NAVIGATING THE PUBLIC DOMAIN

    All right, let’s start simple. Modern Copyright originates from a couple of international agreements, the Berne Convention, 1886, and the Universal Copyright Convention from 1952. This basically provided for the creation of copyright as a legal ownership right in the basic form we know today.

    It also put a time limit on the work – this was “Life of the Artist plus Fifty years.” Or in the case of a corporately created and owned copyright “Fifty years.”

    So basically, Copyright was created, owned for specific period of time, and then at the end of that time period, ownership expires and voila! If ownership expires, it’s public domain. So basically, here’s your first rule – anything older than a certain date is public domain – you just look at how old the work is, if it’s corporate, it’s a straight calculation from creation, if there’s an artist or writer, check the death date and calculate from there.

    So where does it get complicated?

    Well, the international copyright system has been updated and upgraded. So now, copyright ownership is extended generally to life plus Seventy years.

    But there’s a couple of wrinkles. First, each country has its own copyright act and it takes time for them to get all on the same page – so in some countries it was still fifty years for a long time. We had a situation where the lifespan of copyright was for different periods in different countries. I think it’s mostly universally seventy years. But you’d need to check in your particular country, or the particular country you’re doing business in, to see what the lifespan of copyright was and when it extended.

    Then there’s the wrinkle that if something ages into public domain, it stays there. It doesn’t go back into copyright just because the extension came in. So if your work was still under copyright, say year forty-nine after your death, when the seventy year period came in, congratulations, you get an extra twenty-one years.

     On the other hand, if its fifty-one years after your death and your work has entered into public domain, when the new seventy year rule comes into effect… well, your estate is just out of luck. It’s  in public domain, it doesn’t go back in.

     So there’s this scattering of works that fall into that unlucky middle ground, which entered public domain before the extension came along. You have to watch out for that. So it’s not just date of creation, or the date of artist death… you also have to check when the time period changed, just to see if it is still in or out.

     But we’re just getting to the good stuff – the United States. America wasn’t a signatory to the Berne Convention. Instead, it went with a copyright registration system. What that meant was that to have copyright in your work, you had to register it first. If you didn’t register it, it was in public domain. Or if someone registered your work instead, they owned your copyright. Back in the day, the United States was big on piracy.

     The Registration System allowed for copyright protection of twenty-eight years, with an opportunity to re-register for an additional twenty eight years. So there was plenty of opportunity to works to go into the public domain – if you didn’t register it in the first place, or you screwed up the registration – then public domain. If you registered it properly, but didn’t renew, once again, public domain. Once the renewal expired, then public domain for sure… maybe.

     This, boys and girls, is how the 1933 novelization of King Kong went into public domain, but the movie didn’t. It’s also how it’s a Wonderful Life and the Night of the Living Dead ended up in public domain.

     It’s a Wonderful Life entered Public Domain due to a clerical error on 1947, but the story, based on an earlier novel, remained under copyright. So the movie, having no copyright of its own, retained copyright as a derivative work.

     The case of Night of the Living Dead is particularly interesting, because they actually did try to register Copyright. They originally registered copyright under the name Night of the Flesh Eaters, and included that copyright notice on the film title. But then, at the last minute, they changed the name to Night of the Living Dead, and neglected to include the copyright notice. So… public domain over what amounted to a clerical error.

     The bottom line is that the Registration System made things fun and games, with various works prematurely launched into public domain, and all sorts of technical wrinkles as to things being in or out, derivative, etc., and a legal framework which elevated bizarre technicalities to semi-divine status.

     But manageable? Well, no. But it got worse.

     The problem was Disney. That entertainment juggernaut had a lot of valuable intellectual properties – Mickey Mouse, Goofy, Donald Duck, their respective families, friends and enemies, Winnie the Pooh, Snow White, and all the rest. A lot of this was created in the 1920s, 1930s, and 1940s.

     Well, twenty-eight year registration, even a renewal to fifty-six years, just wasn’t enough. But Disney had a lot of money, a lot of lawyers and a lot of influence. So it went to work getting copyright extended, to make sure that Mickey and friends would remain Disney properties.

     This eventually culminated in the Copyright Extension Act of 1998, which provided for a Maximum of 94 years for anything that was still under Copyright as of 1998. This saved Mickey and a bunch of other Disney properties for many years. And it complicated things for everyone, because once again, anything that had already entered public domain would stay there. So you really had to do research to determine if something was in or out.

     In fact, it’s only this year that Mickey has entered public domain. But once again, a wrinkle. Only the Steamboat Willy version of Mickey is in public domain. Elements of Mickey’s look which came along later are still under copyright. The Steamboat Willy version of Mickey doesn’t wear white gloves; those came long later. So if you depict your free version of Mickey with white gloves, Disney will come down on you.

     So even for a work in Public Domain, if elements were added to that work later, those elements might still be under Copyright, which makes using the Public Domain work tricky.

You can also take a Public Domain work and create a copyright by tinkering with it. For instance, if you Colorize a black and white movie, or add a new sound track or dialogue dubbing, or even if you just insert some scenes – voila, new work, new copyright. The original version is still Public Domain. But if you’re borrowing, just make sure you’re borrowing from the original, not the updates.

     But its all clear for you now, right? There are all sorts of things in or out of Copyright, but we can say definitively that anything older than 1928 is definitely, totally affirmatively in Public Domain in the United States. Probably.

     Particularly if the work was created or owned by a corporation.

     That works. Unless the person who created and owned the work in 1928 managed to live a long time, say into the 70s or 80s or later, and you’re counting from the date of their death.

     Now to make it really interesting, let me throw a few more curves at you. A creator or artist can explicitly renounce their rights and throw it into Public Domain. There’s a thing called Creative Commons by idealistic nerds, which sort of borders on Public Domain. Works by Artificial Intelligence systems are currently unable to sustain copyright and might be in Public Domain automatically. U.S. Government Publications are legally Public Domain, but I couldn’t give you a hard rule for other countries.

     The Copyright Acts of the world also contain provisions for fair comment or fair use, such as reporting, reviews, commentary or parody. That’s not Public Domain, but allows for legal infringement.

     There are things that can never contain Copyright – for instance, titles aren’t considered sufficiently creative to have copyright. On the other hand a line from a poem or a song lyric might not be any longer than a title, but will have copyright. So be careful.

     Then there’s complications. Some people think if it’s on the internet, its Public Domain, free to use. Nope, nope, nope. Even if it’s out there, that doesn’t necessarily mean it’s free for all or any purposes. Even if people are using it, it’s still under Copyright. Most times, no money is involved and no one is suing. But Copyright isn’t erased.

     I’ve mentioned, Artificial Intelligence products can’t sustain copyright themselves, but if it scrapes copyright material, and you can detect that material in the product, then the original holder of copyright still has their rights. This is something that Artificial Intelligence proponents don’t really get. AI is not a copyright laundering operation. The lawsuits are going on right now.

Then there’s the stuff that just floats around. A magazine registers a copyright and shuts down, or goes out of business, or goes bankrupt. The business no longer exists, or the entrepreneur has died. Does that mean Public Domain? Nope. Just because you can’t identify the copyright owner, say because the literary estate has passed through different heirs, or trustees in bankruptcy, doesn’t mean it no longer exists.

     This is actually a huge problem with a lot of writers and artists work, or with pulp or small publications. The big corporations, and the superstars are motivated and have the resources to look after this stuff. But for small creators, the rights are retained, but over time who actually owns those rights can become a morass – even an exercise in detective work. But copyright in these situations doesn’t just vanish. There’s many an entrepreneur who has made that mistake and found themselves confronted by lawyers and lawsuits later on.

     Finally, there’s Trademarks. Trademarks like Copyright, are an internationally recognized right, created by legislation. Trademarks can apply to a lot of things – characters, names, designs, images, etc. And Trademarks can also go into Public Domain.

    But Trademarks work differently. They’re not an artist’s property right for creation. They’re a commercial right to use a ‘mark’ in ‘trade.’ Basically, a Trademark (originally) is how a vendor distinguished their product from similar products on the market, so that you knew you were buying the real thing, and not a knock off.

Over time, Trademarks were adapted or extended to be the product itself. So Mickey Mouse, Donald Duck, James Bond and Sherlock Holmes were all trademarked, just to keep ownership, in the event of copyright expiration.

    There are important differences from Copyright. Trademarks don’t necessarily ever expire. As long as you maintain them and defend them, and they’re unique, you can keep a trademark indefinitely.

     But you have to defend it. A Trademark only works so long as it’s a unique identifier. When it becomes generic, then it goes into its version of Public Domain. You’ve heard of Kleenex? Or Zipper? Those used to be trademarks, until these became the generic names for locking metal fasteners and soft tissue paper. Now they’re part of Public Domain.

Now this is important, because while there are permissible infringements of Trademarks, there is much more legal incentive to protect Trademarks aggressively. If you don’t fight for it, you can lose it.

     So Trademarks are a potentially hidden land mine in the quest to figure out what is or isn’t protected, what is or isn’t public domain.

    As a whole, Copyright protection doesn’t get lost or abandoned as easily as Trademarks, and therefore there’s less incentive to police it aggressively. But the inverse side of that, is that the right isn’t lost for failing to defend it. A Copyright owner can pop out of nowhere to exercise or demand their rights at any time, for the entire lifetime of its existence. It’s its own kind of hidden land mine.

     In fact, if you look at where the money is in intellectual property – film and television, there’s an entire industry of lawyers, researchers, rental houses and insurance companies whose job is to navigate rights and figure out what is or isn’t safe, what is or isn’t public domain, and if it isn’t, what to do.

     That’s about it. It’s all totally simple, say what? Maybe not.

     As it turns out, although Canada and the United States continue to maintain Copyright Registration services, the way the law works, that won’t help you. Just because something isn’t in the Registry, is not proof that it is in Public Domain.

     In fact, there’s no official registry or database of public domain works that you can look up. There are private efforts like Project Gutenberg or various online or internal catalogues.

Unless it’s a famous or infamous case, or unless it’s well known and established, or decided by a Court or there’s an old decision of the Registry office, there’s no real way to say absolutely that a particular random piece of artistic work is or isn’t in public domain, if it was created in the twentieth century.

     In each case, you’d have to do some basic legwork and check into it. Hopefully, this article helps to ask the right questions. But there’s no substitute for legwork.