Chapter 1
Introduction to the Public Domain

What Is the Public Domain?.......................................................... 4

    Copyright and the Public Domain............................................. 4

    What Is in the Public Domain?................................................. 5

    How Can You Use the Public Domain?.................................... 5

    Why Have a Public Domain?.................................................. 6

    How Do You Know If a Work Is in the Public Domain?............ 9

    How Do You Find Public Domain Materials?......................... 10

    Are Public Domain Works Always Free?............................... 10

Dealing With Public Domain Gray Areas................................... 11

    What Is the Likelihood of Discovery?.................................... 12

    How Valuable Is the Material?............................................... 13

What If Someone Challenges Your Public Domain Claim?........ 14

    Handling the Claim Yourself................................................... 14

    Hiring a Lawyer...................................................................... 15

Documenting Your Use of Public Domain Materials................... 15

Are you a screenwriter looking for a novel or story to adapt? A musician who needs a song to record? A filmmaker in need of footage? An author or publisher searching for photos, graphics, or illustrations for your latest project? A website operator in search of this type of content and more? If your answer to any of these questions is “yes,” you could be in luck. The content you need may be free for the taking. It may lie in a land of creative riches known as the public domain. You just have to know how to recognize and find it. This book is a type of treasure map that shows you how.

What Is the Public Domain?

As used in this book, the words “public domain” mean creative works that for one reason or another are not protected by copyright law and are ordinarily free for all to use. There are literally billions of creative works—including books, artwork, photos, songs, movies, and more—in the public domain. All of these works, no matter what form they take, are called “works of authorship” or, more simply, “works.”

Some of the most famous examples of public domain works that you can use in any way you choose are:

• Hamlet, by William Shakespeare
• Moby Dick, by Herman Melville, and
• The 5th Symphony by Ludwig van Beethoven.

Copyright and the Public Domain

To safely use public domain works, you must first know a little about copy­right law, which is a federal law that protects all kinds of works of authorship including books, magazines, newspapers, and other writings, music, art and sculpture, photography, films and videos, choreography, architecture, computer software, and maps.

The owner of a work protected by copy­right is given a bundle of exclusive rights, including:

• reproduction rights—that is, the right to make copies of a protected work
• distribution rights—that is, the right to sell or otherwise distribute copies to the public
• the right to create adaptations (also known as “derivative works”)—that is, the right to prepare new works based on the protected work, and
• performance and display rights—that is, the right to perform a protected work in public, such as a stageplay, or display a work in public.

If someone wrongfully uses material covered by a copyright, the owner can sue to obtain compensation for any losses suffered. In this sense, a copyright is a type of property—it belongs to its owner, and the courts can be asked to punish anyone who uses it without permission.

However, copyright protection does not last forever, and some works are not entitled to any copyright protection at all. When a work enters the public domain for any reason, the rights listed above do not apply. In other words, the work can be freely copied, distributed, adapted, or performed or displayed in public without asking anyone’s permission or paying a fee. For example, you don’t need to obtain permission to copy and distribute a play by Shakespeare, adapt it into a movie, or perform it in public. That is because Shakespeare’s plays were first published so long ago that copyright law does not protect them.

“Public domain” means what it says—public domain works belong to the public as a whole. Anyone is free to use them any way they wish. No one can ever obtain copyright protection for public domain material. Once a work enters the public domain it usually stays there forever. (See Chapter 2 for a more detailed discussion of copyright law.)

What Is in the Public Domain?

A work of authorship may be in the public domain for a variety of reasons. For example:

• the work was published before there was a copyright law
• the work’s copyright protection expired
• copyright protection was lost or never acquired for some reason
• the copyright owner dedicated the work to the public domain, or
• the work was never entitled to copyright protection.

A vast treasure trove of creative works are in the public domain for one or more of these reasons. They include many great classics of world art and literature, such as the works of Shakespeare, Dickens, Bach, and Beethoven. But the public domain does not just include dusty old books and other works published hundreds of years ago.

All works published in the United States before 1923 are in the public domain. But there are also millions of works published as recently as 1963 that are in the U.S. public domain. Indeed, copyright experts estimate that 85% of all the works of authorship first published in the United States between 1922 and 1963 are in the public domain.

But the public domain does not end there. Even works published today with full copyright protection contain elements that are unprotected and, thus, in the public domain. This includes, for example, the facts and ideas contained in a work of nonfiction. Other newly ­published works are denied copyright protection completely, including U.S. government works and many blank forms.

How Can You Use the Public Domain?

The only limit on how you can use public domain materials is your own imagination. For example:

• Web developers can use the public domain as a free source of content, including writings, photography, artwork, and music
• creative writers can adapt public domain works into new works—for example, create screenplays based on public domain novels, stories, and plays
• musicians can perform and record public domain music without paying permission fees
• publishers can freely republish public domain works
• artists can freely copy public domain artworks
• filmmakers can freely use public domain footage, and
• librarians can copy public domain works for their collections.

Why Have a Public Domain?

At first glance, the concept of the public domain may seem unfair to creative people. After all, once a work enters the public domain, the author or his or her heirs can no longer collect royalties from sales of copies or otherwise profit from it. Why should this be?

The reason we have copyright laws is to encourage authors to create new works and thereby promote the progress of human knowledge. The encouragement takes the form of an economic incentive—authors are given a monopoly over the use of their works. By selling or licensing their rights they can earn a livelihood and create even more works. However, enriching authors is not the primary goal of copyright law. The primary goal is to foster the creation of new works that will one day enter the public domain where they can be freely used to enrich everyone’s lives.

Our Intellectual Commons

Towns and cities of the 18th and 19th centuries often had a place called a com­mons: a centrally located unfenced area of grassland that was free for all to use. The public domain is, in essence, our intellectual and artistic commons. This commons benefits us all in a variety of ways:

• New works are created from public domain materials. Just a few famous examples include musicals such as Les Miserables (based on a public domain novel by Victor Hugo) and West Side Story (based on Shakespeare’s Romeo and Juliet); the animated films Snow White, Pinocchio, Beauty and the Beast, and The Little Mermaid; and a recent spate of films based on the works of Shakespeare and Jane Austen. If the original works had remained under copyright, the cost of creating new versions of them may have been too high or they may not have been obtainable at any price.
• Low-cost editions of public domain materials are available. When a work enters the public domain, it often becomes available to the public in many low-cost editions. This is possible because copyright owners do not get royalty payments. Also, anyone can publish a public domain work, so competitive pressures keep prices lower. For example, when F. Scott Fitzgerald’s first novel, This Side of Paradise, entered the public domain in 1996, nine new editions were published by nine different publishers, some costing just a few dollars.
• The public domain promotes artistic freedom. When a work is protected by copyright, the owner has the legal right to restrict how it is used. Some copyright owners rigidly control new performances and other uses of well-known works. For example, the estate of the Irish playwright Samuel Beckett exercises complete control over the staging of his plays. It banned a production in Edinburgh, Scotland, of Beckett’s classic play Waiting for Godot because the tramp characters were played by women. The Kurt Weill Foundation, which holds the copyrights on the late composer’s music, prevented famed German cabaret singer Ute Lemper from transposing some Weill songs to a pitch that better suited her voice.

The D’Oyly Carte Opera Com­pany, which controlled the copyrights over the comic operettas of Gilbert and Sullivan, required every new production to be staged exactly the same as the original performance—not a note of music could be sung differently. However, when Gilbert and Sullivan’s work entered the public domain, this control ended. Gilbert and Sullivan operettas, and other great PD works, such as the works of Shakespeare and Beethoven, can be performed in new ways, given new interpretations and new meanings. This prevents classic works from becoming mummified.

• Scholars and others may freely use public domain materials. Scholars, researchers, historians, biographers, and others can freely quote and use public domain materials. This enriches their works and makes some projects possible that might otherwise be blocked by the copyright owners of important materials, often the descendants of famous people.

No one benefits more from the public domain than authors do. This is because new expression is not created from thin air. All authors draw on what has been created before. As one copyright expert has noted, “transformation is the essence of the authorship process. An author transforms her memories, experiences, inspirations, and influences into a new work. That work inevitably echoes expressive elements of prior works.” (Litman, “The Public Domain,” 39 Emory Law Journal 965 (1990).) Without the public domain, these echoes could not exist.

The Public Domain Can Save You Money

On a more mundane level, the public domain can save you money. Copyright owners generally charge a fee for permission to use their works. Such permission fees can range from $100 or less to copy a photo or a few pages from a book to millions of dollars to adapt a work into a movie or play.

Transformation of The Secret Garden

Back in 1911, Frances Hodgson Burnett wrote a novel called The Secret Garden. It tells the story of Mary Lennox, a lonely girl sent to live with her uncle Archibald in Yorkshire after her parents died from a cholera epidemic in India. The novel became a children’s classic, beloved by millions. Its U.S. copyright expired on January 1, 1987. Its copyright in most of the rest of the world expired in 1995, at which point anyone was free to use the novel without obtaining permission from the former copyright owner or paying any permission fees (which would be substantial for such a well-known novel). The Secret Garden has since been transformed in a variety of ways—here are just a few examples:

• a made-for-TV adaptation, The Secret Garden, starring Gennie James and Derek Jacobi (1987)
• a musical, The Secret Garden, music by Lucy Simon, book & lyrics by Marsha Norman (1991)
• a film adaptation, The Secret Garden, starring Maggie Smith (1993)
• two sequels based on Burnett’s characters, Return to the Secret Garden (1999) and Back to the Secret Garden (2001)
• a cookbook, The Secret Garden Cookbook: Recipes Inspired by Frances Hodgson Burnett’s the Secret Garden, by Amy Cotler and others (1999)
• an electronic book version on a CD-ROM, The Secret Garden (1996)
• a BBC Playhouse Video, The Secret Garden (1988), and
• two audiobooks, The Secret Garden read by Johanna Ward, and The Secret Garden read by Josephine Bailey (2003).

If the original novel, The Secret Garden, were not in the public domain, it’s unlikely that many of these projects could have been undertaken because the permission fees would have been too great or the copyright owners would not grant permission at any price. This is another example of how the public domain enriches us all.

Copyright permission fees are unneces­sary when a work is in the public domain (however, this doesn’t mean that public domain works are always free). For example, to use a well-known Irving Berlin song such as “Blue Skies” in a television commercial, you might have to pay Berlin’s heirs—the copyright owners of his songs—as much as $250,000. But you can use one of Berlin’s many songs that have already entered the public domain—such as “Alexander’s Ragtime Band”—for free.

But, you don’t have to be a rich television or movie producer to take advantage of the public domain. Here are real-life examples of some projects by ordinary people that were made possible only because public domain materials were available:

• Leslie, a composer, set to music dozens of public domain poems by Emily Dickinson. Had the poems still been under copyright, her project would probably have been financially impossible, because permission fees to adapt the works of famous authors are often enormous.
• Mary Beth wanted to create an old-fashioned illustrated reading book for homeschooled children, but was daunted by how much the copyright holder wanted to charge for illustrations from schoolbooks discarded in the 1940s (but still under copyright). She used public domain illustration instead and saved the permission fee. Her book is now selling like hotcakes to others who homeschool their children.
• Harvey invented a new kind of computer music playback system, but couldn’t market it because the electronic media royalty on copy­righted songs is around $2,000 per song. So instead he found a bunch of public domain songs and paid no royalties at all.
• A local senior center wanted to put on a copyrighted musical, but the permission fee would have cost more than the gate receipts. They used a public domain musical instead and got to keep all the money.
• Palmer wanted to open a bookstore/cafe with live music to entertain the patrons. But he couldn’t afford the music license fee charged by ASCAP, a songwriter’s permission agency. So instead he found a variety of musicians who could play public domain music as well as their own compositions. His was the first of several public domain cafes and night­clubs that have done very well in Columbus, Ohio.

How Do You Know If a Work Is in the Public Domain?

The public domain has been aptly compared to “a vast national park without … a guide for the lost traveler, and without clearly defined roads or even borders.” (Krasilovsky, “Observations on the Public Domain,” Bulletin, Copyright Society of USA.) This is because it can often be difficult to know whether a work is in the public domain.

Public domain materials don’t look any different than works still protected by copyright. The fact that a work contains a copyright notice—the © followed by the publication date and copyright owner’s name—does not necessarily mean it really is protected by copyright law; people often place notices on works that are actually in the public domain (see Chapter 2). The absence of a copyright notice also does not necessarily mean a work is in the public domain.

There is no list or database of all the works that are in the public domain. It would be impossible to create one because so much material is in the public domain. Moreover, the U.S. Copyright Office, the federal agency that registers copyrights, will not tell you if a work is in the public domain. It’s a waste of your time even to ask them.

You have to determine whether a work is in the public domain yourself by understanding and applying some basic copyright rules. Sometimes this is easy; sometimes it can be very difficult. This book is designed to walk you through the process. If this task is too daunting, you can hire an attorney or copyright expert to help you.

How Do You Find Public Domain Materials?

Public domain materials are everywhere. There are hundreds of public domain works in your local bookstore and even more in your local library. Millions of public domain works sit in archives and museums. There may even be some in your attic or basement. Many public domain works can be accessed through the Internet or private dealers.

Are Public Domain Works Always Free?

The fact that a work is in the public domain does not necessarily mean that it is freely available for your use. Even though a work is in the public domain, the physical substance in which it is embodied—whether it be on paper, canvas, clay, film, or videotape—is usually still owned by somebody. The owner could be a library, archive, museum, private collector, or nearly anyone else.

The owner enjoys all the rights of any personal property owner. This means the owner may restrict or even deny public access to the work or charge for access or the right to make copies. This is usually not a problem for written works, which can be found in bookstores, libraries, and archives, but it is a problem for other types of works.

For example, museums and individual collectors usually control access to valuable works of art that are in the public domain. They often own all available photographs of such works. Getting permission to use such photographs or to take new ones can be difficult and expensive.

You may also have to pay fees to obtain access to and make use of public domain photographs, film, and music from collectors, private archives, and other sources.

Dealing With Public Domain Gray Areas

Following the step-by-step procedures in this book will help you determine whether a particular work you want to use is in the public domain. But often the answer will not be clear; the law can often be foggy. There may be questions about a particular work that are unanswerable. The law may not be clear or definitive on whether copyright or some other legal protection covers a particular work. Or someone may simply think that they own a copyright in a work when they really don’t. Throughout this book we highlight these uncertainties with an icon that looks like this:

These foggy areas are far more common than you might think. For example, problems may arise when someone makes a copy of a public domain work and changes it in some way. It can be hard to determine for certain whether or not the changes merit new copyright protection. If you apply the rules outlined in later chapters, you might decide that the work should not be protected. But the person who created the original work may not agree.

In another example, creators of digital copies of public domain photos might claim that the copies are protected by copyright (see Chapter 6). It’s likely such claims are not legally valid, but we don’t know for sure because there have been no definitive court rulings on the issue. If you use digital copies without permission, the company that made them may complain and perhaps even sue you for copyright infringement.

When faced with foggy areas, how should you proceed? If you think it’s likely the work is in the public domain should you go ahead and use it, even if there is no definitive answer? Or should you treat the work as copyrighted and ask permission to use it? Should you consult a lawyer?

No book can tell you what to do in every real-world situation. However, we can show you when it is more or less likely someone will complain or even sue you if you treat a work as in the public domain.

Whenever you see a fog icon in the text, you should first answer the following threshold question: Are you going to use the material to directly compete with someone’s business? If so, you should consult an attorney, because these types of uses invite lawsuits. Here is one recent example of this problem:

Example: At great expense, a company called the Bridgeman Art Library Ltd. obtained from several art museums the exclusive right to make and sell photo­graphs of hundreds of public domain art masterpieces. Bridgeman licensed to the public both regular art photos and digital photos on CD-ROMs and through its website. A company called Corel Corp. obtained more than 150 images from the Bridgeman collection and published them without obtaining Bridgeman’s permission. The images were included on clip-art CD-ROMs and placed on the Corel website where they could be downloaded for a few dollars each, far less than Bridgeman charged. Corel was directly competing with Bridgeman and costing it licens­ing fees. Bridgeman sued Corel, claiming the photos were copyrighted, even though the paintings they portrayed were in the public domain. Bridgeman ultimately lost its suit, but whether photos of public domain paintings are themselves in the public domain remains a gray area. Bridgeman Art Library Ltd. v. Corel Corp., 25 F.Supp.2d 421 (S.D. N.Y. 1999); see Chapter 5.

People and companies often get so upset about competitive uses that they file lawsuits even where the material involved is not especially valuable. For example, a company that published cookbooks and cooking magazines filed a copyright infringement lawsuit when a competitor copied and republished several yogurt recipes contained in a cookbook called Discover Dannon—50 Fabulous Recipes With Yogurt. The suit was ultimately lost. Publications Int’l Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996).

If you do not intend to use the work to compete with someone’s business, it might be relatively safe for you to treat it as being in the public domain. However, you should carefully consider the following two factors before deciding on what to do:

• the likelihood your use will be discovered, and
• the economic value of the material.

The smaller the chance of discovery, the more willing you should be to use materials whose public domain status is uncertain. Likewise, the lower the economic value of the materials, the safer it is for you to treat them as being in the public domain.

What Is the Likelihood of Discovery?

No one can complain about your using a work unless they know about it. People get in trouble using works they believe are in the public domain when they publish the work or otherwise make it available to the general public—for example, by placing it on the Internet. Here is a recent example:

Example: Texas resident Peter Veeck placed a copy of the Denison, Texas, municipal code on his Web page. Veeck assumed the code was in the public domain because it was a government statute. However, it turned out that a private company called the Southern Building Code Congress International (SBCCI) had written the code. The company creates and sells model codes to local governments. SBCCI claimed that it owned the copyright in the code and demanded that Veeck remove it from his website. When he refused,
SBCCI sued him for copyright infringement. Whether the private companies that create and sell these private codes can claim copyright in them is a public domain gray area (Veeck ultimately prevailed; see Chapter 3). However, it’s likely that SBCCI would never have discovered that Veeck copied the code had he not placed it on the Internet, which is, of course, accessible to anyone with computer access.

The chances of discovery are virtually nil if you use a work for your personal use or make it available to only a restricted group of people. In the example above, SBCCI would never have discovered that Peter Veeck copied its code if he only used it for himself or a small group of friends. Similarly, there is little risk of discovery if a piano teacher photocopies an arrangement of a musical work that may not be in the public domain; or if a choir director makes copies of a choral work for a local church chorus; or a teacher makes a few copies of a chapter from a book for a class.

Of course, people who use public domain materials do frequently want to publish them, place them on the Internet, or make them as widely available as possible. This doesn’t necessarily mean that they can’t use the material. But, if there are questions over the public domain status of a work, you should consider the economic value of the work.

How Valuable Is the Material?

If an individual or a company feels that you have cheated them out of a substantial permission or licensing fee, there is a good chance you’ll receive a complaint or be sued if your use is discovered.

Examples of materials that were deemed valuable enough for someone to sue include:

• the famous children’s novel Bambi: A Life in the Woods
• a published collection of about 150 works of classical music by such famous composers as Beethoven, Bach, Bartok, and Brahms
• a collection of thousands of copies of legal decisions by U.S. courts
• a database containing over 90 million residential and business phone numbers that cost millions of dollars to compile
• a published book listing used car prices
• 150 photographs of public domain paintings by such masters as Rembrandt and DaVinci
• Martin Luther King’s “I Have a Dream” speech, and
• a New Yorker Magazine cartoon by Saul Steinberg.

On the other hand, complaints or law­suits are far less likely where the work you want to use has little economic value. Many—probably most—public domain works fall into this category. It’s often not worth the time and trouble to complain about works that are not worth much. And it certainly makes no financial sense to hire a lawyer and file a lawsuit over such a work. The damages that can be obtained if such a lawsuit is successful are just not large enough to justify the expense involved.

Even if someone does complain in these cases, you can probably resolve the complaint if you stop using the work or pay a nominal permission fee. Examples of public domain works that often have little economic value include old postcards, articles and books by obscure authors, artwork by unknown artists, and sheet music for long-forgotten popular songs. One way to tell if a gray-area work is valuable is to determine whether anyone is selling either the original or copies to the public. If not, the materials probably have little or no value.

What If Someone Challenges Your Public Domain Claim?

Sometimes, a person or company will claim that materials you have used are not in the public domain and that they, in fact, own the copyright in them.

Often in these cases you’ll receive a letter from an attorney asking that you “cease and desist” from any further uses of the materials. You can find numerous examples of cease and desist letters at the website Chilling Effects Clearinghouse (www.chillingeffects.org). You should respond immediately that you have received the letter and are investigating the claims. Don’t ignore such a letter. This will only make it more likely that you will be sued and help make you look like a “bad guy” to a judge or jury.

Handling the Claim Yourself

You may be able to handle the claim yourself. This is particularly likely where the material isn’t very valuable. If it is clear that the materials involved are in the public domain, you may be able to get the other side to drop its complaint by showing your documentation and explaining why the material is in fact in the public domain. Some people don’t understand what public domain means, so you may have to explain this too.

If you have made a mistake and the materials are not in the public domain or they inhabit a gray area, you may be able to resolve the matter by offering to pay a small permission or licensing fee or stop using or distributing the work.

Obviously, you should seek to settle the complaint if the work you are using turns out to be protected by copyright. But, even if you think the claim is not valid, it may be cheaper and easier to settle than to fight.

Example: Eric Eldred, a Massachusetts-based technical analyst, has digitally scanned and placed on his website copies of dozens of public domain works, including books by Nathaniel Hawthorne, Oliver Wendell Holmes, William Dean Howells, and Joseph Conrad. In one case, however, a museum’s publishing department claimed that excerpts from a book on canoeing he placed on his site were not in the public domain and that it owned the copyright in the work. The museum asked him to remove the material from his website. Eldred was certain the material was in the public domain; nevertheless he agreed to the museum’s demand. He says that “I decided to remove the book just because these public institutions complained that I was stealing their income.”

Hiring a Lawyer

You should contact an attorney knowledgeable in copyright law if:

• you believe the claim is not valid and don’t want to agree to the other side’s demands, or
• the materials involved are highly valuable and any permission or licensing fee would be substantial, or
• the other side insists that you stop using the materials, but this would be impossible or very expensive for you to do—for example, you have used them in a book or film you’ve already distributed to the public.

Documenting Your Use of Public Domain Materials

It is important to document your research into the public domain status of every work you plan to use, unless you plan to use it purely for your own private enjoy­ment. Any work that will be shown to the public in any way should be documented. This is because it is not uncommon for people and companies to make false claims of copyright ownership in public domain materials. Such people could threaten to sue you if they discover you’ve copied or otherwise used materials they claim to own. Also, if you need to obtain insurance for your project against libel, slander, or other errors or omissions, your documentation can help convince an insurer or broadcaster that they will not face any copyright problems.

You should create a permanent file for each work of authorship you plan to use. In the file you should include a completed checklist and worksheet, along with a narrative description of your research, if you feel it is necessary. You should also take the following steps:

• Keep the original work or a copy— for example, photographs, articles, sheet music. If this is not possible because the material is too big—for example, an entire book or can of film—you should attempt to keep a copy of the work in storage somewhere and make a notation in the worksheet where it is stored.
• If the work is in the public domain because the copyright has expired, include a photocopy of the work’s copyright notice showing the date the work was published (also include a copy of the title page, if any).
• If the work is in the public domain because it’s a U.S. government work, include a copy of the title page or other page showing it was created by or for the government.
• If the work has been dedicated to the public domain, include a copy of the public domain dedication.
• If you’ve conducted a copyright renewal search or had the U.S. Copy­right Office or private search firm conduct one for you, keep a copy of the results.
• If you’ve sent email to anyone to confirm that material is in the public domain, print it out along with the responses you’ve received and keep the copies in your file.
• Keep any postal correspondence in this file as well.