For more than 20 years, the number of works in the public domain has been stagnant.
Why? Well, thanks to Mickey Mouse.
In 1998, Steamboat Willie was less than 10 years from entering the public domain.
And Disney wasn’t pleased.
Disney is one of the loudest voices and pocketbooks fighting for longer copyrights.
And in 1998, their lobbying paid off. Because Congress passed a law adding 20 years to all copyright terms.
This new law hit pause on works entering the public domain.
In 1998, works first published in 1922 were released in the public domain.
But the pause button meant that works first published in 1923 wouldn’t be released into the public domain until 2019.
So for the last 21 years, the number of works in the public domain has effectively been the same.
Luckily for creatives, at midnight on New Year’s Eve 2018, we hit the play button again.
As of January 1, 2019, all works first published in 1923 are in the public domain.
And now hundreds of thousands of new books, music, paintings, poems, films, and photographs are in the public domain.
Some of these include:
- Stopping by Woods on a Snowy Evening by Robert Frost
- The World Crisis by Winston Churchill
- The Bride Stripped Bare by Her Bachelors, Even (The Large Glass) by Marcel Duchamp
- The Ten Commandments by Cecil B. DeMille
- A Lost Lady by Willa Cather
- Cane by Jean Toomer
In 1998 when 1922 works entered the public domain our world looked very different.
Google was founded that year. And Yahoo! was only three years old.
Which means this is the first time we’ve had this many works enter the public domain in our current digital era.
And thanks to sites like Google Books, within a few days we’ll likely get access to digital copies of these works.
Meaning almost instantly you can start using, performing, adapting, and building upon them.
As of now, there’s no pending legislation that will hit the pause button again.
So, this process should repeat each January 1st until 2073. (Because the copyright term is tied to the year of publication, not the exact day of first publication.)
After January 1, 2073, the process will continue, but will no longer be based on first publication. Instead, works will enter the public domain 70 years after the year the author died.
Why does it matter if work is in the public domain?
Say you want to take Sherlock Holmes and use it in your own work.
If Sherlock Holmes is still protected by copyright, then you’ll either need to:
- get permission to use it
- use it in a way that equals fair use
But using it in a way that equals fair use severely restricts what you can do with it.
If you wanted to create a parody, then you might be able to rely on fair use.
If you wanted to use a very small part to illustrate a larger point, then you might be able to rely on fair use.
If you are creating social commentary and wanted to use a small piece, then you might be able to rely on fair use.
But what if you wanted to:
- write a modern adaptation set in 2019 London?
- write a futuristic version set in 3019 London?
- release the original text with your own illustrations?
- create a children’s book version?
- turn it into a play/movie?
- take the original and create an electronic or audiobook version?
If you wanted to do any of these things, then you’ll need to make sure that Sherlock Holmes is in the public domain. (Or get permission from the Sir Arthur Conan Doyle Estate.)
Works in the public domain are free for creatives to use, build up, transform, or perform.
What is the public domain?
The public domain contains creations eligible for copyright but they aren’t protected.
If something is in the public domain you can use, modify, adapt, change, or build upon the original without asking permission.
Creations in the public domain are free for creators to do as they please with.
How does work enter the public domain?
There are three common ways that work enters into the public domain:
- copyright expires
- copyright never perfected
- work was never protected by copyright
Work is in the public domain because the copyright has expired
But what qualifies as a “limited time” has gotten longer and longer.
In 1790 when the first Copyright Act was passed this “limited time” was 14 years. And if the creator was still alive at the end of those 14 years, he/she could renew the copyright for another 14 years.
Meaning the “limited time” was no more than 28 years.
For works created now, this “limited time” is much longer. Now it is 70 years after the death of the author. (Or for some works 95 years from first publication or 120 years from creation.)
Which at minimum is more than twice as long as the original cap.
Current copyright lengths
As I mentioned above, currently there’s no one set copyright term.
In fact, thanks to changes over the years, there are four possible copyright terms for works protected by copyright.
These four options are:
- 95 years from first publication date
- 120 years from creation
- The longer of the creator’s life plus 70 years OR December 31, 2047
- Life of the creator plus 70 years
What can no longer be protected by copyright and is in the public domain
After the copyright term expires, work falls into the public domain.
If it was first published in the United States before 1924 it’s no longer protected by copyright.
(Because no matter which term applies, it will have expired.)
Meaning everything first published before 1924 is now in the public domain.
Work is in the public domain because the copyright was never perfected
Since 1989, copyright notice has been optional in the United States.
Before that, a copyright notice on the work was a requirement to make the copyright valid.
If a work was first published before 1989 without notice, it is in the public domain because the copyright was never valid.
(Note: There was a small window where creators could “fix” this. To fix it, the work had to be registered with the U.S. Copyright Office within five years.)
Work is in the public domain because it was never protected by copyright
Of course, many creations aren’t eligible for copyright protection and aren’t protected by copyright.
Works created by the U.S. Government (and it’s employees) aren’t protected by copyright.
So even if it’s eligible for copyright, if it’s created by a government employee within his/her day-to-day duties it’s not.
But he’s taking those photographs as part of his duties as an astronaut. And as an astronaut, he’s a U.S. Government employee. Because he’s a government employee and taking photos is part of his job, the photos are automatically in the public domain.
What isn’t in the public domain
Contrary to popular belief, doing any of these things does not put the work in the public domain:
- Putting work online
- Using a Creative Commons license (unless the rarely used PDM license is selected)
- Finding content online and not being able to trace it back to the original creator because it hasn’t been properly credited/linked
Instead, you should work assume that it is protected by copyright. unless you discover otherwise.
Is copyright adding stress not ease to the legalese of running your creative business?
Then here’s what you need to tackle (in this order):
- Ready to learn copyright basics? Without understanding what is and isn’t protected by copyright you might be stressing about protecting the wrong kinds of things.
- Fair use allows you to use other’s work protected by copyright, without permission. But it’s not a magic wand. But you’ll need to understand this tricky area of copyright if you want to use other’s work without asking permission.
- Copyright is automatic in the United States, but that doesn’t mean registering your copyright is optional. Get instant access to a FREE 66-minute actionable workshop so you can understand the value of copyright registration. Plus get access to the workshop slide deck and a best practices workbook.
- I’m not the only one that things copyright registration is critical. Read Karen’s story about how she learned the hard way the value and benefits of registering your copyrights.
- Ready to register your copyrights with the U.S. Copyright Office? Now that you understand the value of registering copyrights, you have to do it! This post walks you through how to register your work.
How to decide if something is in the public domain
As you glance at the chart below, you’ll realize how difficult it can be to decide if something is in the public domain.
Because it’s difficult, over the last several years there have been high profile court cases that have “placed” work in the public domain. These include deciding that Happy Birthday to You, Sherlock Holmes, and Who’s on First all had “fallen” into the public domain.
Of course, you don’t want to do that. So is there a process you can use to determine if it’s likely that the work is in the public domain?
How to use the “Is it in the Public Domain” chart
You are going to start with the premise that the work is protected by copyright.
And you’ll only change your answer if you can verify that it’s fallen into the public domain through your research.
For your research, you’ll need to answer five questions. Two of these questions are about the creator of the work. And three are about the work itself.
Questions about the creator
- Did a U.S. government employee within the scope of his/her job create the work?
- Is the author alive or dead? If the author has died, what year did he/she die?
Did a U.S. government employee within the scope of his/her job create the work?
As discussed above, if a U.S. Government employee creates something as part of his/her job, then it’s automatically in the public domain.
Examples of this include:
- astronaut photographers
- WPA and FSA photographers (including photos taken by Walker Evans, Dorothea Lange, and Gordon Parks)
- government reports (like a census)
- federal court decisions
Is the author alive or dead? If the author has died, what year did he/she die?
If the work hasn’t been published and the author died before 1949, then the work is now in the public domain.
Questions about the work
- Is the work published? If so, what was the year of first publication?
- Was the work first published with a copyright notice?
- Was the copyright renewed?
Is the work published? If so, what was the year of first publication?
Until 2073, works entering the public domain will be tied to the year of first publication.
So to determine if something is in the public domain you must learn the year of first publication. Anything first published in the United States prior to 1924 (on or before 12/31/2023) is in the public domain.
Was the work first published with a copyright notice?
For all works first published before February 28, 1989, a copyright notice was required.
So to determine if something is in the public domain, you must first learn the year of first publication. And then if it was published before 1989, learn if it was published with a copyright notice.
- If it wasn’t and the work was published in or before 1977, then the work has fallen in the public domain.
- If it wasn’t and the work was published between 1978 and 1989, then this could be “fixed”. To “fix” it, the work had to be registered with the U.S. Copyright Office within five years of publication. If it wasn’t registered, then the work has fallen into the public domain.
Was the copyright renewed?
Before 1978, the copyright system involved renewing your copyright. So there’s a small window (from 1924 to 1963) where this “old” system still applies.
If a work was published between 1924 and 1963 with a copyright notice and was registered, then it’s still protected if the copyright was renewed. If it wasn’t the work has fallen into the public domain.
Is it in the public domain?
Grab a PDF copy of the “Is it in the public domain?” chart, so you can follow along to discover if the work you’d like to use is in the public domain!
A couple of notes:
- Publication is the year of first publication
- This chart is for works first published in the United States or works created by U.S. residents or people living in the United States at the time of creation.
- There are different rules for sound recordings and architectural drawings, so don’t rely on the chart above for those items.
- The copyright term runs through the end of the calendar year, it doesn’t expire on the anniversary of first publication or the creator’s death.
Let me know in the comments below if this chart helps you navigate what is and isn’t in the public domain?
Hi! I’m Kiff! I believe that you can have ease in the legalese of running your creative business.
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