Public Domain:  Playing the What Year Was it Created Game

Jul 24 2016

by Avard Turner, J.D., LL.M.

We downloaded this public domain photo from pixabay.
We downloaded this public domain photo from pixabay.


Last month’s post I discussed and defined fair us with regard to copyright law.  In this post I will discuss fair use’s first cousin, the public domain.  We always hear, “it’s in the public domain, so I can use it.”  Generally, speaking that is true, however determining what exactly is in the public domain is a bit trickier.

What exactly is the public domain?

Works in the public domain are not protected or restricted by copyright protection.  Therefore, these works do not require a license or fee to use them.  There are three types of public domain works; these are 1) works that enter the public domain upon creation because they cannot receive copyright protection; 2) works that have been assigned to the public domain by the original creator or author; and 3) works that have entered the public domain because their copyright has expired.  Examples of the first category include but are not limited to titles, names, short phrases, familiar symbols, numbers, ideas and facts, government works and documents. However, it gets a bit complicated because some works like symbols, names and short phrases may be subject to other laws that include trademark or trade secret.  So best to run it by an experience intellectual property attorney.

How does an author or creator assign their work to the Public Domain?

With regard to that second group of works, a creator can assign (fancy legal word for give) their copyrights to the public domain by filing specific forms that state they are waiving their rights in the works.

How do I know a work has an expired copyright and is in the public domain?

The US Congress passed law extending the term of a copyright, however the general rule is that a copyright is the life of the author plus 70 years.  There are lots of little intricacies and exceptions to that general rule, but that will help guide you.  So for example all of that cool neon 80s themed stuff you’ve been wanting to incorporate into your original designs (and I’m totally kidding about the cool neon part), you guessed it.  You won’t be able to use it until the original creator passes away plus 70 years.  By that time we will all have moved on to that big Southern porch in the sky!  Here are a few more guidelines to help with determining what may be in the public domain: 1) works published in the US before 1923; and 2) works published with a copyright notice from 1923 through 1963 that did not renew their copyright.  So for instance, the song “Silent Night” was published in 1818; or “Stars and Stripes Forever” was published in 1897.  So both of these are in the public domain.  Anyone can use them.

Still, to protect the integrity of your creation and your brand it is best to do your homework and seek the advice of an intellectual property attorney.  Yes, it may cost you a little up front, but better that than paying to be on the losing end of an infringement claim.  BTW, each incident of infringement can carry $150,000 penalty in damages.  So making a mistake in this area could add up quickly and put a small creative out of business fast!

All of this is not to say that you shouldn’t use public domain works.  It’s a fantastic way to put a modern twist on something classic.  Just make sure you know what you are doing before you dive in feet first!

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Avard Turner, J.D., LL.M. View More Blog Posts from this Author

Angie Avard Turner is an attorney who exclusively represents clients in the creative arts industries including retailers, wholesalers, artists, photographers, event planners, bloggers, and other creative service providers.  She is licensed to practice law in the state of Georgia, but she is able to handle copyright and trademark issues nationally.  For more information regarding her practice, visit­­­. Angie is also the owner and creative director behind Hype Strype, a fine stationery company that caters to those who love bright colors and patterns. 

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