October 18, 2013

A friend sends you a copy of a picture she finds funny. You do, too, and you want to put it on your blog to illustrate a point you’re making. You’ve decided, though, that you want to be careful about using the picture, so you ask your friend where she found it. She tells you that she received it by e-mail from her cousin, who shared the picture from someone else’s Facebook page. “So it’s ok,” your friend tells you. “Go ahead and use it.”

Is it alright to use the picture? That depends on whether the picture is in the “public domain”. There are a lot of misconceptions about that term. For example, it is a common but mistaken belief that everything that turns up on the internet, or on social media sites, is automatically in the public domain.

Public domainSo what is in the public domain? Public domain works are works that are not protected by copyright. Anyone, anywhere, can use public domain works without getting permission and without making payment to anyone. There are a lot of reasons why a work would be in the public domain. There are some works that are public domain because they are not eligible for protection. For example, works produced by the U.S. government are not copyrighted. The famous photographs of depression-era America taken by photographers for the Farm Security Administration, to take just one type of work, were prepared by government employees as a part of their duties. Those photographs are therefore in the public domain. They are free to copy and use without restriction.

Some works may be in the public domain because the author or creator of the work decided to put them there. This is known as “dedicating” a work to the public domain. The owner of a copyright might decide to let the public have unrestricted use to his work out of generosity, or because he wants the work to promote discussion or debate on a topic. A dedication requires some explicit language. The Creative Commons Foundation has a good example of language for this purpose. The important point to remember is that you cannot assume that a work is dedicated to the public domain unless you see words that clearly show intent to make such a dedication.

The biggest category of public domain works is made up of all the works with expired copyrights. All works will eventually fall into this category. Unfortunately, the rules for figuring out what belongs in this category are complicated. In brief, the copyright has expired for all works published before 1923. If the work was created after January 1, 1978, the copyright will not expire until seventy years after the death of the author, or, if the author was a corporation, 95 years after publication or 120 years after the work’s creation, whichever comes first. For works published or created between 1923 and 1978, the date when the copyright expired or will expire depends on a long list of variables, such as whether the copyright was renewed, or whether a copyright notice was put on the work. If you are wondering about work from this broad time period, you will need to check some references. The University of North Carolina has a useful table showing the time for the most common types of work. A more exhaustive chart is made available by Cornell University, and it shows every conceivable variable, including information about foreign works.

Once a work enters the public domain, it is usually there to stay. The most recent exception was that the copyright was “revived” for works that had been published overseas in countries that formerly had longer copyright terms that the U.S. did. Early films by directors such as Fritz Lang (Metropolis) and Alfred Hitchcock that had been freely (and cheaply) available in the U.S. regained copyright protection in this way.

There are some exceptions to these general rules. First, while U.S. government works are in the public domain, that applies only to work created by federal employees, and to works created as a part of their jobs. It probably does not apply to work created by private contractors working for the federal government. It also does not apply to works created by state or city governments.

Second, while a work may be in the public domain, any new work based on it (a “derivative work”) is not necessarily public domain. The jazz classic “Saint Louis Blues,” published in 1914, is in the public domain, but new arrangements or recordings of the song would be protected. The copyright would be for new elements or personalized variations (such as changing the clarinet solo to a violin solo).

Third, just because a work is in the public domain doesn’t mean a part of it might not be protected under some other law, such as trademark. Early cartoons featuring Bugs Bunny went into the public domain, but the familiar music at the beginnings and ends of those cartoons is still protected by trademark. Home video versions of the cartoons had to cut out the theme song to cope with this issue.

Finally, do not fall into the trap of assuming that something you can see for free on the internet is in the public domain. Publicly posting a work doesn’t mean the owner has put it in the public domain. You should never assume work is in the public domain unless you see clear language telling you so. This is a point that cannot be emphasized enough. Tread lightly.