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Public Domain - Intellectual Property Law

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What Is Public Domain?

Public domain means that an artistic work owned by the public. No individual or corporation owns the copyright in the material, so permission is not needed to use the material. As a member of the public, you are as free to use the material and can be used, distributed, or produced in any way by any person.

What Is Intellectual Property?

Intellectual property is a work or invention that is the result of creativity. Included within the realm of intellectual property rights are patents, ideas, symbols, literary and artistic works, copyrights, trademarks, and trade secret rights.

The following are examples of intellectual property:

  • Copyright. Copyright describes the rights that creators have over their literary and artistic works. These works range from books, music, paintings, sculpture and films to computer software, computer code, advertisements, maps and technical drawings.
  • Patents. A patent is an exclusive right granted for an invention. A patent provides the owner of the patent the right to decide how the invention may be used by others - if at all. The patent owner, in exchange for this right, makes technical information about the invention publicly available in the published patent document.
  • Trademarks. A trademark is a sign capable of distinguishing the goods and services of one business or entity from those of other businesses or entities.
  • Industrial Design. Industrial design constitutes the ornamental or aesthetic aspect of an article.
  • Geographical Indications. Geographic indications are signs on goods that have specific geographical origin and possess qualities such as a reputation or characteristics that are attributable to that place of origin. An example of a geographic indication would be "Darjeeling" on a tea bag of Darjeeling Tea.

What Qualifies as Public Domain?

The law says there are four ways a property can become public domain:

  • Facts and events are already public domain. But if you write about facts and events in an original way, that work may be protected by copyright.
  • Publications and other works created by employees of the United States government and its agencies, as part of their job, are in the public domain.
  • Very old works for which the copyright has expired are in the public domain. Usually, one can take the current year and subtract 75 years in order to determine if a work is in the public domain.

Works created before 1978 may have fallen into the public domain because they did not meet the formalities of proper copyright notice under the old U.S. Copyright Law or because the application for term was not filed in a timely fashion. You no longer must meet these formalities of notice and renewal for works created after March 1989 in order to be eligible for copyright protection in the U.S.

Determining Whether a Work Is in the Public Domain

Works may become public domain in the following situations:

  • When a copyright expires.
  • When a work is unable to be copyrighted.
  • If a copyright never existed for the particular work.

When Does a Copyright Expire?

To determine whether a copyright has expired, it is important to determine when the copyright was published. The following rules may be used to determine if a copyright has expired:

  • Copyrights of all works in the United States published before 1923 have expired.
  • Works published after 1922 but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, prior to 1978, the copyright will last for the life of the author plus 70 years until it expires and becomes public domain.
  • Works published after 1977, the copyright lasts for the life of the author plus 70 years.
  • If the work was published between 1923 and 1963, the U.S. Copyright office can determine whether the copyright was properly renewed.

Can Someone Be Sued for Using Works in the Public Domain?

As a general rule, once something becomes public domain a person cannot be sued for using them as they belong to the public and no one can claim exclusive use. However, it is not uncommon for people to create original works based on works that exist in the public domain. For example, the re-working of a public domain song can be copyrights as long as it constitutes a new work of art.

Should I Contact an Intellectual Property Attorney?

If you are attempting to use material, and are uncertain if it is public domain, the advice of an intellectual property attorney can be extremely helpful. By finding an attorney who specializes in the complex field of copyright law, their counsel may prove beneficial in the copyright process.

Photo of page author Kirin McKenna

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 04-17-2015 03:21 PM PDT

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