Legally Speaking, It Depends: What Is Public Domain?

It might surprise some people to learn that for creative works, public domain is the default state. Entertainment attorney, Christopher Schiller, clarifies what constitutes public domain.

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It might surprise some people to learn that for creative works, public domain is the default state. Copyright is a relatively recent aberration (in the grand timeframe of written history) granted for limited time and purposes in only certain, predefined cases. If there isn't a specific statutory stipulation for the subject matter or form of the work, the creative endeavor falls automatically into the public domain.

What is the Public Domain?

In deference to its long history in legal parlance, the term “Public Domain” means exactly what it says. The controlling factors for the work in question lay in the hands of the public, all of it. Anyone may use the work as they see fit and create something new, just as if they owned it. In essence, a Public Domain work IS owned and shared by everyone equally.

You Cannot Dictate What's In The Public Domain, No Matter How Hard You Try

In the US you cannot simply declare something is in the Public Domain. You cannot control when a work stops being protected. You cannot release a work into the Public Domain, nor keep it from falling into it when it's time is up. A work's state is dictated by the relevant laws.

Public domain is not Creative Commons (CC)

CC is a license of a copyrighted work. Creative Commons offers a pre-defined set of voluntary licenses that can be adopted by a work's creator as a default, readily available licensing scheme for sharing a work under pre-defined terms. CC is a great tool and is very flexible for sharing works, and can even emulate the terms of a PD work, but it is still licensing a copyrighted work, just “creatively”.

Public Domain Is Just For Old and Dusty Works, Right?

Not at all. Determining when something becomes public domain can be quite tricky and not so straightforward. It is not just very old works. Here are some instances where created works are available within the Public Domain with varying degrees of immediacy:

U.S. Federal Government created works (specifically created by government employees in their normal course of business) fall immediately into the Public Domain. Care should be taken since not all Government works are created this way. e.g. A contractor created work actually has a copyright that is likely (but not always) transferred to the government. And the government might acquire a copyrighted work from a third party. In such cases, you'd have to get a license to use the work from the owner.
Works in a form not covered by copyright (like unrecorded, extemporaneous speech in U.S. law) are immediately in the Public Domain. If a specific category of work is not defined to be covered by statute, then there is no copyright protection. Until recently (1990s), architecture was one of these forms of work. It wasn't until the late 70's that record albums got protection. And the forms of works that are covered vary from country to country, so, some work may be fully protected in one country and not even considered protectable in another.
When the author is known (and it isn't the Federal Government, see above) within U.S. 70 years after the author's death (current law) that work falls into the public domain – except:
if the work was created as a work-made-for-hire (e.g. a screenplay, properly contracted) then it becomes a Public Domain work either 90 years from first publication or 120 years from creation if unpublished regardless of how long lived the writer is. Why? Corporations don't die, and because they are the technical “author” of the work, these terms apply – they also apply to anonymous works where the author is unknown and so it is impossible to determine when he or she died.
Different terms for other countries, and yes, a work can be under copyright in one country and in the public domain in another. And some countries allow some things to never drop into the public domain (for example, some works in Denmark and a certain play about flying boy that likes tights in UK.)

What Can You Do With a Public Domain Work?

Anything you want to. Really. That's why its “public” domain. That's why the debate is so strong with the works of Sir Author Conan Doyle pertaining to Sherlock Holmes. The earliest works with Sherlock in them have now fallen into the Public Domain due to term limits. There is a lawsuit attempting to clarify whether the character is now fair game for anyone to play with, or, as the estate maintains, the remaining works that still have copyright protection preclude using the character without their say so.

The question is by no means “elementary” and isn't limited to the master detective. For example, there's been a long held belief by many that the “Happy Birthday” song has fallen into the Public Domain a long time ago, but, there is still a very strong argument made by the current licensee that it hasn't. (There's a court case for this one too.)

Why Should You Care?

Suppose you wrote a screenplay where a person had a birthday party and the guests embarrassed the now older character with a screechy rendition of “Happy Birthday”. When the script goes through “Clearance” - vetting a script to make sure there are no legal complications that could bite the producers later on – it'll be flagged. Singing that song would require a production to pay for the license for the musical composition rights. Even though the claim is disputed, the producers would have to weigh the possibility of being sued (high with this particular licensee) and the potential halting of production/distribution while it is resolved in the courts (costing even more money) or paying a possibly unnecessary license fee and getting to release the movie on time. In fact, any copyrighted song in a script would have to be licensed in order to be used and so would be read as dollar signs out the door by a potential, savvy producer.

Using public domain works makes things cheaper, more readily available to everyone. But you can't protect yourself from others with the same idea. The character of Indiana Jones is pretty safe until it's 90 years is up. If you want King Arthur to show up in your modern day script, have at it. But if your neighbor has a King Author script of her own, there's nothing either of you can do about the competition. Unless...

When is PD not really PD?

Where you have to protect yourself when using public domain works in your creations is to make sure you haven't infringed in the protected expressions of others who have used the same public domain sources. Cinderella is a story that is in the public domain (much like most all Disney works.) But if your telling of the story begins to look like anything that Disney has created you can quite quickly come under the legitimate scrutiny of Disney legal. Even if the source is in the Public Domain, any new expression that can be distinguished from that original garners brand new copyright protection. The current ABC Network TV show Once Upon a Time skirts this issue continually when dealing with the fairy tales (in the Public Domain) which have been already expressed in some version (often with many variations) in other more recent – and, importantly, still protected – media. A recent storyline had a throwaway line where the Mulan character was told her story had been told as a fairy tale in a movie. Her response, “What's a movie?” This shows that the creators of that show are well aware of the fine line they have to tread in dealing with Public Domain source material.

Public Domain material is a rich resource and serves time and again as a great starting point for a re-imagining of a well known story. Fairy tales, Shakespeare, ancient tales all can be reinvigorated and re-imagined without having to “acquire the rights” first. And with a little care to not step on others' toes, you can let your own imagination run wild.

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Christopher SchillerAuthor

Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. He has an extensive personal history in production and screenwriting experience which benefits him in translating between “legalese” and the language of the creatives. The material he provides here is extremely general in application and therefore should never be taken as legal advice for a specific need. Always consult a knowledgeable attorney for your own legal issues. Because, legally speaking, it depends... always on the particular specifics in each case. Follow Chris on Twitter @chrisschiller or through his website.