If you haven’t heard of this day, it might not just be because it is only celebrated by intellectual property nerds. Public Domain Day was a foreign concept here in the United States for a couple of decades: we didn’t have a Public Domain Day from 1998 until 2019. This is because in 1998 Congress extended the term of copyright protection for 20 years, resulting in a public domain drought for two decades. 2019 was an exciting year for those interested in copyright, and two years later in 2021 the thrill has not entirely worn off. In fact, this yearly occurrence should be of interest to anyone who wants to be able to freely use and adapt creative works, including entrepreneurs and small businesses.
What is the public domain? As previously discussed on this blog, copyright grants the authors of creative works — such as books, songs, paintings, photographs, articles and movies — a set of exclusive rights. If anyone else wants to use, copy, reproduce, distribute or create derivative works from a creative work, they need permission from the copyright owner. However, copyright has a limited term. Once a work is no longer protected by copyright, it enters the public domain and no permission is needed to use the work.
If it’s on the internet or publicly accessible, is it in the public domain? There are a lot of misconceptions about the public domain, particularly in the digital age. It is easier than ever to share creative works widely and to copy these works. A particularly common misconception is that, if something is posted on the internet or is otherwise accessible by the public, it is free to use. This is not the case. Even if there is no copyright notice on, for example, a photograph or an article and even if the work is not federally registered, it may still be protected by copyright in the United States. On the other hand, the growth of the internet has seen the growth of broad licenses and works that can be freely shared. For example, the Creative Commons licenses offer authors a way to proactively license certain sorts of uses. However, the safest assumption is that anything on the internet that isn’t your own work is protected by copyright and that you need a license to use it.
What works are in the public domain? In the United States, this is a difficult question because federal copyright law has changed such that a work created a century ago is subject to a different copyright term calculation than a work created today. As of 2021, works first published in the United States in 1925 and earlier are generally in the public domain and free to use. The calculation becomes more complicated for unpublished works, works published after 1925, works first published in another country, sound recordings and architectural works, among others.
What works entered the public domain on Public Domain Day 2021? Particularly well-known works now in the public domain include Fitzgerald’s The Great Gatsby and Woolf’s Mrs. Dalloway, along with a slew of other books, silent films and musical compositions. Duke Law’s Center for the Study of the Public Domain publishes an annual list of notable works entering the public domain in the United States, as does the U.S. Copyright Office.
What about later adaptations of public domain works? One important caveat about works in the public domain is that newer works based on those works are not necessarily in the public domain. So, while the book The Great Gatsby is now in the public domain, the 2013 film adaptation is not. Nor would be an article with a critical analysis of the book, a translation of the book into Spanish or a sequel to the book. In the case of musical compositions, it is also important to bear in mind that the musical composition is a separate work from a sound recording created of the composition, and that entirely different parties generally own the rights to the sound recording. The composition Yes! We Have No Bananas is now in the public domain, but a recording of the song being performed likely isn’t.
The entry of works into the public domain is an important step for the public benefit, both so that we can enjoy these old works and so that we can use them as building blocks to create something new. The benefits of public domain works are not limited just to artists and art lovers, but also apply to entrepreneurs. In developing new products and marketing their products, businesses generally must either pay to license any images, text and sounds they use or create their own works from scratch. Using public domain works, which are no longer subject to copyright protection, provides small and growing businesses with a viable alternative to potentially costly licenses (or the even more costly consequences of an infringement claim from a copyright owner). While entrepreneurs should exercise caution in making sure that the work they intend to use is actually in the public domain, the public domain is an incredibly valuable source of creative materials.
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