Are the works you're using really in the public domain?

I’m sure you’ve heard the phrase “public domain.” But do you really know what that means? It’s come to my attention that many people think that the public domain refers to anything that is available to the public at large.

Ok, folks. That’s not it. If you’re living under that delusion, then stop it now.

In actuality, the public domain is a group of intellectual property (which can refer to trademark and patent, but usually refers to copyright which is what we’ll discuss here) that belongs to no one. What it effectively means is that anyone can use those works without permission, payment or other concern about claims from other parties.

So, if you know what the public domain is, how do you know what works are in the public domain? How did they get there?

As you may or may not know from reading my earlier blog posts, copyright is automatically granted to an original work of authorship as soon as it’s put into a tangible medium of expression. You might be asking, “How are there works in the public domain then?”

You need to understand, as an initial matter, that the current copyright law was not always the way that copyrights were granted. The rules have changed several times over the years. It’s also important to note, as an aside, that there are works that are in the public domain in the United States that may be subject to copyright in other countries and vice versa.

There are really a couple of ways that works enter the public domain. First, if the work was put into the public domain by the author. Authors can choose to put their works into the public domain by choice. It certainly happens, but not often.

Most commonly, there are works that have fallen into the public domain based on their age or on their author’s failure to renew their copyright. The basics are a little confusing because the law has changed several times over the years, but here are the basics:

- If the work was published before 1923, it is currently in the public domain.

- If the work was published between 1923 and 1963 with notice, the work was eligible for a first term of 28 years and could register for an extension of 47 years (which has now been extended for an additional 20 years beyond that).

However, if the work was not renewed, it would have fallen into the public domain in 1991 at the latest. If it was timely renewed, the earliest of these works (the ones created in 1923) will fall into the public domain in 2018.

- If the work was published any time before 1978 without notice, the work is automatically in the public domain.

- If the work was published without notice between 1978 and March 1, 1989, the work may have fallen into the public domain unless the author corrected the omission of notice within the first five years.

- If the work was created before 1978 but was unpublished, the copyright would expire and the work would fall into the public domain seventy years after the author’s death or December 31, 2002, whichever is later.

- If the work was created before 1978 but was unpublished, but became published between January 1, 1978 and December 31, 2002, the work would fall into the public domain seventy years after the death of the author or December 31, 2047, whichever is later.

- If the work was created after January 1, 1978, regardless of whether it was published or unpublished, or whether it had notice or not, will not fall into the public domain until seventy years after the death of the author (or if it’s a corporate author, ninety five years after publication or one hundred twenty years after creation).

Sounds really simple, right? Of course not. It’s sometimes unbelievably confusing. And keep in mind that these are just the basics.

So, how can you be sure that you’re using works that are in the public domain? Well, you can use works that you know the original creation or publication date that you are sure fall within the public domain. Or you can look for works where the author has stated that he or she is allowing their works to be used in the public domain.

Otherwise, you face potential problems. And, as I’ve said before, copyright infringement suits are just no fun. So, be careful and you’ll avoid a lot of headache and heartache...