The Copyright Commons: Works in the public domain

Many of us have looked at a piece of art, watched a movie, or listened to a popular song and thought of using it to create something new. Well … can you?

Copyright basics

A copyright protects original works of creative authorship, and it does so automatically. As soon as you create an original work of art, write a story, or record a song, it instantly receives copyright protection. You then have exclusive rights over that creation—the right to duplicate it (hence “copy” right), to perform it publicly, to display it, and to make derivative works based on it. You also have the right to register your copyright with the U.S. Copyright Office—the arm of the Library of Congress responsible for copyrights. Registration gives you standing to sue for infringement in federal court, creates a public record of your ownership, and allows you to stop infringing imports from entering the U.S. It's easy to see why registration is valuable. Copyright gives you rights; registration lets you enforce them.

Now let's get back to our original question: you're inspired by a work of art—a song, a painting, whatever. Copyright for that work is held by its creator, so you can't copy it, can you? Well … maybe. Copyright has, by constitutional mandate, a limited duration. Article I, Section 8, Clause 8 states that, “The Congress shall have power … To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (emphasis added.) So: “limited times” is where we want to focus. What are these “limited times?” Read on.

The public domain

As stated above, copyrights eventually expire. What this means is that when the copyright expires, the owner loses his or her exclusive rights, and the work enters the “public domain.” Works in the public domain can be used by anyone, anytime, for free. But when do particular works become public property? Here's the breakdown:

As an initial matter, anything published before 1923 is yours for the taking. Want to record a cover of some Wagner for your next surf outing? Have at it, Kilgore: “Ride of the Valkyries” and everything else by Wagner is firmly in the public domain, Wagner having expired himself in 1883. (Wagner is a bad example, too, since he created his work outside the U.S., but this editor couldn't resist the “smell of napalm in the morning” reference.)

Now, under the latest version of the Copyright Act, copyright on any work created since Jan. 1, 1978 is the life of the author plus 70 years (or if the work is made by or for a corporation—work for hire, anonymous or pseudonymous works—the shorter of 95 years from publication or 120 years from the date of creation). The term used to be the life of the author plus 50 years, but that was extended by the Copyright Term Extension Act of 1998—also known as the Mickey Mouse Protection Act.

For works created between 1923 and 1978, we'll make it easy for you; look up this comprehensive copyright resource from Cornell University. Cornell maintains an excellent database of laws and legal resources, and sending you there does you a far greater service than my copying (without permission!) that institution's exhaustive table.

There are other ways for work to fall into the public domain, but the life-of-the-author measure is the most common. Beyond the public domain, too, certain works can be committed to the public for free use through mechanisms like certain Creative Commons licenses that allow free use of certain works, with certain limitations (for example, by agreeing to a Creative Commons license, you usually agree not to claim any intellectual property rights in the original work). Or an author can simply “dedicate” his or her work to the public.

One word to the wise: don't see a “©?” Don't assume you can use the work. The copyright notice is nice, but it's not mandatory for work produced after March 1, 1989. For works produced before that date, if it was published without the proper notice, rights may have been lost…but do your diligence and be sure before you go ahead and write Godfather IV—besides, you probably don't want to upset Mario Puzo whether he used the © correctly or not. He has friends.

This article was originally published in September 2008 and updated in November 2011.