By Nancy E. Wolff

The words “public domain” often conjure up a number of common misconceptions. If you find a work that doesn’t have a copyright notice on it, does that mean it’s in the public domain? If you do an online image search, are all those images in the public domain? The answer to both of these questions is a resounding “no.” You need to dig deeper to determine if a particular work is or is not in the public domain.

So what is in the public domain under U.S. copyright law?

The public domain encompasses all creative works that are not otherwise protected by the intellectual property laws of any nation, such as copyright, patent, or trademark laws. Focusing specifically on works under copyright, a work may be a part of the public domain from the moment of creation, or it may become part of the public domain at some later time. A work is generally part of the public domain from the moment of creation if it is a type of work not entitled to copyright protection in the first place, such as ideas that are not fixed in any tangible medium (such as film, paper, or a digital recording), processes and systems, and simple forms or lists (such as some recipes, alphabetical phone books, and sequences of yoga poses). A work created by a U.S. government employee in the course of the employee’s official duties is likewise in the public domain from the moment of creation. On the other hand, the most common ways protected works become part of the public domain at a later date are either upon the natural expiration of the term of protection, or when, with regard to some older copyrightable works, the owner failed to file a timely copyright renewal or published the work without a proper copyright notice at a time when these formalities were required. Cornell University publishes a useful chart to help determine when a work enters or has entered the public domain in one of these ways: http://copyright.cornell.edu/resources/publicdomain.cfm. In addition, a work becomes part of the public domain when the author or owner of the copyright dedicates it to the public domain. Creative Commons has created a “No Rights Reserved” license, known as CC0, to allow artists and other creators to waive a copyright they may have, so that others may freely build upon, enhance, and reuse the works for any purposes.

dreamstime_l_31546125lrOnce a work has been injected into the public domain, the general rule is that anyone can use it in any way, without obtaining permission from its creator. This means a user can publish the work in any medium (e.g., print, digital, or broadcast), in any form (e.g., in its original appearance or altered by cropping, condensing, or otherwise editing), and for any purpose (e.g., editorial or commercial). The user can even monetize it by selling or otherwise transferring the product that the user has incorporated the public domain work into. As U.S. copyright law does not require attribution, credit is also not required when using a public domain work, but is often given, if known, as a practice and a courtesy.

This general rule, of course, is not without exceptions.

One important exception lies in situations where a user plans to place a public domain work in a commercial context and the work depicts recognizable people, places, objects, or logos. In the commercial arena, the depiction of people, places or objects may be protected by privacy, trademark or copyright laws and may require the user to obtain additional permission depending on the context.
Another exception to the general rule exists where a public domain work has been incorporated into another work, and that work is entitled to legal protections. This frequently happens when an image in the public domain is incorporated into a work that is a compilation of numerous works, such as a book, magazine, film, or TV show. In these cases, while the image remains in the public domain, free for others to reuse, that freedom does not extend to allow others the ability to use the compilation work without obtaining permission.

Innumerable creative works are already in the public domain, and more join the roster every year. With some background research and an understanding of the rights and limitations to using such works, anyone can make productive and legal uses of works in the public domain.


nancy_wolff_150x150Nancy E. Wolff is a partner at Cowan, DeBaets, Abrahams & Sheppard LLP in New York. She practices copyright, trademark, and digital media law and offers full legal support to a wide range of clients. Ms. Wolff is the treasurer of the Copyright Society of the United States of America, a member of the Media Law Resource Center, chair of the ABA Intellectual Property Law Section on Copyright Legislation, and member of the Task Force on Piracy and Copyright Reform.

This article is intended as a general discussion of the topic and not as professional advice. Readers should secure appropriate advice before taking action on the topic discussed.  Nothing in this article should be construed as legal advice relevant or applicable to any particular situation, nor does this article create any sort of attorney-client relationship or engagement between the reader and the author.

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