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Copyright

Public Domain


What is the Public Domain?

The Merriam-Webster Dictionary (2017) defines public domain as “the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone.” Creative works published in the United States (U.S.) before 1923, documents produced by the U.S. federal government, and publications from U.S. state governments are the most common materials in the public domain. For information on what types of works receive copyright protection, please visit the Copyright Basics page.

For example, this painting is in the public domain: 

 The Japanese Footbridge - Claude Monet
The Japanese Footbridge, Claude Monet, 1899

Creative works can also be dedicated to the public domain using the CC0 (CC Zero) tool from Creative Commons.  For more information about CC0 and the public domain, please visit the Creative Commons Public Domain website.

Content in the public domain can also include some oddball or uncommon creations. These creations include objects created by nature, plants, animals, machines, random selection, or any objects not created by a human. For example, a flower pressed in a book might create a unique outline on the page, but that outline will not receive copyright; it was created by the flower and the book, and, by law, only human beings can own copyrights. Another interesting example involves a lawsuit concerning selfies taken by a monkey; because the monkey, and not a human, took the photos, the U.S. Copyright Office has stated that a "photograph taken by a monkey" is not an item that can be copyrighted. Therefore, many contend that the photos are in the public domain, such as this photo:

Monkey self portrait (selfie) 

Macaque Self-Portrait, Indonesian island of Sulawesi, 2011

Even though creative works may no longer be protected by copyright or patent law, the creative works may still have other types of protections. These protections can include trademark, publicity, privacy, HIPPA, and FERPA. If the work is still protected through one of these areas, then the content may technically be in the public domain but be afforded other protections that do not allow it to act as if it was in the public domain. For example, suppose you want to publish some letters that were written many years ago, and you've determined that the letters are no longer protected by copyright; however, you discover that the letters reveal private information about individuals who are still alive today, and therefore, you would have to seek permission from those individuals before you decide to publish the letters.

  • Public Domain Sherpa
    This site is an excellent resource and guide for understanding the public domain and copyright as it pertains to books, maps, photos, sheet music, and sound recordings. It is administered by an attorney and writer who is passionate about copyright and trademark issues, licensing, and contract negotiation.
    • Trademark and the Public Domain is an informative page on the Public Domain Sherpa website that offers insight into reusing works that are in the public domain (or whose copyrights have expired) yet include a trademark. Essentially, what it comes down to is how you use the trademark. To commit trademark infringement, you would have to use the trademark commercially and/or potentially confuse consumers regarding the identity of a product or service.

 How can I determine what works are in the Public Domain?

  1. Works created in the U.S. before 1923.
  2. Works that have a CC0 License or a Public Domain Mark (PDM) can be the easiest to determine whether they are in the public domain because they are clearly marked on the content.

CC0 (CC Zero)

Public Domain Mark (PDM)

 cc0 Public Domain Mark
  1. State and federal documents are sometimes produced by independent contractors; if this is the case then the work is only in the public domain if it was “work for hire.” If you are uncertain about the work’s copyright status, you may need to:
    • Contact the contractor or related agency to determine if it is a “work for hire” and copyright protected or if the work is in the public domain. Works created by state and federal employees during their “official duty” will be in the public domain.
    • Determine if works incorporated within state and federal documents are still protected which may prevent the work from entering the public domain. State and federal agencies should place a copyright notice with content that is still protected. Paper money, coins, and stamps have unique protections and should be further researched before being reused.

  2. Determining if other types of works (e.g. works published between 1923-1989) are in the public domain may not be as simple. To aide in determining if a work is in public domain, find the answers to the following questions:
    1. Is the work copyrightable? 
      (To learn more about what works are protected by copyright please see, http://www.k-state.edu/copyright/)
      1. If no, then the work is in the public domain.
    2. Has the work been published?  If yes, also determine:
      1. When?
      2. Where and was it first published in the U.S.? 
      3. Was it published with a copyright notice?
    3. Is the work produced by a corporate author, work for hire, anonymous, or pseudonymous?

    4. Is the work an original, derivative, or compilation of content?

Once you have these answers, use the linked resources below to determine if the work is in the public domain:

  • Copyright Genie
    This tool walks you through the steps to determine if an work is in copyright and, if it is, when it will enter the public domain.

  • Digital Copyright Slider
    Another tool to help determine the copyright status of an work. You will need to know the date of publication and if it was published with a copyright symbol ©.
  • Stanford’s Copyright Renewal Database
    This database will help determine the copyright status of books published in the U.S. between 1923 and 1963. Note that this database covers only renewals, not original registrations, and is limited to books published in the U.S.

  • Internet Archive and Online Books
    Renewal records for other media formats can be found in digital copies of the Catalog of Copyright Entries made available online through the two linked resources (above). When looking in these scanned copies, remember that copyright renewal had to take place in the 28th year, so look at records for 27 to 29 years after the copyright date. 

 What can I do with public domain works?

As you might have noticed, attribution (i.e. citation/credit) is given to the artist of the Monet painting at the top of the page. While U.S. law does not require attribution to the creators of public domain works, it is considered ethical and moral to provide that information about creators/artists/authors.

Having said that, works that are in the public domain can generally be used freely, without permissions, so you can do just about anything with them! Well, maybe not anything. Keep in mind that just because a work is within the public domain, you can't take someone's painting hanging on the wall at home or in a museum. But legally obtained copies of a public domain work no longer have copyright protection, meaning you are free to use the works in the same way copyright holders use their own works. There's no need to seek permission or rely on an exemption in the law.

So what can you do with a creative work in the public domain? Here are some examples of the exclusive rights of copyright holders that you now have the freedom to exercise:

  • Create derivative works
  • Reproduce the work in whole or in part
  • Publicly perform or display the work

Create derivative works

Derivative works are works that are based in whole or in part on the original work (e.g. a sequel or movie adaptation of a book), you can feel free to remix, rearrange, translate, adapt, and alter the original work to your preferences.  Here is a great example of a derivative work based on a public domain work (the Mona Lisa):

Mona Lisa  Marcel Duchamp's LHOOQ

Title: Mona Lisa
Artist: Leonardo da Vinci
Year: c. 1503–06, perhaps continuing until c. 1517
Location: Musée du Louvre, Paris

Title: L.H.O.O.Q.
Artist: Marcel Duchamp
Year    1919
Location: Original lost/unknown; replicas in Milan

In addition, Duchamp's derivative work is also in the public domain, so anyone could alter his derivative work, perhaps by lengthening the moustache or adding hair on the chest! (Note, however, that the work is still under copyright in its home country of France until 2039.)

Reproduce the work in whole or in part

For example, you could take the play Hamlet and make your own PDF copies of it, put annotations in it, make a cover for it, and distribute it or sell it online for others to read. 

Publicly perform or display the work

An example of publicly performing the work would be performing a play in front of an audience, and an example of displaying a work would be posting a photo on an online blog. Another example would be uploading a film online for others to view, such as on YouTube. 

Note: with films and other audiovisual works, you have to be careful, because there are layers of potentially copyrighted material in the film, such as the music/soundtrack, literature, characters, art, etc. 

  • An example of this complication involves the 1946 film It's a WonderfulLife, which entered the public domain in 1974 due to a clerical error in renewing its copyright. The film, which was not a box office hit when it was released, became suddenly popular after it entered the public domain due to the fact that broadcast television networks didn't have to pay royalties to air it. However, a few years later a lawsuit took place concerning the film's script and the soundtrack of the film; the plaintiff won, and although the film's images are technically in the public domain, the film is treated as if it is not in the public domain, because the music and the script are still protected by copyright. The film images, however, can be used freely, since they are still in the public domain.

Donna Reed and James Stewart from It's a Wonderful Life

Donna Reed and James Stewart, It's a Wonderful Life, 1946