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Not always where we think

There’s an awful lot of confusion in the area of copyright about what is and what isn’t in the public domain.

That came home in a comment by reader Sondra who said:

I liked a photo from the 1800s that I saw on the cover of a book. I wanted to animate it for a short YouTube video and didn’t want to risk getting sued, so I called the publisher and asked if I could use it, since it was in the public domain. The publisher said I had to pay, I think, $25 for each site I put the video on, because the photograph was a separate work and had its own copyright. I now believe that was wrong, and the photographer had no control over the use of the photograph of a work in the public domain.

where.isTo try to figure out why Sondra may be headed off in the wrong direction, we have to first clearly understand where the public domain is — what’s in it and what’s not.

As the U.S. Copyright Office says, in answer to the question posed by the title of this blog, “The public domain is not a place. A work of authorship is in the ‘public domain’ if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.”1

So for our purposes, we really really want things to be in the public domain, because we can use them freely, any way we want, for any purpose (with some limits2), without needing permission from the original author or photographer — the creator of the work.

And there are three basic ways a work gets into the public domain:

• It was once copyrighted but the copyright has expired.
• It was never copyrighted at all — usually because the creator of the work didn’t take some needed step to copyright it back when the law required specific things like notice or registration.
• It was specifically dedicated to the public domain by the creator.3

So… since the photo in Sondra’s case was taken a long time ago and it’s been published, it’s public domain, right?

Not so fast.

The mere fact that something’s been published doesn’t put it automatically into the public domain. If that were true, nobody would ever write any books or publish collections of photographs.

Even it’s been uploaded to a website, that doesn’t put it automatically into the public domain. Many, perhaps even most, of the materials used on websites all around the world are copyright-protected. Publishing on the web isn’t any different than publishing in book form: either way, the person creating the work gets copyright protection for a period of time.

So it can’t be the fact of publication alone that says whether something is copyrighted.

What about the fact that the picture is from the 1800s?

Nope, that by itself isn’t determinative either. Because there are three key ways that a photo taken in the 1800s could still be covered by copyright:

• Under current US law, an unpublished work is copyrighted for 70 years after the death of the author.4 So a photo taken in the 1800s by a photographer who lived until the late 1940s is still copyright-protected.

• Under current US law, any work created before 1978 and first published between 1978 and 1 March 1989 with a copyright notice is copyrighted until at least 31 December 2047 — and possibly longer depending on some variables.5

• Under current US law, any work created before 1978 and first published between 1 March 1989 and the end of 2002 is copyrighted until at least 31 December 2047 — and possibly longer depending on some variables — whether it has a copyright notice or not.6

Applying those rules to Sondra’s case, the book publisher could very well have been telling the truth.

Let’s say, for example, that the photo was taken in 1860 by a 20-year-old photographer who lived to be 90 years old — so he died in 1930. His heirs or his estate would have owned the copyright on his unpublished work for 70 years after his death — so until the year 2000. If the estate sold the rights to the photo to the book publisher in 1988, and the book was published in 1990, that published photo would be under copyright protection until at least 31 December 2047.

So where is — what is in — the public domain?

Not always where, or what, we think.


SOURCES

  1. Definitions: Where is the public domain?,” U.S. Copyright Office (http://www.copyright.gov/ : accessed 20 Dec 2015).
  2. Just as one example, I really wouldn’t use a photo of a living person without that person’s permission, even a photo that’s out of copyright, on a pornography website. Just sayin’…
  3. Though this may technically be a license rather than true public domain, that’s a distinction without a difference. Anything that is licensed for free and totally unrestricted public use might as well be considered public domain.
  4. Peter B. Hirtle, Copyright Term and the Public Domain in the United States, Cornell Copyright Information Center (https://copyright.cornell.edu/ : accessed 20 Dec 2015).
  5. Ibid.
  6. Ibid.
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