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, while each work belongs to the public, collections of public domain works may be protected by copyright. If, for example, someone has collected public domain images in a book or on a website, the collection as a whole may be protectible even though individual images are not. 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:
the copyright has expired
the copyright owner failed to follow copyright renewal rules
the copyright owner deliberately places it in the public domain, known as “dedication,” or
copyright law does not protect this type of work.
The following section looks at each of these routes into the public domain more closely.
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 (above) was published sometime in the 19th century and is in the public domain, so no permission was 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 an employee (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 on. For works published after 1977, if the work was written by a single author, 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.
The Renewal Trapdoor
Thousands of works published in the United States before 1964 fell into the public domain because the copyright was not renewed in time under the law in effect then. 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 determine if a renewal was filed. Chapter 13 describes methods of researching copyright status.
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. 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 “Shareware and Freeware,” 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 domain. Sometimes, the creator of the work is not the copyright owner and does not have authority. If in doubt, contact the copyright owner to verify the dedication. Information about locating copyright owners is provided in Chapter 13.
Dedicating Works to the Public Domain Through Creative Commons
Creative Commons, a nonprofit organization designed to foster the public domain, helps copyright owners dedicate their works to the public domain. Copyright owners may dedicate their works immediately or they can choose to use the “Founders’ Copyright” — the original copyright term adopted by the first copyright law in 1790. This consists of copyright protection for an initial term of 14 years after publication, renewable for an additional 14 years if the copyright owner so desires. The copyright owner fills out an online application and sells the copyright to Creative Commons for one dollar; in return, the organization gives the copyright owner an exclusive license to the work for 14 or 28 years.
Original authors can also choose to require that users of the works they dedicate attribute the works to the authors. Works dedicated to the public domain are listed on the Creative Commons website so people can easily find them. For detailed information, visit the website at www.creativecommons.org. O’Reilly & Associates, a major publisher of computer and technical books, uses the Founders’ Copyright for its publications (if their authors agree). This means that, 14 or 28 years after publication, hundreds of its titles will be released to the public domain. The Creative Commons website lists what will be available at http://creativecommons.org/projects/founderscopyright/oreilly.
Copyright Does Not Protect Certain Works
There are some things that copyright law does not protect. Copyright law does not protect the titles of books or movies, nor does 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.
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. 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. Subsequent chapters explain how this rule applies to specific types of works. For more information on trademarks, see Chapter 10.
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.
In some cases, you are not free to copy a collection of facts because the collection of facts may be protectible as a compilation. For more information on how copyright applies to facts, refer to Chapter 2.
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.
In a 2003 case, the producers of the television show Survivor claimed that their show was a “new genre” of television show with a unique format combining the elements of “voyeur verité, hostile environment in the deserted island sense, building of social alliances, challenges arising from the game show element, and serial elimination.” They sued to prevent a similar reality-competition show called Celebrity.
The court found that this genre of television show was an unprotectible idea, as is any genre. In other words, anyone could produce a show based on the basic idea of contestants in a “reality” situation eliminating each other. Celebrity would infringe on Survivor only if it copied a substantial amount of the specific details of Survivor, which it did not do. There were many differences between the two shows—for example, the way the contestants were eliminated—and Celebrity had an audience participation element and a comedic tone, unlike the serious Survivor. (CBS Broadcasting, Inc. v. ABC, Inc., 2003 U.S. Dist. LEXIS 20258 (S.D. N.Y. 2003).)
U.S. Government Works
In the U.S., any work created by a federal government employee or officer is in the public domain, provided that the work was 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 so the songwriter did not need permission 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. (See “Are Local Laws in the Public Domain?” above.) Some federal publications (or portions of them) are protected under copyright law, which 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.
The table below may help you determine 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 but before 1964
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 was 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