Public Domain and Copyright Protection

by Sarah Kolb -

It's illegal to use someone else's copyrighted work without their permission, but a copyright registration doesn't last forever. In fact, a copyright lasts only a certain number of years past the author's death; when the registration ceases to be valid, the work enters the public domain and is freely available for use by anyone who chooses to use it. So how do you determine whether a work's copyright registration has run out -- our whether that work was ever registered in the first place? These questions seem straightforward, but the answers are more complex than you might think.

Unfortunately, if you'd like to use a particular work but you're not sure where to start, it's your own responsibility to determine whether it's protected by a copyright or in the public domain. A work might be in the public domain for any number of reasons; in order to figure out if you're free to use a work, there are a few questions you should ask yourself.

Is it an original work, or an idea?

Not everything is able to be copyrighted. Only "original works" that have been "fixed in a tangible medium" are able to be copyrighted -- the underlying idea is not. In addition, blank forms and other documents that contain no original work cannot be protected: ledgers, weight charts, address books, score cards, and other similar works are ineligible for copyright protection. Standard calendars are also ineligible -- however, while the calendar aspect cannot be protected, any artwork or photography that accompanies the calendar could be protected as a work of visual art.

Here are a few examples of things that cannot be copyrighted and, therefore, can be freely used:

* Someone writes a fictional children's book about dinosaurs, and they copyright the text. You want to write your own book about dinosaurs. Understand that it's the text alone that is protected from infringement, not the idea of fictional dinosaur friends going on journeys and doing other activities similar to the first dinosaur book. (Here's a great example of this point -- a frequent request my company's copyright division receives is to submit a few-page synopsis of a novel for copyright protection. We're careful to explain that while we could certainly send in those few pages of text for protection, our customers must understand that it's the actual text of the synopsis that would be protected, and not the book idea itself -- likely not what they had in mind!)

* Here's another example, this one from a court case by the name of Dunlap v. G&L Holding Group, Inc. (heard in the U.S. Court of Appeals for the Eleventh Circuit on August 27th, 2004). In this case, a gentleman came up with an idea for a bank that caters to gay and lesbian clientele. G&L Bank was formed and Dunlap became an employee. However, shortly after G&L's inception, Dunlap was fired and subsequently sued for theft of his idea. However, the suit was dismissed -- an "idea" cannot be protected, so someone who "steals" that idea has not broken any copyright laws.

Has the work been registered with the US Copyright Office?

With more recent works, the best place to start is the USCO's Copyright Records Search. Simply search the online database for the work you're looking for.

Of course, it isn't that simple. If the work isn't found there, that doesn't mean you've eliminated the possibility that the work is registered. It just means you have to dig a little harder. You may need to enlist the USCO's help in locating the registration. This process has its costs ($115 for even an estimate of the cost!) -- but guess what's even costlier? Being sued for copyright infringement.

In what year was the work registered for copyright protection?

In some cases, you might know that the work was copyrighted at one point but be unsure whether that registration is still valid and effective. There are many factors involved (the year of registration, whether or not the copyright symbol needed to be affixed to works registered in that particular year, and so on), but there are a few general rules:

*If the work was published before 1923, the copyright has expired. It is now in the public domain and free to use.

*If a work was published between 1923 and 1963 and the copyright registration was not renewed, the work is free to use.

* The registration of a work created after January 1, 1978, will remain effective until 70 years after the author's death (or the death of the last author, if there were more than one authors). If the work was anonymous, registration remains effective for 120 years from the registration date.

* If the work was published before 1978, and the copyright symbol and notice were not included in the work, it's in the public domain (and always has been).

* If the work was published between 1978 and March 1, 1989, it's a little trickier -- if the copyright notice was not included in the work at the time of publication, the author had five years to do so. If they did not, the work is in the public domain.

Sarah Kolb, http://www.clickandcopyright.com

Since 2000, Click Industries, Ltd. has been helping thousands of small business owners, independent entrepreneurs, writers, and musicians start new business ventures, protect their intellectual property, and find new ways to market and promote their businesses and creative works. The management team of Click Industries brings a wealth of experience from the fields of government, law, IT development, and book publishing.