Kansas State University

Public Domain

• What is the Public Domain?

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

• What can I do with public domain works?

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, 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:

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?

• Works are in the public domain if they were created in the U.S. before 1924.
• Works are in the public domain if they have a CC0 License or a Public Domain Mark (PDM); using these designations can be the easiest way to determine whether they are in the public domain because they clearly mark the content.

CC0 (CC Zero)	Public Domain Mark (PDM)

• 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.
  • Harvard website to help identify the relevant laws in each state, http://copyright.lib.harvard.edu/states/.

• 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. 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 was it published?
      3. Was it first published in the U.S.? 
      4. 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 ©.

• Copyright Term and the Public Domain in the U.S. - Reference Table 
  This table gives more context for determining the copyright status of an work, such as the length of the copyright term and the copyright status of works published or created outside the United States.
  
  
• Copyright Term Calculator
  Provide information about an work into the calculator to learn if content is in the public domain.
  
  
• List of Resources for Finding Works in the Public Domain
  This source list is provided by the Public Domain Review, an online journal and not-for-profit project dedicated to the exploration of curious and compelling works from the history of art, literature, and ideas. 

• Stanford’s Copyright Renewal DatabaseThis 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 28^th 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):

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, It's a Wonderful Life, 1946

**Note that only the musical compositions above are entering the public domain. Subsequent arrangements, orchestrations, or recordings of those compositions, may still protected by copyright. In fact--due to different legislation for copyright in sound recordings--sound recordings published before 1923 have an additional extension to their term ending on December 31, 2021. 

The Public Domain Continues to Grow!

January 1, 2021 marks the third year of a wonderful phenomenon, thousands of works will enter the public domain. 2021 will chaperone the introduction of works from 1925. January 1, 2019 (works from 1923) marked the beginning of works entering the public domain, the realm of works that may be used freely without the permission of the former copyright owner, works that were supposed to enter the public domain in 2000 after their 75-year copyright term. What happened?

Well…

Some background: The Copyright Act of 1976 amending the Copyright Act of 1909 increased the term of protection for works copyrighted before 1978 from 28 years to 47 years (a total term of 75 years) and set the duration of copyright to the life of the author plus 50 years and For works of corporate authorship, anonymous, and pseudonymous works the term was set at 75 years from the year of first publication or 100 years from its creation, whichever comes first.

Terms would change again when Congress passed the 1998 Copyright Term Extension Act (CTEA), also known as the “Sonny Bono Copyright Term Extension Act” or the “Mickey Mouse Protection Act,” which extended the term of copyright protection to the life of the author plus 70, and for works of corporate authorship 120 years after the creation of the work or 95 years after the publication of the work (whichever is earlier). Furthermore, for works published before January 1, 1978 an extension of 20 years was added for a total of 95 years of protection since publication –thus adding an additional waiting period of 20 years for works published in 1924. Why does this matter? The passage of the 1998 act froze the advancement date of the public domain.

So what are we celebrating…?

Under the 1998 CTEA, starting in 2019 works published in one year enter the public domain at the end of the 95th year of publication—hence the works published in 1925 entering the public domain on January 1, 2021. So (until 2073 when copyrights begin to expire on a 70 year timeline instead of a 95 year term) on January 1st we celebrate not only a new year, but also a plethora of new works entering the public domain.