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Are there any guidelines for determining when an artwork is in the public domain?


Public Domain Artwork Guidelines: A Comprehensive Guide

What is the Public Domain?

The public domain is a vast commons of creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. Works within the public domain belong to the public, not to an individual author or artist. This means that anyone can use a public domain work without needing permission, but no one can ever own it. The public domain includes works that are not covered by a country's copyright laws, such as the formulae of Newtonian physics or cooking recipes in the United States. It also includes creative works where copyright has expired or been forfeited. Creative works that are not protected by copyright are said to be in the “public domain,” a space where everyone is free to enjoy, share, and build upon without restriction.

In the United States, copyright law is primarily governed by the Copyright Act of 1976, a federal statute. This act prevents the unauthorized copying of a work of authorship. However, it's crucial to understand that while the act prohibits copying a work, it does not prohibit using the ideas contained within that work. For example, a written description of a machine is protected by copyright, but the actual machine itself is not. This means that one cannot copy the written description, but they are free to use the description to build the described machine. The stated purpose of U.S. copyright law is to promote art and culture. It assigns exclusive rights to authors, such as making and selling copies, creating derivative works, and publicly performing or displaying their works. These rights serve as an incentive for creativity while protecting the rights of the creators.

The initial owner of a copyright is the author, unless it is a "work made for hire". In a "work made for hire," the employer or commissioning party is considered the author and owns the copyright. This often applies to works created by employees within their job duties, or commissioned works with a written agreement that designates the work as "made for hire". When an idea is expressed in a fixed medium, it receives legal copyright protections for a set period. This period allows the creator to exploit their work. Once that time expires or if the creator did not comply with legal formalities, the work enters the public domain. A creator may also choose to dedicate their work to the public domain before the copyright expiration.

There is no single “international copyright” that will automatically protect a work worldwide. Protection against unauthorized use depends on each country’s national laws. However, international treaties provide automatic protection for creative works as soon as they are fixed in a medium. Two of the most significant international copyright treaties are the Berne Convention and the Universal Copyright Convention (UCC).

The Berne Convention for the Protection of Literary and Artistic Works requires that protection for creative works in a fixed medium be automatic and last for at least 50 years after the author’s death. Photographic works have a minimum protection of 25 years, and cinematographic works are protected for 50 years after first showing or 50 years after creation if not shown within 50 years. The Berne Convention also includes the "rule of the shorter term," meaning that copyright protection in a Berne Convention country is limited to the term granted in the country of origin of the work. This ensures that copyright protection does not exceed the protection granted in the country where the work was first created.

The implications of the Berne Convention are significant for artists and creators. By harmonizing copyright laws across member countries, it provides more protection for creative works globally. This encourages international collaboration and the sharing of artistic works, as creators know their copyright will be respected in other countries. However, artists must still understand the specific copyright laws of each country where they share or use their works, as there may be variations in implementation of the Berne Convention.

Determining When an Artwork Enters the Public Domain

Determining when an artwork enters the public domain can be complex. Here are some guidelines that can help you determine if an artwork is in the public domain:

  • Works Created Before 1923: Copyright has expired for all works published in the United States before 1924. If a work was published before January 1, 1924, it is free to use in the U.S. without permission.
  • Works Created by the U.S. Federal Government: Content created by the U.S. federal government is in the public domain. This includes works by government agencies or employees as part of their duties.
  • Works Where the Copyright Has Expired: Copyright protection lasts for a limited time. Once that time expires, the work enters the public domain. The duration varies depending on when the work was created and whether it was published.
  • Works Where Copyright Renewal Was Not Completed: Many works published in the U.S. before 1964 have entered the public domain because their copyright was not renewed in time. The copyright owner had to file a renewal with the Copyright Office during the 28th year after publication.
  • Works Deliberately Placed in the Public Domain: Authors can choose to dedicate their work to the public domain. If a work states, “This work is dedicated to the public domain,” then it is free for public use.
  • Works Published Without a Copyright Notice: Under laws in effect before 1978, works published without a copyright notice entered the public domain. If the work did not include the word “Copyright” or a © symbol with the copyright owner’s name, it could enter the public domain. However, even if a pre-1989 work lacks a copyright notice, it might still have copyright protection if an exception applies.

Determining the copyright status for works published between 1923 and 1989 is complex, due to changes in copyright law and inconsistent rules for copyright notice, renewal, and protection duration. Careful research is needed to determine the copyright status of these works.

There are several resources available to help determine the copyright status of a specific artwork:

  • Copyright Office Online Records Catalog: The Copyright Office provides online searches for records from 1978 to the present. Records before that are available in the print Catalog of Copyright Entries.
  • Stanford Copyright Renewal Database: This database makes searchable the copyright renewal records received by the US Copyright Office between 1950 and 1992 for books published in the US between 1923 and 1963.
  • Examination of the Work: Inspect the work for copyright notice, authorship, and publication date. These details are often found on the front page of a book or in the biography section on a social media account.

It is important to note that the searches of the Copyright Office catalogs and records are helpful but not always conclusive. The absence of information about a work in these records does not mean it is unprotected. Works may not be listed if they were not registered or if records are incomplete. It is always best to conduct thorough research and seek legal advice when uncertain about an artwork’s copyright status.

Types of Creative Works Protected by Copyright

Copyright law protects various creative works. It's important to understand these categories to determine if a work has copyright protection:

  • Literary Works: This includes written works such as novels, poems, articles, and even computer programs. The key is that the work is expressed in words, numbers, or other symbols.
  • Musical Works: This includes original musical compositions, with or without lyrics. The protection applies regardless of how the music is created or recorded.
  • Dramatic Works: These works tell a story through action and dialogue, typically intended for performance. This includes plays, screenplays, and choreographic works.
  • Pictorial, Graphic, and Sculptural Works: This includes visual works such as paintings, drawings, photographs, sculptures, and even architectural works. The work must be a two or three-dimensional representation.
  • Motion Pictures and Audiovisual Works: These works consist of a series of related images, often with sound. This includes movies, television shows, videos, and video games.
  • Sound Recordings: This protects the fixation of a series of musical, spoken, or other sounds. This includes recordings of music, speeches, and sound effects.

Copyright protects the expression of an idea, not the idea itself. A particular painting is protected by copyright, but the idea of painting a landscape is not. This is a crucial distinction in understanding copyright protection and avoiding infringement.

Duration of Copyright Protection

The duration of copyright protection varies depending on when the work was created and whether it was published. Here are general guidelines:

  • Works Created After 1978: For works created after January 1, 1978, copyright protection typically lasts for the life of the author plus 70 years. This allows the author’s heirs to benefit from the copyright for 70 years after the author's death.
  • Anonymous Works, Pseudonymous Works, or Works Made for Hire: For works where the author is unknown or the work was created for an employer, copyright lasts for 95 years from the year of first publication or 120 years from creation, whichever expires first.
  • Works Created Before 1978: For works created before 1978, copyright duration can vary depending on publication, registration with the Copyright Office, and copyright renewal. This makes it more challenging to determine the copyright status of older works.

The Sonny Bono Copyright Term Extension Act of 1998 extended copyright protection for many works by adding 20 years to the existing term. This extension has been debated by those who argue that it restricts access to creative works and hinders the development of new works based on older material. The specific duration of copyright protection for a particular work may vary based on the specific facts of the case. It is best to seek legal advice if you are unsure about the copyright duration of a work.

In conclusion, understanding the public domain and the intricacies of copyright law is crucial for anyone working with creative materials. By following the guidelines provided, utilizing the available resources, and, when necessary, seeking legal advice, you can make informed decisions about how to use artworks responsibly. This knowledge will help you to protect your own creative work and navigate the complex world of copyright.

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Excerpts from "Public Domain Artwork Guidelines".

Excerpts from "Public Domain Artwork Guidelines".

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