When Can I Use Public Domain Media?

The Public Domain – Unraveling the Confusion of when Copyright claims dissolve.

When our country’s Founding Fathers adopted the U.S. Constitution, they wanted to make sure that, unlike in England, no person could have an unlimited monopoly over property, whether it was real property, personal property or intellectual property. So Article I, Section 8 of the Constitution gave Congress the power to secure “for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

The “limited times” stated in this section refers to a time period that has changed over the years, as Congress updated the Copyright Act. Between 1909 and 1978, for example, the copyright term was 28 years, renewable once for an additional 28 years. But the 1976 Copyright Act, which went into effect on January 1, 1978, changed the term of copyright from a maximum of 56 years to the creator’s entire life plus 50 years. More recently, Congress acted again, allowing those with copyright rights (e.g., movie makers, songwriters, screenwriters, etc.) to prevent copying part or all of their creations for their entire life plus 70 years. That’s a long time, of course, but still within what Congress defined as “limited times.”

Looking backward, however, to works created before 1978, the pre-1976 Copyright Act applies. If someone made a movie, for example, in 1970 and applied for a 28-year copyright registration, it would have expired in 1998, unless the copyright holder decided to renew the registration for another 28 years. Then the expiration of the copyright rights wouldn’t occur until 2065.

The Copyright Office provided a handy table for calculating when the copyright rights of a particular work will expire, depending upon when the work was initially registered and whether the registration had been renewed. For instance, here you can find an abridged timeline for works published within the United States. You can access the rest of the table by visiting www.copyright.cornell.edu/public_domain.

You can access some of the Copyright Office database at www.copyright.gov/records. If you don’t know when a work was registered, the Copyright Office can search its database for you for $150 per hour.

Here’s a rule of thumb that may come in handy: any work that was created before 1923 is now in the public domain, regardless of whether the registration was ever renewed. That’s the magic year. All works created before 1923 can be used without permission by the creator of those works. That would include the music of Brahms, the poetry of Shelley, the plays of Shakespeare and the paintings of Rembrandt. Be careful, though, that you don’t use a modern recording of a Brahms musical piece, since that particular recording is most likely still under copyright, even though the rights to the underlying musical work are in the public domain.

There are exceptions to the copyright law. For example, under the fair use clause of the Copyright Act, in certain situations you may copy protected works without permission (see 17 U.S.C. §107). Also, works created by the federal government cannot be protected by copyright. You are allowed to copy part or all of government publications, photographs, videos, soundtracks, etc. That means that you can copy some or all of productions of the Department of Defense, NASA, Congress, the FBI and the like without obtaining permission.

Attorney Mark Levy specializes in intellectual property law. He has won many amateur moviemaking awards.

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