CHAPTER 11 THE PUBLIC DOMAIN PART 1: INTRODUCTION When a work is in the “public domain” anyone can use it for any purpose without P a g e | 788
worrying about copyright law. No individual or corporation owns works that are in the public domain, they belong to the public. Public domain material is important because it provides material for new creators to use in their original works. So where is this mythical “public domain,� and how do we find it? We can shed some light on how the public domain works by using the example of The Hunchback of Notre Dame. If you want to make your own movie based on the 1831 novel by Victor Hugo, you can do so without permission because that book is in the public domain.
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The Hunchback of Notre Dame
Some versions are in the public domain, some versions are not
There are, however, many differences between the original novel and the 1996 Disney P a g e | 790
movie version of the story. If you want to use characters from Disney’s The Hunchback of Notre Dame, you would need permission because the movie is not in the public domain. If this sounds confusing, it will hopefully make sense by the end of this chapter.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Copyright Infringement and the Free Press) Seattle PI (Seattle Copyright Lawyer)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 11 THE PUBLIC DOMAIN PART 2: THE ORIGIN AND IMPORTANCE OF THE PUBLIC DOMAIN The U.S. Constitution gives Congress the power to grant copyrights for limited times to promote the progress of science and useful arts. It is important to give creators the exclusive right P a g e | 793
to use their own work so they have incentive to create new work and be rewarded for it. It is also important, however, that the copyright term is limited so others eventually have the opportunity to build upon the original work by using it to create something new. Judge Alex Kozinski of the Ninth Circuit Court of Appeals described the importance of the public domain:
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“Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.” -White v. Samsung Electronics America, Inc.
One important thing to remember is just because something is free, that does not mean it is in the public domain. Also, if a work is in the public domain, that does not mean you don’t have to pay for it.
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For example, all of Leo Tolstoy’s books are in the public domain, but they are still for sale. The fact that War and Peace is in the public domain, however, means the story can be adapted to a new setting, be made into a film, or translated into a new language without permission. Some copyrighted works may also be available free of charge. The fact that they are copyrighted means you would need permission to use them or sell them. Digital technology has helped distribute public domain works to a wider audience. Increased availability through digital technology has made copyright owners concerned that they could lose control of their intellectual property. In order to address the concerns of copyright P a g e | 796
owners, the length of copyright has been steadily increasing with time.
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Increasing Copyright Term
More availability means more protection!
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This chapter will explain some of the most common ways works pass into the public domain, including: expiration of the copyright term, failure by the rights holder to follow renewal rules, the rights holder dedicates the work to the public domain, or the work is something not protected by copyright law.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (Obama’s Order of New Agency) Seattle PI (SOPA Legislation)
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CHAPTER 11 THE PUBLIC DOMAIN PART 3: TERM Every copyright act has included a limited copyright term. The Constitution leaves it up to Congress to decide how long the P a g e | 801
copyright term should be. After the term runs out, the work passes into the public domain. Copyright has expired for all works published in the United States before 1923, which is why Victor Hugo’s original Hunchback of Notre Dame is in the public domain. The copyright system needs both the incentive provided by exclusive rights and the freedoms provided by the public domain. The challenge is to strike an appropriate balance between these interests.
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From Bound By Law by Professor Keith Aoki
The term of copyright for a particular work depends on several factors, including P a g e | 803
whether it has been published, and if so, the date of first publication The first copyright term in 1790 had a total maximum term of 28 years. Currently, for works created before the 1976 Copyright Act came into effect, the maximum term is 95 years after the date of publication.
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From Bound By Law by Professor Keith Aoki
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For works created after the 1976 Act came into effect, the term is the life of the author plus an additional 70 years.
TIP: It is always very important to know the specific copyright term that applies to the work you want to use.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (Obama’s Order of New Agency) Seattle PI (Book Review Bound By Law)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 11 THE PUBLIC DOMAIN PART 4: DEDICATION Rights holders can also choose to not protect their work with copyright and dedicate the work to the public domain before the copyright term expires. Only copyright holders can dedicate a work to the public domain. P a g e | 808
TIP: Do not assume that a work is dedicated to the public domain unless the rights holder has made it very obvious, because this type of dedication is rare.
It is also important to note that a work under a Creative Commons license is not in the public domain. Creative Commons is a nonprofit organization that helps copyright owners waive their copyrights in their works.
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Does Creative Commons Mean Public Domain?
The answer is no!
Works in the Creative Commons are not in the pubic domain, however, because the rights holder still has rights that they are waiving. One way to think of the Creative Commons is as an artificial public domain.
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A work that is truly in the public domain is free for use by anyone for any purpose without restriction under copyright law. Rights holders who use Creative Commons licenses often require that people who use their works give them credit, they can do this because they still have rights to the work. The difference is that no one has rights to works in the public domain.
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Are These Images In The Public Domain?
Not automatically, you need to make sure on your own!
Bing recently began allowing users to filter their image searches by the image’s license. P a g e | 812
One of the options is to search for “Public Domain” image. Do not be duped, however, into thinking all of these images are in the public domain. Bing makes it very clear on their “Learn More” page that it is still your responsibility to view the original image and to determine if you have the ability to use it. Bing notes that they do not verify or represent that a specific license is associated with an image or that you can use the image under that language. Do not assume an image has been dedicated to the public domain just because it comes up in this type of search.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (SOPA Legislation) Seattle PI (Book Review Bound By Law)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 11 THE PUBLIC DOMAIN PART 5: WORKS NOT PROTECTED BY COPYRIGHT Copyright law does not apply to everything. Copyright law does not protect the titles of books or movies, and it also does not cover slogans, facts, ideas, genres, or theories. P a g e | 815
For instance, in CBS Broadcasting, Inc. v. ABC, Inc., 2003 U.S. Dist. LEXIS 20258 (S.D.N.Y. 2003) the court found that a specific genre of T.V. show was an unprotectable idea.
Further, any work created by a U.S. federal government employee or officer is in the public domain, provided that the work was created in that person’s official capacity. This rule only applies to work created by federal employees and not to works created by state or local government employees.
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Why Is This Image In The Public Domain?
Because it was taken by a federal government employee as part of their official duties.
Facts are also not protectable by copyright, meaning all facts are in the public P a g e | 817
domain. The U.S. Supreme Court discussed this in Feist Publications v. Rural Telephone Service Co., where one phone company copied many entries from the phone book of another phone company. The court ruled that only the creative aspects of a collection of facts could be copyrighted. TIP: There is a minimal degree of creativity a work must possess in order to qualify for copyright protection.
The information itself was not copyrightable, only the choice of what information to include and the way the information is presented is copyrightable. Pure facts cannot be protected by copyright because
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that would impede the spread of information, which goes against the purpose of copyright. TIP: Beware that new pictures of old paintings are copyrightable If someone takes a picture of a public domain painting then they have a thin copyright in their picture of that painting.
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Is This Man’s Photo In The Public Domain?
No, he owns a thin copyright!
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TIP: The copyright of the photograph of the painting is separate from the copyright of the original painting.
A similar situation occurs when someone compiles a collection of public domain sheet music or poems: the publisher has a copyright in protecting their selection of the public domain material. There is no copyright in the original work because it’s in the public domain, but there is a copyright in that specific arrangement of works that make up the collection.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Obama’s Order of New Agency) Seattle PI (SOPA Legislation)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 11 PART 14: THE PUBLIC DOMAIN MYTHS OF COPYRIGHT LAW
Here are a few of the de-bunked myths about Public Domain in copyright cases.
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Myth Busters No. 40
“I used an image that is in the public domain in a foreign country so it must be in the public domain in America.”
Wrong. Just because something is in the public domain in a different jurisdiction doesn’t mean it’s in the public domain worldwide.
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Myth Busters No. 41
“I don’t need permission to use this image because I found it when I searched for public domain images online.” Wrong. It is your responsibility to determine the license of any work you want to use to make sure
you
infringement.
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aren’t
committing
copyright
Myth Busters No. 42
“I used an image online of a painting that is thousands of years old. Since the painting was made before 1923, the picture I used must be in the public domain.� Wrong. The photographer has a thin copyright in the picture they took of the painting.
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Myth Busters No. 43
“The poem I used was free online. Surely it must be in the public domain.� Wrong. Whether or not you have to pay for something has nothing to do with it being in the public domain.
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ON-LINE REFERENCES Trade Secrets Video (Trade Secrets Main Page) Seattle PI (Copyright Infringement and the Free Press) Seattle PI (SOPA Legislation)
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http://thetradesecretsofintellectualproperty.com/
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CHAPTER 11 PART 15: JUST THE ESSENTIALS OF PUBLIC DOMAIN OF COPYRIGHT LAW Here are the essentials of Public Domain in copyright cases. P a g e | 829
Just the Essentials
Public Domain: “Bite Sized�
U.S. Government works are not copyrighted & therefore in the public domain.
Most things
(except really old art) are not in the public domain.
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Just the Essentials
Public Domain: “Bite Sized”
If it was created before 1936 it might be in the public domain. Anything newer might also, but it’s hard to be sure without looking at all of the factors.
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ON-LINE REFERENCES Trade Secrets Video (What is Copyright Infringement?) Seattle PI (Book Review Bound By Law) Seattle PI (Copyright Infringement and the Free Press)
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http://thetradesecretsofintellectualproperty.com/
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