For many creators, educators and consumers, copyright can be an incredibly complicated subject matter, with seemingly simple phrases like “fair use” and “public domain” offering more questions than answers. Earlier this year, we posted answers to a number of our most frequently asked questions about Copyright, including how to register a copyright and how to obtain permission to use copyrighted work.

One area not covered in depth in that compilation was public domain.  The phrase “public domain” is one that is often discussed in the context of copyright, but it is not often defined or explained in an understandable way.  This is an especially important topic, as a lack of understanding about what is, and is not, included in the “public domain” can lead to infringement, whether or not it was intended.

In the simplest terms, public domain refers to items that cannot be protected by copyright, or whose copyright protections have expired.

According to the Copyright Act, items which cannot be protected by copyright include:

“…any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”

This means you could copyright a book you authored that describes, explains and illustrates a scientific discovery, but you cannot receive copyright protection for the discovery itself.  Granting copyright protection to a discovery – or an idea, concept or process – would effectively monopolize and restrict access to, and use of, that discovery, and defeat the purpose of copyright as stated in the Constitution: to encourage the progress of science and art.

In addition to items that cannot be copyrighted, the term public domain also includes original works of authorship once their copyright has expired. Under current copyright terms, any work published/copyrighted prior to 1923 is now in the public domain.  For works copyrighted after 1923, one must conduct a search through the U.S. Copyright Office to determine if the work has entered the public domain or if it is still protected by copyright.

Once a work enters the public domain, it is no longer protected by copyright and can be used by anyone without permission or license.

Adding to the confusion about what is or is not in the public domain is the ease with which technology allows for the distribution of creative works on the internet.  Many times we hear “if it is on the Internet, then it must be in the public domain, and therefore I can use it.”   This is not the case, and in fact, many, if not most, of the works found on the internet are not within the public domain, and are still very much protected by copyright. To avoid infringement, anyone who wishes to use a work found on the internet should first conduct a search through the U.S. Copyright Office to determine whether that work is indeed in the public domain or not. Search results obtained from the Copyright Office does not end an inquiry into copyright though, as the Copyright Act does not require that a work be registered in order to receive copyright protection. Artists wishing to use a work found online should, in addition to searching the Copyright Office’s records, conduct other research to see if the work’s owner can be located, especially when the work was produced after 1923. When in doubt, if no copyright information can be located, the work should not be used.

The question of public domain becomes even trickier when a consumer, educator or artist finds a work on the internet that seems to be within the public domain, yet has been recently published and copyrighted. This is typically a problem for works published/copyrighted prior to 1923 that are then reissued by current publishers. In these situations, the original material is no longer protected by copyright and may be considered public domain. More recently added material, such as a new forward, illustrations, notes, and commentary, is protected by copyright and does not fall within the public domain. An example of this situation would be Shakespeare’s Romeo and Juliet. This play clearly falls within the public domain, yet a number of publishers routinely publish copyrighted versions of this play. In this type of situation, the copyright only extends to material newly-added to the play, like a forward, study notes, stage directions, illustrations, etc. This means that if a recently published version of Romeo and Juliet was found online by an artist, that artist would be able to use the play itself because it is public domain material, but the artist would also need to take care to avoid using any of the publisher’s “new material” – in this case, the accompanying illustrations – because that is still protected by copyright.

This information is for educational purposes only and does not constitute legal advice.