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?
Once 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 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.