5 Unusual Ways Works Can Enter the Public Domain

The date January 1, 1926 is something of a magical date for those that follow copyright. As of this year (2021), all works published before that date are broadly considered to have entered into the public domain and are free to be copied, built upon and otherwise used without a license.

But while it’s convenient to say that “All works published in 1925 and before are public domain” it doesn’t really tell the full picture.

First, it only looks at the United States. Other countries have different copyright terms, some of which long outlive those in the United States. Other nations also observe moral rights, non-commercial rights in a work, that are often perpetual and do not lapse when the copyright does.

However, even if we look just within the United States, it doesn’t tell the full story. Determining whether a work is in the public domain or not is often a daunting challenge that can require finding out when the work was published, when the author died, whether it was published with a copyright notice, what country it was first published in and much, much more.

That’s because U.S. copyright law for most of the 20th century was a mess of requirements and obligations that caused many works to lapse into the public domain earlier than they would have otherwise. Though most of those requirements are now gone, this doesn’t mean that there aren’t some unusual reasons for works to enter the public domain.

To that end, here are five reasons works that may otherwise qualify for copyright protection, are completely free to use.

1: Created by the Federal Government

For the most part, works created by the federal government (or federal government employees as part of their job) are considered public domain the moment they are created. Copyright does not apply to them.

To be clear, there are limitations to this. For example, the U.S. government can claim copyright in their works abroad and the government can have copyrights assigned to it by third parties. Also, contractors that work for the federal government but are not employed by them will likely hold the copyright in their creations.

Also, the U.S. government can place other restrictions on the use of government materials, including using logos or emblems that may confuse others. So don’t assume everything created by the government is free to use for whatever purpose you want, just know that copyright is most likely not an obstacle.

2: Public Domain Dedication

There is no clear way to dedicate a work to the public domain. However, many artists do the next best thing and place their work under a perpetual license that is as close to public domain as possible. Tom Lehrer famously did this in October 2020.

Though this may not be public domain in the strictest sense of the word, from a practical standpoint there is little difference. Works dedicated in this manner are free to use without a license or paying a royalty.

One photographer, Carol Highsmith, learned this the hard way when she sued Getty Images for selling her public domain-licensed works as stock photos. She attempted to sue but had her case thrown out on the grounds that she had functionally licensed her work for this kind of use.

So, while there may not be a way to truly dedicate a work to the public domain, it’s clear that it can be licensed in a way that makes little difference at all.

3: It Wasn’t Creative Enough

Copyright protects “works of authorship fixed in any tangible medium of expression“. However, part of authorship side of the equation is that it must include some degree of creativity. Though that amount of creativity required is very low, many works don’t qualify for copyright protection on the grounds that they were not creative enough.

The most famous example of this in copyright history was the Feist Publications case which found that a telephone book, despite requiring a great deal of effort to create, did not qualify for copyright protection. Similar findings have been found for recipes, fashion, mathematical equations and other areas as well.

Though other nations do hold a “sweat of the brow” doctrine and allow copyright to be granted to works that simply required effort and not creativity. That’s not the rule in the United States.

4: It Forgot the Copyright Notice (or Renewal)

Prior to the Copyright Act of 1976, a copyright notice was required for all works that wanted to enjoy copyright protection. Works that were published without it lapsed into the public domain immediately upon publication.

Perhaps the most famous example of this was Night of the Living Dead, which was published in 1968 but failed to include a copyright notice due to a last-minute title change. However, this happened to a large number of books and films, including Bram Stoker’s Dracula.

Couple this with the facts that, for many years, the United States required copyright renewals to be filed, many works lapsed into the public domain not on account of age, but the lack of proper paperwork. If you see books and movies published between 1925 and 1978 that are in the public domain, it was most likely one of those reasons.

5: It Wasn’t Written Down

Going back to what copyright protects, in addition to requiring authorship, copyright requires that it be fixed into a tangible medium of expression. Though that medium can be almost anything, from a computer hard drive to a piece of scrap paper, if it’s not fixed, it’s not protected by copyright.

Copyright does not cover ideas. So even if you have the best idea for a book or movie ever, until you write it down, there’s no protection for it. However, even when you do write it down, you control that expression of it, not the idea itself.

Still, if you want to claim copyright in a work, it must physically exist somewhere. It cannot be just an idea in your head or something that you said out lout but never recorded. Until the work is tangible, there’s no copyright protection for it.

Bottom Line

Thanks to the Copyright Act of 1976, most people don’t have to worry about their newly created works lapsing into the public domain without their permission. However, many newer works did lapse into the public domain and many new ones continue to do so for various reasons.

Still, for the most part, these are outliers. They either relate to the boundaries of copyright law itself or to edge cases within the law. Few works that one traditionally thinks of as being copyright-protected are able to lapse into the public domain without the author’s permission.

In the end, all this does is showcase just how complex copyright law really is and why, despite many attempts to simplify and explain it, the law continues to confound and confuse.

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