Copyright for Creatives

1.2 Public Domain

Public Domain gained national attention in late 2018/early 2019 when a sizable cache of creative works, including some of the earliest movies, was released into the Public Domain. Many media outlets misreported this as the first time in decades that creative works had become part of the Public Domain, but it wasn't. It was simply the largest, and contained works that would have come into the Public Domain in 1998 if not for the Sonny Bono Copyright Extension Act, a last minute law extending the copyright period to author's life plus seventy years (copyright's current duration in the United States).

This released cache provoked a very interesting set of conversations sparked by science fiction author John Scalzi and fantasy author Neil Gaiman that is definitely worth a read if you have any interest in seeing how the copyright period affects creators and their estates.

Scalzi: https://twitter.com/scalzi/status/1071908043019993088

Gaiman:  https://twitter.com/neilhimself/status/1071823785412751361

So, what's the big deal with Public Domain? Why are rightsholders trying to either get their work into it (like Scalzi and Gaiman), or trying desperately trying to keep their works out of it (like Disney, the power behind the Sonny Bono Copyright Extension Act)?

What is the Public Domain?

We touched briefly on this in the copyright chapter, but a creative work (or artifact, as I like to think of them. Blame my museum background.) in the Public Domain has no copyright restrictions on it. The artifact belongs now to the public. You can display, perform, and transform that artifact to your heart's content, and even monetize your creation.

It sounds great, right? Where do I find these mystical copyright-free artifacts?

Well...it's trickier than it looks. Because copyright laws change, Public Domain criteria change. Because rightsholders often have estates (or family), an artifact's journey into the Public Domain can endure a few hiccups along the way. (In the past, a rightholder's estate or family could legally extend a copyright through renewal.) Because that's just how some rightsholders roll, Public Domain can be abused or is sometimes denied by someone without a clear right. (Can anyone sing "Happy Birthday to You" in a performance situation? That's still one of my favorites.)

I could try to offer you some sort of hard and fast rule, but the simple fact of the matter is: There isn't one. The best place to start if you're trying to determine whether or not something has entered the Public Domain is this long chart: https://copyright.cornell.edu/publicdomain If the artifact appears to be in the Public Domain according to this chart, then actually go research the artifact's copyright...just to be safe. (I'm a big believer in going above and beyond in your due diligence of pursuing whether or not something is in the Public Domain, just because it's such a sticky issue.)

The one rule I can offer is this: Just because something is posted to the internet or published in a library book, that doesn't mean it is in the Public Domain. This is perhaps one of the biggest myths about Public Domain. Remember from the previous chapter that copyright is conferred at the moment something is fixed into a tangible form, even if that form is digital, even if there is no visible copyright symbol. If you're ever unsure, err on the side of caution and just assume the material is copyrighted. If you're desperate to use the material, contact the site publisher or the local library and find out. Never just assume. That way lies much agony. Don't do it. (Is that enough warning for you?)

You may notice that the chart says the rightsholder has to have been dead for some period before the artifact they held the copyright for becomes Public Domain. That is often true, but some artists, especially when Creative Commons and remix culture were just beginning to gain traction in digital spaces, released a piece or two of their work directly into the Public Domain because they wanted to make it immediately available to the remix culture and see what came of it. Creative Commons (which we'll cover in another chapter) has a section on how best to release something directly into the Public Domain if you're interested in checking that out. Again, just because a living artist/rightsholder has released one artifact into the Public Domain, don't fall into the trap of thinking all of their work is in the Public Domain. Copyright is assigned at the artifact level, not the creator/rightsholder level.

Long story short: Artifacts in the Public Domain have no copyright restrictions on them, but the road to becoming Public Domain is a treacherous and tricky one. If you want to use Public Domain artifacts, do your homework thoroughly to make sure it is actually in the Public Domain. Always err on the side of copyright if you aren't sure. Don't invite disaster on your head. Fair enough?

Orphaned Works: The Fly in the Ointment

If you've spent any time on Archive of Our Own, you may have seen the term orphaned work as the site has set up an account so writers can break their tie to a story they've written, effectively abandoning their rights to it. In terms of copyright, an orphaned work is one that is believed to be under copyright (because we are currently in an environment where all works fixed in a tangible form are copyright protected, regardless of whether or not a copyright symbol is present), but the copyright holder cannot be determined for whatever reason.

As you might expect, trying to work with a work that has been deemed "orphaned" is a nightmare. Because there is no clear copyright holder, there is no one to approach for permission or licensing possibilities. That makes most orphaned works off limits in terms of derivative, transformative, and remix situations. There are conditions where you might be able to work out using an orphaned work, including due diligence to establish a clear rightsholder, acknowledging on the new artifact that part of the materials are orphaned, and making reasonable compensation to the rightsholder if they should suddenly appear. While there have been attempts to get the law modified to include an length of time on how long an artifact can be considered "orphaned" and protected by copyright, Congress has yet to actually sign off on any of them. (You can read the current report on the legal status and considerations surrounding orphan works here: https://www.copyright.gov/orphan/ Fair warning: It's long.)

All of that said, an orphaned work can pass into the Public Domain the way any other copyrighted work does. If a year of creation can be established, then that year is used to determine when the artifact falls into the Public Domain. At the time of this writing, an orphaned work created in 1923 or earlier is in the Public Domain. (Artifact's creation date plus seventy years, to match copyright's author lifespan plus seventy years rule.)

What this all really means is that if you want to use an artifact created after 1923 with no clear rightsholder, treat it like any other copyrighted artifact, do due diligence, and don't make bad decisions.

Have you ever wondered why some people seem able to get away with "borrowing" from copyrighted works, while others get in serious trouble for it? We're going to look at what's going on in the next chapter. Diligently, of course.