Copyright Law and Public Domain

What is Copyright?

Copyright is a form of intellectual property protection that grants creators exclusive rights to their original works of authorship. Under U.S. law, copyright protection arises automatically when an original work is fixed in a tangible medium of expression. The owner receives a bundle of exclusive rights, including the rights to reproduce, distribute, display, perform, and create derivative works based on the original.

What Copyright Protects

Literary works such as books, articles, poems, and computer code. Musical works including compositions and sound recordings. Dramatic works like plays and screenplays. Pictorial, graphic, and sculptural works encompassing paintings, photographs, sculptures, and architectural designs. Motion pictures and audiovisual works covering films, television shows, and video content. Sound recordings as distinct from the underlying musical compositions.

The work must demonstrate a minimal level of creativity and originality, though the threshold is quite low. Copyright does not protect ideas themselves, only the particular expression of ideas. Facts, procedures, processes, systems, methods of operation, concepts, principles, and discoveries are not copyrightable, regardless of how they are described or explained.

What Copyright Does Not Protect

Several categories of material remain outside copyright protection. Ideas, facts, and information cannot be copyrighted, only their specific expression. Titles, names, short phrases, and slogans typically lack sufficient creativity, though they may qualify for trademark protection. Works by the U.S. government are generally in the public domain, though this doesn't extend to works by state and local governments or government contractors.

Purely functional elements without creative expression are not protected. Works that lack originality or consist entirely of commonly known information receive no copyright protection.

Duration of Copyright Protection

Copyright duration has evolved significantly throughout U.S. history. Under current law, works created on or after January 1, 1978, are protected for the life of the author plus 70 years. For works made for hire, anonymous works, or pseudonymous works, protection lasts 95 years from first publication or 120 years from creation, whichever is shorter.

Works published before 1978 follow different rules. Works published before 1928 are in the public domain. Works published between 1928 and 1963 received an initial 28-year term, renewable for another 28 years (now extended to 67 years for the renewal term). Works published between 1964 and 1977 received automatic renewal, providing 95 years of total protection from publication.

Public Domain Explained

The public domain consists of works not protected by copyright, either because protection has expired, was forfeited, or never existed. Public domain works can be used by anyone for any purpose, including commercial use, without permission or payment.

Works enter the public domain through several mechanisms. Expiration of copyright terms represents the most common path. In the United States, works published before 1928 are definitively in the public domain. Each January 1st, additional works from 95 years prior enter the public domain.

Government works created by federal employees in their official capacity are immediately public domain. Dedication to the public domain occurs when creators explicitly relinquish their rights. Forfeiture historically happened when creators failed to comply with formalities like copyright notice or renewal, though this is less common under current law.

Fair Use Doctrine

Fair use provides important limitations on copyright, allowing limited use of protected works without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Courts evaluate fair use claims using four factors: the purpose and character of use (including whether it's commercial or educational), the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the market for the original work.

Fair use analysis is highly fact-specific and contextual. Transformative uses that add new purpose or meaning are more likely to qualify. Educational and non-commercial uses receive more favorable treatment, though commercial use doesn't automatically preclude fair use. Using small portions of a work favors fair use, but even minimal use can be problematic if it represents the "heart" of the work.

Commercial Use Considerations

For commercial use, the safest approach is using public domain works or obtaining proper licenses for copyrighted material. Public domain works can be used freely for any commercial purpose. However, be cautious about subsequent creative elements added to public domain works, as these new contributions may be separately copyrighted.

When using copyrighted works commercially, fair use provides limited protection and should not be relied upon without careful legal analysis. Licensing agreements offer the most secure path for commercial use of protected works. Many works are available under Creative Commons licenses that specify permitted uses, some of which allow commercial use while others prohibit it.

International Considerations

Copyright law varies internationally, though many countries participate in international treaties like the Berne Convention. Works in the public domain in the United States may still be protected in other countries with different copyright terms. The rule of the shorter term generally applies in international contexts, but specific country analysis may be required for global commercial ventures.

Practical Guidance

When determining whether a work can be used commercially, first establish whether it's in the public domain by checking publication date and other factors. For works still under copyright, determine if your use might qualify as fair use, though this provides uncertain protection for commercial ventures. Consider seeking licenses for copyrighted works you wish to use commercially. When in doubt, consult with an intellectual property attorney, as copyright law contains numerous complexities and exceptions.

References and Legal Authorities

Primary Federal Statutes:

Title 17 of the United States Code (Copyright Act of 1976)
17 U.S.C. § 102 (Subject matter of copyright)
17 U.S.C. § 106 (Exclusive rights in copyrighted works)
17 U.S.C. § 107 (Fair use)
17 U.S.C. § 302 (Duration of copyright)
17 U.S.C. § 105 (Government works)

Key Court Decisions:

Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991)
Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)
Google LLC v. Oracle America, Inc., 593 U.S. ___ (2021)

Historical Copyright Acts:

Copyright Act of 1909 (affecting works published 1909-1977)
Copyright Act of 1976 (current framework)

Regulatory Authority:

U.S. Copyright Office regulations (37 C.F.R. Chapter II)

This overview provides general information about U.S. copyright law and should not be considered legal advice. Copyright law is complex and fact-specific, and consultation with qualified legal counsel is recommended for specific situations.