Copyright:
Public Domain

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.

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 or non-profit 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.

fair use

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.

Creative Commons

Public Domain

Many photos are not protected by copyright, so you are free to use them in whatever way you like. Such works are publicly available (as no law says otherwise) so they are in the people’s territory — the “public domain.”

“Do·main
1. A territory over which rule or control is exercised.
.… from Late Latin [for] property.”
— American Heritage Dictionary of the English Language

“Works in the public domain may be used freely without the permission of the former copyright owner.”
— U.S. Copyright Office, FAQ

“A work of authorship is in the “public domain” if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection.”
— U.S. Copyright Office, FAQ

There are several ways that a work can be in the public domain: it was never eligible for copyright in the first place, or the copyright has expired, or the copyright has been abandoned or forfeited. Most photos in the public domain are there because they’re old and their copyright either never existed or has expired.

(I have always wanted to write a sentence with the three spellings of ‘there.’ Which leads me to..)

How do I know what is in the public domain?

As Gertrude Stein said of Oakland, “there is no there there.”

The public domain is, unfortunately, not a place. It’s more like an absence of a place — a catchall phrase to describe works that don’t have copyrights for people to own. Since there’s nothing for people to own, no one keeps track of what is there. So unfortunately you can’t confirm what is in the public domain, only what is not in the public domain. Below is a guide.

Perhaps a better quote comes from Captain Jack Sparrow: “If we don’t have the key, we can’t open whatever we don’t have that it unlocks.”

“Is there a list of works that are in the public domain?
No. The U.S. Copyright Office does not maintain such a list.”
— U.S. Copyright Office, FAQ

No copyright protection

No copyright for federal U.S. Government work

One author that creates no copyrights is the federal government.

“Copyright protection under this title is not available for any work of the United States Government …”
— 17 USC §105

So any federal photos, text, or other work is in the public domain, available for anyone to use.

Other works ineligible for copyright protection

“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”
— 17 USC §102(b)

“Several categories of material are generally not eligible for federal copyright protection. These include among others:

• works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
• titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
• ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
• works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

— U.S. Copyright Office, Circular 1

“Titles, short phrases, and formatting are not copyrightable.”
— U.S. Copyright Office, Circular 14

Originality

“Copyright protection subsists, in accordance with this title, in original works of authorship …”
— 17 USC §102(a)

“[No copyright exists] where a photograph of a photograph or other printed matter is made that amounts to nothing more than slavish copying.”
— Bridgeman Art Library v. Corel Corp., 1999.

“Several categories of material are generally not eligible for federal copyright protection. These include among others:

• works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
• titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
• ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
• works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

— U.S. Copyright Office, Circular 1

“..exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even if accurate reproductions require a great deal of skill, experience and effort, the key element for copyrightability under U.S. law is that copyrighted material must show sufficient originality.”
— Wikipedia, Bridgeman Art Library v. Corel Corp.

“The work must be original in the sense that the author produced it by his own intellectual effort, as distinguished from merely copying a preexisting work.”
— 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law.

originality

Copyright Expired

Most old photos are available, as they either never had copyright or, if they did, it no longer exists. Photos are preserved but their copyrights expire.

When do photos enter the public domain?

“The provisions of copyright law dealing with duration are complex. Different standards apply depending on whether federal statutory copyright protection was secured before or on or after January 1, 1978, the date the current law — the Copyright Act of 1976 — took effect.”
— U.S. Copyright Office, Circular 15a

Before 1923

“.. all works published in the United States before January 1, 1923, are in the public domain.”
— U.S. Copyright Office, Circular 15a

1923 – 1977

“For works first published prior to 1978, the term will vary depending on several factors.”
— U.S. Copyright Office, FAQ

1923 – 1977: Not Published and Not Registrated

“[Before 1977] federal copyright was secured .. for unpublished works, on the date of registration.”
— U.S. Copyright Office, Circular 15a

1923 – 1977: Published but with No © Notice

“For works first published before 1978, the complete absence of a copyright notice from a published copy generally indicates that the work is not protected by copyright.”
— U.S. Copyright Office, Circular 22

“Under the copyright statute in effect before 1978, the notice was required to include “the name of the copyright proprietor.””
— U.S. Copyright Office, Circular 22

“In general, the notice on works published before 1978 must include the year in which copyright was secured by publication or, if the work was first registered for copyright in unpublished form, the year in which registration was made. There are two main exceptions to this rule. 1 For pictorial, graphic, or sculptural works (Classes F through K under the 1909 law), the law permitted omission of the year date in the notice.”
— U.S. Copyright Office, Circular 22

1923 – 1977: © Notice AND Copyrighted but NOT Renewed

“Under the 1909 act, .. a copyright lasted for a first term of 28 years from the date it was secured. .. If it was not renewed, the copyright expired at the end of the first 28-year term, and the work is no longer protected by copyright.”
— U.S. Copyright Office, Circular 15a

1923 – 1977: © Notice AND Copyrighted AND Renewed

“Copyrights that had already been renewed and were in their second term at any time between December 31, 1976, and December 31, 1977, inclusive, .. have been automatically extended to last for a total term of 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.”
— U.S. Copyright Office, Circular 15a

“The year in the notice usually (though not always) indicated when the copyright began.”
— U.S. Copyright Office, Circular 22

1950 – 1963: Not Copyrighted OR Not Renewed

“Copyrights in their first 28-year term on January 1, 1978, still had to be renewed to be protected for the second term. If a valid renewal registration was made at the proper time, the second term will last for 67 years. However, if renewal registration for these works was not made within the statutory time limits, a copyright originally secured between 1950 and 1963 expired on December 31 of its 28th year, and protection was lost permanently.”
— U.S. Copyright Office, Circular 15a

1964 – 1977: Not Copyrighted

“Works originally copyrighted between January 1, 1964, and December 31, 1977. Congress amended the copyright law on June 26, 1992, to automatically renew the copyright in these works .. [with] a 67-year renewal term .. [beginning] on December 31 of the 28th year.”
— U.S. Copyright Office, Circular 15a

1978 – 1989: No Notice

“For works first published before March 1, 1989, the copyright notice is required, but omission could have been cured by registration before or within five years of publication and by adding the notice to copies published in the United States after discovery of the omission. Some works may contain a notice, others may not.”
— U.S. Copyright Office, Circular 22

1978 and Later

“For works securing federal statutory protection for the first time on or after January 1, 1978, the Copyright Act of 1976, as amended in 1998, establishes a single copyright term and different methods for computing the duration of a copyright.”
— U.S. Copyright Office, Circular 15a

“The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author’s life plus an additional 70 years. For a ‘joint work prepared by two or more authors who did not work for hire,’ the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author’s identity is later revealed in Copyright Office records, in which case the term becomes the author’s life plus 70 years).”
— U.S. Copyright Office, Circular 15a

“[For works from 178 and later] ..registration is not a condition of copyright protection.”
— U.S. Copyright Office, Circular 1

1989 and later: No Notice

“The absence of a notice in works published on or after March 1, 1989, does not necessarily indicate that the work is in the public domain.”
— U.S. Copyright Office, Circular 22

When in the year does copyright expire?

“All terms of copyright .. run to the end of the calendar year in which they would otherwise expire.”
— 17 USC §305

If the photo you want to use is in the public domain then congratulations. You are now free to move about the cabin. But if the photo is protected, you may still be able to use it without getting permission if your use is clearly “fair.”

Orphan Works

Something here later.

Released

Creative Commons

“No law will restore protection to works that fell into the public domain.”
— U.S. Copyright Office, Circular 22

Can I use a photo that is in the public domain?

“A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material. Neither will it prevent anyone else from using the same public-domain work for another derivative work.”
— U.S. Copyright Office, Circular 14

If I use a photo that is in the public domain, does my copyright stop other people from using that photo?

“.. the copyright in the derivative work will not .. prevent anyone else from using the same public-domain work for another derivative work.”
— U.S. Copyright Office, Circular 14

Can I use a copyrighted photo in my artwork?

“Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author.

Can I use a photo that is in the public domain?

“A work that has fallen into the public domain, that is, a work that is no longer protected by copyright, can be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public-domain material. Neither will it prevent anyone else from using the same public-domain work for another derivative work.”
— U.S. Copyright Office, Circular 14

Orphan Works

Public Domain photos

“The photocopy of a public domain pictorial work is not registrable.”
— U.S. Copyright Office, Compendium II of Copyright Office Practices, §508.02

“Works in the public domain in the United States cannot be the subject of U.S. copyright protection. Since such works may be copied and used by anyone insofar as the U.S. copyright law is concerned, they may be freely combined with new matter or otherwise incorporated …”
— U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.03 Works in the public domain

“Works in the public domain include those whose once valid U.S. copyright has expired and works otherwise dedicated to the public either voluntarily or by operation of law.”
— U.S. Copyright Office, Compendium II of Copyright Office Practices, §202.03 Works in the public domain

Next: Originality »

“In all cases, it is the researcher’s obligation to determine and satisfy copyright or other use restrictions when publishing or otherwise distributing materials found in the Library’s collections.”
— Library of Congress: Copyright of Prints and Photographs

Excellent source: Peter B. Hirtle, Cornell Copyright Information Center

A photo does not have copyright when the author failed to satisfy statutory formalities to perfect the copyright, or the term of copyright for the work has expired. A photo that has no copyright is said to be in the “public domain” and can be used by anyone.

Foreign Works

For use within the United States, the following guidelines apply:

• Works published outside the United States before July 1, 1909 are considered to be in the public domain. [Fishman chapter 18.12 and 18.15] (per Library of Congress)
• Works published outside the U.S. with a U.S. Copyright notice before 1923 are considered to be in the public domain. [Fishman, chapter 18.13 and 18.15] (per Library of Congress)
• Works made by the government of the United Kingdom (England, Scotland, Wales, Northern Ireland) and published more than 50 years ago are considered to be in the public domain. [Schultz, p. 219; U.K. Office of Public Sector Information, (per Library of Congress)

Charts laying out when items pass into the public domain

• Peter B. Hirtle, Cornell Copyright Information Center
• Lolly Gasaway, University of North Carolina
• Mary Minow, Library Law
• Copyright Flowchart by Lisa Tittemore at Sunsetein Kann Murphy & Timbers, LLP
• Tree-view chart on Copyright Law by David P. Hayes
• Public Domain Sherpa (Barbara)