Determining Whether a Work is in the Public Domain

Have you ever wondered why you see so many adaptations of Shakespeare on film and stage? It's because Shakespeare's works are in the public domain. Copyright laws like copyright infringement do not apply to these creative works in the public domain. Any person or business can use these artistic works.

The problem is determining when a work is open for use and in the public domain. This article explains copyright law and how you can determine when a work is available to the public for use.

What Is a Copyright?

Copyright is a type of intellectual property protection for small businesses and artists. A person or business with a copyright holds exclusive rights to their original work. This means no one else can use their work without permission. A copyright holder can license their work out to others for a fee.

Copyrights protect small businesses and artists' work. If the work is original, available in a fixed or tangible medium, and artistic, then it is copyright eligible. Plays, movies, sounds, musical works, paintings, dance choreography, photographs, and drawings are examples.

How Are Copyrights Protected?

These works get automatic protection on the date of creation. The first time that work is written, drawn, performed, or spoken in a fixed medium, the author's work has copyright protection.

Copyright registration is not necessary for protection. Most register the work with the U.S. Copyright Office to gain additional safeguards. The Copyright Act of 1976 governs copyright law in the United States. The United States joined the Berne Convention in 1989 which allows for United States copyrights to be eligible for international recognition.

Copyright does not protect work in the public domain. Anyone can use a public domain work without obtaining permission, but no one can ever own it.

How Long Does Copyright Protection Last?

Copyrights and any derivative works from that copyright last for a certain amount of time. After the time passes, the work then enters the public domain.

Published works between January 1, 1923 and December 31, 1977 get 95 years of protection from the date of publication. Work created before January 1, 1978 and published before December 31, 2002 is copyrighted until at least December 31, 2047. Works created after January 1, 1978 get a lifetime of protection of the life of the author plus 70 years. If more than one person creates the work, then the work gets protection for the lifetime of the authors plus 70 years after the last author's death. Any works for hire and anonymous and pseudonymous works: 95 years from the publication date or 120 years from creation, whichever expires first.

Works with copyright published before 1978 must apply for renewals to stay active. Works after 1978 do not need to renew their copyright. A complete list of copyright duration, year terms, and factors affecting it is online with the U.S. Copyright Office.

What Is Public Domain?

The public owns work in the public domain. It is available to anyone without permission from its creator.

Is Public Domain the Same as Fair Use?

Intellectual property rights under U.S. Copyright Law do allow fair use of a work with copyright. This means a copyright owner cannot sue someone for infringement of their work. If someone is commenting on the work, parodying it, criticizing it, or teaching with it, then it is fair use of the work. Courts use four factors to figure out if this was fair use of the work before issuing sanctions like statutory damages.

How Does a Work Enter the Public Domain?

Work enters the public domain when:

• The copyright expires. Copyright protection is simply over. The “Steamboat Willie" version of Mickey Mouse copyright expires December 31, 2023. It published in 1923. Other copyright versions of Mickey Mouse are still protected. Copyright protection ends on December 31 of the final year regardless of when in the year it was registered or published.
• The copyright owner fails to renew it (if applicable). Work published between January 1, 1923 and January 1, 1964, that did not renew in its 28th year, are public domain. This was how the movie “A Star Is Born" lost its copyright status. Lady Gaga and Bradley Cooper starred in the film in 2018 as a result.
• It was unprotected in the first place. This often occurs in works published between 1923 and 1977 that did not have a copyright notice attached to it. The United States used to require copyright notice on public record for protection. Now, the creation of the work is enough. Though, the use of (c) always lets the public notice the work is the intellectual property of another.
• The owner dedicates the use of the work to the public. You will often see this work with a notice that says “No Rights Reserved". An author stating they want to donate the work to the public domain is unprotected. Creative Commons is an international nonprofit that publishes uncopyrighted educational materials for community access.
• The owner created it as a government employee or official in their official capacity.

As of 2019, any works published in America prior to 1924 no longer have copyright so they are in the public domain.

Is Copyright Notice Required?

No. Works published prior to March 1, 1989 required copyright notice displays. Even if a pre-1989 work fails to include a copyright notice, it may still receive copyright protection if an exception to the rule applies.

How Do I Search Copyright Records?

There are several ways to conduct a copyright search. You can inspect the work itself for copyright notice, authorship, and date of publication. The front page of a book or the biography section on a social media account will show this. You, or a paid private copyright firm, can also search the U.S. Copyright Office's online database for work copyrighted since 1978. The U.S. Copyright Office will do a search for you at $200 an hour so long as you pay for at least a two-hour search.

Do I Need an Attorney To Navigate the Public Domain?

Legal professionals who specialize in intellectual property law are able to help you perform an important public domain search so you don't violate copyright laws. A lawyer can also explain the laws to you and file any forms necessary for your work.