The Art of Business: Free for the Taking
The public domain has been compared to a “vast national park… without a guide… or clearly defined roads.” (The allusion is from a book that is not in the public domain: This Business of Music: The Definitive Guide to the Music Industry, by M. William Krasilovsky.)
The comparison is apropos considering there are literally billions of creative works — including artwork, photos, songs, movies, software, books, and more — in the public domain that aren’t protected by copyright law and are ordinarily free for anyone to use.
But to safely use public domain works, you must know a little about copyright law, know where to find public domain material, and know how to protect yourself from copyright claims, should they arise.
All these questions are covered in The Public Domain: How to Find & Use Copyright-Free Writing, Music, Art & More, by Stephen Fishman. He explores methods for finding material, dealing with gray areas, handling the public domain outside the United States, and handling challenges to your public domain claims.
One chapter discusses using Internet content and potential problems that may arise from Internet-based materials. For example, hyperlinks are not copyrightable, so you can link to any site, but in certain circumstances a list of links may be protected as “collective works.”
Fishman enlivens what could be excruciatingly dry subject matter with anecdotes and case histories. He also includes practical tools, such as a conversion chart to help you quickly figure out copyright dates written in Roman numerals.
Public Domain 101
The Public Domain is well worth buying. But in case you don’t have it on your shelf right now, I’ll explain the essentials. The owner of a work protected by copyright is given a bundle of exclusive rights. However, copyright protection does not last forever, and some works are not entitled to any copyright protection. Works without protection can be freely copied, distributed, adapted, or performed and displayed in public without asking anyone’s permission or paying a fee.
According to Fishman, a work of authorship may be in the public domain for a variety of reasons:
- The work was published before there was a copyright law.
- The work’s copyright protection expired.
- Copyright protection was lost or never acquired.
- The copyright owner dedicated the work to the public domain.
- The work was never entitled to copyright protection.
The only limit on using public domain materials is your own imagination. For example, any of the following are possible:
- Graphic designers and Web developers can use the public domain as a free source of content, including writing, photography, artwork, and music.
- Creative and marketing writers can adapt public domain works into new works.
- Publishers can republish public domain works.
- Artists can copy public domain artwork.
- Filmmakers can use public domain footage.
The problem, of course, is figuring out where to find public domain material and making sure the material is, indeed, within the public domain. Says Fishman: 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 guarantee that it’s protected by copyright law; people often place notices on works that are actually in the public domain. And the absence of a copyright notice does not guarantee that a work is in the public domain.
Elbow Grease
Unfortunately, there is no list or database of all the works in the public domain. Moreover, the U.S. Copyright Office, the federal agency that registers copyrights, won’t tell you if a work is in the public domain. It’s a waste of your time to ask them.
You have to determine whether a work is in the public domain by understanding and applying basic copyright rules. Sometimes this is easy; sometimes it can be very difficult.
The Public Domain walks you through the process of finding public domain works on the Internet, in your local library, and elsewhere. And since public domain material isn’t always freely available for your use, Fishman explains the process of dealing with museums and individual collectors who may control access to work you want.
Paper Trails
The public domain can get tricky. For example, creators of digital copies of public domain photos might claim that the copies are protected by copyright. Though it’s likely that such claims are not legally valid, it may not stop a company from suing you for copyright infringement. No book can tell you what to do in every real-world situation; however, Fishman does a great job of laying out your options and defenses should someone cry foul.
The bottom line is this: Any work that you plan on showing to the public in any way should be documented, according to Fishman. This is not only to guard against false claims but because you may need to obtain insurance for your project against libel, slander, or other errors or omissions. Documentation can help convince an insurer or client that they won’t face copyright problems.
Fishman’s book provides three aids to help you determine the public domain status of a work and document how you came to your conclusion. The first is a chart showing how to determine the copyright status. Next is a checklist to determine the copyright status of the particular work you are researching. Finally, the book includes a worksheet to document how you determined the status of a particular work.
Whether you’re looking for one piece of art or building a business around public domain material, The Public Domain is an invaluable resource.
This article was last modified on July 11, 2023
This article was first published on June 6, 2005
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