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...

But I created it. Why don't I own it?

I find myself answering this question often for clients and other people on message boards that I post on. Most people have gotten the concept that if they create an original work, they automatically own the copyright in that work. And if you own the copyright, you should be able to do whatever you like with the work. The rule should still apply even if you made the work for someone else. Right?

Not necessarily. There are instances when you might create a work, but you aren't actually the copyright holder of the work. The most common of these situations is one where the work is made as a "work for hire".

But what is a "work for hire"? How do you know if you'd made one?

Work for hire is defined in the Copyright Act of 1976 (17 U.S.C. 101). Under the definition, the first thing that has to be examined is the relationship of the parties.

Are you an employee of the company that you're creating the work for? If so, your work is automatically a work for hire and the owner of the copyright of anything that you create is your employer, not you.

What gets a little bit trickier is if you're an independent contractor. The issue hinges on whether you're really an independent contractor under agency law or if you're just an employee in an independent contractor's clothing. Factors to determine whether an employee/employer relationship exists was set forth by the Supreme Court in CCNV v. Reid (490 U.S. 730 (1989)). The Supreme Court set out the following factors that characterize an employer/employee relationship as defined by agency law:

1. How much control does the employer exhibit over how the work is done? (Examples of this include: Is the work done at the employer's location? Does the employer provide the equipment and/or supplies to complete the job?)

2. How much control does the employer exhibit over the employee? (Examples of this include: Does the employer control the employee's schedule? Does the employer determine how and when the employee will be paid? Does the employer have the right to have the employee perform other assignments for the employer?)

3. What type of business is the employer in? Does the employer produce the kinds of work that you are providing the business with? (e.g., Are you creating web pages for a web design company or are you producing a web site for a business that sells dolls?) Does the employer provide you with benefits or withold taxes from your paycheck?

Although the factors are not the only factors considered, the easiest way to think about it is how closely your relationship matches one of an hourly or salaried employee of the business. The closer it is, the more likely that you'll be found to have an employer/employee relationship and the more likely that the work you're doing is a work for hire.

But let's assume that you're really an independent contractor. What then?

Well, at that point there are two conditions that must be met to have your work considered a "work for hire".

1. The work must be "commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas." 17 U.S.C. 101. AND

2. The paries must expressly agree in a written agreement "signed by them" that the work being created is a work for hire.

If you're missing either prong of the test, your work is not a work for hire and you are the copyright holder of the work that you have created.

What does that mean in a practical sense? Well, it means that you have the right to do whatever you like with the work. However, in the spirit of maintaining goodwill and good business relationships, I would suggest that if you're planning to use work that you created for someone else, particularly to promote yourself, that you let them know that, although you don't need their permission, you'd like their blessing (for lack of a better term) to use it to promote yourself.

You might ask, "Why would you bother doing that if you own the work?" Well, the answer's very simple. If you're using something that you've created with a client's name on it, potential clients might very well contact that former client for a recommendation of whether or not to hire you.

How do you think your former client would react if they found out that you were using something that they thought they owned to promote yourself? Unless you're very lucky, probably not favorably. You want them giving you glowing references, not angry ones. And truly, the entire point of using materials to promote yourself is to get more business.

Until next time....

P.S. If you have topics and/or questions that you'd like to see me cover here on the Blog of Burgess, drop me a line at burgess AT ebusinesslawgroup.com and let me know.

Will citing the source protect you from a copyright infringement claim?

There are an awful lot of misconceptions about copyright law that are floating around. One of my favorites that I keep hearing over and over again is that people believe that you can use any copyrighted work that you want as long as you give credit to the original author.


Ok, folks, this isn't school. Citing the source may have prevented you from being dinged for plagiarism when you were in school, but plagiarism isn't a violation of the law. Copyright infringement, on the other hand, is.


I've said this before, but I'll say it again since it bears repeating. Any original expression fixed in a tangible medium is protected by copyright. There are very few exceptions to that rule. (And for my international friends, this applies not only to United States law. The Berne Convention, the Universal Copyright Convention and the WIPO treaties subject member nations to the same requirements when using works that enjoy copyright protection under U.S. law.)


Copyright holders have certain exclusive rights to their works. Section 106 of the 1976 Copyright Act grants the owner of copyright the exclusive rights to do the following:

- To reproduce the work in copies or phonorecords;

- To prepare derivative works based upon the work;

- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

- To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

- To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.


By using the copyrighted work without permission, you are violating several of these rights including, but not limited to, the right to display, the right to distribute and the right to reproduce the work.


Now, I'm not saying that you can't use discrete portions of the work for fair uses, like comment, parody or satire, under certain (usually non commercial) circumstances. However, using the work in its entirety (or even in large part) will subject you to liability under copyright law.


So, what can you do if you want to use a work that belongs to someone else? The easiest answer is to get permission from the copyright holder. Very often, in this day and age, people are willing to allow others to use their work provided that they're given credit and a link back to their site. Other copyright holders are willing to license their work for a nominal fee.


What do you do then if the copyright holder doesn't want you to use his or her work? Well, at that point, you have two options. Post the link (don't embed it on your site (I'll talk about that in another post), post just the link), find another work that does allow you to use it (Creative Commons is a good place to look) or create your own work from scratch on the same topic.


What can you do if you're already using or displaying someone's copyrighted work on your site? The first thing that you can do is to remove it. If you want to continue using it, you need to contact the copyright holder and ask their permission. Don't be surprised though if the copyright holder isn't thrilled to find out that you've been using their work without their permission.

The safest thing that you can do is to avoid using people's copyrighted work. If you don't know how to write, hire someone to do it for you as a "work for hire". If you need pictures, go out and take them. If you can't find a way to do it yourself make sure that you've got permission or a license to use the material before you post it on your site. Better safe than sorry....