owners --even if you got them for free. For example, in one case, a company gathered various shareware programs and offered them in a CD-ROM collection, despite warnings on the shareware prohibiting such use. A court ruled that the shareware, originally placed on the Internet for free distribution, was entitled to copyright protection. Therefore, do not assume because you acquired a work for free that it is in the public domain. | |
4. Copyright Does Not Protect Certain Works
There are some things that copyright law will not protect. Copyright will not protect the titles of a book or movie, nor will it protect short phrases such as "Make my day." Copyright protection also doesn't cover facts, ideas or theories. These things are free for all to use without authorization.
a. Short Phrases
Phrases such as "Show me the money" or "Beam me up" are not protected under copyright law. Short phrases, names, titles or small groups of words are considered common idioms of the English language and are free for anyone to use. In subsequent chapters we'll explain how this rule applies to specific types of works. However, a short phrase used as an advertising slogan is protectible under trademark law. In that case, you could not use a similar phrase for the purpose of selling products or services.
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Clip Art Compilations |
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Generally clip art is sold in books, CD-ROM bundles or from websites, and is often offered as "copyright-free." The term "copyright-free" is usually a misnomer, and actually refers to either royalty-free artwork or work in the public domain. Keep in mind that much of the artwork advertised as copyright-free is actually royalty-free artwork, which is protected by copyright. Your rights and limitations to use such artwork are expressed in the artwork packaging or in the shrink-wrap agreement or license that accompanies the artwork. If the artwork is in the public domain you are free to copy items without restriction. However, even if the artwork is in the public domain, the complete collection may not be reproduced and sold as a clip art collection since that may infringe the unique manner in which the art is collected (known as a compilation or collective work copyright). | |
b. Facts and Theories
A fact or a theory--for example, the fact that a comet will pass by the Earth in 2027 --is not protected by copyright. If a scientist discovered this fact, anyone would be free to use it without asking for permission from the scientist. Similarly, if someone creates a theory that the comet can be destroyed by a nuclear device, anyone could use that theory to create a book or movie. However, the unique manner in which a fact is expressed may be protected. Therefore, if a filmmaker created a movie about destroying a comet with a nuclear device, the specific way he presented the ideas in the movie would be protected by copyright.
EXAMPLE: Neil Young wrote a song, "Ohio," about the shooting of four college students during the Vietnam War. You are free to use the facts surrounding the shooting but you may not copy Mr. Young's unique expression of these facts without his permission.
In some cases, you are not free to copy a collection of facts because the collection of facts may be protectible as a compilation (see Section B5). For more information on how copyright applies to facts, refer to Chapter 2, Section F3.
c. Ideas
Copyright law does not protect ideas; it only protects the particular way an idea is expressed. What's the difference between an idea and its expression? In the case of a story or movie, the idea is really the plot in its most basic form. For example, the "idea" of the movie Contact is that a determined scientist, seeking to improve humankind, communicates with alien life forms. The same idea has been used in many motion pictures, books and television shows including The Day the Earth Stood Still, The Abyss and Star Trek. Many paintings, photographs and songs contain similar ideas. You can always use the underlying idea or theme --such as communicating with aliens for the improvement of the world --but you cannot copy the unique manner in which the author expresses the idea. This unique expression may include literary devices such as dialogue, characters and subplots.
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The Merger Doctrine |
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There is an exception to the principle that you cannot copy the unique expression of a fact or idea. If there is a limited number of ways to express the fact or idea, you are permitted to copy the expression. This is known as the merger doctrine and means that the idea and the expression are merged or inseparable. For example, in the case of a map, there may be very few ways to express the symbol for an airport, other than by using a small image of an airplane. In that case, you are free to use the airport symbol. Similarly, there may be a limited way of expressing a rule about the public domain, for example, the statement, "Works published in the U.S. before 1923 are in the public domain. " In that case the fact and the expression are inseparable and you are free to copy the expression. As you can imagine this is a heavily litigated area and many companies have butted heads to determine the boundaries of the merger doctrine. For example, Microsoft and Apple litigated over the right to use the trash pail icon as a symbol for deleting computer materials. A federal court of appeals ruled that design constraints made the trash can an unprotectible element of the graphic interface and that Apple could not claim infringement solely based on another company's use of a similar icon. ( Apple Computer, Inc. v. Microsoft Corp ., 35 F.3d 1435 (9th Cir. 1994).) | |
d. U.S. Government Works
Any work created by a U.S. government employee or officer is in the public domain, provided that the work is created in that person's official capacity. For example, during the 1980s a songwriter used words from a speech by then-President Ronald Reagan as the basis for song lyrics. The words from the speech were in the public domain and permission was not required from Ronald Reagan. Keep in mind that this rule applies only to works created by federal employees, and not to works created by state or local government employees. However, state and local laws and court decisions are in the public domain.
Some federal publications (or portions of them) are protected under copyright law and that fact is usually indicated on the title page or in the copyright notice. For example, the IRS may acquire permission to use a copyrighted chart in a federal tax booklet. The document may indicate that a certain chart is "Copyright Dr. Matt Polazzo. " In that case, you could not copy the chart without permission from Dr. Polazzo.
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Legal Cases and Pagination |
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As noted above, federal, state and local laws and court decisions are in the public domain. However, legal publishers have attempted to get around the public domain status by claiming that unique page numbering systems are copyrightable. These publishers argued that you can copy and distribute a court decision, but you cannot copy the page numbering, which is crucial to the official citation system used by the courts. For many years, Lexis and other computerized legal research systems could not cite to the official page numbering system used by West publications. In a 1994 case, West Publishing Company sued when a legal publisher, Matthew Bender, incorporated West 's page numbering system on a CD-ROM product. A court of appeals ruled that the use of West's pagination was not protectible and in any case, the page citation copying was permitted as a fair use. As a result of this ruling, you are free to copy a publisher's reproduction of court decisions and page numbering. (Matthew Bender & Co. v. West Publishing Co. , 158 F.3d 693 (2d Cir. 1998).
These decisions and their underlying rationale—that the laws and opinions created by public officials belong in the public domain—previously did not necessarily apply to model codes. Model codes are regulations created by a private business and which may later be adopted by a public entity. For example, the Southern Building Code Congress International (SBCCI) is a non-profit organization that develops modern building, fire and mechanical codes. These codes are adopted by municipalities and the SBCCI earned revenues by publishing and selling the codes or licensing the codes for publication. In 1997, Peter Veeck, the operator of a website, posted the building codes for two small towns in North Texas. The SBCCI sued for copyright infringement. In 2002, the Fifth Circuit Court of Appeals ruled that a company that creates a model code may not claim copyright in it once the code has been adopted into law. Veeck v. Southern Building Code Congress International, Inc., 293 F.3d 791 (5th Cir. 2002). | |
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Loss of Copyright From Lack of Copyright Notice |
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Under copyright laws that were in effect before 1978, a work that was published without copyright notice fell into the public domain. If the work did not include the word "Copyright" or a (c) (a "c" in a circle) and the name of the copyright owner, the work would be injected into the public domain. This rule was repealed and copyright notice is not required for works first published after March 1, 1989 (although works first published prior to that date must still include notice). Just because you find a copy of a book without a copyright notice doesn't mean that the work is in the public domain. It's possible that the copy you are viewing is unauthorized or that the notice has only been removed from a very small number of copies, both of which are excusable. It is also possible that the author followed a copyright law procedure for correcting the error. Finally, if you're using text from a journal, anthology, newsletter or magazine published before March 1, 1989, check to see if there is a copyright notice either for the individual article or for the whole publication. Either type of notice will prevent the work from falling into the public domain. | |
The table below may assist you in determining public domain status.
Table for Determining Public Domain Status
| Works published in the U.S. before 1923 |
In the public domain |
| Works published in the U.S. after 1922 through 1963 |
Initial term of 28 years. If not renewed during the 28th year, the work falls into the public domain. |
| Works published in the U.S. after 1922 but before March 1, 1989 |
Generally, if a work is published without copyright notice under the authorization of the copyright owner and the law does not provide an exception for the omission, the work is in the public domain. | | |
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