Public Domain

DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

Public domain refers to artwork that does not have copyright protection, usually because it has expired. Artworks in the public domain are copyright-free and anyone can use them in any way and for any purpose. Yes, that’s right — they’re free!

Where Is The Public Domain?

Sorry, it is not a place. Being in the public domain just means that the work is not in private ownership but is conceptually in a public space for the public to use.

What is in the Public Domain?

There is no listing of what is actually available for public use. Since copyright laws vary by country, artwork that may be in the public domain in one country may not be in another country. What is in the public domain is work that is not under copyright protection.

How Do Works Enter the Public Domain?

There are three ways for works to enter the public domain:

1. Copyright Ineligible: Some works are not covered under copyright law.
2. Copyright Expired: The time of copyright protection has been and gone.
3. Copyright Released: The copyright holder gave the work to the public.

Copyright Ineligible

Some works are instantly in the public domain, since they cannot be copyrighted. For example, facts, U.S. federal laws, ideas, and concepts are not covered by U.S. copyright law and thus have no protection from public use.

Facts that are in the U.S. public domain include addresses, phone numbers, most scientific data, sports scores, and polling results (see Feist v. Rural, 1991). Note however that someone’s selection and presentation of facts may merit copyright protection.

Various other works are not eligible for copyright protection. These include:

• straight-on photos of two-dimensional art when the artwork is in the public domain (see Bridgeman Art Library v. Corel Corp., 1999).
• work not created by humans, such as illegal spam from a computer or a painting by a chimpanzee.
• descriptions in patent applications in the U.S. since they are “published into the public domain.”
• typefaces (as designs and characters) and calligraphy, since utility benefits the public.

Copyright Expired

Old artwork is in the public domain. Although copyright may once have applied, copyright has a time limit and when older works fall out of copyright, they fall into the public domain.

In the U.S., copyright expiration depends upon when the artwork was published or created. As a rough guide:

• 1923 and earlier: All works anywhere in the world are public domain.
• 1923 to 1978: Possibly 95 years after publication.
• 1978 onwards: Generally the life of the author plus 70 years.

For more detailed information, see Copyright Term and the Public Domain in the United States by Peter Hirtle at Cornell University.

Copyright Released

Increasingly on the Internet, some works have been voluntarily placed into the public domain. The creator, in a spurt of generosity, included a release statement to abdicate the copyright and make the work available for unlimited public use.

A copyright holder can easily place a creation into the public domain. They simply state, to the effect: “I release all rights to the work.” There is even a webpage to release your work into the public domain hosted by Creative Commons.

Once granted into public use, the author probably has no further rights to the work, and probably cannot revoke the release or regain any rights (this has not yet been confirmed under law). The work is freely available to everyone to use with no strings attached.

If you are using such a work for profit, you would be wise to get a copy of the author’s release statement just in case copyright is disputed.

Some Common Confusions

The term Public Domain is sometimes confused with other related terms.

Copyright and Public Domain

These are opposing terms. If a work has copyright, it is by definition not in the public domain. If a work is in the public domain, it has no copyright.

Fair Use and Public Domain

Fair Use is part of copyright, so the previous explanation applies. Works covered by copyright are not in the public domain but may be used without permission from the copyright holder for news, education or other public-interest applications considered “fair use.” Works that are in the public domain have no copyright so fair use does not apply — any use is permissible, fair or otherwise.

Creative Commons and Public Domain

Creative Commons is similar to, but different than, public domain. Creative Commons is a type of licensing that allows others to use and build upon works. It is not a law and the works are usually still covered by copyright law and thus are not in the public domain.