Public Domain: What Is It?

Public domain refers to creative materials such as patent drawings that are not protected by copyright, trademark, patent, or any other intellectual property laws. The creative work is shared by the public and cannot be owned or protected by copyright laws.

A public-domain work may be used by anyone at any time without prior permission. A public-domain work can be used without cost. A creative work is considered public domain for any of the following reasons:

  • Copyright is expired
  • Copyright was never requested
  • Copyright was dedicated or intentionally put into the public domain by the owner
  • Intellectual property law doesn't protect the type of work
  • The work was created by the U.S. government

Public domain may also refer to land owned by the government, but the most common issues related to public domain involve free-for-use creative work.

Why Is Public Domain Important?

It is important to understand when a creative work is in the public domain or not, as it limits how that work may be used. Whether you're interested in using a photo, piece of music, work of art, quotation, poem, book excerpt, or web page content, you need to know if it is in the public domain or not.

If a work that is not in the public domain is used without proper permission, there could be problems. If a creative work is protected by a trademark or copyright, it cannot be used without permission. If used without permission, the user might be sued or fined for the use.

When Does a Work Enter Public Domain?

This is the most important question to answer before using someone else's creative work. Many web pages, images, and other creations will clearly state whether they are free to use or are in the public domain. Others may display a copyright warning, copyright symbol, or digital watermark to prevent reproduction. Beware: A work may be protected under copyright even if it doesn't say it is.

If creative work doesn't clearly state that it is protected under copyright or other intellectual property laws, there are a few other ways to find out.

  • Contact the owner or creator
  • Look for a copyright, trademark, or other intellectual property symbol
  • Look for the date it was published or created

The creation date and publish date are important, as they play a role in how long the copyright lasts. Depending upon when the work was created, it receives a certain amount of time in copyright. The duration of the copyright is also dependent upon if and when the work was published.

Public-domain works are affected by two major copyright acts, one called the old law and one called the new law. The old law covers works published before 1978 and the new law protects works created after Jan. 1, 1978, and came into effect on that date.

Both laws are affected by the Copyright Term Extension Act (CTEA), which is also known as the Sonny Bono Act and the Mickey Mouse Protection Act, enacted in 1998.

Copyright Term Extension Act

The Copyright Term Extension Act, or CTEA, was passed in 1998 and stopped creative works and material from losing copyright and entering the public domain for free use. The act extended copyright terms for all works created after 1978 to be from the author's life plus 50 years to the author's life plus 70 years.

The CTEA also extended the copyright for material that was created and published before 1978, as long as renewal extensions had been filed. For those works, the copyright was extended from 75 years to 95 years. So, any work published during or after 1923 will enter the public domain in 2019, instead of 1999.

New Law

The new law took effect on Jan. 1, 1978, and protects all material created and published from that date forward. When this law took effect, U.S. rules were changed to base copyright on the creator's life plus a certain number of years after death.

All works created after 1978 are protected by copyright during the creator's life and 70 years after their death. If there are multiple creators, the copyright is in effect until 70 years after the death of the final surviving creator.

It's also important to note that public domain only begins on Jan. 1 of the 71st year. The month and day of death doesn't affect the copyright, only the year. Under this law, the earliest any work can enter the public domain is Jan. 1, 2049, which is 1978 plus 71 years.

In 1998, copyright received an extension from the previous law. Prior to this extension, a copyright was effective for 50 years after death. After the extension, we gained the 70 years after death rule.

A question that often arises here is about work that is created anonymously, for hire, or under a fake name. Anything created without a listed creator or under a false name are still protected by copyright. These works enter the public domain 95 years after publication, or Jan. 1 of the 96th year, or 120 years after creation, whichever is longer.

Before the 1998 extension, these types of creative works were protected for 75 and 100 years respectively. Because of this copyright protection, no anonymous works can enter the public domain until Jan. 1, 2074, or 1978 plus 96 years.

You can see why the publication and creation date are extremely important for identifying whether material is public domain or not. A good rule to keep in mind when searching for public domain work: Nothing created after 1978 is in the public domain and will not be before 2049 or later.

The only works which are part of the public domain fall under the old law which was in effect before 1978.

Old Law

The old law covers material that was moving into the public domain year by year. This movement was stopped by the 1998 extension act. Nothing will enter the public domain for 20 years after the 1998 extension act or until 2019.

Under the old law, works created in the United States are under copyright for 95 years. This means they will become free to use under public domain on Jan. 1 of the 96th year.

Because of the old law, there is a lot of classic material that has entered the public domain. This includes the songs "Jingle Bells" and "Take Me Out to the Ball Game" and the character Dracula. There is a lot of great material in the public domain that is free to use.

Sound Recordings

The new law also granted a special extension for sound recordings that were made before Feb. 15, 1972. This extension gave sound recordings created prior to that date copyright protection until 2047, which was then also extended. These recordings are now protected under copyright until Jan. 1, 2067. This extension and ruling was to clarify and simplify previous laws.

Any sound recordings created after Feb. 15, 1972, are protected by either the old or new law, depending on the date it was copyrighted.

Reasons a Creative Work May Enter Public Domain

Expired Copyright

Any work that was created before 1923 is in the public domain.

Starting in 2019, this rule will change. In 2019, everything created in 1923 and before will be in the public domain. In 2020, everything created in 1924 and before will be in the public domain. In 2021, everything created in 1925 and before will be in the public domain. This cycle will continue forever. Each year, another year of creative works will enter the public domain.

A law enacted in 1992 simplified and reduced the availability of work that has expired copyright. This law made renewal automatic for any creative material that was created between 1964 and 1978. This means most content that was created during that time period has not and will not enter the public domain for a long time.

If a work was created between 1923 and 1963, there's a chance it is in the public domain since the copyright very likely was not renewed. Very few copyrights are renewed as the procedure is difficult, the owners or heirs may not know it is necessary, or the author or creator has died.

Misused Copyright

Under current law, any work that is created after March 1, 1989, is automatically given copyright and is protected under copyright laws. Creative works can also be registered with the United States Copyright Office. Though not necessary, registering your work makes it easier to enforce the copyright and collect damages if the material not used correctly. To obtain a copyright, there are certain standards that must be followed. Copyrightable material must be original and in a physical form.

Prior to March 1, 1989, if proper notice of the material holding a copyright wasn't included on the material, it was possible to lose the copyright. If the copyright notice was omitted or appeared in the wrong form or location, the work was automatically put into the public domain.

For works published between Jan. 1, 1978 and March 1, 1989, there was a grace period to fix any copyright issues. If you had lost a copyright on one of your works that was published or created in that time period, it could be reinstated if proper measures were taken. This makes using material from that time period slightly more complicated when trying to identify if it has a copyright or is in the public domain.

Dedicated Works

A dedicated work is one that an author has purposefully given to the public for anyone to use. The work will most likely be clearly labeled and state, "This work may be used and reproduced." Unless obviously labeled as public domain, do not use the work.

One issue to consider is that only the owner of the copyright has the right to dedicate or give it away. The copyright owner may not be the creator of the work.

One way to find dedicated and public domain works is through Creative Commons. This company has created a collection of creative works that have been given to the public domain immediately or after a period of time.

Partial Copyright Protection

Shareware and Freeware

Both shareware and freeware are protected under copyright law. You cannot sell, distribute, or reproduce the programs without authorization from the copyright holder.

Shareware: Shareware is software that is shared with users for free for a trial period. Once the trial period is over, the user is asked to pay a fee to continue using the software.

Freeware: Freeware is software that is shared with users for free. No fees are ever charged to use the software.

Just because something is acquired for free doesn't mean it is part of the public domain.

Clip Art

This can be a confusing genre of copyright protection. Clip art is often sold in bundles and is labeled as copyright-free. Copyright-free can be a confusing concept because it doesn't mean the clip art is in the public domain. It means the artwork is royalty free. Once you purchase it, you can use it without paying royalty fees. The limitations of use should be provided with your purchase.

Also be aware that a collection of clip art is protected by a copyright. The gathering and organization of a collection of clip art gives that collection copyright protection. You cannot take the entire collection, reproduce it, and sell it.

Unprotected by Intellectual Property Law

There are some creative works that cannot be protected by copyright. Some of these works may be able to gain protection under trademark law.

Some creative works that cannot be protected include:

  • Book and movie titles
  • Short phrases
  • Names
  • Idioms
  • Facts
  • Ideas
  • Theories
  • U.S. government creations
  • Impromptu speeches
  • Blank forms
  • Standard story plots and stock characters

Short Phrases

Short phrases, names, titles, and small groups of words cannot be protected by a copyright as they are considered English idioms or common phrases. These types of phrases are free for anyone to use.

In contrast, if a short phrase is used as a slogan for advertising a product, that is protectable under trademark law. A trademark is a different type of intellectual property protection.

Facts and Theories

Facts are not able to be protected under copyright law, even if you are the scientist who discovered the fact. Anyone is free to use facts. This holds true with theories.

In contrast, a fact that is uniquely presented or expressed may by protected under a copyright. Facts used in books and movies can be protected under copyright law.

Ideas

Copyright law protects the way in which ideas are expressed, not the ideas themselves. Ideas, similarly to facts, can be used by anyone to create a story, book, movie, or other creative project. These ideas can be used over and over again.

U.S. Government Works

Any work that is created by a federal government employee in his official capacity cannot be protected under copyright law. This rule doesn't apply to state or local government employees. Some federal publications can be protected by a copyright, but if this is the case, it will be clearly noted that it is copyright protected.

Special Cases

There are some works that are given exception to traditional copyright rules.

July 1, 1909-1978: Work created during the timeframe in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and Northern Mariana Islands and published in a language other than English is treated as an unpublished work until the first date of U.S.-compliant publication happened.

Regional: Work created in the following countries cannot be protected by U.S. copyright law until the states become part of an international copyright agreement. The countries are: Afghanistan, Eritrea, Ethiopia, Iran, Iraq, or San Marino.

Alien Property Custodian: Works created that were owned by the Alien Property Custodian and then passed ownership to a government as of Jan. 1, 1996, are not protected under U.S. copyright law.

Berne Convention or World Trade Organization: Countries that join the Berne Convention or the World Trade Organization gain protection by U.S. copyright law.

The Search for Work in the Public Domain

Sadly, there's no database of works that are in the public domain. That means finding public domain creative works takes some research and careful investigation.

Some of the easiest public domain material to identify is material that was created or published prior to 1923. Everything that falls into that category has entered the public domain. The older the material, the easier it is to find out if it is free for use or not.

Searching for Lapsed Copyrights

For material that was created after 1923, there's a tricky time frame from 1923 to 1963 that requires specific consideration. Works created during this time period have some protection under copyright law, but other material has entered the public domain as the copyrights were not properly renewed.

According to a study completed in 1961 by the United States Copyright Office, less than 15 percent of all registered copyrights were renewed. This means material from 1923 to 1963 may or may not be protected under a copyright. This is where your detective skills come in.

To find out if a work from this time period is protected under a copyright or is in the public domain, you'll have to call the U.S. Copyright Office or hire a qualified intellectual property attorney to help you.

To complete your investigation, you'll need this information:

  1. Publish or registration date of the work
  2. Creator's name
  3. The work's title and possible variants of the title
  4. Where the work was first published
  5. If available, the copyright certificate number

That last one may be the hardest to find, which is why an attorney can be a big help on this quest.

The copyright notice (©1930 by Johnny Appleseed or ©1930 by Johnny Appleseed. Renewed 1957 by Johnny Appleseed) will usually indicate the publication date and may even show a renewal date. This may be enough information to stop your copyright search, or it may just be the beginning.

A pitfall to be wary of is that a search by the U.S. Copyright Office is not a guarantee of protection from a copyright suit. The Copyright Office has nearly complete and extensive records, but it doesn't have everything. There may be files missing or the work may be registered under a different title or copyright number.

Here are a few questions to ask yourself as you start to look for lapsed copyrights:

  • Is the work even eligible for copyright protection?
  • Was the work published?
  • When and where was the work published?
  • Did and does the work have a valid copyright notice?
  • Has the copyright expired?
  • Did the owner have to renew the copyright?
  • Was the copyright properly renewed?
  • Is the work a derivative of something else?
  • Is the work a compilation?
  • Are there any other laws (trademark, patent, etc.) that might protect this work?
  • Has the work's copyright been restored under subsequent laws?

Reasons a Creative Work Might Not Enter Public Domain

With the current laws enacted in the United States, all material will eventually enter the public domain. That being said, there is currently a complete stop on material entering the public domain. Because of the Copyright Term Extension Act, no new material will enter the public domain until 2019. This means that since 1998, no material has moved into the public domain. The CTEA was challenged in a 2003 Supreme Court case, but the challenge was lost.

Reasons to Consider Using Public Domain

Material that is the public domain can be helpful to businesses, individuals, startups, and nonprofits. One of the easiest ways to think about how public-domain creative works might be helpful to a business is to consider the images that are posted on blogs.

Saving Time and Money

When a small business writes a blog, it may not be able to hire a photographer to go out and take a picture to post with that blog. That's when the business can search the public domain to find a great photograph. This also means the business doesn't have to pay a photo-collection site for an image.

Making Profit

This is certainly not a new idea, but it is possible to profit from material that is in the public domain. Creating a new product or creative work takes time and effort. To save that time and effort, some entrepreneurs bypass the process and repurpose works that are in the public domain.

Some entrepreneurs have sold reprints of books. Think about the leather-bound volumes you might see at the bookstore with modern-designed covers. Another idea is to make postcards, T-shirts, or posters with artwork that is already in the public domain. There are many creative ways and ideas to make money using material from the public domain.

International Public Domain and Copyright

Understanding what material is in the public domain and what is copyrighted in the United States is very important. However, you may also need to consider international public domain and copyright law.

NAFTA

Under the North American Free Trade Agreement, or NAFTA, the United States agreed to restore copyrights to certain Mexican and Canadian films which were lost due to U.S. copyright law technicalities. This was the first time in history the U.S. restored copyrights.

GATT

This treaty is very important for works that were first published in foreign countries. If the work still holds a copyright in its country of origin but has lost its U.S. copyright, there's a chance the U.S. copyright may be restored. The copyright must have expired for a reason other than completion of the full copyright term. When looking to see if a copyright is still valid, it's important to take note of where it originated.

International Copyrights

Copyright laws may be treated differently depending on what country you're in. The 1998 CTEA agreement has moved the U.S. standards on copyright length to be the same as those that are held by the European Union.

Common Mistakes and Misunderstandings

There are several complexities to understanding public domain and intellectual property laws. In fact, many lawyers devote their entire career to understanding and practicing those laws. Because there are so many variables, there are often misunderstandings and mistakes made by people using creative works from the public domain.

Collective Works

An entrepreneur may choose a dozen photos from the public domain, organize them, and print a book using only material from the public domain. Even though all the material contained in the book is part of the public domain and is free to use, the book itself is copyrighted. This means the collection as a whole is not part of the public domain. The whole is protected, even if the individual parts are not.

This applies to any material that is in the public domain. If it is compiled, manipulated, or collected in some way, it gains a new copyright as it is considered new material. The key here is that there is creativity or thoughtfulness in the selection and organization process of the book.

Other Intellectual Property Laws

Copyright is one of the more common intellectual property laws, but it is not the only one. A work may enter the public domain if it loses its copyright, but that doesn't mean it isn't protected by a trademark or an unfair competition law.

Other intellectual property laws include:

  • Individual's right to privacy
  • Individual's right to publicity or to benefit from their own name
  • Trade secrets
  • Contract law
  • New material

Adaptations

As mentioned above, it's important to note if the work has been altered or changed in any way. Any changes may lead to a new copyright. It's important to check that the specific version you are using is the version that is in the public domain. It's a good idea to keep a copy of the uncopyrighted version that you use to provide evidence in case of any legal issues later on.

Possible adaptations to look for:

  • Translations
  • Revisions
  • Annotations
  • Illustrated edition
  • Later version

International Publishing

If you're considering publishing your work abroad, be sure to check that the work is not under copyright in the other countries where you intend to publish the work. Though the U.S. copyright and public domain laws have been updated to be more in line with those in the European Union, they are not exactly the same. Something that is considered in the public domain in the United States may still have a copyright in Europe.

Works Created Before 1978 That Are Unpublished

Works that have gone unpublished and were created before 1978 were given a special status in U.S. copyright law prior to 2003. Until Dec. 31, 2002, these works were given a perpetual copyright, as long as the works remained unpublished.

As of Jan. 1, 2003, every work that was unpublished and created before 1978 received the same treatment as published works created before 1978. This means unpublished work created before 1978 has a copyright during the author's life plus 70 years after death, or for anonymous works, 120 years from the date of creation.

This change in U.S. intellectual property law has greatly benefitted society, especially scholars. Any unpublished work by creators who died before 1933 was immediately in the public domain. A lot of material that was copyrighted in 2002 was suddenly freely available for use and study.

Easy to Find

Many people confuse readily available with public domain. Just because material is easy to access, easy to copy, or easy to download doesn't mean it is in the public domain. This confusion is most common on the internet. Unless clearly stated, creative works found online are most likely protected by copyright.

Public Domain or in the Public Domain?

Common phrasing online is also causing some confusion: public domain versus in the public domain. As explained above, just because a work is in the public domain — meaning it readily accessible on the internet — does not mean it is not copyrighted or public domain. This confusion is most common when it comes to images and photographs. Just because a photo is available online to download and use elsewhere does not mean it is legal to do so.

Images are only in the public domain if it is stated they are or if it is 70 years after the death of the creator. One quick clue to keep in mind: Digital photography hasn't been around longer than 70 years. That means unless expressly stated, all digital photography is still protected by intellectual property laws.

Another confusion people have with the public domain is with open source software.

Open Source Software

A big question comes along in this territory. Is open source software, software that is freely available on the internet, in the public domain? The answer is yes and no. The open source software is in the public domain in the sense that the owner has made it available to the public to use freely and openly. The software is still protected under copyright law.

An interesting caveat in open source software is that the software is free to use to anyone. By using the software to create something new, you agree to release that new product for free. Meaning, once software is open source, it will always be open source.

Protecting Your Work From the Public Domain

If you're concerned about any of your own creative material falling into the public domain, consider speaking with an intellectual property lawyer about obtained the proper protection for your material. This might be a copyright, a trademark, or a patent. Though a copyright is automatically given to any creative work, filling out an application can make lawsuits and collecting damages easier after copyright infringement. Applications are required for trademarks and patents.

Fair Use

The idea of fair use provides specific instances where material that is protected by a copyright can be used without permission from the copyright holder.

Fair use allows for copyrighted material to be used for parody, commentary, criticism, news reporting, education, research, and reverse engineering.

It is under debate whether work created under fair use using copyright protected material is then protected by copyright or in the public domain.

FAQs

  • If it's online, on a website, in a blog, etc., is it in the public domain?

No, this is a common misunderstanding. Just because a work is readily available doesn't mean it is for public use.

  • If it was created before 1923, is it in the public domain?

Yes!

  • This is all pretty complicated; who can help me figure it out?

There are intellectual property lawyers who can help, or you can contact the U.S. Copyright Office.

  • Who benefits from the public domain?

You do! It's likely you have or will use material from the public domain in your life, and you might be surprised at how it has affected you. Many artists use material in the public domain for inspiration. Consider that "Homer's Odyssey" inspired Mark Twain's "The Adventures of Huckleberry Finn" and the Coen brothers' "O Brother Where Art Thou."

If you need help understanding public domain laws, you can post your question or concern on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio