Works that fall into the public domain are free for all to copy and use. With limited exceptions for foreign works, once a work falls into the public domain, its copyrights cannot be regained. For example, Shakespeare plays are clearly in the public domain. They are free for anyone to copy, perform or to use as a basis to create derivative works.
How do you know if a work is in the public domain?
It is not safe to assume that works have lost their copyrights just because they are old. However, there are a few safe harbors. Works "published" before 1923 are now in the public domain. But be careful. "Publication" is a legal term of art and is discussed in detail below. Works dedicated to the public domain are free for all to use as are most works of the U.S. government1.
Two different copyright duration structures exist today. One measures copyrights by an initial term and requires renewal. The other measures copyrights by the life of the author. Which structure applies depends upon when the work was created or published.
- Works created before 1978 ("Older Works") were protected from date of publication for an initial 28-year term of protection. After the initial term, copyrights had to be renewed. If not renewed, the copyright expired and the work was ejected into the public domain. For works that were originally copyrighted after 1922 and renewed before 1978 renewal is automatic to extend the total term to 95 years (a first term of 28 years plus a renewal term of 67 years) from the end of the year in which they were originally secured.
Older Works that remained unpublished by the end of 2002 expired on that date or will expire seventy years after the author's death, whichever is later.
- Works created on or after Jan. 1, 1978 ("Newer Works") are protected from time of creation - when the work is fixed in a tangible medium. Copyrights exist for the life of the author plus 70 years. Works with corporate authors, works made for hire and anonymous works are protected for the shorter of either 95 years from publication or 120 years from creation.
Is the entire work in the public domain?
Each separate element within a work must be analyzed to determine whether copyrights still exist. For example, a movie might have fallen into the public domain, but the copyrights in the movie's soundtrack may still exist. Because the two cannot be easily separated, you may have trouble copying the movie without infringing the rights to the soundtrack. Works within a compilation, such as a magazine or anthology, may each have separate copyright durations and owners. The fact that one work within the compilation is in the public domain does not necessarily mean the other works are as well. Similarly, the text and illustrations in a book are separately copyrightable. Even if the text is in the public domain, you must independently research the copyright status of the illustrations.
This work is in the public domain, but the owner is still charging me to use it. Why?
The owners of original works may occasionally charge access fees, regardless of whether copyrights still exist in the works or whether they own the copyrights. You are paying for either access to the original or for pristine copies of the works. Assuming the public domain work, or a good copy of the work, is not available from other sources, you will need to pay the access fees if you want to copy the work and, like any private contract, you must follow the owner's rules of usage, if any.
What is "Publication"?
Publication, in its simplest terms, is what is commonly thought of when a work is published. It is the first date of public release. For example, a daily newspaper is "published" on the day it is printed and sold to the public.
Other forms of transfer besides an outright sale- such as by rental, lease or lending - can also constitute publication. The key element is the distribution of - or the offer to distribute - copies to the public. Written texts will often list their dates of publication on the first few pages of the book along with other legal information.
It can be more difficult to determine when other works, such as works of fine art, were "published" because many such works only exist in their single, original copy. Publication still means the distribution of the work (or copies of the work) to the public by sale, rental, leasing or lending - or the public offering to do so, such as through a public art auction. For this reason, you may be able to determine whether a work was published by examining its chain of title. Generally, if the work is printed in an art book or if the work was turned into postcards sold in stores, it is safe to assume the work has been published, assuming the publication was authorized by the copyright owner. However, public performance (e.g. of a play) or public display (e.g. of a work of art) by itself does not constitute publication and the purely private sale of a work of art is generally not considered publication.
Publication is an important concept. Copyright protection of works created before 1978 began at publication2. Until 1989, works published without a copyright notice fell into the public domain. Since 1989, copyright notices are no longer mandatory, but offer many beneficial rights. Thus, assume any work created after 1989, even if it was published without a copyright notice, is protected by copyright.
I added something new to a public domain work. Can I protect it?
It is possible to create newly copyrightable material based upon public domain works. For example, if a theater group performs (and records) a highly stylized, interpretive performance of a Shakespeare play and adds original elements, it can create copyrights in the new, original elements it added. This would prevent others from videotaping the group's performance or using the new, original elements the group created. Naturally, the theater group could only prevent others from using the truly new or unique components of the performance. They could certainly not prevent others from using or performing the underlying Shakespeare play.
1 - Some federal agencies are exempted from this rule. For example, works created by the United States Postal Service, which is an independent establishment of the executive branch of the United States government, are copyrightable. The copyrights in works such as stamps are owned by the Postal Service and cannot be reproduced without permission.
2 - The 1909 Copyright Act also allowed authors to register the copyrights in their unpublished works.
Page Updated 05/20/14