Public domain: What’s theirs is sometimes yours

When does a copyright enter the public domain? We get this question all the time. We’d love to say, If published after this date add XX number of years, and then its OK to use. But — heavy sigh — we’re talking legal stuff and legal stuff is never so easy.

Disclaimer: In the old days, many copyright rules only applied to the country the work was registered in. Now that so many pieces of original work can be found on the internet, “The World” can be considered your place of origin. That’s hard to police. So for this report, I’m going to stick with rules that pertain to the United States of America. Many of these rules also apply to European copyright issues. Like my sources here, you can find answers pertaining to other countries’ rules online.

What is public domain?

Let’s first define the properties of the “works” we’re talking about. There are several types of works that can fall into the Public Domain category. Works registered or first published in the U.S. or works that have never been published or registered, but are sitting in some attic somewhere. And, yes, this does happen once in a while, much like the old da Vinci found in Grandma’s attic myth.

Believe it or not, due to their uniqueness and frailty, more than half of the silent films made back in the early days of filmmaking, no longer exist. Yet, an old unregistered film of Charlie Chaplin, before he was a star, was discovered at an antiques fair recently. The film, A Thief Catcher doesn’t star Chaplin, which is why it was unknown. He just plays a bit part in one of the many famous Keystone Cop capers. So who owns this film? Because of its age, the person who bought it from the unsuspecting seller, owns it.

Anything that was created by a person in a written, audible, pictorial, graphical nature — art, photos, literature, film/video, etc. — or is a new invention or design, is considered “intellectual property” [IP] and is the property of the creator. You can’t patent an original piece of work. Original works are protected by copyright law. Patent laws provide protection to inventions or discoveries. These things are important to understand when it comes to video production and the law.

Under intellectual property law, owners are granted certain exclusive rights, such as the ability to publish to various markets, license the manufacture and distribution of inventions, and sue in case of unlawful or deceptive copying. Common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights, and trade secrets.”


His works — your rights

How would you like to own the Mona Lisa? You can’t, of course, she is owned by the people of France, and has a famous home in Paris called The Louvre. But her image has no copyright owner, so you’re free to use her in postcards, video or any other creative source. Then YOUR portrayal of the famous smile becomes an intellectual property and YOU own the copyright to that portrayal. (Even if you don’t fill out any paperwork.) In other words, if an artist creates a copy of the famous work and makes his or her own additions to it – no matter how badly done – the original Mona Lisa isn’t copyrighted, but the new one is.

OK then what IS considered public domain?

Other confusing areas are Creative Commons work and Open Source software. While usually free to use, they are not free to own. These works are protected under copyright law. The owner chooses to allow their free use and can pull the plug of that benevolent gesture any time. In many instances, you can use footage on a creative commons site. The developers may encourage you to pad the coffers, or give you very strict rules of use. For example, you can use a music or video clip for your kid’s birthday video, but not for a commercial production.

The Disney company makes billions of dollars using public domain material. Literary classics like The Little Mermaid, The Jungle Book, Peter Pan and stories by The Brothers Grimm are all past their copyright range. They are free to copy. Disney movies created from these classic stories are not. Not surprisingly, Disney know how to protect its properties better than anyone!

I was in a local restaurant recently where the kids’ menu had Disney characters dancing all over it. The menu displayed The Princess and the Frog, Beauty and the Beast and more. The owners had pulled images from the internet and were in direct copyright violation. I mentioned this to the restaurant owner and she looked at me like I was speaking a foreign language.

Fair use

Ahhhh… the waters get muddier by the second. Fair Use is a gray area. It’s defined to allow users to use copyrighted material for parody, criticism, news reporting, education, research and few technical purposes. For example, an image of the Mona Lisa, created by an artist other than DiVinci, belongs to the artist who created them. The media discovers that artist is using the image as part of a scam. The news outlets are protected when they display the image on television and the web.

You might have noticed that Videomaker  created a video series called Deconstructing Cinematography, where we used clips from such well-known movies as The Godfather, Saving Private Ryan, and Butch Cassidy and the Sundance Kid . Videomaker is a commercial business, how were we able to use these movie clips? Because we are offering up some examples to teach viewers how specific movie-making techniques were made and we aren’t, changing their original purpose, re-editing the pieces, or giving away important plot points. 

Confusing? You bet’cha!

Here’s more: playing an old song from a piece of Baroque sheet music from the 1600s is ok, because it’s clearly old enough to be in the public domain. If Justin Bieber records a tune from that sheet music, he now owns copyright; not to that sheet music but to his version of the tune.

Then what CAN you use?

OK. Old paintings and old sheet music aside, how can public domain benefit a video producer? Except for those old silent movies, our media isn’t that old, so what can we use? Well, a lot more than you think, depending on what you’re using it for. For example, almost anything created by the U.S. Government can be used by the citizens of the U.S. because we the people own the U.S. government, thus we own its intellectual property. I saw “almost”, because there are some cases where photos, video, music or other creative works might have been created by a contractor to the government, like some NASA images, and those follow the usual copyright rules. In that case, NASA might display them, distribute them and archive them, but they belong to the original creator of the work.

Those that slipped through the public domain cracks

Recently Videomaker forums host Gregory Watts found this site and posted it to our forums. He says many of the movies and TV shows in the list are no longer under copyright protection. It wasn’t common to protect copyrights on many pre-1974 TV shows. One big example he cites is the annual Christmas tear-jerker, It’s a Wonderful Life. Frank Capra directed the film that stars James Stewart.

A good guide from Cornell University explains a lot of the rules of when a work goes into the public domain. Below is a brief breakdown of some of the points:

  • Never Published, Never Registered Works: If a product from authors who died BEFORE 1942 and was never published, the copyright runs until 70 years after the author’s death. In other words, if you want to use old home-movie film made by silent film star Rudolph Valentino, who died in 1926 and was never registered, that footage would be in the public domain as of 1996.
  • Type of Work: Copyright Term – What was in the public domain in the U.S. as of 1 January 2012
  • Unpublished works: Life of the author + 70 years – Works from authors who died before 1942
  • Anonymous and pseudonymous unpublished works, and works made for hire (corporate authorship): 120 years from date of creation – Works created before 1892
  • Unpublished works when the death date of the author is not known: 120 years from date of creation – Works created before 1892

Works no longer protected are out there.

The Center for the Study of the Public Domain has been following the changes in copyright law. They report: “The public domain has been dramatically eroded in recent years… By some estimates, 90% of works did not include this copyright notice and immediately entered the public domain… before 1978, only 10% of works might have been subject to copyright at all, and of the works that were, up to 85% only used the first 28-year term, with 15% renewing for the full 56-year term.”

Every day sites are adding up the footage. You’ll find everything from old World War II battle scenes to movies and shows that fell off the radar. They’re out there – you just have to search for them. Do us a favor, when you find a good site, let us know and we’ll add it to our growing list!


  • Center for the Study of the Public Domain
Jennifer O'Rourke
Jennifer O'Rourke
Jennifer O’Rourke is an Emmy award-winning videographer & editor.

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