What is the Public Domain?
It is very common to hear in the news or social media about famous works entering the public domain. When some of these very well-known works reach this stage, many questions arise regarding what can or can’t be done with said works.
You may have heard of very famous characters or stories entering the public domain while continuing to see copyrighted versions of the same that are well protected by copyright law (think Disney characters such as Mickey Mouse) and wonder how that happens.
In this blog post, we’ll dive into what the public domain is, opinions surrounding it, requirements, and other key pieces of information regarding derivative works and copyright.
As a quick refresher, there are four types of intellectual property designated to protect different types of creations. These IP types are patents, copyright, trademarks, and trade secrets.
Copyrights are one of the types of intellectual property that are relevant to the public domain. A copyright is an exclusive right given to the author of an original work that is fixed in a tangible medium of expression.
What is the Public Domain?
The public domain refers to all content not protected by copyright law. Works that enter the public domain cease to have an owner and now belong to the public at large (everyone) with little to no restriction for their use. It is also possible for works to immediately enter the public domain upon creation if the creator decides so, known as a “dedication.”
Any works excluded from copyright protection, such as laws, facts, and works of the U.S. Government, are born directly into the public domain regardless of authorship.
When a work is part of the public domain, it is not only readily available for the public at large but it is also free to copy, reuse, adapt, or distribute for commercial and noncommercial purposes.
What works enter the Public Domain?
As we mentioned before, some works enter the public domain upon creation, but works can also enter the public domain after a few circumstances such as:
Copyright has not been renewed (only applicable to works published or registered prior to January 1, 1978)
Copyright protection has expired
Lack of compliance to legal formalities at the time of creation (adhered to early copyright statutes that did not meet requirements for proper copyright protection)
Work is dedicated to the public domain by the creator before the expiration of copyright protection
How long is copyright protection valid for?
In general, works created after Jan 1st, 1978, have copyright protection for the duration of life of the author plus 70 years after their death.
The U.S. Copyright Office states that ‘“works made for hire” are an important exception to the general rule for claiming copyright. When a work is made for hire, the author is not the individual who created the work. Instead, the party that hired the individual is considered the author and the copyright owner of the work.” These works have copyright protection for 95 years from the publication date or 120 years from the creation date, whichever is shorter.
While copyrights are given as soon as the works are fixed in a tangible medium, creators can enhance the protection of copyright by properly registering their work. This copyright registration would be of utmost importance when facing litigation situations regarding the works in question. Adding the copyright symbol and marks (copyright owner’s name and year of publication) to works is not mandatory since 1989 but it is considered practical to do so.
Opinions on the Public Domain
There are positive and negative opinions about the existence of the public domain. On the positive side, the public domain provides benefits for society such as easier access to information and resources, improvement to the distribution of medical and educational knowledge, it furthers education, and it amplifies the reach of an artist’s work while preserving culture.
Most of the negative opinions regarding the public domain stem from circumstances when the protection time ends and the copyright owners can no longer continue to monetize their intellectual property. Still, some people see this occurrence as a motivator for creators to continue to build their work, as the prospect of a lack of IP protection for their creations will eventually present itself.
Public Domain and Derivative Works
A creator can copyright derivative work from preexisting work. This means that a creator can add new material or change elements of the original creation that appear for the first time on this new version and protect the new work. This derivative work would have independent copyright protection from the original published or registered work.
A great example of derivative works is the world-famous Disney mouse, Mickey. The very first iteration of the character was published in Steamboat Willie published in 1928, which will enter the public domain on January 1st, 2024. Any of the copyrighted versions of the character today are derivative works of that original piece. This means that starting in 2024, the public at large will be able to make use of the original character depicted in Steamboat Willie, as long as it does not contain any of the new iterations from copyrighted derivative works that will continue to be protected. Even when this work is no longer protected by copyright, users will have to comply with regulations regarding trademarks held by Disney.
The public domain as we’ve covered on this blog post is unique to the United States, although most countries recognize the rights to copyrighted work from other countries making it easy to register for copyright there as well.
Public Domain Day
International Public Domain Day is celebrated on January 1st. This day was chosen because it’s where a new group of works with expired copyrights enter the public domain and become free to use, copy, and distribute for any purpose (commercial and noncommercial).
Do you have specific intellectual property law needs? We can help.
ADVENT is an intellectual property law firm located in Omaha, NE that has creativity as part of its DNA. As an IP law firm, we broke the mold of the traditional law firm model to bring greater alignment with the needs of our clients by eliminating the billable hour. Contact us today!