The concept of the public domain is central to the sharing and utilization of creative materials. When works are not protected by intellectual property laws such as copyright, trademark, or patent laws, they fall into the public domain, which means they belong to the public at large. This allows anyone to use, distribute, and build upon these works without seeking permission or paying royalties.

Attorney Morin is an intellectual property expert and so has a vast knowledge of and experience with working with the public domain.

Attorney Morin

Annually, on Public Domain Day, various works enter the public domain when their copyrights expire, which is often determined by the laws of the country where the copyright was registered. This transition enables a wealth of literature, music, art, and film to become freely accessible, fostering creativity and cultural exchange.

While many materials are available for use in the public domain, it is important to verify the status of a work before using it since copyright laws can be complex and vary by jurisdiction. Libraries and digital repositories often provide guidance and access to items that are free to use and reuse, helping to clarify which works are available and under what terms.

Definition of Public Domain

 

Definition of Public DomainThe public domain refers to creative works that are no longer under copyright protection and may be freely used by the public. This allows for the unrestricted reproduction, distribution, and adaptation of these materials.

Historical Context

The concept of the public domain has evolved as societies recognized the need to balance private intellectual property rights with public access. Initially, works entered the public domain after copyright terms expired, typically at the end of the calendar year, a process signified by events such as Public Domain Day.

Legal Foundations

Legally, the public domain comprises works that are ineligible for copyright or whose copyrights have expired, been forfeited, or are inapplicable. For instance, U.S. government works are automatically in the public domain upon creation.

Statutes

Specific statutes define and regulate the public domain. Internationally, the Berne Convention sets the baseline for copyright terms, while individual countries may have laws that further dictate when a work enters the public domain.

Types of Works in the Public DomainTypes of Works in the Public Domain

When works enter the public domain, they can be freely used by anyone for any purpose without permission. The types of works vary widely, each contributing richly to the cultural commons.

Literature and Texts

Literature that falls into the public domain includes novels, poems, plays, and essays that are no longer under copyright protection. Examples are the works of authors like Jane Austen and Mark Twain. Texts such as letters, speeches, and diaries can also become public domain, allowing for their unrestricted reproduction and distribution.

Art and Photography

Artworks, including paintings and sculptures, pass into the public domain, permitting free reproduction and public display. Notable artists such as Vincent van Gogh have many works that anyone can access and share. Similarly, photography that has reached the end of copyright duration enters the public domain, which includes historical images and early photographic works.

Music and Audio

Musical compositions, from symphonies to folk songs, become public domain when copyright expires, as do sound recordings in some cases. This can include classical works by composers like Ludwig van Beethoven. Recordings of these compositions or other audio materials like speeches can also be found in the public domain after a certain period.

Film and Video

Films that have lapsed copyrights or were created before certain dates are in the public domain. This allows anyone to screen, share, or repurpose these film and video materials. Examples include classic films and early cinema that have contributed to the history of filmography.

Some of our favorite films in the public domain include…

  • Charade
  • Night of the Living Dead
  • Popeye the Sailor Meets Sinbad the Sailor
  • Plan 9 From Outer Space
  • 1960’s Lil Shop of Horrors

Public Domain and Intellectual Property Rights

Public Domain and Intellectual Property RightsThe public domain is a critical concept in the field of intellectual property law. It includes works that are no longer protected by intellectual property rights and, thus, free for the public to use.

Copyright Law

Copyright law asserts exclusive rights to the creators of original works, granting them the ability to control and profit from their works for a limited time. When the copyright expires, works enter the public domain, allowing anyone to copy, distribute, or adapt them without seeking permission or paying fees.

Trademark Law

Trademark law protects symbols, names, and slogans used to identify goods or services. However, trademarks do not expire into the public domain in the same way copyrights do. Instead, trademarks can be perpetually renewed as long as they continue to be in use and maintain their distinctive character.

Benefits and Limitations of Public Domain

The public domain represents a balance between the encouragement of cultural expression and the access to previous works without restriction. Its implications are immense for both users and creators.

Access and Utilization

In the public domain, works can be freely accessed, used, and redistributed by anyone. This unrestricted access allows for educational institutions to disseminate knowledge without legal barriers, enhancing the learning process. Individuals and companies alike can modify and repurpose works for new creative endeavors. Yet, this same freedom means creators cannot control how their works are used and may not receive financial remuneration from their use.

Economic Impact

A robust public domain can provide significant economic benefits. The removal of copyright fees lowers costs for businesses, which can stimulate economic activity by allowing companies to use and build upon existing works. Additionally, this can lead to the creation of new works and industries, such as the emergence of value-added products. However, the limitations lie in the potential reduction of incentives for creators, as the lure of financial gain through exclusivity is removed.

Cultural Preservation

The public domain plays a critical role in cultural preservation. By making works freely accessible, societies can ensure that cultural heritages are maintained for future generations. Furthermore, older works that are no longer commercially viable but culturally significant can be freely archived and shared. The downside is that, without the promise of copyright protection, creators may be less inclined to produce culturally enriching works that may not have immediate commercial appeal.

Acquiring and Using Public Domain Content

Public domain content provides a wealth of resources for creators and authors, allowing them to enrich their works with a vast range of pre-existing materials without the constraints of copyright.

Sourcing Public Domain Works

Identifying and obtaining materials that have entered the public domain is essential for creators who wish to leverage these assets. One may find public domain works through various online repositories, libraries, and databases dedicated to such resources. Examples of these sources include the Harvard Library Guides which facilitate the discovery of public domain and Creative Commons media, and the Public Domain Review which highlights materials entering the public domain each year.

Legal Considerations

While public domain works are not subject to copyright restrictions, it is important for individuals to understand the legal framework that governs these materials. Works typically enter the public domain due to age or expiration of copyright terms. Users must verify the status of a work through credible sources before use to ensure it is truly in the public domain. Websites like fairuse.stanford.edu provide guidance on the public domain and related legal matters.

Is it legal to sell public domain?

Yes, but it depends. Other rights like publicity or trademark rights might also attach to what is being created so the copyright law may not be the determinative factor to being “legal” to sell.

Creative Commons Licenses

Creative Commons licenses offer a modern alternative for accessing creative materials with varying levels of freedom. Although not public domain, these licenses allow creators to use content with certain restrictions. Compliance with the specific terms of a Creative Commons license is required, such as attribution to the original creator. More details on utilizing Creative Commons-licensed content can be found through the Harvard Library Guides.

Can you stop something from becoming public domain?

Have you ever worked on a case or know of a case where someone was trying to stop something from being part of the public domain? 

I worked once for a large company that issued cease and desist to alleged trademark infringers so it would not be accused of abandoning its trademark(s). Enforcement is a critical element of maintaining a healthy trademark portfolio. But I have not yet worked with anyone who is trying to prevent their work from entering the PD, because since 1989-1992, items that would normally eject a copyright into the public domain became optional (in terms of notice) and/or automatic (in terms of renewal). Therefore, since 1989-1992, whether a work is at risk for entering the public domain is not a concern.

Where public domain surfaces in my practice, is when clearing scripted projects, whereby we find references to other works requiring clearance. If the copyright clearance report shows us the matter’s copyright expired or otherwise has fallen into the public domain (works prior to 1992 and/or 1989, works that failed to manually renew or otherwise place notice on their works), then we craft our opinion and advise our client (and underwriter) of the reduced likelihood of infringement.

Common Questions About Public Domain Laws

  1. Who owns public domain? No one.
  2. What are examples of public domain? See the Public Domain Collections.
  3. Does public domain mean free? Yes, but only for those elements protected by copyright law.
  4. How do you know if something is public domain? Ask a copyright lawyer!

The public domain is a rich resource, but navigating its waters requires a keen understanding of copyright law. If you’re planning a project and want to confirm the use of public domain material, it’s wise to consult with an expert. Contact Attorney Lee Morin at Morin Legal for a consultation to ensure your project is on solid legal ground.

Remember, when in doubt, it’s always best to check it out!

Receive the latest news

Subscribe to Tidings Newsletter

Receive news, special events, and industry-related information periodically delivered to your inbox.