Copyright and the Public Domain

Guest post by Brandi Seppala, Law Clerk

What is the public domain?

The public domain includes creative works that are not protected by intellectual property laws, including copyright. Copyright is one of the four main types of intellectual property (or “IP”), along with patents, trademarks, and trade secrets. While the public domain encompasses all forms of intellectual property, this article will focus on copyright in the public domain. 

Copyright is the legal authority grounded in the United States Constitution to alter, perform, reproduce, and sell a specific, original idea when used in a particular context for a set amount of time. Copyright protects original works of authorship that are fixed in a tangible medium of expression (copyright.gov). Read more about Copyright Basics here. 

Once copyrighted works enter the public domain, they are free for the public to use. Works in the public domain can never be individually owned. These works are technically owned by the public, not an individual artist or creator. You do not need permission to use a creative work that is in the public domain. 

How does a copyrighted work enter the public domain?

There are typically four ways in which a copyrighted work will enter the public domain:

1. The full term of the copyright has run, including any available renewals
2. The copyright owner did not follow renewal rules
3. The copyright owner “dedicates” or deliberately places the work in the public domain
4. The work is not protected by copyright law 

How do you know if a work is in the public domain?

Determining whether a work has entered the public domain can be a complicated and potentially confusing process. Sometimes it is relatively straightforward because there are certain materials that are not eligible for federal copyright protection at all. These materials are automatically in the public domain, as they cannot be protected by copyright law. Some examples include:

• Ideas and facts
• Works with no original authorship
• Works governed by early copyright statutes that failed to meet requirements for copyright protection (e.g. notice, registration, renewal requirements)
• U.S. government works (works written by non-government authors with federal funding and works produced by state governments may be copyright protected)
• Scientific principles, theorems, mathematical formulae, laws of nature
• Scientific and other research methodologies, statistical techniques, educations processes
• Laws, regulations, judicial opinions, legislative reports
• Words, names, numbers, symbols, signs, rules of grammar and diction, punctuation

Apart from the aforementioned works that fall completely outside the realm of federal copyright protection, the laws pertaining to the copyright public domain have drastically shifted over the last century–which only increases its complexity. For example, when the United States was founded, the original copyright law only protected works for 28 years. Today, the general rule is that works are protected for 70 years after the author’s death. This means copyrights today can extend well over 100 years. Here is a general overview of the copyright public domain as of today: 

• Works “published” before January 1, 1923, are in the public domain. According to the U.S. Copyright Office:

Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

Publication may occur on the day which copies of the work are available to the public, but that is not necessarily the case. Also, keep in mind that "fixation" (applying the "©" symbol) does not necessarily mean there's been publication.

• Works published between 1923 and 1977 generally enter the public domain 95 years after their first publication date. 
• Works published before 1964 are in the public domain if they were not properly renewed. 
• Works created before 1978 but not published until between 1978 and 2002 will enter the public domain 70 years after the author’s death or at the end of 2047, whichever is longer. Works by unknown authors done for hire will remain protected at least until the end of 2047. 
• Works created after 1977 enter the public domain 70 years after the author’s death. Corporate works enter the public domain either 95 years after publication or 120 years after creation–with some exceptions. 

The current general rule for copyright is: an author owns their copyright over a creative work for their entire life span plus (+) 70 years. After this term, the copyright expires and enters the public domain. 

“The current general rule for copyright is: an author owns their copyright over a creative work for their entire life span plus (+) 70 years. After this term, the copyright expires and enters the public domain. ”

Please contact us if you need assistance determining when a copyright renewal is due and if renewal has been completed.