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The Public Domain How to Find & Use Copyright-Free ­Writings, ­Music, Art & More

By Attorney Stephen Fishman Fourth Edition MAY 2008 Editor RICHard Stim Cover Design susan putney Production MARGARET LIVINGSTON Proofreading robert wells Index songbird indexing Printing DELTA PRINTING SOLUTIONS, INC.

Fishman, Stephen. public domain : how to find & use copyright-free writings, music, art & more/ By Stephen Fishman. -- 4th ed. p. cm. ISBN-13: 978-1-4133-0858-7 (pbk.) ISBN-10: 1-4133-0858-9 (pbk.) 1. Public domain (Copyright law)--United States. I. Title. KF3022.Z9F57 2008 346.7304'82--dc22 2007051622

Copyright © 2000, 2004, 2006, and 2008 by Stephen Fishman. All Rights Reserved. Printed in the U.S.A.

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise without prior written permission. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. For information on bulk purchases or corporate premium sales, please contact the Special Sales ­Department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo, 950 Parker Street, ­Berkeley, CA 94710. Acknowledgments

Many thanks to all the folks at Nolo for their outstanding work, including Margaret Livingston, Richard Stim, Bob Wells, and Melody Englund. Thanks also to the following people who generously contributed advice and/or in- formation: • Professor Emmy Werner • Roger A. Sayles • Eric Eldred • Lynn Nagrani and all the other people at the Public Domain Information Project • Joan Liffring-Zug Bourret of Penfield Press. Finally, special thanks to Stanley Jacobsen, without whose indefatigable research ­assistance this book would never have been completed.

Table of Contents

Your Legal Companion 1 Introduction to the Public Domain What Is the Public Domain?...... 4 Dealing With Public Domain Gray Areas...... 11 What If Someone Challenges Your Public Domain Claim?...... 14 Documenting Your Use of Public Domain Materials...... 15 2 The Use and Abuse of Copyright What Copyright Protects...... 18 The Looting of the Public Domain...... 24 3 Writings What Can You Do With Public Domain Writings?...... 33 Determining Copyright Status of Written Works...... 38 Is the Work Eligible for Copyright Protection?...... 41 Has the Work Been Published?...... 58 Has the Work’s Copyright Expired?...... 67 Is the Work in the Public Domain Due to Lack of a Copyright Notice?...... 67 Does a Copyright Trap Apply?...... 68 Misuse of Copyright Notices...... 80 Sources of Public Domain Writings...... 82 4 Music The Difference Between Music and Sound Recordings...... 85 What Can You Do With Public Domain Sheet Music?...... 86 Has the Sheet Music Been Published?...... 90 Has the Copyright in the Music Expired?...... 96 Is the Music in the Public Domain Due to Lack of a Copyright Notice?...... 97 Is It a Derivative Work?...... 97 Is It an Arrangement or Adaptation?...... 99 Is the Music a Collective Work?...... 110 Does the Music Have Public Domain Elements?...... 112 Sources of Public Domain Sheet Music...... 114 Sound Recordings...... 115 5 Art Part I: Original Works of Art...... 124 What Good Is Public Domain Art?...... 124 Deciding If Original Art Is in the Public Domain...... 126 Has the Art Been Published?...... 126 Has the Copyright in the Art Expired?...... 131 Is the Art in the Public Domain Due to Lack of a Copyright Notice? ...... 131 Is the Artwork Eligible for Copyright Protection?...... 132 Do You Intend to Use the Art in Advertising or on Merchandise?...... 140 Is the Art Protected by a Design Patent?...... 141 Sources of Original Art...... 142 Part II: Art Reproductions...... 142 Is the Original Work of Art in the Public Domain?...... 143 Has the Reproduction Been Published?...... 143 Has the Copyright in the Reproduction Expired?...... 143 Is the Reproduction in the Public Domain Due to Lack of a Copyright Notice?...... 143 Does the Reproduction Lack Originality?...... 144 Is the Reproduction Dedicated to the Public Domain?...... 149 Will You Use the Reproduction in Advertising or on Merchandise?...... 150 Are Elements of the Reproduction in the Public Domain?...... 150 Sources of Art Reproductions...... 150 6 Photography What Good Are Public Domain Photographs?...... 152 Deciding Whether Photographs Are in the Public Domain...... 152 Sources of Public Domain Photographs...... 162 7 Movies and Television Part I: Films...... 165 What Good Are Public Domain Films?...... 165 Has the Film Been Published?...... 166 Has the Copyright Expired?...... 168 Is the Film in the Public Domain Due to Lack of a Copyright Notice?...... 175 Is the Film Protected by Copyright?...... 175 Does the Film Contain Copyrighted Visual Art?...... 177 Do You Plan to Use the Film for Advertising or Other Commercial Purposes?...... 178 Part II: Television Programs...... 178 Has the Television Program’s Copyright Expired?...... 179 Is the Television Program in the Public Domain Due to Lack of a Copyright Notice?...... 181 Is It a U.S. Government TV Program?...... 181 Does the Program Contain Copyrighted Visual Art?...... 181 Will You Be Using Public Domain TV Programs for Advertising or Other Commercial Purposes?...... 182 Sources of Public Domain Films and TV Programs...... 182 8 Computer Software Is the Software Dedicated to the Public Domain?...... 186 Was the Software Created by the U.S. Government?...... 190 Has the Copyright in the Software Expired?...... 191 Is the Software in the Public Domain Due to Lack of a Copyright Notice?...... 192 Sources of Public Domain Software...... 194 9 Architecture What Good Is Public Domain Architecture?...... 196 Architectural Plans...... 197 Constructed Buildings...... 202 10 Maps Has Copyright in the Map Expired?...... 209 Is the Map in the Public Domain Due to Lack of a Copyright Notice?...... 209 Was the Map Created by the U.S. Government?...... 210 Is the Map Eligible for Copyright Protection?...... 211 Are Elements of the Map in the Public Domain?...... 211 Sources of Public Domain Maps...... 213 11Choreography Deciding If Choreography Is in the Public Domain...... 216 Sources of Public Domain Choreography...... 219 12 Databases and Collections Part I. Databases...... 223 Is the Work a Database?...... 224 Does the Database Lack Creativity?...... 227 Was the Database Created by the U.S. Government?...... 229 Has the Copyright in the Database Expired?...... 232 Is the Database in the Public Domain for Lack of a Copyright Notice?...... 233 Is the Database Protected by Means Other Than Copyright?...... 234 Part II: Collections of Public Domain Works...... 238 Are the Collected Materials in the Public Domain?...... 238 Does the Collection Lack Minimal Creativity? ...... 241 Is It a De Minimis Collection?...... 241 Is It a U.S. Government Collection?...... 242 Has the Collection’s Copyright Expired?...... 242 Is the Collection in the Public Domain for Lack of a Copyright Notice?...... 242 Is the Collection Protected by Means Other Than Copyright?...... 243 13 Titles Titles of Copyrighted Works...... 246 Titles of Public Domain Works...... 250 Using Disclaimers to Avoid Public Confusion...... 252 Titles Used on Merchandise and Other Products...... 252 The First Amendment and Titles...... 253 14 Public Domain Elements in Copyrighted Writings Ideas...... 256 Facts...... 261 Unprotected Elements in Works of Fiction...... 264 Unprotected Elements in Works of Fact...... 268 15 Copyrights Restored From the Public Domain The GATT Agreement ...... 276 What Works Were Restored?...... 277 Which Works Were Not Restored?...... 280 Who Owns Restored Works?...... 282 Copyright Infringement of Restored Works...... 282 16 The Public Domain Outside the United States Introduction...... 290 Copyright Duration in Other Countries...... 293 The Rule of the Shorter Term...... 302 Researching Foreign Copyright Laws...... 304 17 The Internet and the Public Domain Two Preliminary Rules...... 308 Internet Content in the Public Domain...... 309 Potential Problems Using Public Domain Materials on the Internet...... 316 Hyperlinks and the Public Domain...... 321 Copyright and the Internet’s Global Dimension...... 322 18 Copyright Protection: How Long Does It Last? Works First Published in the United States...... 328 Copyright Term for Unpublished Works...... 332 Works First Published Outside the United States...... 337 19 Copyright Notice Requirements Copyright Notices and the Public Domain...... 346 Does the Work Lack a Valid Notice?...... 347 Is a Copyright Notice Required?...... 352 Is the Omission of a Valid Notice Excused?...... 357 What If You Make a Mistake?...... 362 20 Traps for the Unwary: Trademark and Publicity Rights Should You Worry About Trademark or Publicity Problems?...... 366 The Right of Publicity...... 367 Trademarks...... 372 21 Researching Copyright Office Records Researching Copyright Renewal Records for Works Published 1923-1963...... 382 Researching Copyright Registration Records...... 399 22 What If a Work Is Not in the Public Domain? Find Another Public Domain Work...... 404 Obtain Permission to Use the Work...... 404 Use the Work Without Permission on the Grounds of Fair Use...... 407

Index

Your Legal Companion

re you a screenwriter looking provides a useful overview of copyright law for material to adapt; a theater and the ways many people are using and A company looking for plays to abusing the public domain. perform for free; a filmmaker looking for Next, read the chapter covering the copyright-free footage; a publisher looking particular type of work you’re interested in. for royalty-free titles; or a musician looking Separate chapters cover: for inexpensive sheet music that you freely • writings of all types (Chapter 3) reproduce? Then this book is for you. • music (Chapter 4) There’s a vast public domain treasure • art (Chapter 5) trove free for the taking—books, movies • photography (Chapter 6) videos, artwork, photos, and software—but • film and television (Chapter 7) there’s one catch. You have to know how to • computer software (Chapter 8) recognize it and find it. • architecture (Chapter 9) That’s where this book comes in. Part • maps (Chapter 10) manual, and part map, this book explains • choreography (Chapter 11) the rules that surround the public domain. • compilations and collections (Chapter And using the materials in this book you’ll 12), and be able to identify—with a little effort— • titles (Chapter 13). creative works that you can use without You’ll see that some legal rules are permission. If you can find just one public common to all types of creative works. domain work using this book, then it will These issues are dealt with in separate have paid for itself. chapters and they include: How do you go about it? After reading • works first published abroad the introduction to the public domain (Chapter 15) in Chapter 1, review Chapter 2, which 2 The Public DoMain

• how long copyright protection lasts (Chapter 18) Icons Used in This Book • where and how copyright notices To aid you in using this book, we use the must appear (Chapter 19), and following icons: • legal problems involving trademarks and the right of publicity (Chapter 20). The caution icon warns you of It also may be necessary for you to potential problems. research Copyright Office records to This icon indicates that the determine whether many works are in the information is a useful tip. public domain, particularly those published during 1923-1963. Chapter 21 explains how This icon refers you to helpful to do this research. books or other resources. You should always keep in mind that all the chapters listed above deal only with the This icon alerts you to uncertainty public domain in the United States. Many or conflicts in the law. works that are in the public domain in the This icon indicates when you United States are still protected by copyright should consider consulting an outside the United States and vice versa. ­attorney or other expert. The public domain outside the United States is covered in Chapter 16. This icon refers you to a further If you determine that the work you discussion of the topic elsewhere want to use is not in the public domain, in this book. you might still be able to use it without This icon lets you know when permission because of a legal exception you can skip information that may to copyright law called “fair use.” See not be relevant to your situation. Chapter 22 for a detailed discussion of your alternatives when a work is not in the ■ public domain. I’ve also prepared a Web page with all of the links to resources in this book. You can find it at http://copyrightfree.blogspot.com. Chapter 1

Introduction to the Public Domain

What Is the Public Domain?...... 4 Copyright and the Public Domain...... 4 What Is in the Public Domain?...... 5 How Can You Use the Public Domain?...... 5 Why Have a Public Domain?...... 6 How Do You Know If a Work Is in the Public Domain?...... 10 How Do You Find Public Domain Materials?...... 10 Are Public Domain Works Always Free?...... 10

Dealing With Public Domain Gray Areas...... 11 What Is the Likelihood of Discovery?...... 12 How Valuable Is the Material?...... 13

What If Someone Challenges Your Public Domain Claim?...... 14 Handling the Claim Yourself...... 15 Hiring a Lawyer...... 15

Documenting Your Use of Public Domain Materials...... 15 4 The Public DoMain

re you a screenwriter looking for a Copyright and the Public Domain novel or story to adapt? A musician A who needs a song to record? A To safely use public domain works, you filmmaker in need of footage? An author must first know a little about copyright law, or publisher searching for photos, graphics, which is a federal law that protects all kinds or illustrations for your latest project? A of works of authorship including books, website operator in search of this type of magazines, newspapers, and other writings, content and more? If your answer to any music, art and sculpture, photo­graphy, films of these questions is “yes,” you could be in and videos, choreography, ­architecture, luck. The content you need may be free for computer software, and maps. the taking. It may lie in a land of creative The owner of a work protected by riches known as the public domain. You ­copyright is given a bundle of exclusive just have to know how to recognize and rights, including: find it. This book is a type of treasure map • reproduction rights—that is, the right that shows you how. to make copies of a protected work • distribution rights—that is, the right to sell or otherwise distribute copies to What Is the Public Domain? the public • the right to create adaptations (also known as “derivative works”)—that is, As used in this book, the words “public the right to prepare new works based ­domain” mean creative works that for one on the protected work, and reason or another are not protected by • performance and display rights—that copyright law and are ordinarily free for all is, the right to perform a protected to use. There are literally billions of creative work in public, such as a stageplay, or works—including books, artwork, photos, display a work in public. songs, movies, and more—in the public If someone wrongfully uses material ­domain. All of these works, no matter ­covered by a copyright, the owner can what form they take, are called “works of sue to obtain compensation for any losses authorship” or, more simply, “works.” ­suffered. In this sense, a copyright is a type Some of the most famous examples of of property—it belongs to its owner and the public domain works that you can use in courts can be asked to punish anyone who any way you choose are: uses it without permission. • Hamlet, by William Shakespeare However, copyright protection does • Moby Dick, by Herman Melville, and not last forever, and some works are not • The 5th Symphony by Ludwig van ­entitled to any copyright protection at all. Beethoven. When a work enters the public domain chapter 1: Introduction to the Public Domain 5

for any reason,­ the rights listed above do A vast treasure trove of creative works not apply. In other words, the work can are in the public domain for one or more be freely ­copied, distributed, adapted, or of these reasons. They include many great ­performed or displayed in public without classics of world art and literature, such as asking any­one’s permission or paying a the works of Shakespeare, Dickens, Bach, fee. For example, you don’t need to obtain and Beethoven. But the public domain does ­permission to copy and distribute a play not just include dusty old books and other by Shakespeare, adapt it into a movie, works published hundreds years ago. or ­perform it in public. That is because All works published in the United States Shakespeare’s plays were first published before 1923 are in the public domain. But so long ago that copyright law does not there are also millions of works published protect them. as recently as 1963 that are in the U.S. “Public domain” means what it says— ­public domain. Indeed, copyright experts public domain works belong to the public estimate that 85% of all the works of as a whole. Anyone is free to use them any ­authorship first published in the United way they wish. No one can ever obtain States between 1922 and 1963 are in the copyright protection for public domain public domain. ­material. Once a work enters the public But the public domain does not end ­domain it usually stays there forever. (See there. Even works published today with Chapter 2 for a more detailed discussion of full copyright protection contain elements copyright law.) that are unprotected and, thus, in the public ­domain. This includes, for example, the facts and ideas contained in a work of What Is in the Public Domain? nonfiction. Other newly published works are denied copyright protection completely, A work of authorship may be in the public ­including U.S. government works and many domain for a variety of reasons. For example: blank forms. • the work was published before there was a copyright law • the work’s copyright protection How Can You Use the ­expired Public Domain? • copyright protection was lost or never acquired for some reason The only limit on how you can use public • the copyright owner dedicated the domain materials is your own imagination. work to the public domain, or For example: • the work was never entitled to • Web developers can use the public copyright protection. domain as a free source of content, 6 The Public DoMain

including writings, photography, more works. However, enriching authors is artwork, and music not the primary goal of copyright law. The • creative writers can adapt public primary goal is to foster the creation of new ­domain works into new works—for works that will one day enter the ­public example, create screenplays based domain where they can be freely used to on public domain novels, stories, and enrich everyone’s lives. plays • musicians can perform and record Our Intellectual Commons public domain music without paying Towns and cities of the 18th and 19th permission fees ­centuries often had a place called a ­com­- • publishers can freely republish public­ mons: a centrally located ­unfenced area of domain works grassland that was free for all to use. The • artists can freely copy public domain public domain is, in essence, our intellectual artworks and artistic commons. This commons • filmmakers can freely use public ­benefits us all in a variety of ways: ­domain footage, and • New works are created from public • librarians can copy public domain ­domain materials. Just a few famous works for their collections. examples include musicals such as Les Miserables (based on a public domain Why Have a Public Domain? novel by Victor Hugo) and West Side Story (based on Shakespeare’s At first glance, the concept of the public Romeo and Juliet); the animated films domain may see unfair to creative people. Snow White, Pinocchio, Beauty and After all, once a work enters the public the Beast, and The Little Mermaid; ­domain, the author or his or her heirs can and a recent spate of films based on no longer collect royalties from sales of the works of Shakespeare and Jane copies or otherwise profit from it. Why Austen. If the original works had should this be? ­remained under copyright, the cost of The reason we have copyright laws is to creating new versions of them may encourage authors to create new works and have been too high or they may not thereby promote the progress of human have been obtainable at any price. knowledge. The encouragement takes the • Low-cost editions of public domain form of an economic incentive—authors ­materials are available. When a work are given a monopoly over the use of their enters the public domain, it often works. By selling or licensing their rights ­becomes available to the public they can earn a livelihood and create even in many low-cost editions. This is chapter 1: Introduction to the Public Domain 7

­possible because copyright owners differently. However, when Gilbert do not get royalty payments. Also, and Sullivan’s work entered the public anyone can publish a public domain domain, this control ended. Gilbert work, so competitive pressures keep and Sullivan operettas, and other prices lower. For example, when F. great PD works, such as the works of Scott Fitzgerald’s first novel, This Side Shakespeare and Beethoven, can be of Paradise, entered the public domain performed in new ways, given new in 1996 nine new editions were interpretations and new meanings. ­published by nine different publishers, This prevents classic works from some costing just a few dollars. becoming mummified. • The public domain promotes artistic • Scholars and others may freely use freedom. When a work is protected ­public domain materials. Scholars, by copyright, the owner has the legal ­researchers, historians, biographers, right to restrict how it is used. Some and others can freely quote and use copyright owners rigidly control new public domain materials. This enriches performances and other uses of well- their works and makes some projects known works. For example, the estate possible that might ­otherwise be of the Irish playwright Samuel Beckett blocked by the copyright owners exercises complete control over the of important materials, often the staging of his plays. It banned a ­descendants of famous people. production in Edinburgh, Scotland, No one benefits more from the public of Beckett’s classic play Waiting for domain than authors do. This is because Godot because the tramp characters new expression is not created from thin were played by women. The Kurt air. All authors draw on what has been Weill Foundation, which holds the created before. As one copyright expert has copyrights on the late composer’s noted, “transformation is the essence of the music, prevented famed German ­authorship process. An author transforms cabaret singer Ute Lemper from her memories, experiences, inspirations, transposing some Weill songs to a and influences into a new work. That work pitch that better suited her voice. inevitably echoes expressive elements of the D’Oyly Carte Opera Company, prior works.” Litman, “The Public Domain,” which controlled the copyrights 39 Emory Law Journal 965 (1990). Without over the comic operettas of Gilbert the public domain, these echoes could not and Sullivan, required every new exist. production to be staged exactly the same as the original performance— not a note of music could be sung 8 The Public DoMain

Transformation of The Secret Garden

Back in 1911, Frances Hodgson Burnett • two sequels based on Burnett’s wrote a novel called The Secret Garden. characters, Return to the Secret It tells the story of Mary Lennox, a lonely Garden (1999) and Back to the girl sent to live with her uncle Archibald Secret Garden (2001) in Yorkshire after her parents died from • a cookbook, The Secret Garden a cholera epidemic in India. The novel Cookbook: Recipes Inspired by became a children’s classic, beloved by Frances Hodgson Burnett’s the millions. Its U.S. copyright expired on Secret Garden, by Amy Cotler and January 1, 1987. Its copyright in most others (1999) of the rest of the world expired in 1995, • an electronic book version on a CD- at which point anyone was free to use ROM, The Secret Garden (1996) the novel without obtaining permission • a BBC Playhouse Video, The Secret from the former copyright owner or Garden (1988), and paying any permission fees (which would • two audiobooks, The Secret Garden, be substantial for such a well-known read by Johanna Ward and The novel). The Secret Garden has since been Secret Garden read by Josephine transformed in a variety of ways—here are Bailey (2003). just a few examples: If the original novel, The Secret • a made-for-TV adaptation, The Garden, were not in the public domain, Secret Garden, starring Gennie it’s unlikely that many of these projects James and Derek Jacobi (1987) could have been undertaken because the • a musical, The Secret Garden, music permission fees would have been too great by Lucy Simon, book & lyrics by or the copyright owners would not grant Marsha Norman (1991) permission at any price. This is another • a film adaptation, The Secret example of how the public domain Garden, starring Maggie Smith enriches us all. (1993) chapter 1: Introduction to the Public Domain 9

The Public Domain • Mary Beth wanted to create an old- Can Save You Money fashioned illustrated reading book for home-schooled children, but On a more mundane level, the public was daunted by how much the ­domain can save you money. Copyright copyright holder wanted to charge owners generally charge a fee for permission for ­illustrations from schoolbooks to use their works. Such permission fees discarded in the 1940s (but still under can range from $100 or less to copy a photo copyright). She used public domain or a few pages from a book to ­millions of illustration instead and saved the dollars to adapt a work into a movie or ­permission fee. Her book is now play. ­selling like hotcakes to others who Copyright permission fees are unnecessary home-school their children. when a work is in the public domain • Harvey invented a new kind of (however, this doesn’t mean that public ­computer music playback system, ­domain works are always free). For example, but couldn’t market it because to use a well-known ­Irving Berlin song such the electronic media royalty on as “Blue Skies” in a television commercial, copyrighted songs is around $2,000 you might have to pay Berlin’s heirs—the per song. So instead he found a copyright owners of his songs—as much as bunch of public domain songs and $250,000. But you can use one of Berlin’s paid no royalties at all. many songs that have already entered • A local senior center wanted to put the public domain—such as “Alexander’s on a copyrighted musical, but the Ragtime Band”—for free. permission fee would have cost more But, you don’t have to be a rich television than the gate receipts. They used a or movie producer to take advantage of the public domain musical instead and got public domain. Here are real-life examples to keep all the money. of some projects by ordinary people that • Palmer wanted to open a bookstore/ were made possible only because public cafe with live music to entertain the domain materials were available: patrons. But he couldn’t afford the • Leslie, a composer, set to music dozens music license fee charged by ASCAP, of public domain poems by Emily a songwriter’s permission agency. So Dickinson. Had the poems still been instead he found a variety of musicians under copyright, her project would who could play public domain music probably have been financially as well as their own compositions. His ­impossible, because permission fees was the first of several public ­domain to adapt the works of famous authors cafes and nightclubs that have done are often enormous. very well in Columbus, Ohio. 10 The Public DoMain

How Do You Know If a Work book is designed to walk you through the Is in the Public Domain? process. If this task is too daunting, you can hire an­ ­attorney or copyright expert to help The public domain has been aptly compared you. to “a vast national park without … a guide for the lost traveler, and without clearly ­defined roads or even borders.” (Krasilovsky, How Do You Find “Observations on the Public Domain,” Public Domain Materials? ­Bulletin, Copyright Society of USA.) This Public domain materials are everywhere. is because it can often be difficult to know There are hundreds of public domain works whether a work is in the public domain. in your local bookstore and even more Public domain materials don’t look any in your local library. Millions of public different than works still protected by domain works sit in archives and museums. ­copyright. The fact that a work contains a There may even be some in your attic or copyright notice—the © followed by the basement. Many public domain works can publication date and copyright owner’s be accessed through the Internet or private name—does not necessarily mean it really dealers. is protected by copyright law; people often place notices on works that are actually in the public domain (see Chapter 2). The Are Public Domain Works absence of a copyright notice also does not Always Free? necessarily mean a work is in the public domain. The fact that a work is in the public domain­ There is no list or database of all the does not necessarily mean that it is freely works that are in the public domain. It available for your use. Even though a would be impossible to create one since work is in the public domain, the physical so much material is in the public domain. substance in which it is embodied— Moreover, the U.S. Copyright Office, the whether it be on paper, canvas, clay, film, federal agency that registers copyrights, or videotape—is usually still owned by will not tell you if a work is in the public somebody. The owner could be a library, ­domain. It’s a waste of your time even to archive, ­museum, private collector, or nearly ask them. anyone else. You have to determine whether a The owner enjoys all the rights of any work is in the public domain yourself by personal property owner. This means the understanding and applying some basic owner may restrict or even deny public copyright rules. Sometimes this is easy; ­access to the work or charge for access or sometimes it can be very difficult. This the right to make copies. This is usually not chapter 1: Introduction to the Public Domain 11

a problem for written works, which can be These foggy areas are far more common found in bookstores, libraries, and archives, than you might think. For example, but it is a problem for other types of works. problems may arise when someone makes a For example, museums and individual copy of a public domain work and changes collectors usually control access to valuable it in some way. It can be hard to determine works of art that are in the public domain. for certain whether or not the changes merit They often own all available photographs of new copyright protection. If you apply such works. Getting permission to use such the rules outlined in later chapters, you photographs or to take new ones can be might decide that the work should not be difficult and expensive. protected. But the person who ­created the You may also have to pay fees to original work may not agree. obtain access to and make use of public In another example, creators of digital domain photographs, film, and music from copies of public domain photos might claim collectors, private archives, and other that the copies are protected by copyright sources. (see Chapter 6). It’s likely such claims are not legally valid, but we don’t know for sure because there have been no definitive Dealing With Public court rulings on the issue. If you use digital Domain Gray Areas copies without permission, the company that made them may complain and perhaps even sue you for copyright infringement. Following the step-by-step procedures in When faced with foggy areas, how should this book will help you determine whether you proceed? If you think it’s likely the a particular work you want to use is in the work is in the public domain should you public domain. But often the answer will go ahead and use it, even if there is no not be clear; the law can often be foggy. ­definitive answer? Or should you treat the There may be questions about a particular work as copyrighted and ask permission to work that are unanswerable. The law use it? Should you consult a lawyer? may not be clear or definitive on whether No book can tell you what to do in every copyright or some other legal protection real-world situation. However, we can show covers a particular work. Or someone may you when it is more or less likely someone simply think that they own a copyright in will complain or even sue you if you treat a a work when they really don’t. Throughout work as in the public domain. this book we highlight these uncertainties Whenever you see a fog icon in the with an icon that looks like this: text, you should first answer the following threshold question: Are you going to use the material to directly compete with some­ 12 The Public DoMain

one’s business? If so, you should consult an ­infringement lawsuit when a competitor attorney, because these types of uses invite copied and republished several yogurt lawsuits. Here is one recent example of this ­recipes contained in a cookbook called problem: ­Discover Dannon—50 Fabulous Recipes At great expense, a company called the With Yogurt. The suit was ultimately lost. Bridgeman Art Library Ltd. obtained from Publications Int’l Ltd. v. Meredith Corp., 88 several art museums the exclusive right to F.3d 473 (7th Cir. 1996). make and sell photographs of hundreds of If you do not intend to use the work to public domain art masterpieces. Bridgeman compete with someone’s business, it might licensed to the public both regular art be relatively safe for you to treat it as being ­photos and digital photos on CD-ROMS in the public domain. However, you should and through its website. A company called carefully consider the following two factors Corel Corp. obtained more than 150 before deciding on what to do: images from the Bridgeman collection • the likelihood your use will be and published them without obtaining discovered, and Bridgeman’s permission. The images were • the economic value of the material. included on clip-art CD-ROMs and placed The smaller the chance of discovery, the on the Corel website where they could be more willing you should be to use materials downloaded for a few dollars each, far less whose public domain status is uncertain. than Bridgeman charged. Corel was directly Likewise, the lower the economic value of competing with Bridgeman and costing the materials, the safer it is for you to treat it licensing fees. Bridgeman sued Corel, them as being in the public domain. claiming the photos were copyrighted, even though the paintings they portrayed were in the public domain. Bridgeman What Is the Likelihood ultimately lost its suit, but whether photos of Discovery? of public domain paintings are themselves No one can complain about your using a in the public domain remains a gray area. work unless they know about it. People get Bridgeman Art Library Ltd. v. Corel Corp., in trouble using works they believe are in 25 F.Supp.2d 421 (S.D. N.Y. 1999); see the public domain when they publish the ­Chapter 5. work or otherwise make it available to the People and companies often get so general public—for example, by placing it upset about competitive uses that they file on the Internet. Here is a recent example: lawsuits even where the material involved is not especially valuable. For example, Example: Texas resident Peter Veeck a company that published cookbooks placed a copy of the Denison, Tex., and cooking magazines filed a copyright municipal code on his Web page. Veeck chapter 1: Introduction to the Public Domain 13

assumed the code was in the public Of course, people who use public domain because it was a government ­domain materials do frequently want to statute. However, it turned out that a publish them, place them on the Internet, private company called the Southern or make them as widely available as Building Code Congress International possible. This doesn’t necessarily mean (SBCCI) had written the code. The that you can’t use the ­material. But, if company creates and sells model there are questions over the public domain codes to local governments. SBCCI status of a work, you should consider the claimed that it owned the copyright economic value of the work. in the code and demanded that Veeck remove it from his website. When he refused, SBCCI sued him for copyright How Valuable Is the Material? infringement. Whether the private If an individual or a company feels that companies that create and sell these you have cheated them out of a substantial private codes can claim copyright ­permission or licensing fee, there is a good in them is a public domain gray area chance you’ll receive a complaint or be (Veeck ultimately prevailed; see sued if your use is discovered. Chapter 3). However, it’s likely that Examples of materials that were deemed SBCCI would never have discovered valuable enough for someone to sue that Veeck copied the code had he ­include: not placed it on the Internet, which is, • the famous children’s novel Bambi: A of course, accessible­ to anyone with Life in the Woods ­computer ­access. • a published collection of about 150 The chances of discovery are virtually works of classical music by such nil if you use a work for your personal use ­famous composers as Beethoven, or make it available only to a restricted Bach, Bartok, and Brahms group of people. In the example above, • a collection of thousands of copies of SBCCI would never have discovered that legal decisions by U.S. courts Peter Veeck copied its code if he only used • a database containing over 90 million it for himself or a small group of friends. residential and business phone Similarly, there is little risk of discovery if a ­numbers that cost millions of dollars ­piano teacher photocopies an arrangement to compile of a musical work that may not be in the • a published book listing used car public domain; or if a choir director makes prices copies of a choral work for a local church • 150 photographs of public domain chorus; or a teacher makes a few copies of paintings by such masters as Rembrandt a ­chapter from a book for a class. and DaVinci 14 The Public DoMain

• Martin Luther King’s “I Have a Dream” Even if someone does complain in speech, and these cases, you can probably resolve the • a New Yorker Magazine cartoon by complaint if you stop using the work or Saul Steinberg. pay a nominal permission fee. Examples On the other hand, complaints or lawsuits of public domain works that often have are far less likely where the work you want little economic value include old postcards, to use has little economic value. Many— articles and books by obscure authors, probably most—public domain works fall artwork by ­unknown artists, and sheet into this category. It’s often not worth the music for long-forgotten popular songs. time and trouble to complain about works One way to tell if a gray-area work is that are not worth much. And it certainly valuable is to determine whether anyone is makes no financial sense to hire a lawyer selling either the original or copies to the and file a lawsuit over such a work. The public. If not, the materials probably have damages that can be obtained if such a little or no value. lawsuit is successful are just not large enough to justify the expense involved.­ What If Someone Challenges Your Public Domain Claim?

Sometimes, a person or company will claim that materials you have used are not in the public domain and that they, in fact, own the copyright in them. Often in these cases you’ll receive a letter from an attorney asking that you “cease and desist” from any further uses of the materials. You can find numerous examples of cease and desist letters at the website Chilling Effects Clearinghouse (www .chillingeffects.org). You should respond immediately that you have received the letter and are ­investigating the claims. Don’t ignore such a letter. This will only make it more likely that you will be sued and help make you look like a “bad guy” to a judge Library of Congress, Prints & Photographs or jury. ­Division, FSA-OWI Collection chapter 1: Introduction to the Public Domain 15

Handling the Claim Yourself copyright in the work. The museum asked him to remove the material You may be able to handle the claim from his website. Eldred was certain yourself. This is particularly likely where the ­material was in the public domain; the material isn’t very valuable. If it is clear ­nevertheless he agreed to the museum’s that the materials involved are in the public demand. He says that “I decided to ­domain, you may be able to get the other ­remove the book just because these side to drop its complaint by showing your public institutions complained that I documentation and explaining why the was stealing their income.” ­material is in fact in the public domain. Some people don’t ­understand what public domain means, so you may have to explain Hiring a Lawyer this too. You should contact an attorney knowledge- If you have made a mistake and the able in copyright law if: ­materials are not in the public domain or • you believe the claim is not valid and they inhabit a gray area, you may be able to don’t want to agree to the other side’s resolve the matter by offering to pay a small demands, or permission or licensing fee or stop using or • the materials involved are highly distributing the work. valuable and any permission or Obviously, you should seek to settle the licensing fee would be substantial, or complaint if the work you are using turns • the other side insists that you stop out to be protected by copyright. But, even ­using the materials, but this would be if you think the claim is not valid, it may be impossible or very expensive for you cheaper and easier to settle than to fight. to do—for example, you have used them in a book or film you’ve already Example: Eric Eldred, a Massachusetts- distributed to the public. based technical analyst, has digitally scanned and placed on his website copies of dozens of public domain works, including books by Nathaniel Documenting Your Use of Hawthorne, Oliver Wendell Holmes, Public Domain Materials William Dean Howells, and Joseph Con­ rad. In one case, however, a museum’s It is important to document your research publishing department claimed that into the public domain status of every work ­excerpts from a book on canoeing you plan to use, unless you plan to use it he placed on his site were not in the purely for your own private enjoyment. ­public domain and that it owned the Any work that will be shown to the public 16 The Public DoMain

in any way should be documented. This is • If the work is in the public domain because it is not uncommon for people and because the copyright has expired, companies to make false claims of copyright ­include a photocopy of the work’s ownership in public domain materials. Such copyright notice showing the date the people could threaten to sue you if they work was published (also include a discover you’ve copied or otherwise used copy of the title page, if any). materials they claim to own. Also, if you • If the work is in the public domain need to obtain insurance for your project because it’s a U.S. government work, against libel, slander, or other errors or include a copy of the title page or omissions, your documentation can help other page showing it was created by convince an insurer or broadcaster that they or for the government. will not face any copyright problems. • If the work has been dedicated to the You should create a permanent file for public domain, include a copy of the each work of authorship you plan to use. public domain dedication. In the file you should include a completed • If you’ve conducted a copyright checklist and worksheet, along with a ­renewal search or had the U.S. ­narrative description of your research, if you Copyright Office or private search firm feel it is necessary. You should also take the conduct one for you, keep a copy of following steps: the results. • Keep the original work or a copy—for • If you’ve sent email to anyone to example, photographs, articles, sheet ­confirm that material is in the public music. If this is not possible ­because domain, print it out along with the the material is too big—for example, ­responses you’ve received and keep an entire book or can of film—you the copies in your file. should attempt to keep a copy of the • Keep any postal correspondence in work in storage somewhere and make this file as well. ■ a notation in the worksheet where it is stored. Chapter 2

The Use and Abuse of Copyright

What Copyright Protects...... 18 Copyright Law: A Short History...... 18 What Is Copyright?...... 20 What Can Be Protected by Copyright?...... 20 Three Requirements for Copyright Protection...... 21 How Is a Copyright Created and Protected?...... 22 Limitations on Copyright Protection...... 23

The Looting of the Public Domain...... 24 Spurious Copyright Claims in Public Domain Materials...... 25 Use of Contracts to Restrict the Public Domain...... 26 Legislative Shrinking of the Public Domain...... 28 18 The Public DoMain

he legitimate use of copyright law been amended many times since then. The protects the authors of creative works last major revision occurred in 1976 when T and allows them to profit from an entirely new copyright law called the their work. Below we describe the general Copyright Act of 1976 (18 U.S.C. Section 101 ­protections that copyright law provides. We and following) was passed by Congress. also outline how people and companies This Act took effect in 1978. However, many unscrupulously abuse the public domain of the basic copyright rules in effect under and claim copyright protection where none the law in existence before 1978 still apply exists. to works that were published before that year. Time and again throughout this book you’ll see that copyright rules differ for What Copyright Protects works published before and after 1978. Like most laws, the copyright law is not The copyright law gives creators or owners perfectly crafted. Some of its provisions of creative works the legal right to control are ambiguous, poorly written, or simply how the works are used. This section don’t cover every situation that arises in real provides an overview of the copyright law life. When people get into disputes with and introduces some important concepts each other about how to apply or interpret that will appear again and again in later the copyright laws, it’s ultimately up to chapters. the federal courts to resolve them. Their decisions on how to interpret and apply For a detailed discussion of copy- the copyright laws are legally binding on right law, refer to: The Copyright the public and other courts, and in effect, Handbook: What Every Writer Needs to become part of the law itself. Know, by Stephen Fishman (Nolo). Unfortunately, the courts don’t always agree on how to interpret the copyright laws. Moreover, there are some questions Copyright Law: A Short History about the copyright laws that have yet to be addressed by the courts. As a result, The U.S. Constitution gives Congress the there are a number of important copyright power to protect works of authorship by issues for which we currently have no clear enacting copyright laws. But it is up to answers. Congress to actually write the copyright Finally, there is a federal agency called laws and decide on the details of what the United States Copyright Office that is in should be protected and for how long. charge of registering copyrights and helps The first federal copyright law was enacted advise Congress on copyright matters. The in 1790. The federal copyright laws have Copyright Office is part of the Library of chapter 2: The Use and Abuse of Copyright 19

Other Laws Protecting Works of Authorship

Copyright is by far the most important • Trade secrecy laws: State and federal law that protects works of authorship. trade secret laws protect some However, in some situations other laws business information. An example of also give power to creators or owners of a trade ­secret would be a confidential works of ­authorship to control how their marketing plan for the introduction works are used. These laws may prevent of a new software product or the you from ­using some ­materials that are not secret recipe for a brand of salsa. protected by copyright. They include: The extent of trade ­secret protection • The right of publicity: A patchwork depends on whether the information of state laws protects against the gives the business an advantage unauthorized use of a person’s over competitors, is kept secret,­ and name or image for advertising or is not known by competitors (see other ­commercial ­purposes (see Chapter 14). Chapter 20). • Trademark laws: Brand names such as Nike and Avis, as well as logos, slogans, and other devices that identify and ­distinguish products and services are protected under federal and state trademark laws (see Chapter 20). • Patent laws: Federal laws that protect inventions—everything from new types of mousetraps to satellites. This book does not cover inventions. However, a special type of patent called a design­ patent may be used to protect a new, original ornamental design embodied in a manufactured object. The design can be a surface ornament such as a pattern on a beer mug or consist of the shape of the article itself such as the shape of a Rolls-Royce automobile or silverware set (see Chapter 5). 20 The Public DoMain

Congress, not the judiciary. Although it has What Is Copyright? made public its views on many copyright issues, the Copyright Office’s views on As explained in Chapter 1, a copyright is copyright matters are not binding on a legal tool that provides the creator of a the public or the courts. The courts do, work of authorship the right to control how however, usually give them some weight. the work is used, including the exclusive So in considering questions of copyright law right to reproduce, distribute, adapt, display, that have not been settled by the courts, it and perform the work. For example, the helps to know the Copyright Office position author of a book or musical composition in deciding whether to use a particular has the exclusive right to publish it. work. The Copyright Office does not decide whether a particular work is in the public What Can Be Protected domain. This is ultimately up to the courts to determine. by Copyright? Copyright protects works of authorship. A State Copyright Laws work of authorship is any creative work created by a human being that can be Before 1978, the United States had a two- ­communicated to other humans, either tier copyright system: published works ­directly or with the aid of a device such as a were protected by the federal copyright film projector. Works of authorship ­include, law (provided they met the requirements but are not limited to: discussed below), while unpublished • writings of all types works were protected by state copyright • musical works, including song lyrics laws, also called common law copyright. • plays These state laws were enforced by state • photographs courts and were completely separate • databases from the federal copyright that protected • maps published works throughout the United • artworks, sculpture, and graphics States. However, in 1978 this system was • movies and videos abandoned. Federal copyright law now • computer software protects both published and unpublished • sound recordings works. As a result, common law copyright • pantomimes and choreographic has relatively little application today. But, works, and it might apply in some cases to protect • architectural drawings and blueprints works that have never been written down and the design of actual buildings. or otherwise preserved (see Chapter 14). These are the types of works we deal with in this book. chapter 2: The Use and Abuse of Copyright 21

Three Requirements Requirement #2—Originality for Copyright Protection A work fixed in a tangible form is protected by copyright only if it is original. If only Not all works of authorship are entitled to part of a work is original, only that part copyright protection. A work is protected will be protected. But a work need not be only to the extent it satisfies the following novel—that is, new to the world—to be three fundamental requirements. If only part protected. For copyright purposes, a work of a work meets these requirements, only is original if it—or at least a part of it—owes that part will be protected. its origin to the author. A work’s quality, ingenuity, aesthetic merit, or uniqueness Requirement #1—Fixation is not considered. In short, the copyright The most basic requirement that a work law does not distinguish between the Great of authorship must meet to qualify for American Novel and a letter from a six- copyright protection is that it must be fixed year-old to her Aunt Sally; both are entitled in a “tangible medium of expression.” The to copyright protection to the extent they copy­right law is not picky about how a were not ­copied by the author—whether work is fixed; any medium from which it consciously or unconsciously—from other can be read back or heard, either directly works. So long as its author independently or with the aid of a machine, will suffice. created a work, it is protected even if other In other words, a work will be protected similar works already exist. if it is ­written on a piece of paper, typed The originality requirement has extremely on a typewriter, painted on canvas, saved important ramifications for the public domain. on a computer disk, recorded with a tape Because of this requirement, someone who ­recorder, filmed with a camera, or preserved merely makes an exact copy of a public by any other means. ­domain work is not entitled to receive a The federal copyright law does not protect­ copyright on the reproduction. Something works that have not been fixed in some way. new must be added for the work to be For example, it doesn’t protect something copyrighted. And it is only the new material someone says but never writes down or that is protected, not the unchanged public otherwise preserves. However, as mentioned domain material. in “State Copyright Laws” above, state law might be used to protect such unfixed Example: Actress Emma Thompson works (see Chapter 14). created a screenplay from the classic public domain novel Sense and Sensibility by Jane Austen. In doing so, she added a good deal of new material, ­including some scenes and dialogue 22 The Public DoMain

that were not in the novel. She also Telephone directory white pages have organized the work into cinematic also been deemed by judges to lack even scenes, cut material that did not fit minimal creativity. Other listings of data into a two-hour movie, added camera may also completely lack creativity (see directions, and so forth. Only this new Chapter 12). ­material was protected by copyright. Like the originality requirement, the All the material Thompson copied from ­creativity requirement works to prevent Austen’s novel remains in the public some­­­one who makes an exact copy of domain. a public domain work—for example, a photocopy of a public domain drawing— from ­receiving copyright protection. Other Requirement #3—Minimal Creativity types of ­exact copies of public domain Finally, a minimal amount of creativity works—for example, photographs of over and above the independent creation public domain paintings—may also fail ­requirement (Requirement #2 above) is the minimal creativity requirement (see necessary for copyright protection. Works Chapter 5). completely lacking in creativity are denied Moreover, certain types of changes made copyright protection even if they have been to public domain works, even though independently created. However, the amount ­original, are not copyrightable because they of creativity required is very slight. A work are not minimally creative. For example, need not be novel, unique, ingenious, or ­transposing a public domain musical com­ even any good to be sufficiently creative. position from one key to another is not All that’s required is that the work be the minimally creative and such a transposition product of a very minimal creative spark. is not protected by copyright (see Most works of authorship—including Chapter 4). ­catalogue copy, toy instructions, and third- rate poetry—make the grade. How Is a Copyright But there are some types of works that are usually deemed by judges to contain Created and Protected? no creativity at all. For example, a mere How a copyright is created and protected listing of ingredients or contents, such as differs for works published before and in a recipe, is considered to be completely after 1978. Before 1978, state copyright law lacking in creativity and cannot be ­automatically protected unpublished works protected by copyright (but explanatory that were original and minimally creative material or other original expression in the moment they were created. Then, when a recipe or other list can be protected). such a work was published with a valid chapter 2: The Use and Abuse of Copyright 23

copyright notice it automatically obtained It’s important to understand that neither protection under the federal copyright law the Copyright Office nor anyone else and its state law protection ended. ­polices or regulates the use of copyright Starting in 1978 this all changed. The notices. It is not necessary to obtain ­federal copyright law was amended to government permission to place a notice ­protect all unpublished works as well as on a work. People often place copyright published materials. Unpublished works notices on public domain works they copy created before 1978 automatically lost and/or resell to the public. As discussed their state law protection and acquired a later in this chapter, the penalties for federal copyright. Copyright protection placing a notice on a public domain work for all works created after 1978 begins the are very small. instant a work meets the three requirements set forth in the previous section—that is, Registration the moment an original and minimally Both published and unpublished works creative work is fixed in a tangible medium of authorship may be registered with of ­expression. There is no waiting period the U.S. Copyright Office inW ashington, and it is not necessary to register with the DC. This involves sending the Copyright Copyright Office. Copyright protects both Office one or two copies of the work drafts and completed works, and both along with a ­registration form and fee. ­published and unpublished works. However, registration is not mandatory. It is not required to establish or maintain a Copyright Notices copyright. For this reason, many works have Before March 1, 1989 all published never been registered. Even so, these works works had to contain a copyright notice may still be protected by copyright. (the © symbol or the word Copyright or abbreviation Copr. followed by the publication date and copyright owner’s Limitations on Copyright Protection name) to be protected by copyright. The purpose of copyright is to encourage Works published before March 1, 1989 intellectual and artistic creation. Paradox­ without a valid copyright notice are now ically, giving authors too much copyright in the public domain unless the failure to protection could inhibit rather than include a proper notice was excused (see enhance creative growth. To avoid this, Chapter 19). some important limitations on copyright Although use of copyright notices has protection have been developed. been optional since 1989, they still are ­usually placed on published works. Indeed, their use is often abused. 24 The Public DoMain

Copyrights Only Last for a Limited Time special “fair use” exception to copyright protection was created. An author is free to The single most significant limitation on copy from a protected work for purposes copyright protection is that copyright such as ­criticism, news reporting, teaching, ­protection lasts for only a limited time. or ­research, so long as the value of the Just how long a copyright lasts depends on ­copyrighted work is not diminished (see when it was created or published. When a Chapter 22). work’s copyright expires it enters the public domain, where it can be used freely by Certain Works Are Ineligible everyone (see Chapter 18). for Copyright Protection

Ideas and Facts Are Not Protected Finally, certain types of works are ineligible for copyright protection, even Copyright only protects the particular if they satisfy the fixation, originality, and way an author expresses facts and ideas. creativity requirements discussed above. Copyright does not protect the facts or Most significant among these are works ideas themselves; facts and ideas are free created by U.S. government employees (see for anyone to use. To give an author Chapter 3). a monopoly over the facts and ideas contained in his work would hinder intellectual and artistic progress, not encourage it. For example, imagine how The Looting of the scientific progress would have suffered Public Domain if Charles Darwin could have prevented­ anyone else from writing about evolution The public domain contains a lot of very after he published The Origin of Species valuable material. Indeed, with the rise (see Chapter 14). of new technologies such as the Internet, the market value of some public domain Fair Use works has grown enormously in recent years. So, there is money to be made from To foster the advancement of the arts selling copies of public domain works. and sciences there must be a free flow of And, in the best American tradition, ­information and ideas. If no one could money is being made. Unfortunately, quote from a protected work without the some of the business practices used by author’s permission—which could be people and companies selling copies of ­withheld or given only upon payment of public domain works are illegal, unethical, a permission fee—the free flow of ideas or antithetical to the ­fundamental purposes would be stopped dead. To avoid this, a of the public ­domain. chapter 2: The Use and Abuse of Copyright 25

thing new must be added to the original work for a valid copyright claim to arise. For example, if you add notes or new ­illustrations to a public domain book, the new material would be copyrighted. But the original text remains in the public ­domain. By claiming copyright in public domain materials, these unscrupulous people try to intimidate the public into paying permission fees or royalties for works that should be free for all to use. This practice is tantamount to someone fencing off a portion of a Money and Savings Illustrations, Dover Publications ­national park and charging the public a fee for admission. Is it illegal to claim copyright in a public domain work? Yes, it is; but the penalties Spurious Copyright Claims in Public for violations are laughably small. Claiming Domain Materials copyright in public domain works is a ­federal crime, but the maximum penalty for Out of ignorance, greed, or a combination engaging in this sort of criminal conduct is of the two, people and companies who sell a fine of $2,500. 17 U.S.C. Section 506(c). copies of public domain works often claim Moreover, violators are rarely prosecuted. copyright in the copies and place copyright Individuals are not allowed to bring their notices on them. You can find copyright own copyright lawsuits against people who notices and various warning statements make spurious copyright claims. Although it on copies of works that have been in the might be possible to sue under other ­legal ­public domain for centuries, such as the theories, as a practical matter it’s ­usually too music of Bach or Shakespeare’s plays. For expensive and difficult to file a lawsuit to example, the Arden Shakespeare edition establish that a copyright claim is spurious. of Shakespeare’s King Henry IV, Part II, In effect, the federal government encour­ ­contains the legend “No part of this book ages spurious copyright claims. The potential may be reprinted, reproduced or utilized in economic rewards for making such claims any form or by any electronic, mechanical are great, while the possibility of getting or other means … without permission in caught and paying a price is small. writing from the publishers.” This book will help you recognize when Ordinarily, a copy of a public domain copyright claims are, in fact, spurious. work is itself in the public domain. Some­ 26 The Public DoMain

Use of Contracts to You may use the designs and illustrations Restrict the Public Domain for graphics and crafts applications, free and without special permission, provided Just as pernicious as spurious copyright that you include no more than 10 in the claims is the widespread use of contracts to same publication or project. restrict how the public can use public ­domain Licenses are commonly used in electronic materials. These contracts are commonly books, even where the book is merely a called licenses. republication of a public domain work. A person or company that sells copies of For example, a publisher who created an public domain works or allows the public e-book version of the public domain novel to make copies of public domain works in Middlemarch by George Eliot included a its possession has every legal right to charge license agreement in the book, the terms of a fee for the copies or access. However, which permitted readers to copy only ten in addition to doing this, many owners text sections into their computer’s clipboard of public domain works require users to memory every ten days, and to print no sign license agreements restricting how the more than ten pages of the novel each day. works can be used. Such licenses take many forms. Some License Restrictions are preprinted form contracts you are re­ quired to sign, while others are negotiated Among other things, these license agreements tailored to particular individuals agreements impose restrictions on how or institutions. If the public domain materials the ­licensee (the person obtaining or are distributed online or on a CD-ROM, the accessing a copy of the work) can use license will often be a click-wrap license— the work. Typically, the licensee is barred that is, a license that appears on a computer from ­making more than a specific number screen when the user attempts to access the of copies or reselling them to the public. materials. The user must accept the license The licensee may even be barred from by clicking on a button—usually marked creating new works from the public domain with the word “accept”—before he or she ­materials or displaying or performing them can access the materials. in ­public. Some book publishers even attempt to If the licensee violates the restrictive impose license-like restriction on how terms contained in a license, the licenser you may use public domain materials. For (person who owns the copies of the public ­example, Dover Publications, the largest domain materials) can’t sue for copyright publisher of public domain clip-art in infringement because the materials are in book form, typically includes the following the public domain—they have no copyright ­statement in its clip-art collections: protection. Instead, the licenser threatens or chapter 2: The Use and Abuse of Copyright 27

actually does sue the licensee for violating ROM from copying, adapting, or modifying the license. This is a suit under state law for the listings. When Matthew Zeidenberg breach of contract. copied the listings and placed them on his In effect, people who use such licenses website, the company that owned the CD- are trying to use contracts to obtain the ROM successfully sued him for violating same exclusive rights that are provided the license. The court held that the license ­under copyright law, rights they can’t get restrictions were enforceable even though because the work is in the public domain. the listings were in the public domain. ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. Are License Restrictions Legal? 1996). Since the ProCD case was decided, a Many copyright experts believe that licenses majority of courts have gone along with its imposing copyright-like restriction on how reasoning and enforced license restrictions the public may use public domain materials on public domain materials. This has led to should be legally unenforceable. This is even more widespread use of licenses. ­because the federal copyright law preempts The experience of a company called (overrides) state contract law and prevents Jurisline.com illustrates how, as a practical people from using contracts to create their matter, it can be impossible to ignore or fight own private copyrights. Moreover, there a company that uses licenses to try to restrict are sound policy reasons for holding such use of public domain materials. Jurisline was ­license restrictions unenforceable—their started by two young attorneys who wanted widespread use diminishes the public’s to create a website providing free access ­access to the public domain. to court decisions—the written opinions However, almost all courts have ignored issued by state and federal judges. Such the experts and enforced these licenses. decisions are not protected by copyright (see In the first and most important court Chapter 3). Jurisline purchased 60 CD-ROMs decision on this issue, the court held containing thousands of such decisions that a license restricting the use of public from a legal publisher called Lexis and domain materials was enforceable. The case placed them on its website. Lexis required involved a CD-ROM containing 95 million all purchasers of the CD-ROMs to agree to business telephone listings. The listings a license prohibiting copying. When Lexis were all in the public domain (see Chapter and its parent company, the publishing giant 12), but the CD-ROM contained a click- Reed-Elsevier, discovered what Jurisline had wrap license agreement requiring users done they immediately filed suit, claim­ing to agree to certain restrictions before they that the copying violated the terms of the could access the information. For example, license. Juris­line argued that the license was the license barred purchasers of the CD- not legally enforceable because the ­legal 28 The Public DoMain

decisions were in the public domain and quickly and easily obtaining a public domain­ the license was preempted (superseded) by photo from a stock photo agency that uses the federal copyright law. Unfortunately, the licenses, you’ll have to dig through an federal trial court judge sided with Lexis, archive or ­local historical society that will let holding that the license was ­enforceable. you make copies without signing a ­license. The judge reasoned that the license was However, in some cases it may be impos­ not preempted because it only bound the sible to obtain public domain materials people who agreed to it. Unlike a copyright, you need without agreeing to a license. it could not be enforced against the world Always read any agreement carefully and at large. Matthew Bender v. Jurisline.com, 91 try to ­negotiate with the licenser to limit F.Supp.2d 677 (S.D. N.Y. 2000). (Unlike the the ­restrictions as much as possible so that appeals court decision in the ProCD case you’ll be able to live with the license. mentioned above, this trial judge’s opinion is not binding on any other court.) Rather than go on with the litigation and Legislative Shrinking ultimately appeal the judge’s ruling, Jurisline of the Public Domain decided to pack it in. It simply didn’t have As if widespread spurious copyright claims the financial resources to continue the legal and use of restrictive licenses weren’t bad fight. Jurisline entered into a settlement with enough, Congress has gotten into the act. Lexis in which it agreed to remove from its Egged on by huge corporate copyright website all the decisions it copied from the owners such as the Hollywood film CD-ROMs. The website later shut down. studios, Congress passed a series of laws dramatically reducing the public domain. What Should You Do About Licenses? Millions of foreign works that used to be When it comes to such restrictive license in the public domain in the United States agreements, the best advice is to avoid them have had their copyrights restored (see like the plague. A license (or any other Chapter 15). Millions more domestic works contract) is enforceable only against a ­person that were scheduled to enter the public who signs it or otherwise agrees to it. People domain during the next two decades who don’t agree to it are not ­legally bound have had their copyrights extended (see by it. Chapter 18). ­Because of these new laws, no You may have to work harder to find additional published works will enter the ­public domain materials not subject to public domain­ in the United States until the ­license agreements. For example, instead of year 2019. chapter 2: The Use and Abuse of Copyright 29

Fighting for the Public Domain

While Congress has acted to shrink • The Creative Commons the public domain, and the business (www.creativecommons.org) community has exploited it, a grassroots • The Internet Archive movement to preserve it has sprouted. (www.archive.org) Librarians, legal scholars, historians, • The Electronic Freedom Foundation artists, musicians, archivists, website (www.eff.org) creators, and many others have grown • Public Knowledge increasingly alarmed at the attacks on the (www.publicknowledge.org) public domain. Numerous organizations • The Free Expression Policy Project and groups have begun to help educate (www.fepproject.org) the public about the public domain’s • Center for Arts and Culture importance, agitate for its preservation, (www.culturalpolicy.org) and encourage copyright owners to • The Berkman Center for Internet and dedicate their works to the public. Society at Harvard Law School Because of this new consciousness of the (http://cyber.law.harvard.edu/home) public domain’s importance, Congress will • The Center for the Study of the Public never again be able to remove millions of Domain (www.law.duke.edu/cspd). works from the public domain or extend the term of copyright without a fight. Among these organizations are:

■

Chapter 3

Writings

What Can You Do With Public Domain Writings?...... 33 Republishing Public Domain Writings...... 33 Quoting From Public Domain Writings...... 34 Copying Public Domain Writings...... 36 Performing Public Domain Writings in Public...... 36 Creating New Works From Public Domain Writings...... 38

Determining Copyright Status of Written Works...... 38

Is the Work Eligible for Copyright Protection?...... 41 Copies of Public Domain Works...... 41 U.S. Government Works...... 42 Laws and Court Decisions...... 50 Words, Names, Slogans, and Other Short Phrases...... 54 Blank Forms...... 55 Information That Is Common Property...... 57 Food and Drink Recipes...... 57 Works Dedicated to the Public Domain...... 58

Has the Work Been Published?...... 58 Has the Work Been Distributed to the General Public?...... 60 Has the Work Been Performed or Displayed, But Not Distributed?...... 61 Has the Work Received Only Limited Distribution?...... 61 Date and Country of Publication...... 62

Has the Work’s Copyright Expired?...... 67 32 The Public Domain

Is the Work in the Public Domain Due to Lack of a Copyright Notice?...... 67

Does a Copyright Trap Apply?...... 68 Is the Work a Derivative Work?...... 68 Is the Work a Compilation?...... 80

Misuse of Copyright Notices...... 80

Sources of Public Domain Writings...... 82 chapter 3: Writings 33

his chapter will help you determine such as Shakespeare’s plays to the most if a published or unpublished written trivial and mundane cliches written for old T work is in the public domain, inclu­ advertising copy. You can use these public ding all types of fiction and nonfiction books, domain works in any way you desire, plays, screenplays, poetry, ­magazines, ­limited only by your imagination. Here are newspapers, pamphlets, letters, diaries, some common ways people use writings in advertising copy, and any other work that the public domain: consists primarily of written words.

It Is Possible for a Work to Be in the Republishing Public Public Domain in the United States but Domain Writings Protected by Copyright in Another Country, and Vice Versa. This chapter only covers When a written work enters the public the public domain in the United States. If ­domain, anyone is free to republish it you want to know whether a work is in the without obtaining permission from the public domain in a country other than the former copyright owner. Nor is it necessary United States, see Chapter 16. to pay the author, or more likely his or her heirs, a royalty. This makes it possible to publish cheap editions of works in the What Can You Do With Public public ­domain. For example, when This Domain Writings? Side of Paradise, the first novel by the famed Jazz Age novelist F. Scott Fitzgerald, entered the public domain in 1996, pub­ Billions of written works are in the public lishers printed nine new editions, some domain, ranging from literary masterpieces available for just a few dollars each. Classic public domain writings, usually works of fiction, drama, and poetry, are constantly being republished. You can find many in the literature section of any ­bookstore, including the works of Dickens, Hawthorne, Melville, Keats, Shelley, Shaw, Shakespeare, and many others. One ­company, Octavo, is even publishing high- quality photographic reproductions of ­classic public domain books on CD-ROMs. You can find examples of its work on the Books, Reading and Writing Illustrations, Internet at www.octavo.com. Dover Publications­ 34 The Public Domain

dollars to ­hundreds or thousands of dollars, Mom, Pop, and the Public Domain depending on the work involved and what is done with it. For example, The Wall Street One small publisher that has had success­ Journal charges $240 to use six or more republishing public domain works is paragraphs from a front-page article and Penfield Press, a mom and pop operation $180 to quote the same number of words located in Iowa City, Iowa. It specializes from an inside article. in republishing works of special interest In some cases, permission to quote may to people of Scandinavian and Eastern be unavailable at any price. This is what ­European descent. Among the public happened when author Ian Hamilton ­domain works it has republished are ­attempted to write an unauthorized bio­ the novels and short stories of Swedish graphy of the notoriously reclusive novelist writer Selma Lagerlof, the first woman to J.D. Salinger. Hamilton wanted to quote win a Nobel Prize for literature. In 1997, from some of Salinger’s personal letters. Penfield printed about 1,500 copies­ of Salinger not only denied permission, he Lagerlof’s 1891 novel Gosta Berling’s successfully sued Hamilton for copyright Saga and sold them all within two years, ­infringement when he attempted to use the ­primarily through the online bookseller quotations without permission. Amazon.com. This was the first time the There are also many cases where the novel had been ­reprinted in more than heirs of famous people have refused to 60 years. For more information about ­permit biographers and historians to use Penfield Press, visit their website at www copyrighted materials. For example, the late .penfield-press.com. poet Sylvia Plath’s family and executor have refused to allow serious literary biographers to quote from Plath’s copyrighted works Quoting From Public because they didn’t like the content of the Domain Writings biographies. In some circumstances, authors may A major advantage to using works in the quote from a copyrighted work without public domain is that you do not need permission. The legal concept of “fair use” ­permission to quote from them. When allows authors to use small portions of a work is protected by copyright, you another writer’s work without permission often need to obtain permission from the for some purposes, including scholarship, copyright owner to quote from it. Payment education, and news reporting. But may be demanded for such permission. applying the rules of fair use can be difficult There are no standard fees for such and confusing. And simply claiming “fair permissions. They may range from a few use” does not mean that the author or his chapter 3: Writings 35

heirs won’t sue you anyway. (For a detailed may quote freely from a public domain discussion of fair use, see Chapter 22.) By work, using as much or as little as you want, contrast, when a work ­enters the public for whatever purpose. You do not need to domain, the rules are simple and clear: You obtain permission or pay for the use.

Plagiarism, Attribution, and the Public Domain

If you copy from a public domain case of college professors and journalists, writing, do you have to credit the it may result in termination; in the case author? The United States Supreme of well-known historians, it can result in Court has answered “No,” holding that public humiliation. there is no legal requirement to provide To avoid charges of plagiarism, authors any attribution when public domain of scholarly works (histories, biographies, works are copied and placed into new legal and scientific works, and the like) works. Dastar Corp. v. 20th Century Fox always give proper credit to the sources Film Corp., 123 S.Ct. 2041 (2003). (See of their ideas and facts, as well as any Chapter 20 for a detailed discussion of words they borrow. This is so even if Dastar.) However, just because there is the work borrowed from is in the public no legal requirement to give credit to the domain. Authors of less serious works—for creators of public domain works, doesn’t example, how-to books—often attribute mean you need not do it. There is still direct quotations, though do not always something called plagiarism. give credit for ideas and facts they borrow. Plagiarism occurs when someone It is neither customary nor necessary for poses as the originator of words he did authors of works of fancy, such as novels not write, ideas he did not conceive, or and plays, to credit the sources of their facts he did not discover. Although you inspiration—regardless of the source—but cannot be sued for plagiarizing a public they should give proper attribution to domain work, the process can result in direct quotations. professional penalties. For example, in the 36 The Public Domain

Copying Public Domain Writings What Is a Digital Copy? Commercial copy shops such as FedExKinko’s Obviously, you can’t place a public ­domain may require that you obtain written book or magazine article on the Internet. permission from the copyright holder before The work has to be reduced to digital ­allowing you to photocopy a copyrighted form—a series of ones and zeros that can work. For example, FedExKinko’s copying be read and stored by computers and which policy—posted at its website (www.kinkos. is then translated by computer software into com) and published as a brochure available letters and numbers on a computer screen in every FedExKinko’s store—provides that that can be read by humans.­ Digital copies “FedExKinko’s requires written permission of written works are usually created by from the copyright holder in order to using a digital scanner—a device­ similar reproduce any copyrighted work.” to photocopy machine, except­ it makes No such permission is needed when a digital rather than physical copies. Another, work is in the public domain. You may much more time ­con­suming, way to make freely photocopy any public domain writing a digital copy is to simply retype a work and use the copies in any way you wish. into a computer. However, before asking a copy shop to photocopy a public domain work, you should ask what proof they need that the Performing Public Domain work you want copied is not protected by Writings in Public copyright. You are also free to make digital copies You ordinarily need to obtain permission of public domain writings and place them to perform a copyrighted play or other on the Internet or email them to colleagues, dramatic work in public. Permission fees friends, or coworkers. Copies of thousands to perform well-known plays by Eugene of classic public domain works have been O’Neill, Arthur Miller, Neil Simon, and other posted on the Internet. famous authors run into the many thousands of dollars. In contrast, public domain plays can be performed for free. This includes, for example, the complete works of Shakespeare. There is yet another advantage to performing a public domain play or other dramatic work: Neither the author or his or her heirs has any control over the performance. You can cut, rewrite, or otherwise alter the play in any way you wish. chapter 3: Writings 37

Plays in the Public Domain

Public domain works are in constant use in • an updated dramatic adaptation of the theater world. Public domain plays are Fyodor Dostoyevsky’s 1868 novel The often staged, and new plays and musicals­ Idiot are created from public domain works. In • The Bomb-Itty of Errors, a hip-hop New York City alone, these were some of ­adaptation of Shakespeare’s The the public domain plays being ­performed ­Comedy of Errors during one recent season: • a dramatization of H.G. Wells’s 1898 • Arms and the Man, an 1894 play by novel War of the Worlds George Bernard Shaw • a dramatization of Charlotte Bronte’s • The Alchemist, a 1610 play by Ben 1847 novel Jane Eyre Jonson • the musical Les Miserables, based on • King John, by William Shakespeare the 1862 novel by Victor Hugo • Othello, by Shakespeare • Kiss Me Kate, a Cole Porter musical • The Merry Wives of Windsor, by loosely based on Shakespeare’s The Shakespeare Taming of the Shrew • The Voysey Inheritance, a 1905 play • the musical The Phantom of the by Harley Granville-Barker. ­Opera, based on the 1911 novel by At the same time, the following plays and Gaston Leroux musicals adapted from public domain works • the musical Jekyll and Hyde, based graced the New York stage: on the 1886 novel The Strange Case • a musical version of James Joyce’s of Dr. Jekyll and Mr. Hyde, by Robert ­public domain story The Dead Louis Stevenson. ­(published as part of the Dubliners ­collection in 1916) 38 The Public Domain

Creating New Works From To know for sure whether a work is in the Public Domain Writings public domain or protected by copyright you need to look at each of these pathways: Perhaps most important of all, anyone is free 1. Many works are not eligible for to create a new work based upon a public copyright protection and automatically domain writing—for example, create a ­enter the public domain the moment screenplay or stage play based on a public they are created. domain novel or short story. Such works 2. A work may enter the public domain are called derivative works. Classic public because its copyright has expired. domain works such as the novels of Jane Millions of works fall into this category, Austen or Charles Dickens are recycled over including most of the best-known and over again in new movies, plays, and public domain works, such as other derivative works. Shakespeare’s plays. Authors may also create new stories using 3. A work may enter the public domain characters from public domain novels and because it was published before 1989 other literary works. One outstanding example without a valid copyright notice. is the novel Mr. Timothy, by Thomas Bayard, However, it can be difficult to tell which uses the character Tiny Tim from for sure which works published Charles Dickens’s classic tale A Christmas without notices really are in the public Carol. Bayard’s story concerns a grown-up domain. Determining public domain Tiny Tim who becomes involved with a series status from the first two pathways is of grisly murders in 1860 London. Examples like driving on a highway, but this of the many different types of derivative pathway is more like struggling along works that can be created from public domain an overgrown jungle trail. writings are listed later in this chapter. Also, if you determine that a work is not in In contrast, if a work is protected by the public domain, this does not necessarily copyright, you must obtain permission mean you can’t use it. Many elements in to create a derivative work from it. Such copyrighted works are in the public domain­ ­permission usually doesn’t come free, if it is even though the work as a whole is not— given at all. this includes the facts and ideas ­contained in a written work. See Chapter 14 for a detailed discussion of public domain­ elements in Determining Copyright Status copyrighted writings. of Written Works In addition, in some situations it is legally permissible to quote from copyrighted There are three main ways a written work ­writings without permission on the grounds enters the public domain. If it is not in the of fair use. The fair use privilege is covered public domain one way, it could be in ­another. in detail in Chapter 22. chapter 3: Writings 39

Attention Screenwriters: Free Ideas

Want to write a screenplay, but short on be freely adapted into a screenplay. Many ideas? Adapt an already published novel by of them have already been filmed, but this somebody else. Getting permission to create doesn’t mean they can’t be filmed again. For a screenplay from a novel by Stephen King, example, William Shakespeare’s Romeo and Michael Crichton, or John Grisham may Juliet has been adapted 34 times since 1900 cost millions of dollars. But there are tens for the movies, according to the Internet of thousands of novels and other literary movie database at www.imdb.com. works by far better writers that are in the This list represents an infinitesimal ­fraction public domain and available for free. The of all the written works that are in the ­public following chart lists just a few classic novels domain, but may give you an idea of just that are in the public domain and that can how rich the public domain treasure trove is.

Author Title Publication Date Adams, Henry Democracy 1880 Alcott, Louisa May Little Women 1868 Anderson, Sherwood Winesburg, Ohio 1919 Austen, Jane Pride and Prejudice 1813 Austen, Jane Emma 1816 Austen, Jane Sense and Sensibility 1811 Beerbohm, Max Zuleika Dobson 1911 Bennett, Arnold The Old Wives’ Tale 1908 Bronte, Charlotte Jane Eyre 1847 Bronte, Emily Wuthering Heights 1847 Carroll, Lewis Alice’s Adventures in Wonderland 1865 Carroll, Lewis Through the Looking Glass 1871 Christie, Agatha The Mysterious Affair at Styles 1920 Cleland, John Fanny Hill 1749 Collins, Wilkie The Woman in White 1860 Conrad, Joseph Lord Jim 1900 Conrad, Joseph Nostromo 1904 Cooper, James Fenimore The Last of the Mohicans 1826 Dickens, Charles Bleak House 1853 Dickens, Charles Great Expectations 1861 40 The Public Domain

Attention Screenwriters: Free Ideas

Author Title Publication Date Doyle, Sir Arthur Conan The Principal Works in Fiction 1913 Dreiser, Theodore Sister Carrie 1900 Eliot, George Middlemarch 1871-72 Fielding, Henry Tom Jones 1749 Fitzgerald, F. Scott This Side of Paradise 1920 Forster, E.M. Howard’s End 1910 Galsworthy, John The Man of Property 1906 Goldsmith, Oliver The Vicar of Wakefield 1766 Haggard, H. Rider She 1887 Hardy, Thomas The Mayor of Casterbridge 1886 Hughes, Thomas Tom Brown’s Schooldays 1857 Irving, Washington The Sketch Book 1820 James, Henry Portrait of a Lady 1881 Joyce, James Dubliners 1914 Kipling, Rudyard The Jungle Book 1894 Lawrence, D.H. Sons and Lovers 1913 Lewis, Sinclair Babbitt 1922 London, Jack The Call of the Wild 1903 Maugham, W. Somerset Of Human Bondage 1915 Melville, Herman Moby Dick 1851 Poe, Edgar Allan The Complete Works 1902 Scott, Sir Walter Ivanhoe 1819 Shelley, Mary Frankenstein 1818 Sterne, Laurence Tristram Shandy 1760-67 Stowe, Harriet Beecher Uncle Tom’s Cabin 1852 Swift, Jonathan Gulliver’s Travels 1726 Tarkington, Booth Alice Adams 1921 Thackeray, William Makepeace Vanity Fair 1847-48 Trollope, Anthony The Way We Live Now 1875 Twain, Mark The Adventures of Tom Sawyer 1876 Twain, Mark The Adventures of Huckleberry Finn 1885 Wells, H.G. The Time Machine 1895 Wharton, Edith The Age of Innocence 1920 Wodehouse, P.G. My Man Jeeves 1919 chapter 3: Writings 41

What If the Work Is Not in the Public Here’s a Shortcut: If the work you’re Domain? If you find that the work interested in doesn’t fall into any you want to use is not in the public domain, of the categories listed above, it is not in you may be able to use it anyway under a the public domain if it was published after legal exception called “fair use” (see ­Chapter 1988. However, even though such a work 22). If you do not qualify for this exception, is not in the public domain as a whole, it you will need to obtain permission to use will usually contain elements that are in the the work. For a detailed discussion of how public domain, such as facts or ideas. Refer to obtain copyright permissions refer to to Chapter 14 to read about these. ­Getting Permission: How to License & Clear Copyrighted Materials Online & Off, by ­Richard Stim (Nolo). Copies of Public Domain Works

Works that are simply copied from other Is the Work Eligible for works are not protected by copyright. If the Copyright Protection? original work is in the public domain, the copy will be as well. For example, a newly Copyright law never protects certain works, published copy of Mark Twain’s novel The regardless of when they were created and Adventures of Tom Sawyer (whose copyright whether or not they have been published. expired long ago) is as much in the public These works are ordinarily free for the domain as the original published version. ­taking by anyone. Such works include: You are free, in most cases, to make actual • Republications or reprinting of works copies of every page of a ­reprint or use it in the public domain in any other way you want. U.S. copyright • Works by United States government law does not protect typefaces, so even employees and officers if a publisher uses a new typeface for a • Laws and court decisions new edition of a public domain work, you • Individual words, names, slogans, and are still free to photocopy the text (see short phrases Chapter 5). • Many blank forms However, some publishers who reprint • Information that is common property, public domain works add new material, for such as standard calendars example, a new introduction, explanatory • Food and drink recipes notes, photos, or illustrations. This new • Works dedicated to the public ­domain ­material would be entitled to copyright —that is, works whose authors ­protection, but the original public domain have voluntarily relinquished their work would still remain in the public copyright protection. ­domain. For example, if new illustrations 42 The Public Domain

were added to a new edition of The ­Adventures of Tom Sawyer, you couldn’t Public Domain Notices on copy the illustrations without permission, Government Works but you are still free to copy the novel United States government agencies may, ­itself—that is, Mark Twain’s words. but are not required to, affix notices on Publishers and others who add new their works stating that they are in the ­material to reprints of public domain works public domain. The form of such notices typically include copyright notices in the varies; one example is: reprints. Although legally permissible, such This is a work of the United States notices may mislead or confuse people into government and is not subject to copy­ thinking that the original works themselves right protection in the United States. are protected by copyright when actually Foreign copyrights may apply. they are in the public domain. The practice of many government agencies is to affix a copyright notice U.S. Government Works to copyrighted material, but to include no notice or public domain statement All written works by the United States (federal)­ for public domain material. However, government are in the public ­domain. This since copyright notices are not required is true whether the work is published or on published works for them to be unpublished. protected, absence of such a notice A work is a U.S. government work if it doesn’t necessarily mean the work is not was prepared by an officer or employee public domain. of the federal government as part of that person’s official duties. “Officers” include all As you might imagine, there is a massive elected and appointed officials of all branches number of U.S. government works in the of the U.S. government—for example,­ the public domain. Just a few examples of president, members of Congress, cabinet public domain U.S. government works members, and judges, as well as lower-level ­include: U.S. government officials and members of • most, but not all work published by the federal bureaucracy. the United States Printing Office • all IRS publications, forms, rulings, and other IRS documents • official speeches, letters, and other documents by the president, Congress, and other federal government officers and employees, and chapter 3: Writings 43

• published and unpublished documents by the Copyright Office, Patent and Copyrighted Works Containing Trademark Office, and other federal U.S. Government Materials agencies. U.S. government writings are frequently However, not everything created by included within copyrighted works U.S. government officers or employees published by the private sector. For is automatically in the public domain. example, a work on U.S. population trends Works ­created outside official government could ­include material from the U.S. duties are eligible for copyright protection. Census ­Bureau; a biography of Franklin Moreover, private contractors working for Roosevelt could include lengthy quotations the U.S. government may obtain copyright from his official speeches and letters. ­protection for some works they create. Including such U.S. government materials U.S. government agencies may, but are within ­another work does not take them not required to place notices in their works out of the public domain. stating that they are in the public domain. If a privately published work consists The form of such notices varies; one mostly of U.S. government materials, example is provided below: the copyright notice must identify This is a work of the U.S. government those ­portions of the work that are not and is not subject to copyright protection government materials and are thus in the United States. Foreign copyrights protected by copyright. This enables you may apply. to tell which portions of the work are in If you find a notice like this, the work is the public ­domain. For example, a work in the public domain. However, absence of on U.S. population that consists primarily such a notice doesn’t necessarily mean the of six appendixes containing U.S. Census work is not public domain. You’ll need to ­Bureau documents could contain a do more investigation to see if one of the copyright ­notice like this: exceptions noted below applies. “Copyright © by Joe James 2004. Works Created Outside No protection is of Official Duties claimed in works of the United Only works created by U.S. government States ­government employees or officers as part of their official as set forth in duties are in the public domain. In other Appendixes 1-6.” words, the work must be created as part of the job of the employee or officer. By Linda Allison, copyright © Nolo 2000 For ­example, a personal letter written 44 The Public Domain

The Three Levels of Government

You need to know what level of ­government mayors, city councils, and local a document or other work comes from ­government agencies such as your local before you can know whether it’s in the planning department or school district. public domain. There are three basic levels Only works by employees or officers of of government in the United States. the U.S. government are automatically in the • The United States (or federal) public domain. State and local governments government which is headquartered can claim copyright in works they create, in ­Washington, DC, and includes subject to one exception for government the ­Executive Branch, Congress, the edicts discussed below. ­Supreme Court and other federal courts, It is usually not difficult to tell what level and federal agencies such as the IRS, of government a written work ­emanates Department of Defense, and Copyright from. If the work has been published, the Office. cover or title page will usually indicate • The 50 state governments, headquar­ what government agency wrote the work. tered in the 50 state capitals, including If the work is an unpublished letter, memo, the state governors, legislatures, state or other item, the stationery on which it is courts, and state agencies such as your written will usually show where it comes state’s motor vehicle agency. from. However, if you’re not sure whether • The thousands of city, county, and other the work was created by a U.S. government local governments located throughout agency, call or write them and ask. the United States. This includes local

1001 Cartoon-Style Illustrations, Dover Publications chapter 3: Writings 45

by President Nixon or General Douglas the speeches by Admiral Hyman Rickover MacArthur would not be in the public mentioned above were found not to be in ­domain, since such a letter would not have the public domain even though his Navy been created as part of their official duties. secretary typed them. Similarly, a court held that certain speeches Nor is a work in the public domain written by Admiral Hyman Rickover (the ­simply because it is printed by the U.S. ­father of the nuclear Navy) were not ­created government. Such a work could be as part of his official duties since the copyrighted, for example,­ if an independent speeches in question did not concern his contractor ­created it for the government Navy duties and were delivered on his free (see below). time. Public Affairs Assocs., Inc. v. Rickover, 284 F.2d 262 (D.C. Cir. 1960). Works by Independent Contractors Nor would a book or article written by The U.S. government often hires independent a government employee outside of his or contractors to help create written works her duties be in the public domain even if of all kinds. Works created for the federal it ­involved government activities. Memoirs government by independent contractors— written by public officials or employees meaning people who are neither U.S. ­after they leave office are not in the public ­government officers nor employees—can domain, even if they discuss what they did be protected by copyright. It all depends when they were in the government. Thus, on what the government decides at the for example, White House conversations time the independent contractor is hired. ­recounted for the first time by President If the government wants the work to be Gerald Ford in his memoirs, written after in the public domain, it can require the he left office, were not in the public ­independent contractor to sign a work- domain. Harper & Row Publishers v. Nation made-for-hire agreement. In this event, Enterprises, 723 F.2d 195 (2d Cir. 1983). the U.S. government, not the contractor The fact that a government employee or who actually wrote the work, would be officer occasionally uses a government­office, ­considered the author of the work for secretary, or other government facility to copyright purposes. The work would be in help create a work does not mean that the the public domain. work was created as part of the employee’s On the other hand, if the U.S. government duties. Government employees sometimes does not require the contractor to sign a use such facilities to create works that are work for hire agreement, the work would be not within their job duties. Such a work protected by copyright. The copyright could would not be in the public domain (but the be owned either (1) by the contractor who employee might be subject to discipline for created it, or (2) by the U.S. government if misusing federal facilities). For example, 46 The Public Domain

it required the contractor to assign his or Acquisition Regulation (FAR) 52.227-14 her copyright to it. (www.arnet.gov/far).) Here’s a suggested If the contractor gets copyright ownership, format for such a notice: the U.S. government gets a license to use the work. The U.S. government’s license COPYRIGHT STATUS: This work, is a nonexclusive, irrevocable, worldwide authored by ______employees, license to use, modify, reproduce, release, was funded in whole or in part by perform, display, or disclose the work. The ______under U.S. U.S. may use the work for government- government contract ______, related purposes without restrictions. It also and is, therefore, subject to the following may permit people outside the government license: The government is granted for to use, modify, reproduce, release, perform, itself and others acting on its behalf display, or disclose the work on its behalf. a paid-up, nonexclusive, irrevocable The government’s license includes the worldwide license in this work to right to distribute copies of the work to reproduce, prepare derivative works, the public for government purposes—for distribute copies to the public, and example, on government websites. This perform it publicly and display it publicly, means that, even if a contractor holds by or on behalf of the government. All a copyright in a work created for the other rights are reserved by the copyright government, you could use it if you get owner. the government’s permission to do so on its behalf. Of course, you could also get permission from the contractor. Finally, you It is possible, however, for published could use it without obtaining permission works to lack a copyright notice and for if your use constitutes a fair use. (See unpublished works to not have any notices Chapter 22.) or warning statements. For this reason, When a contractor obtains ownership ­always look for other signs that a work of a work created under a contract with was created by contractors. For example, a U.S. government civilian agency or ­contractors and/or their company will NASA, federal regulations require the ­usually be given credit on the title page or contractor to place a copyright notice somewhere else in the document, or the on it acknowledging U.S. government con­tractors’ company may be referred to in sponsorship (including the contract the work in some way that makes it clear number). The notice must be on the work that independent contractors created it. when it is delivered to the government, If you suspect independent contractors published, or deposited for registration have created a work, it is a good idea to with the U.S. Copyright Office. (Federal chapter 3: Writings 47

Public Domain Does Not Mean Public Access

The fact that U.S. government written works on its website at www.nsa.gov/docs/venona. are in the public domain—that is, not ­Because U.S. government employees created ­protected by copyright—does not mean they them, they are in the public ­domain and are always accessible to the public. Millions may be freely copied. of government documents are ­classified Members of the public may obtain copies for national security reasons and are not of many U.S. government documents made available to the general public. This through the Freedom of Information Act, a includes, for example, most works created federal law that requires federal agencies by employees of the Central Intelligence to make certain types of records publicly Agency, FBI, and State Department. Many available. A few examples of the wide other documents are not publicly available variety of records that citizens have obtained for reasons of privacy—for example, tax under the Freedom of Information Act records kept by the IRS and health records include: ­reports on silicone breast implants maintained by the National Institutes from the Food and Drug Administration; of Health. Eventually, many classified statistics on boycotts from the Department of documents do become publicly available. Commerce; and records on the assassination For example, the National Security Agency of President Kennedy from the FBI and the has declassified thousands of documents CIA. created by the VENONA Project. VENONA However, not every government document was the code name used for the U.S. Signals can be obtained under the Freedom of Intelligence effort to collect and decrypt the ­Information Act. The government won’t text of secret Soviet spy agency messages ­release documents if doing so would violate in the 1940s. These messages provided privacy or security rules. extraordinary insight into Soviet attempts The American Civil Liberties Union (ACLU) to infiltrate the highest levels of the U.S. has created a guide to using the Freedom ­government. The National Security Agency of Information Act. You can order a copy has placed copies of many of these decrypts through the ACLU website (www.aclu.org) or by calling 800-775-ACLU. 48 The Public Domain

call, write, or email the government agency absence of a copyright notice doesn’t involved to ask if the work is in the public ­necessarily mean copyright isn’t being domain or if you need permission from the claimed, because use of a copyright notice government agency or the contractor to is not mandatory for works published after use it. March 1, 1989 (see Chapter 19). If you’re not sure whether copyright is claimed in Works by State and Local Government a particular state or local publication or Employees ­unpublished document, call, write, or email the agency involved and ask them. The rule that U.S. government works are in The District of Columbia and Puerto Rico the public domain does not apply to works are treated the same as states for these by state and local government employees; ­purposes. those works may be protected by copyright. For example, a state tax pamphlet or booklet Foreign Government Works on air pollution or water conservation published by a city or county may be Subject to one exception for government protected. However, there is one exception: edicts, materials prepared by any foreign State and local government laws and court government with which the U.S. has decisions are in the public domain. copyright relations (see Chapter 15) are Not all state and local governments entitled to claim copyright protection in the claim copyright in their publications, but United States. Also included in this category many do. Some may claim copyright in are works prepared by the United Nations some publications, but not in others. and any of its agencies such as UNESCO, However, the trend seems to be for state and the Organization of American States. government agencies to claim copyright Not all foreign governments claim copy­ protection as a way to earn extra income. right in their official publications, but many For example, in 1999 the California State do—for example, the United Kingdom Legislature sponsored a seminar for state and Canada have something called Crown agency personnel in which legal and Copyright that protects most government publishing experts spoke about ways the publications. You must research the law of state could earn more money from its many the country involved to know if it claims publications. copyright in its publications (see Chapter 16). You can tell that copyright is claimed if you find a copyright notice (a © symbol Quasi-Governmental Organizations or the word “Copyright” followed by a Some organizations that you might think ­publication date and copyright owner’s are U.S. government agencies really aren’t. name) on a work in the name of the state Instead, they are quasi-governmental or local government entity. However, the chapter 3: Writings 49

­organizations or independent corporations established under U.S. government ­auspices. The Smithsonian Exception Such organizations are allowed to claim a As mentioned above, the Smithsonian copyright in their publications and other ­Institution is not considered part of works. These include, for example: the federal government. However, the • the Smithsonian Institution, which is Smithsonian does receive some funding an “independent trust instrumentality” from the U.S. government and the U.S. of the United States government pays some of the people • the U.S. Postal Service, which became who work there. The Smithsonian regards an independent corporation in 1970, works created by ­employees paid by the and government to be in the public domain. • the Corporation for Public Broad­ But the Smithsonian does claim copyright casting, which is a private nonprofit in all works created by employees it ­corporation established and partly pays itself (such workers are called trust funded by Congress. fund employees). The Smithsonian also Organizations such as these normally ­ordinarily acquires copyright ownership place copyright notices on their published on works created on its ­behalf by outside works, Web pages, and other copyrighted independent contractors. materials. But, if you’re not sure whether Unless a Smithsonian Institution publi­ an organization whose material you want to cation or other document specifically use is a U.S. government agency or a quasi- states that it is in the public domain, the government organization, call or write them only way you can determine for sure if it and ask. is in the public domain is to contact the ­Institution and ask. Certain Technical Data

The U.S. Department of Commerce runs something called the Standard Reference Data Program. This program creates publications and databases of technical data ­regarding metals, chemicals, industrial fluids and materials, and similar items for technical problem-solving, research, and development by scientists and engineers. Smithsonian Institution, Library of Congress, The Commerce Department is allowed to Prints and Photographs Division, Historic claim a copyright in such standard reference American Buildings Survey, HAS, DC, WASH, data. 15 U.S.C. Section 290(e). 520B-16 50 The Public Domain

Anticounterfeiting Rules size. Currency may also be reproduced in color if the reproduction­ is: Although federal government documents • one-sided are ordinarily in the public domain, federal • reduced to at least 75% or enlarged to anticounterfeiting laws may prevent you at least 150% of the bill’s original size, from freely copying some of them. These and laws apply to such documents as negotiable • all negatives, plates, digitized storage bonds and passports. medium, graphic files, and any other To prevent counterfeiting, federal law thing used to make the reproduction ­requires that some materials can only be that contain an image of the currency photocopied in black and white, single- are destroyed and/or deleted or erased sided, and must be reduced to 75% or after their final use. 31 C.F.R. § 411. ­enlarged to 150% of their original size. The requirements cover: • treasury notes Laws and Court Decisions • gold certificates • Internal Revenue stamps For our political and legal system to function • postal money orders, and properly, we must all have free access to • government, bank, or corporation official legal documents such as judicial bonds and securities. 18 U.S.C. § 504. opinions, legislation, public ordinances, Some other documents can only be ­administrative rulings, and similar items. ­copied in black and white, including: For this reason, all such works are in the • passports public domain. This rule applies to all levels • U.S., state, or foreign government of government—local, state, and federal, identification cards and even includes foreign government laws • driver’s licenses and legal rulings. Thus, all laws, from the • Social Security cards United Nations Charter to your local zoning • birth certificates regulations, are in the public domain. • immigration papers, and • certificates of U.S. citizenship. Privately Published Laws and Decisions In addition, U.S. government securities, notes, and other obligations may not be used Federal and state judges frequently issue in advertisements. 18 U.S.C. Section 475. written opinions when they decide court Paper currency may be reproduced in cases. These opinions are a vital resource black and white if reduced to at least 75% for understanding how the courts interpret or ­enlarged to at least 150% of its original the laws passed by Congress and the state legislatures. chapter 3: Writings 51

In the United States, most of the opinions Individual Court Decisions Appear to by the federal and state courts are collected be Fair Game So Long as They Are and published by private legal publishers, Stripped of the Material Added by the as are most of the laws passed by the ­Private Legal Publisher. But copying an Congress and state legislatures. These ­­entire published volume of legal opinions publishers cannot claim copyright in the produced by a private legal publisher (or a text of the decisions and laws themselves, substantial portion of it) and reproducing the but they are entitled to a copyright in opinions in the same order they ­appeared some material they create and add to these in the volume could violate the publisher’s publications. compilation copyright in the volume as a For example, editors at legal publishing whole. Consult a copyright ­attorney before companies typically write summaries attempting to do such copying. of the court decisions they publish. These summaries (called headnotes) Digital Copies of Court Decisions are copyrighted, but the legal opinions themselves are in the public domain. Legal opinions are now being digitally Other elements typically added to court ­copied and reproduced on both commercial rulings by legal publishers have been and nonprofit websites. Copyright notices found by the courts not to be protected are often included on these legal decisions. by copyright. These elements include Copyright may be claimed in the various the names of the lawyers, parties, court, computer coding systems, formatting, and and date of ­decision; and the procedural other technological enhancements used by history of the case. Matthew Bender v. a website, but not in the text of the legal West Publishing Corp., 158 F.3d 674 (2d opinions themselves. Digital copies of Cir. 1998). In addition, a court found that ­public domain texts are almost certainly not brief descriptive titles and chapter and copyrightable. article headings added to a collection of When it comes to using digital copies government statutes were not protected by of public domain legal decisions, there is copyright. State of Georgia v. Harrison Co., one further complication. The companies 548 F.Supp.110 (N.D. Ga. 1982). One federal selling such digital copies on websites and court has ruled that unique page numbering CD-ROMs frequently require purchasers or systems used in legal publications do not subscribers to agree to restrictions on how merit copyright protection, and other courts the digitized decisions may be used. These are likely to follow that ruling. Matthew restrictions are usually contained in licenses Bender v. West Publishing Corp., 158 F.3d that the purchaser is required to accept 674 (2d Cir. 1998). before ­buying the product. These licenses typically prevent users from republishing 52 The Public Domain

the decisions.­ If you violate the terms of the license,­ the publisher cannot sue you State Copyright Claims for copyright infringement because the Some states are attempting to assert ­decisions are in the public domain. But copyright claims in their laws. For the company might sue you for breach example, the Minnesota Office of the of ­contract. This is what happened when State Revisor claims copyright on the a website called Jurisline placed online historical notes, editorial notes, format, ­thousands of legal decisions it copied from and captions included­ in the official 60 CD-ROMs ­purchased from the legal published version of the Minnesota ­publisher Lexis. Lexis immediately filed state statutes. However, no copyright suit, claiming that the copying violated is claimed in the text of the statutes the terms of a license that the person who themselves. While the practice has not bought the CD-ROMs agreed to. Following yet been challenged, it is likely that, an adverse court ruling that the license was according to current copyright law, the format and captions are not protected by legally enforceable,­ Jurisline.com settled the copyright. But the copyright claim for the ­dispute by agreeing to remove the court notes might be valid. Notes are not laws decisions it had copied from the CD-ROMs and states are entitled to claim copyright from its website. in works created by their employees You can avoid potential problems with (other than laws and court rulings). licenses by going to a law library and Many states also claim copyright copying the cases in the printed bound ­protection for regulations—that is, rules volumes, instead of using digital copies on adopted by state agencies that interpret CD-ROMs and website. Published books are and enforce state laws. For example, the not ­subject to license restrictions. State of California claims copyright in the regulations made available to the public It is unfortunately not clear whether on a state website (www.calregs.com). license restrictions on public domain Regulations ordinarily have the force of works are legally enforceable, because law, so it’s likely that copyright claims in courts around the country have not reached state regulations are spurious and would a clear consensus on this issue. Anyone not be upheld by the courts. Such state copyright claims would considering violating a licensing agreement ­almost certainly not apply to your they signed for use of public domain works copying of state laws and regulations for should consider the danger of getting sued your ­personal use, but the state might and seek legal help before taking any take ­action if you published or otherwise ­action. For a detailed discussion of licenses, tried to commercially exploit them, for see Chapter 2. For a general discussion of example, by publishing them in a book or how to deal with public ­domain gray areas, on a website. see Chapter 1. chapter 3: Writings 53

Copyrighted Model Codes website did not specify that the codes were written by SBCCI. Instead, he identified Creating a local building code, planning them, correctly, as the building codes of ­ordinance, or similarly complex legislation Anna and Savoy, Texas. is a time-consuming and difficult task. To SBCCI sued Veeck for copyright infringe­ make this drafting process easier, private ment. Veeck lost in the trial court, but publishers have written what are called ultimately won on appeal. The court held model codes. Instead of writing their own that the model codes were in the public codes from scratch, many governments domain because: ­license and use the models. • The law is always in the public For decades, publishers of such model domain, whether it consists of codes have claimed copyright in their government statutes, ordinances, creations. Local laws, codes, and ordinances regulations, or judicial decisions; and based on such codes often contain copy­ • When a model code is enacted into right notices in the publisher’s name or law, it becomes a fact—the law of a some other indication that copyright is particular local government. Indeed, claimed by the publisher. In a significant the particular wording of a law is victory for public domain proponents, a itself a fact, and that wording cannot federal appellate court found that model be expressed in any other way. A codes enter the public domain when they fact itself is not copyrightable; nor is are enacted into law by local governments. the way that a fact may be expressed The case came about when Peter Veeck if there is only one way to express posted the local building codes of Anna it. Since the legal code of a local and Savoy, two small towns in north Texas, government cannot be expressed in on his website. Both towns had adopted a any way but as it is actually written, model building code published by Southern the fact and expression merge and Building Code Congress International, the law is uncopyrightable. Veeck Inc. (SBCCI). Veeck made a few attempts v. Southern Building Code Congress to inspect several towns’ copies of the International, Inc., 293 F.3d 791 (5th Building Code, but he was not able to Cir. 2002). locate them easily. Eventually, Veeck The Veeck decision’s reasoning has the purchased the model building codes directly effect of placing in the public domain from SBCCI; he paid $72 and received a every model code that has been adopted copy of the codes on disk. Although the by a government entity. Any person may software licensing agreement and copyright reproduce such a code, as adopted, for any notice indicated that the codes could not purpose, including placing it on a website. be copied and distributed, Veeck cut and However, model codes that have not been pasted their text onto his website. Veeck’s 54 The Public Domain

adopted by any government body are adopted by the federal Health Care protected by copyright. Financing Administration for use in After Veeck, you are on very safe completing Medicare and Medicaid ground if you copy a government statute, claim forms. The system was ruled to ordinance, or regulation itself, even if it is be protected by copyright. Practice word-for-word the same as a model code. Management Information Corp. v. The However, if you do what Peter Veeck did, American Medical Association, 121 and copy a model code you obtain directly F.3d 516 (9th Cir. 1997). from a model code publisher, make certain • The insurance regulations of several it has been adopted by a government body states required that the used car prices and note what body has in fact done so. listed in the Red Book—a ­privately Also, be careful to check that the version published used car price guide—be adopted by the government entity is the used as a standard for ­insurance same as you obtain from the model code payments. It was ruled not in the publisher. If, like Veeck, you place a code public domain. CCC Information on the Web or otherwise republish it, make Services v. Maclean Hunter Market clear that you are republishing a code that ­Reports, 44 F.3d 61 (2d Cir. 1994). has been adopted by one or more govern­ • A tentative map for a residential ment bodies. Don’t state that you are ­subdivision prepared by a private republ­ishing the publisher’s model code as ­developer was approved by the town a model code. council and therefore had legal effect, but did not enter the public domain. Quasi-Official Legal Documents Del Madera Properties v. Rhodes & Gardner, Inc., 637 F.Supp. 262 (N.D. Some types of privately created works are Cal. 1985). adopted by, or receive official approval from, government agencies. Such documents, in effect, obtain a quasi-official ­status, but Words, Names, Slogans, courts have ruled that they do not enter the and Other Short Phrases public domain. The rationale for this is that such documents are not themselves official Individual words are never protected laws. Rather, the law requires that citizens by copyright, even if a particular person consult or use these privately published ­invents them. For example, the word documents to fulfill their obligations. For “newspeak,” invented by George Orwell for example: his novel 1984, is in the public domain. If • The American Medical Association individual words were copyrighted people created and published a medical would be discouraged from using them and ­procedure coding system that was the growth of our language would be greatly chapter 3: Writings 55

retarded. As explained by the U.S. Supreme Assocs. v. Links, 203 U.S.P.Q. 831 (N.D. Court, “words are the common property of Ill. 1978). the human race and are as little susceptible • “Look!... Up in the sky!... It’s a bird!... of private appropriation as air or sunlight.” It’s a plane!… It’s Superman!” from Holmes v. Hurst, 174 U.S. 82 (1899). a trailer for the Superman television Names, whether of individuals, products, show. DC Comics v. Crazy Eddie, 204 or business organizations or groups, are U.S.P.Q. 1177 (S.D. N.Y. 1977). likewise not protected by copyright. Titles Use of such phrases is particularly likely also are not copyrightable (see Chapter 13). to be barred by the courts where they Ordinarily, slogans and other short are used for commercial purposes in, for phrases are not protected by copyright—for example, an advertisement. example, the phrases “Gift Check,” “Priority Message,” and “Contents Require Immediate Any of the Items Discussed in this Attention” used in a direct mail advertising Section Could Have Protection Under campaign were held to be in the public State and Federal Trademark Laws If They ­domain. Magic Mktg. v. Mailing Servs. Are Used In Connection With the Sale of a of Pittsburgh, 634 F.Supp. 769 (W.D. Pa. ­Product or Service. Using a person’s name 1986). Likewise, short lists of numbers used to help sell a product or service could also to identify various types of screws—for violate the person’s right to publicity. (See example, “402-10-202-10”— were too brief Chapter 20 for a detailed discussion.) to qualify for copyright protection. (Southco Inc. v. Kanebridge Corporation, 390 F.3d 276 (2004).) Such phrases will not be Blank Forms registered by the Copyright Office. 37 C.F.R. ­Section 202.1(a). Blank forms designed solely to record However, courts have made exceptions in ­information are in the public domain. The the cases of some highly creative and well- U.S. Copyright Office will not register them known literary phrases. For example, courts (37 C.F.R. Section 202.1c). According to the have held that the following phrases are Copyright Office, this includes such items copyrightable: as time cards, graph paper, account books, • “E.T. phone home” from the movie standard bank checks that don’t contain E.T.—The Extra-Terrestrial. Universal ­illustrations, scorecards, address books, City Studios v. Kamar Indus., Inc., 217 ­diaries, report forms, and order forms. U.S.P.Q. 1162 (S.D. Tex. 1982). Forms such as these typically consist • “When there is no room in hell … the only of simple arrangements of horizontal dead will walk the earth” from the and vertical lines with perhaps a few short movie Night of the Living Dead. Dawn headings. The headings are so obvious that 56 The Public Domain

their selection cannot be said to be even minimally creative. Some examples are a baseball scorecard with columns headed “innings” and lines headed “players” or a travel diary with headings for “cities,” ­“hotels,” and “restaurants.” Below is an ­example of an account book ledger design the Supreme Court held was not entitled to copyright protection in Baker v. Seldon, 101 U.S. 99 (1879):

This form, the first of its kind, lists four items of information about each day’s games—the teams, the starting pitchers, the game time, and the betting odds—and then lists nine items of information about each pitcher’s past performance, grouped into three categories. The court held that the ­selection of this particular combination of baseball statistical categories required enough creativity to merit copyright protection. Kregos v. Associated Press, 937 F.2d 700 (2d Cir. 1991). Forms that contain substantial text—for example, forms that contain detailed However, courts generally find more instructions, and insurance policies, elaborate and creative forms can obtain contracts, and other legal forms—are copyright protection, even if they consist protected by copyright. However, where primarily of blank spaces to be filled in. For there are only a few ways to express the example, a court held that the following facts and ideas contained in such forms, a baseball pitching statistics form was legal rule called the merger doctrine might copyrightable: severely limit protection (see Chapter 14). chapter 3: Writings 57

For example, one court held that events, and lists or tables taken from public insurance bond forms and indemnity documents or other common sources. 37 agreements were entitled to copyright C.F.R. Section 202.1(d). protection. But the court said that because However, new material added to such the forms contained standard language that works is protectable. Although a standard would have to be included in any form calendar is not protected by copyright, designed to accomplish the same purpose, photos, illustrations, or quotations added to only verbatim copying of the exact wording a calendar can be protected. But copyright would constitute copyright infringement. protection only extends to this new Continental Casualty Co. v. Beardsley, 253 material, not to the standard calendar itself. F.2d 702 (2d Cir. 1958). Even if an individual form is in the public domain, a work consisting of multiple forms could be protected by copyright as a compilation. In this event, copyright protection extends only to the compiler’s selection and arrangement of all the forms as a group. (See Chapter 12 for detailed Food and Drink Spot Illustrations, Dover Publications discussion of compilations.)

In many cases it may be difficult to Food and Drink Recipes tell for sure whether a blank form is in the public domain, or whether it contains A mere listing of ingredients for a recipe is enough information to be copyrighted. See not copyrightable. However, if a cookbook Chapter 1 for a detailed discussion of how author spices up his or her recipes with to deal with such public ­domain gray areas. ­explanatory material, such material is ­pro­ tectable. One court has suggested that this could include advice on wines to go Information That Is with the meal, hints on place settings and Common Property appropriate music, or tales of a recipe’s ­historical or ethnic origin. Publications Int’l According to the U.S. Copyright Office, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. works consisting of information that is 1996). Photographs or drawings included common property are in the public domain. in a cookbook would also be copyrightable Examples of such works include standard unless taken from other public domain calendars, height and weight charts, tape sources. measures and rulers, schedules of sporting 58 The Public Domain

Keep in mind, however, that it is only the necessary to make the dedication in writing. individual bare-bones recipes that are in the It could be done orally, but it’s always best public domain. A collection of numerous to write something down to avoid possible recipes can be protected as a compilation. misunderstandings. But in this event the copyright only extends Be careful, however, where an author to the selection and arrangements of all the sends mixed messages—for example, recipes as a whole. The individual recipes by stating that his work is in the public are still not protected. (See Chapter 12 for a domain, but restricting how the public detailed discussion of compilations.) may use it with the statement: “This work Copyright never protects a procedure, is public ­domain but may not be posted discovery, or system itself, only the way on the World Wide Web without my an author expresses it. For example, if permission.” When a work is dedicated someone writes a book describing how to the public ­domain, the author may not to grow an organic garden using minimal restrict how it is used. A statement like ­water, the words in the book are protected, this leaves it ­unclear whether the author but the gardening procedure is not. Anyone really intended to dedicate the work to the can read the book and use the procedure public domain. It’s wise to seek clarification it ­describes. Likewise, anyone can read a from the ­author or ask permission for the cookbook and use a recipe it describes— restricted use. that is, create a dish based on the recipe. Similarly the use of the phrase “copyright free” by the author need not mean the work is dedicated to the public domain. Works Dedicated to the The words “copyright free” are often used Public Domain to describe works (particularly photos and clip-art) that are under copyright, copies of Authors need not enjoy copyright protection which are sold to the public for a set fee if they don’t want it. Instead, they may rather than under a royalty arrangement. dedicate their work to the public domain. This means they give up all their rights in the work forever and anyone may use the Has the Work Been Published? work without asking their permission. There is no prescribed formula for If a work can be protected by copyright, as dedicating a work to the public domain. discussed above, you must decide whether The author or other copyright owner simply it has been published for copyright purposes. has to make clear his or her intentions. For Being published for copyright purposes has ­example, stating “This work is dedicated to a specific legal meaning. The answer to this the public domain” on a book or article’s question is vitally important, because it is title page would be sufficient. It’s not even chapter 3: Writings 59

Some Recipes Can Be Patented

A recipe, unaccompanied by original copyright restrictions (www.uspto.gov/main/ literary expression, cannot be protected by ccpubguide.htm). But, there doesn’t seem copyright. However, federal patent laws may much point in publishing a patented recipe protect a novel, nonobvious recipe. (See if no one could actually use it without the Chapter 2 for more on patents.) To be novel, patent owner’s permission. the recipe must never have been published You can tell that a recipe has been or used before. To be nonobvious, the patented if it contains a patent notice—the recipe must be one that a cook of ordinary words Patent or Pat. followed by a patent skill would not be expected to devise. Few number. If a patent has been applied for but recipes could meet both requirements. not yet obtained, a “patent pending” notice However, some recipes have been patented may be used. However, patent notices are —for example, a recipe for lasagna was not always used, so the absence of a notice patented in 1999. Using this recipe, a person does not conclusively mean a recipe has not could cook lasagna in 30 minutes (rather been patented. The best way to determine if than the usual 45) without using a pan. (Pat. a recipe has been patented is to do a patent No. 5,939,113.) search. You can do this online for free at the If a recipe is patented, you couldn’t use United States Patent and Trademark Office it to create the dish described in the recipe (USPTO) website (www.uspto.gov). The without the patent owner’s permission. USPTO has classified all patents by number; However, you could copy the patent itself food recipes are classified under number as published by the USPTO. According 426. You can find a list of the subclasses to the USPTO, when a patent is issued, within this classification at www.uspto.gov/ the patent description and drawings are go/classification/uspc426/sched426.htm. For published into the public domain as part a detailed discussion of patents and patent of the terms of granting the patent to the searching, see Patent It Yourself, by David inventor. As such, they are not subject to Pressman (Nolo). 60 The Public Domain

Dedicating Works to the Public Domain Through the Creative Commons

The Creative Commons, a nonprofit license to the work for 14 or 28 years. If organization designed to foster the public desired, users of the dedicated works can be domain, has established a program to help required to provide attribution to the original copyright owners dedicate their works to author. Works so dedicated to the public the public domain. Copyright owners may domain are listed in the Creative Commons dedicate their works to the public domain website so people can easily find them. immediately; or, they can elect to use what For detailed information, see the Creative the Commons calls “Founders’ Copyright”— Commons website at www.creative the original copyright term adopted by the commons.org. first copyright law in 1790. This consists of O’Reilly & Associates, a major publisher an initial term of 14 years after publication, of computer and technical books, has and an additional 14 years if the copyright decided to use the Founders’ Copyright owner wants it. The copyright owner fills out for its publications, if their authors agree. an online application and sells the copyright Hundreds of its titles will be released to the to the Creative Commons for $1, and then public domain. A list of these can be found the organization gives them an exclusive on the Creative Commons website.

used to determine whether the work is in The copies do not necessarily have to be the public domain because its copyright has sold for publication to occur; they can also expired or because it lacks a valid copyright be leased or rented, loaned, or even given notice. away. For example, they can be handed out to the public for free on a street corner or left in a public place for anyone to take. Has the Work Been Distributed Nor is it necessary for large numbers of to the General Public? copies to be distributed. So long as the work has been made freely available to the A written work is published for copyright general public, it makes no difference if just purposes when the copyright owner, one copy has been sold or distributed. See or someone acting on his or her behalf, Gottsberger v. Aldine Book Publishing Co., makes it available to the general public. 33 F. 381 (C.C.D. Mass. 1887). In other words, any interested member Obviously, if a work is printed and copies of the public may obtain a copy. Burke v. are offered for sale to the general public National Broadcasting Co., 598 F.2d 688 in bookstores, through mail order, or by (9th Cir. 1979). any other means of public distribution, a chapter 3: Writings 61

­publication has occurred. The same holds Has the Work Been Performed or true for magazines, newspapers, and all Displayed, But Not Distributed? other written works made available to the public at large. For a publication to occur for copyright However, a publication does not purposes it is crucial that copies of the work occur simply because an author signed be made available to the general ­public. For a publishing contract or delivered a this reason, merely performing or displaying manuscript to a publisher, magazine, or a work in public is not ­considered a newspaper editor. Copies of the work publication. For example, ­performing a must actually have been printed and play in public is not a publication. Copies distributed, or at least sent to retail dealers of the play must be made available to the for distribution. See Press Publishing Co. v. general public, not just to the actors. Ferris Monroe, 73 F. 196 (2d Cir. 1896). v. Frohman, 223 U.S. 424 (1912). To be published a work doesn’t necessarily Similarly, delivering a public lecture, have to be disseminated to the public speech, or sermon is not a publication. This through normal distribution channels is so regardless of the size of the audience like, for example, bookstores, magazine that hears the speaker. For example, courts and newspaper racks, subscriptions, or have held that Martin Luther King’s “I Have mail ­order. Other, nontraditional means a Dream” speech was not published when of distribution can also constitute a publi­ it was delivered before over 200,000 people cation. For example, courts have ruled that at the Lincoln Memorial and broadcast live publication occurred where: on television and radio to millions. Estate of • copies of several speeches by Admiral Martin Luther King Jr., Inc. v. CBS Inc., 194 Hyman Rickover (the father of the F.3d 1211 (11th Cir. 1999). nuclear Navy) were made freely Publicly displaying a manuscript, letter, ­available to the press and anyone else or similar item in, for example, a library or who requested them. Public Affairs museum exhibit also does not constitute a Associates v. Rickover, 284 F.2d 262 publication. (D.C. Cir. 1960), and where • about 200 copies of a manuscript were mimeographed and mailed to Has the Work Received various persons interested in the Only Limited Distribution? ­subject matter with a letter saying they should pass the work on to ­others A publication occurs for copyright purposes after they read it. White v. Kimmell, only when copies are made available to 193 F.2d 744 (9th Cir. 1952). the general public—that is, to anyone who wants a copy. In contrast, publication 62 The Public Domain

does not occur where copies are limited how long the U.S. copyright in the work to a ­selected group of people for a limited lasts (see Chapter 18). ­purpose without the right of further distri­ bution, reproduction, or sale. Academy of Date of Publication Motion Picture Arts & Sciences v. Creative You only need to know the year, not the House Promotions, 944 F.2d 1446 (9th Cir. exact date, a work was first published. You 1991). can usually determine the publication date For example, publication would not ­occur from the work itself. The vast majority of where: published written works have copyright • an author distributes a small number of ­notices. The date in the notice is the year copies of a manuscript to colleagues date of publication—for example, © 1966 or friends for comment and criticism by Scrivener & Sons. (See Chapter 19 for a with the understanding that the work detailed discussion of copyright notices.) may not be duplicated or ­circulated However, if the work lacks a copyright • an author or publisher sends a limited notice, but you have determined that it was number of copies of a work to published, you’ll have to look elsewhere for ­reviewers so they can write reviews clues about when the work was published. • a playwright makes copies of a play It may contain a date of publication available to the actors who will somewhere else—for example, on the title ­perform it page. If not, try the following: • a teacher distributes texts at a seminar Check the Library of Congress Card for use only by attendees at the Catalogue. You can do this in person at ­seminar, or the Library in Washington, DC, or online • a company produces an in-house through the Library’s Web page (http:// newsletter for its employees who are catalog.loc.gov). The Library’s catalogue expressly prohibited from reproducing contains the publication dates for millions of it or disseminating it outside the written works in the Library’s collection. ­company. Check Copyright Office Records. If the work was registered with the U.S. Copy­ Date and Country of Publication right Office, checking Copyright Office ­registration records will reveal when it If you determine that the work you’re was first published. Many of these records interested in has been published, you can be researched online (see Chapter should also determine the year of publi­ 21). However, not all published works are cation and the country where it was first ­registered with the Copyright Office, so published. Both these factors will affect there may be no record for it. chapter 3: Writings 63

Tips for Determining Whether a Work Is Published

Here are some practical tips for Is There a Copyright Notice? determining whether a written work has If you have a copy of the work you been published. should first look for a copyright notice. Is the Work a Copy? If a copy of a work has a notice, you Publication occurs when copies of a work can usually ­assume it was published. are distributed to the general public. If you However, as ­mentioned above, authors know that the item you have is an original sometimes place copyright notices on manuscript, letter, memoir, or other writing, unpublished manuscripts. Such works you don’t have a copy. Copies of the work are still unpublished. If the work looks like may have been made and distributed, but an unpublished manuscript, because it you can’t know this without doing some is handwritten or was ­created on an old- ­investigating. fashioned typewriter, don’t assume it has On the other hand, if the work is clearly been published just ­because it has a notice. a copy, there’s a good chance it has been Are There Other Signs of Publication? published. Printed, as opposed to hand­ If a copy of a work lacks a notice, it written or typed, works likely are copies. could still have been published. Examine The exceptions would be where the copies the work carefully for telltale signs. For were never offered for public distribution ­example: or were only distributed to a select audience.­ • Is the name of a publisher listed on The fact that the copy has been profes­ the work? This almost certainly means sionally printed tends to indicate it has the work has been published unless, been published, but is not the sole factor. for some reason, copies of the work Many unpublished works have been pro­ were printed but never distributed to fessionally printed, particularly those that the public. have been the subject of limited publication. • Does the work contain a selling price? For ­example, a syllabus or outline for an This almost certainly means it was ­educational seminar may be printed yet ­offered for sale to the public. not ­published for copyright purpose. You • If the work is a book, does it contain should take the steps listed here until you a Library of Congress Catalog are convinced that you know whether ­Number (LCCN)? Since 1900, the the work you are investigating has been Library of Congress has assigned a ­published or not. unique identification­ number for each published book in its catalogued 64 The Public Domain

Tips for Determining Whether a Work Is Published (continued)­

collections. The LCCN is usually ­cataloguing purposes. An ISSN is an printed on a book’s copyright page eight-digit number preceded by the (usually the page on the back of the ­letters ISSN—for example, ISSN title page). An LCCN consists of two 1234-5678. The ISSN can usually be digits followed by a hyphen and five found on the same page as the serial more digits—for example, 67-12345; publication’s masthead or on the page it sometimes has the letters CIP typed containing instructions for ordering below it. If a book has an LCCN, it the publication. If a periodical has an ­almost certainly has been published. ISSN, it definitely has been published. However, if a book has been printed However, the absence of all these and distributed, but is recalled before ­elements doesn’t necessarily mean the it is actually ­offered for sale to the work is unpublished. For example, a public, then it has not been published handwritten pamphlet lacking all of these for copyright purposes. elements would nevertheless be considered • Does the work have an international published if copies were created and standard book number (ISBN)? Since made available to the general public—for 1970, published books have also example, handed out to the public on ­contained an international standard street corners. book number (ISBN). This is a ten- Check Copyright Office Records digit number preceded by the letters If you’re still sure not sure whether the ISBN. The ISBN is used for cataloguing work is published, you can check Copy­ and ­ordering purposes. The ISBN can right ­Office records to see if the book has ­usually be found on the back of a been registered. When a work is registered, book’s title page and/or the back of the the appli­cant must indicate on the registra­ book cover (nowadays it’s printed in tion application whether the work has been the Universal Product Code (UPC) box ­published. However, not all published (the bar code)). If a book has an ISBN, works are registered, so the Copyright it definitely has been published. ­Office may have no record for it. (See • Does the work have an international ­Chapter 21 for a detailed discussion of how standard serial number (ISSN)? Since to search Copyright Office records.) the mid-1970s, published magazines, Check Library Catalogues journals, and other periodicals have Check the card catalogue of the Library of used an international standard serial Congress in Washington, DC. You can do number (ISSN) for ordering and this in person or online through the Library’s chapter 3: Writings 65

Tips for Determining Whether a Work Is Published (continued)­

Web page (http://catalog.loc.gov). If a work the same information as Books in Print. is listed in the catalogue as published, you Searching under the title or author’s name can safely assume it has been published. will ­reveal whether a work has been However, contrary to popular belief, the published recently. ­Library of Congress does not contain copies You might also try checking online of all works published in the United States. ­bookstores that specialize in used books. A work may be published but not be in the They may have older books in their Library’s card catalogue. database that don’t show up in Books in Check Books in Print Print or Amazon.com. If the work is listed Two reference guides, called Books in Print in such a store’s database, you know it’s and Books Out of Print, can reveal whether been published. Three of the best-known a work has been published relatively online used bookstores are alibris.com, ­recently. As its title implies, Books in Print powells.com, and bibliofind.com. lists books that are available for sale to the Contact the Author public, and are, by definition, published. If you think the author is still alive, you Books Out of Print lists books that used can try contacting him or her to ask if to be available, but are now out of print. the work has been published. But it’s Books listed in this work are also published probably wise not to mention that you’re for copyright purposes—a book need not trying to determine if the work is in the still be in print to have been published. public domain. For detailed information You can access Books in Print and on how to track down authors, see Getting Books Out of Print online for a fee (www Permission: How to License & Clear .booksinprint.com). Copyrighted Materials Online & Off, by Check Online Bookstores Richard Stim (Nolo). Online bookstores such as Amazon.com and Barnesandnoble.com contain much 66 The Public Domain

Google Digitizes Public Domain Books

In 2005, the Web search company Google books without first obtaining permission .com announced that it had entered into from their copyright owners constituted agreements with several major research copyright infringement. Whatever the libraries to digitally scan millions of books outcome of this lawsuit, it will have no from their collections and make them impact on Google’s efforts to make pre- available on the Internet as part of Google’s 1923 public domain works freely available. book search service (http://books.google Google is not the only entity with big .com). Google announced that it would plans to digitize books. Yahoo.com, make freely available to Internet users full the Internet Archive, the University of copies of books published in the United California, and others have created the States before 1923. These works are all Open Content Alliance (OCA) (www. clearly in the public domain because opencontentalliance.org). The OCA plans their copyrights have expired. Google to digitize hundreds of thousands of books will allow access to only a few pages of and make them freely available on the works published after 1923. Many of these Internet. Unlike Google, the OCA will only works are in the public domain because digitize public domain books. their copyrights were never renewed, but Given all this activity, it seems certain Google apparently thinks it is not feasible that virtually every available book pub­ to research this. lished in the United States before 1923 will The Authors Guild filed suit against be freely available on the Internet within Google in late 2005, claiming that its the next ten or 20 years. plan to make digital copies of copyrighted

Check Reference Works. There are you’re too busy to go to a library, you can hundreds of reference works that may post your research questions on the Internet be able to tell you when a written work at www.ipl.org (click “Ask a Question”) and was published. For example, in the realm a reference ­librarian will email you with of literature these include such works as advice. Contemporary ­Authors, Contemporary Research the Author. Researching the Literary Criticism, and the Dictionary of ­author of the work may reveal when the Literary Biography, all published by Gale work was published. If the author is well- Research. Go to a public or university known, a biography or critical study may library with a good ­reference section and have a detailed publication history for his or ask the reference ­librarian for assistance. If her works. chapter 3: Writings 67

Use the Internet. Many helpful reference of public domain materials is made up of works and much information about authors works for which U.S. copyright has expired. and their works are available on the Internet. Works published in the United States as Do a Web search using the author’s name, ­recently as 1963 could be in the public the name of the work involved, and the ­domain ­because their copyright expired. publisher. There may be a website devoted Moreover, the copyright for millions of to the author or even to the particular work, ­unpublished works expired on Jan. 1, or some online reference with detailed 2003. Because determining the expiration ­information about the work. A good place date of a copyright is complex, we have to find a list of Internet reference resources devoted an entire chapter to it. Once is the Internet Public Library at www.ipl.org. you have determined whether the work Contact the Publisher. Contact the work’s has been published, you should refer to publisher and ask them to tell you when the Chapter 18 for a detailed discussion of work was first published. copyright duration to determine if copyright protection has expired. Country of Publication If a work was published after 1963, Unfortunately, a work’s country of publi­ its copyright has not expired and you cation is not listed in the copyright notice. need not read Chapter 18 unless you want However, books, magazines, newspapers, to know when the work’s copyright will and other written works typically say where eventually expire. they were published or printed. You can often find this information on the title page or the same page as the copyright notice. Is the Work in the Public If you can’t find the country of publication from the work itself, try using the resources Domain Due to Lack of a listed above—they will ordinarily provide Copyright Notice? the country of publication as well as the publication date. Some works have entered the public ­domain because they lack a proper copy­ right notice. They must be published Has the Work’s works and they must have been published before 1989, because in that year copyright Copyright Expired? notices became optional. Examine the work carefully to determine if it has a notice. A Copyright protection does not last forever. copyright notice on a written work must When it ends the work enters the public contain three elements: domain. Indeed, the greatest single body 68 The Public Domain

• the familiar © symbol, the word Does a Copyright Trap Apply? “Copyright,” or the abbreviation “Copr.” The copyright law contains some traps for • the publication year date, and the unwary that might lead you to believe • the name of copyright owner. that a work is in the public domain when For example, a proper copyright notice parts of it might be protected by copyright. will often look like this: This can be so even if you think the work © 1945 Ralph Cramden is in the public domain because it’s ineligible You can usually find the notice on the for copyright protection, its copyright has page immediately following the title page expired, or it was published before 1989 of a book or on the title page itself. ­Copy­- without a valid copyright notice. If the work right notices for magazines, news­papers, is a derivative work or collective work, it journals, and other periodicals are usually may still contain copyrighted elements. found on the title page, the first page of Conversely, even if the work as a whole is text, or under the title heading. The notice protected by copyright, substantial portions may also appear in a magazine’s masthead. of it may be in the public domain if it is a If you’re interested in a work that has derivative or compilation. It’s important that been published as part of a larger work— you understand what these traps are so you for example, an article published in a can avoid them. magazine or newspaper—it’s sufficient that the larger work has a notice. For example, a Is the Work a Derivative Work? notice in the name of a magazine will cover all the articles in the magazine. When a work enters the public domain you However, if the work has no notice or are free to use it any way you want. You the notice lacks one of the three elements can simply republish the work in its original described above—copyright symbol © or form. For example, Shakespeare’s plays word Copyright, publication date, copyright have been republished over and over again owner’s name—it could be in the public through the centuries. On the other hand, domain. Read Chapter 19 for detailed you can also transform or adapt a public ­guidance on how to determine whether domain work to create a new and different a published work is in the public domain work. Such a work is called a derivative ­because it lacks a valid copyright notice. work. A derivative work is a work that is based upon or adapted from a preexisting work. A good example of a derivative work is a screenplay based on a written work, like chapter 3: Writings 69

the many films and TV programs based on and juries do when they are called upon to Dickens’s tale A Christmas Carol. To create decide whether one work infringes upon such a work, the screenwriter must take a another. novel’s words, characters, and structure, The right to create derivative works is one then add his or her own new expression of the exclusive rights a copyright owner to it. The screenwriter must organize the has. So long as a work is under copyright, material into cinematic scenes, add dialogue permission must be obtained from the copy­ and camera directions, and delete prose right owner to create a derivative work from descriptions and other material that can’t it. However, once a work enters the public be filmed. The result is a new work of domain anyone can create a derivative work authorship that can be separately protected from it without permission and can obtain by copyright: a screenplay that is clearly copyright protection for the ­material added different from the novel, yet clearly based to create the new work. upon, or derived from it. An uncountable number of derivative Of course, all works are derivative to some works have been created from public extent. Authorship is more often than not ­domain works. This creates a real trap for a process of translation and recombination the unwary because a work you might of previously existing ideas, facts, and think is in the public domain could be a other ­elements. Rarely, if ever, does an derivative work that is entitled to some author create a work that is entirely new. copyright protection. Before you conclude For ­example, writers of fiction often draw that any work is in the public domain you bits and pieces of their characters and must make sure that it is not a protected plots from other fictional works they have derivative work. This is usually not difficult. read. The same is true of writers of factual works. However, a work is derivative for Types of Derivative Works copyright purposes only if its author has There are many different ways a public taken a substantial amount of a previously ­domain written work may be adapted existing work’s expression—that is, the or transformed into a derivative work author’s original words and the structure protected, at least in part, by copyright law. and organization of the material. The following list shows the various types How much is substantial? Enough so that of derivative works that can be created from the average intended reader of the work writings. It lists what preexisting ­material would conclude that it had been adapted the derivative work author takes and what from or based upon the previously existing new material he or she adds to create the expression. There is no precise numerical derivative work. formula that can be applied here. You must use your common sense. This is what judges 70 The Public Domain

Editorial Revisions and Elaborations expression—his words—as possible. Preexisting material taken: The entire text The play is a derivative work based on of any preexisting work. the nonfiction memoirs. New material added: Editorial revisions Dramatizations and/or other new material such as new ­illustrations and photographs. Preexisting material taken: All or a substan­ tial part of the material in a fictional work Example: An economist, takes Adam not meant to be performed in public—that Smith’s classic public domain work on is, a short story, novel, or poem. economics, The Wealth of Nations, and New material added: Editing, reorganiza­ updates and revises it to reflect current tion, new dialogue, and other new material economic thinking. He adds several new needed to transform the work into a work chapters and revises the other chapters that can be performed in public—for in light of recent developments. The ­instance, a stageplay or screenplay. new edition is a derivative work based on, but not designed to take the place EXAMPLE: Leslie takes Charles Dickens’s of, the original edition. public domain novel Great Expectations and transforms it into a screenplay. Fictionalizations Preexisting material taken: A substantial Translations Into a New Medium portion of the protected material contained Preexisting material taken: All or a sub­ in a factual work (biography, history, etc.). stantial portion of the text of a written work New material added: Editing, reorganiza­ in one medium—for example, a published tion, new dialogue, descriptions, and other book. new material needed to transform the New material added: Transfer of the work preexisting nonfiction work into a novel, into a new medium. play, screenplay, or other work of fiction.

Example: Audio Books hires an actor Example: Art takes General Ulysses to make a recording of the novel ­Vanity S. Grant’s memoirs (whose copyright Fair by Thackeray and markets the tape ­expired long ago) and transforms them as an audio book. The recording is a into a stageplay. To do so, he deletes derivative work based on the written prose descriptions, adds new dialogue, public domain novel. organizes the work into scenes and acts, and adds new scenes and inci­ dents that weren’t in the memoirs. But he also ­retains as much of Grant’s chapter 3: Writings 71

Translations Into a New Language Abridgments and Condensations Preexisting material taken: All the material Preexisting material taken: A substantial contained in a preexisting work. portion of a work’s protectable material. New material added: Translation of New material added: Editing and other the work into a new version in another revisions that transform the work into a ­language. new, shorter version.

Example: Mark Twain’s public domain Example: Reader’s Digest condensed novel The Adventures of Tom Sawyer books creates an abridged version of is translated into French. To do so, the Herman Melville’s public domain novel translator takes Twain’s expression Moby Dick. (the words contained in the novel) and ­replaces them with French words. The Annotations resulting translation is a derivative work Preexisting material taken: All or a based on the original English-­language substantial portion of a work’s protected novel. material. New material added: Notes and/or other materials that clarify the meaning of the preexisting text.

Example: The annotated version of Lewis Carroll’s work Alice in Wonderland is a derivative work prepared from the original public domain version of the book.

Extent of Copyright Protection for Derivative Works

Whenever a derivative work is created from a public domain work, only the new material added by the author of the derivative work is entitled to copyright protection. The original work remains in the public ­domain, as do those portions of the original work that are used in the new derivative work, since they come entirely from the original public domain material. 72 The Public Domain

Thus, in all the examples of derivative • translating a list of 850 single words works listed above, only the new material and 45 short phrases from Arabic into added is protected by copyright. For English and then transliterating the ­example, the author of a screenplay Arabic words into Roman letters with based on Dickens’s public domain novel phonetic spellings. Signo Trading Int’l, Great ­Expectations is entitled to copyright Ltd. v Gordon, 535 F.Supp. 363 (N.D. protection only for the new material she Cal. 1981). adds to create the screenplay—for example, • changing the language of a public new dialogue or scenes. Anyone may ­domain form for the sale of merchan­ create his or her own screenplay of Great dise from a sales contract to a service Expectations. Such a person may copy contract, a change requiring only a freely from the public domain novel, but few minor wording changes. Donald may not copy without permission any new v. Uarco Business Forms, 478 F.2d 764 elements present in the prior screenplay. (8th Cir. 1973). • Making minor wording changes to Changes Not Entitled to the well-known Cajun sayings “We Copyright Protection gon pass a good time, cher,” and “You gotta suck da head on dem der To create a derivative work, an author must crawfish.” (Emanation, Inc. v. Zomba make more than merely trivial or minuscule ­Recording, Inc., 2003 U.S. App. LEXIS changes to the original work. Changes that 17146 (5th Cir. 2003).) are unoriginal or completely uncreative Works such as these receive no copyright do not merit copyright protection. To protection at all if the original is in the be protectable, a derivative work must ­public domain. For example, if a publisher differ from the preexisting work in some merely corrects punctuation and spelling meaningful way. errors in a public domain work and Examples of changes to preexisting ­republishes it, you are free to copy the ­written works that courts have held do not ­entire republished work. merit copyright protection include: • 40,000 changes to a book, consisting In some cases it may be difficult to “almost entirely of elimination and tell for certain whether the changes ­addition of punctuation, changes of someone has made to a public domain spelling of certain words, elimination work are significant enough to merit and addition of quotation marks copyright protection. See Chapter 1 for and correction of typographical detailed guidance on how to deal with such errors.” Grove Press, Inc. v. Collectors public domain gray areas. Publication, Inc., 264 F.Supp. 603 (C.D. Cal. 1967). chapter 3: Writings 73

Scholarly Editions

Scholarly or “definitive” editions of famous public domain writings are constantly being published. These include, for example, new editions of the works of Mark Twain, Shakespeare, Thomas Hardy, D.H. Lawrence, and many others. Copyright is frequently claimed in these new editions because they contain copyright notices. New editions of public domain works can be copyrighted derivative works if they contain annotations or substantial editorial revisions or additions. However, copyright Books, Reading and Writing Illustrations, Dover protection extends only to the new material ­Publications added to the original public domain work. For example, if a publisher adds a preface ­editors or their publisher would own new and explanatory notes to a new edition of material created by the editors of the new Charles Dickens’s Great Expectations, the edition. additions are copyrighted. But Dickens’s New editions that don’t include any words remain in the public domain. unpublished material may also be What about changes to the public ­domain copyrightable—for example, where an text itself­—can these be copyrighted? editor prepares a “definitive” edition of a Changes that consist only of correcting public domain work from multiple prior miss­pellings and typographical errors or editions. Matthew Bender v. West Publishing standardizing punctuation are not copy­ Corp., 158 F.3d 674, n. 14 (2d Cir. 1998). right­able because they are not sufficiently This would be true, for example, where original or creative. However, some prior editions of a public domain work scholarly editions of classic public domain contain many differences in content and the works add new material. If this has never editor must pick and choose among all the been published before, it is copyrightable. differences to devise what the editor views For example, a new edition of D.H. as a “definitive” version of the work. The Lawrence’s 1915 novel The Rainbow editor’s selection of which portions of the contains previously unpublished material work to include in his or her “definitive” from Lawrence’s manuscript. This new edition would be copyrightable. But, again, ­material is protected by copyright. In this the actual words contained in the work case, Lawrence’s heirs own the new material, would remain in the public domain. since Lawrence originally wrote it. The 74 The Public Domain

If copyright is claimed in a new edition In addition, the new edition contained of a public domain work, it will ordinarily extensive editorial notes that ­allow contain a copyright notice. Sometimes the reader to determine what ­material the notice will indicate the elements of was added and what was taken from the work where copyright is claimed. the original version of the novel. By Unfortunately, this is not always the case. referring to these notes, one can avoid Explanatory notes may also reveal what using any of the copyrighted ­material. changes or additions have been made to The easy way to avoid problems is to the original text. Checking Copyright Office avoid using new editions of public domain registration records for the work may also works in which copyright is claimed. Use be helpful (see Chapter 21). an older edition or one that doesn’t include a copyright notice. Although, technically Example: A new “definitive” edition speaking, use of copyright notices is of Mark Twain’s classic novel The ­optional on works published since 1989 ­Adventures of Huckleberry Finn was (see Chapter 19), in practice they are ­almost published in 1996. This edition contained universally used in books, magazines, substantial new material from Twain’s and other written publications in which handwritten manuscript, which had copyright is claimed. Absence of a notice been lost for decades. The new material strongly indicates that no copyright is was copyrighted, even though the being claimed in the publication. This is original published version of the novel particularly likely to be true where a public entered the public domain in 1942. (See ­domain work is republished. ­Chapter 18 for a detailed discussion of this issue.) Digital Copies of Public The new edition contained an Domain Writings excellent copyright notice that made clear that copyright was only being The rise of the Internet as one of the most claimed in the previously unpublished important communications mediums of our material and in an introduction, time has led to the widespread practice foreword, and afterword written by the of making digital copies of public domain editors of the work. The notice says: works for use on the World Wide Web and commercial online services such as Dialog, Previously unpublished text, foreword, Nexis, Lexis, and Westlaw. Such public and afterword copyright © by The Mark ­domain works include U.S. government Twain Foundation works, laws and court decisions, and works whose copyright has expired, such as the Introduction copyright © by Justin novels of Charles Dickens or the poetry of Kaplan Lord Byron. chapter 3: Writings 75

To create the digital copy, the work is of … a pre-existing copyrightable work normally either scanned with a computer does not result in a new work of authorship. scanner (a device that makes a digital copy The digitized version is a copy of the ­pre- of a printed page or photo) or retyped into existing work and would be protected a computer. The people and companies as such, but no new work of authorship who do this often place copyright notices is created. A novel may be digitized and on their digital copies. They apparently are stored in an electronic medium. Protection claiming the digital copies are protectable depends on the status of copyright in the derivative works. Are they? Probably not. novel; digitization does not add any new authorship.” Copyright Office Policy Decision on Copyrightability of Digitized Typefaces, Downloading Material 53 Federal Register 189 (Sept. 29, 1988). From the Internet Under this view, an exact digital copy You need to be careful when you down­ of a preexisting work is copyrighted only load (copy to your own computer) public if the preexisting work is protected. If the domain writings from the Internet. You preexisting work is in the public domain, could inadvertently download copyrighted the digital copy is too. This is because an material. For example, if you download exact digital copy of a written work does a public domain document from a Web not ­require any originality or even minimal page, you could end up downloading not ­creativity—two of the requirements for copy­ only the public domain work itself, but the right protection. A digital copy of a text is no HTML (Hypertext Markup Language) code more a copyrightable work of ­authorship than used to design the Web page. This code a photocopy of a page of text. may be copyrighted. You can avoid this The Copyright Office’s view is persuasive by downloading only the public domain and is in line with the long-standing policy ­elements of a website instead of the whole of the courts that “a copy of something in site. For example, you could download just the public domain will not, if it be merely the words of the public domain ­document a copy, support a copyright…. [T]o support and save them with a word ­processing a copy­right there must be at least some program such as Microsoft Word without ­sub­stantial variation, not merely a trivial copying any of the website’s code. It is also variation such as might occur in the trans­ possible to remove HTML coding with text lation to a different medium.” L. Batlin & editor software. Son, Inc. v. Snyder, 536 F.2d 486 (2d Cir. 1976). The Copyright Office’s observation is not In 1988, the Copyright Office issued a binding on the courts, but would likely be policy decision regarding the ability to given some weight by them. Moreover, it copyright typefaces that said, “digitization 76 The Public Domain

was bolstered by a court decision that exact did so). There’s a very good chance you’d photographic reproductions of old master win such a suit, but you’d still have to go paintings were not sufficiently original to through the trauma and expense of litigation. merit copyright protection as ­derivative works. The Bridgeman Art ­Library, Ltd. v. For detailed guidance on how to deal Corel Corp., 25 F.Supp.2d 421 (S.D. N.Y. with gray areas of the public domain, 1999); see Chapter 5). There would seem to such as whether digital copies of public be even less originality ­involved in making ­domain works are also public domain, see a digital copy of a text than a photograph of Chapter 1. a painting. You can avoid even the possibility of this In addition, courts have consistently held happening by retyping the digital copy or that translations of computer programs copying it by hand rather than downloading from a form of computer code readable by it into your computer and thereby copying humans (source code) to a form readable the digital copy. The maker of such a digital only by computers (object code) do not copy holds no copyright in the words create protectable derivative works. Trans­ themselves; they might only argue that forming a written text from letters on a they hold a copyright in the transformation page to digital ones and zeros that can be of the words into a digital format that a understood only by a computer should ­computer can read. Alternatively, you can likewise not create a protectable derivative always copy the original public domain work. document if you have access to it. So, even if a digital copy of a public ­domain text has a copyright notice, it likely Microfilms of Public Domain Works is not protected by copyright. To enjoy such protection, something new must be added In order to save space, many public domain to the text. If you find a copyright notice on written works have been microfilmed a Web page containing a copy of a public and the original copies discarded by domain text, elements such as the format of libraries and archives. This is particularly the Web page and the computer code used common for public domain newspapers to create it may be copyrighted, but the and magazines. It’s not unusual to find copied public domain text is not. copyright notices on such microfilm However, there has been no definitive editions of public domain works, usually court ruling on this issue. It is possible, in the name of the company that created therefore, that the creator of a digital copy the microfilm. However, amicrofilm—that ­ could sue you if you download and dis­ is, a photograph—of a ­public domain tribute the digital copy without permission text is almost certainly not copyrightable ­(assuming the creator could prove that you because no creativity is ­required to take chapter 3: Writings 77

such a photo. Indeed, a microfilm of a text the new elements that the creator of the should be no more copyrightable­­ than a derivative work added to the original work. photocopy. The creation of such copies is a purely mechanical act that does not result in Example: George Bernard Shaw’s any copyrightable authorship. 1913 play Pygmalion was turned into Where a number of public domain works a movie (starring Leslie Howard and are collected together in a single microfilm Wendy Hiller) in 1938. The copyright edition, there may be a limited copyright in in the movie, a derivative work based the selection and arrangement of the entire upon the play, was not renewed in work, but not in the individual microfilms 1966 and therefore entered the public themselves (see Chapter 12). domain in 1967 (see Chapter 7). However, the copyright on the play When Derivative Work Is Public was renewed on time by Shaw in 1941 Domain but Original Is Not and remained under copyright through 1988. The court held that the fact that It’s possible for a derivative work to enter the movie was in the public domain the public domain while the original work, had no effect on the copyright status upon which it is based, is still protected by of the original play. It was still entitled copyright. This can happen, for example, if to a full term of copyright protection. the derivative work was published before In addition, those portions of the play 1964 and its copyright was not renewed (dialogue, story) that were used to on time 28 years after its publication, but make the derivative film were also still the original work was renewed on time. ­protected by copyright through 1988. (See Chapter 18 for an explanation of Russell v. Price, 612 F.2d 1123 (9th Cir. timely ­renewal.) It could also happen if 1979). the ­derivative work was published before March 1, 1989 without a valid copyright Because the original work is still pro­ notice while the original work had a valid tected by copyright, the derivative work notice. (See Chapter 19 for more on this may not be used without permission from ­issue.) the owner of the original work. This is If the derivative work enters the public ­because by using the derivative work one domain does this mean the original work ordinarily must also use those portions of automatically becomes public domain too? the original work included within it. This The answer is no. The original work ­remains meant that the film Pygmalion could not copyrighted, as do those portions of the be distributed without permission from original included within the derivative Shaw’s estate (the holder of the copyright work. All that enters the public domain are in the play Pygmalion). Distributing the 78 The Public Domain

film without such permission violated the In 1912 the Senate Commerce Committee copyright in the original play. (But after conducted extensive hearings on the 1988, the play entered the public domain ­Titanic disaster at which many of the and both the movie and the play could be survivors ­testified. The lengthy reports distributed without such permission.) of these ­hearings were published by the The only exception to the permission Government Printing Office. The report, a requirement in this situation would be U.S. government work, was in the public where only the new public domain domain. Some 86 years later, Pocket Books elements added to create the derivative published a one-volume version of this work are used. report. You might think this work was also in the ­public domain, but you’d be wrong. Example: Assume that a student edition It is a protected derivative work. of Tennessee Williams’s plays was This is because the Pocket Books version ­published in 1960. The work contained was not an exact copy of the report. Rather, ­copious notes and annotations created a reporter from The New York Times, Tom by the editors. The student edition Kuntz, edited the multivolume report was a derivative work—an annotation. into a single 570-page volume and added The notes and annotations were an ­introduction and a number of public protected by copyright as were the ­domain photographs. This made the work plays themselves. However, the student an ­editorial revision—one type of protected edition’s copyright was not renewed in derivative work. The new expression 1988 and the work entered the public Kuntz added to the original public domain domain (see Chapter 18). Williams’s report is protected by copyright—that is, plays are still protected by copyright, his selection and editing of the material to but the notes and annotations are in include in the book and his introduction. the public domain. You can freely None of the individual words, sentences, copy these notes from the student or paragraphs is protected, but the work as edition, but you cannot use the plays a whole is. You can copy ­selected portions themselves without permission from of the book, but you can’t copy the entire Williams’s estate. book without permission. To do would violate Kuntz’s copyright in his selection and editing. Avoiding Problems With This is why you should always examine Derivative Works a published work carefully for a copyright Unless you’re careful, you could end up notice, even if you think it should be in ­using a work you think is in the public the public domain. If it contains a notice, ­domain that is really a protected derivative it may be a derivative work. If you look at work. Here’s a real-life example: the copyright notice included in the Pocket chapter 3: Writings 79

Books edition of The Titanic Disaster example, it would not be possible to use Hearings, you’d find it states “Introduction any portion of an English translation of a and compilation copyright © 1998 by Tom foreign-­language public domain work, since Kuntz.” This makes it quite clear what the entire translation is protected. portions of the work are copyrighted. Another option is to find and use the You can avoid having to ask permission original work—for example, although a to use a derivative work based on a public 1995 English translation of Homer’s Iliad is domain work by using only those portions copyrighted, the original Greek version is of the work copied from the original in the public domain. Or, you can use an work. But this is not always possible. For earlier derivative work that is in the public

Senate Commerce Subcommitte Investigation, Library of Congress

The Titanic Disaster Hearings, by Tom Kuntz

The New York Times, April 16, 1912 80 The Public Domain

domain—for example, a translation of The Collective Works Iliad published in 1920 is in the public Selecting preexisting materials that are ­domain (because the copyright has ­expired) separate and independent works of and may be copied freely. authorship into one whole work may also create a compilation. Such compilations are Is the Work a Compilation? called collective works. Many written works are collective works. Besides derivative works described in the previous section, there is yet another way Example: Elliot compiles an anthology an author can create a copyrightable work of the 25 best American short stories from public domain materials. This is by published during the 1990s. Each story creating a compilation. is a separate and independent work A compilation is a work created by that was protected by copyright the ­selecting, organizing, and arranging moment it was created. However, Elliot previously existing material in such a has created a new protectable collective way that the resulting work as a whole work by selecting and arranging the constitutes an original work of authorship. stories into a collective whole, that is, a Compilations differ from derivative works collection of the best short stories of the because the author of a compilation makes 1990s. no changes in the preexisting material and Other examples of collective works need not add any new material of her own. ­include newspapers, magazines, and other Moreover, protectable compilations can be periodicals in which separately protect­ created solely from material that is in the able articles are combined into a collective public ­domain. whole, encyclopedias consisting of indepen­ dently protectable articles on various topics, Fact Compilations (Databases) and collections of the various writings One basic type of protectable compilation by a single author. Collective works are is a fact compilation or database. This type discussed in detail in Chapter 12. of compilation is created by selecting and ­arranging facts or other items that are not works of authorship and are therefore in the Misuse of Copyright Notices public domain. These types of compilations are discussed in detail in Chapter 12. Public domain works are constantly being used to create new derivative works and collective works. If public domain writings are used to create a new derivative work chapter 3: Writings 81

or collective work, the work is entitled the copyright notice says, Oxford University to contain a copyright notice when it is Press does not own a copyright in these ­published. works. It only holds a copyright in the new The best practice when this is done is material added to these works to create the for the publisher to indicate in the notice anthology—that is, to the selection of the what elements of the public domain work materials included in the anthology and are copyrighted. For example, the copyright to introductions and notes written for the notice for an English translation of Caesar’s ­anthology by its editors. The literary works Gallic Wars states: “Translation copyright themselves are in the public domain and © by 1985 by Anne Wiseman, Illustrations may be copied freely. copyright © 1985 by Barry Cunliffe.” An even worse example is the reprinting However, there is no legal requirement of the novel Ben-Hur by Regnery Publish­ that the copyright notice explicitly state ing, Inc. The copyright notice for this what elements of the work are copyrighted. work states “Copyright © 1998 by Regnery The notice only need state the name of Publishing.” This novel, first published in the copyright owner of the derivative 1880, is in the public domain. The copyright or collective work and the date it was ­notice applies only to a short introduction published. In fact, many publishers don’t Regnery added to its edition of the novel. bother to make clear what portion of To add insult to injury, Regnery also the work the notice covers. Thus, for ­includes the following statement after the example, the copyright notice for The misleading copyright notice: “All rights Oxford Anthology of English Literature, ­reserved. No part of this publication may states simply “Copyright © 1973 by Oxford be reproduced or transmitted in any form University Press, Inc.” or by any means electronic or mechanical, Though legal, a notice such as this is including photocopy, recording, or any ­extremely misleading. A reader unfamiliar ­information storage and retrieval system with the niceties of copyright law might now known or to be invented, without ­believe that the notice means that Oxford ­permission from the publisher, except University Press holds the copyright to the by a reviewer who wishes to quote brief entire work. In fact, it means no such thing. ­passages with a review written for inclusion The Oxford Anthology of English Literature in a magazine, newspaper, or broadcast.” consists of a collection of literary works This statement has absolutely no legal that are almost all in the public domain ­effect and appears to be included by the ­because their copyrights have expired, publisher in an effort to intimidate readers such as poems by Wordsworth and Keats, into not copying or otherwise using the a ­novella by Joseph Conrad, and a portion novel. In fact, anyone is free to photocopy, of a work by Thomas Carlyle. Despite what transmit or record Ben-Hur without the 82 The Public Domain publisher’s permission. It’s only the new Sources of Public ­introduction that can’t be used. Domain Writings Remember, anyone can place a copyright notice on any written work. You don’t need Below are some useful websites for locating permission from the Copyright Office or public domain writings and libraries that anyone else to do so. The fact that a work contain public domain works: has a notice doesn’t mean that all or part of • Yahoo Internet Directory it isn’t in the public domain. (www.yahoo.com/r/lb) When you find a copyright notice on a • Library of Congress work that contains public domain material, (http://catalog.loc.gov) you need to investigate carefully to figure • The University of Idaho links out what new authorship has been added (www.uidaho.edu/special-collections/ to the preexisting public domain materials. Other.Repositories.html) Only this new authorship is entitled to • The Internet Public Library copyright protection, no matter what the (www.ipl.org/reading/books) copyright notice says. If you can’t tell from • Project Gutenberg the work itself what new material has been (http://promo.net/pg/index.html) added, you could try checking Copyright • Project Bartleby Office registration records (see Chapter 21) (www.bartleby.com/index.html) or comparing it with earlier versions of the • Public Domain Links same work. (www.ibiblio.org) • The Universal Library (www.ul.cs.cmu.edu/html/index.html) • Wikipedia (http://en2.wikipedia.org/wiki/ Wikipedia:Public_domain_resources) • The Internet Archive (www.archive.org) • Government Depository websites (www.gpoaccess.gov/libraries.html) • Federal government materials (www.access.gpo.gov) • For updates (and to directly link to these resources) check my Web page (http://copyrightfree.blogspot.com) ■ Chapter 4

Music

The Difference Between Music and Sound Recordings...... 85

What Can You Do With Public Domain Sheet Music?...... 86 Publicly Performing Sheet Music...... 86 Recording Sheet Music...... 86 Reproducing Sheet Music...... 88 Using Sheet Music in Audiovisual Works...... 89 Using Sheet Music in Digital Works...... 89 Adapting Sheet Music...... 89

Has the Sheet Music Been Published?...... 90 Sheet Music Is Not Published by Public Performance...... 91 Music Not Published by Pre-1978 Recordings...... 91 Determining Whether Sheet Music Is Published...... 91 How to Determine the Year a Musical Work Was Published...... 93 Determining the Country in Which Music Was Published...... 96

Has the Copyright in the Music Expired?...... 96

Is the Music in the Public Domain Due to Lack of a Copyright Notice?...... 97

Is It a Derivative Work?...... 97 No Permission Needed Where Preexisting Work Is in Public Domain...... 98 Only New Material Is Copyrightable...... 98 84 The Public Domain

Is It an Arrangement or Adaptation?...... 99 Avoiding Problems With Arrangements...... 100 Using Arrangements for Which Copyright Is Claimed...... 101 Which Arrangements Are Copyrightable?...... 103

Is the Music a Collective Work?...... 110 Minimal Creativity Required...... 110 Small Collections Not Protected...... 111 How Much of a Collective Work Can You Copy?...... 111

Does the Music Have Public Domain Elements?...... 112 Music Copied From Public Domain Sources...... 113 Ideas...... 113 Simple Melodies...... 113 Song Titles...... 114 Musical Forms ...... 114 Information That Is Common Property...... 114

Sources of Public Domain Sheet Music...... 114

Sound Recordings...... 115 Sound Recordings Made Before Feb. 15, 1972...... 116 Sound Recordings Made or Published After Feb. 15, 1972...... 117 Foreign Sound Recordings...... 117 U.S. Government Sound Recordings...... 119 chapter 4: Music 85

his chapter deals with two forms of Since copyright expires after a number of music: sheet music and sound re- years, vast numbers of musical compositions, T cordings. Few sound recordings are from one or two pages of sheet music to in the public domain, but vast amounts of full-length musical scores, are in the public sheet music and musical scores are. This domain. (See Chapter 18 for details on sheet music—and the lyrics published along when copyrights expire.) with it—represents one of the richest parts Before the advent of recording devices in of the creative treasure trove that is the the late 19th century, copyright protection public domain. Most of the sheet music for for sheet music and musical scores was all the greatest classical music ever written is in that was necessary to protect the rights of the public domain, as is the sheet ­music for composers, since it was not possible to save many popular and traditional songs. their music for later replay. But with the ­advent of recording devices, a second form Many Works That Are in the Public of music copyright—called “sound recording”­ Domain in the United States Are Still copyright—was created to protect recorded ­Protected by Copyright Abroad, and Vice performances. Sound recording copyright Versa. This chapter only covers the public only protects the way a musical composition domain in the United States. For a detailed is performed and recorded. There can be discussion of the public domain outside the many sound recordings of a composition, United States, see Chapter 16. but there is only one underlying musical copyright for the song. For example, there are hundreds of recordings of the song “Yesterday,” each with its own sound The Difference Between ­recording copyright. However, there is only Music and Sound Recordings one musical composition copyright for the song. Musical compositions—such as pop songs, Very few sound recordings are in the classical symphonies, or operas—are public domain, a situation that won’t change ­protected by copyright. Protection begins for many decades. For a detailed discussion once the composer creates and fixes of why, read “Sound Recordings,” below. the composition in some tangible form, Because of this reality, this entire chapter— ­traditionally by writing it down using except that section—concerns sheet music, ­musical notation, commonly in the form of not musical recordings. sheet music. However, a composition can also be fixed by recording it on cassette tape or any other recording medium. 86 The Public Domain

What Can You Do With companies offer license agreements allowing Public Domain Sheet Music? music to be publicly performed in return for a fee. The best known of these societies are ASCAP and BMI. The fees charged vary When sheet music is in the public domain, according to the nature of the use—they it is freely available to be performed in may range from a few hundred dollars at public, recorded, copied and distributed, bars or dancing schools to many thousands and used to create new types of musical of dollars to perform music in a large works. All of this can be done without concert hall or on television. asking permission or paying permission fees No performance royalties need be paid to composers, music publishing companies, when sheet music is in the public domain. or anyone who previously controlled the It can be publicly performed at any place, copyright on a piece of music. for any reason, for free.

Publicly Performing Sheet Music Recording Sheet Music You might be surprised to learn that Permission must also be obtained to ­copyrighted sheet music cannot be record a copyrighted song or other musical freely performed in public. With some composition on an audio recording such as exceptions noted below (nonprofit or a compact disc or cassette recording. The religious performances), permission from fees for this permission are called mechanical the copyright owner—typically, a music­ royalties. Mechanical royalty rates range publisher—is needed to perform sheet ­music from about six cents to eight cents per copy. at a place open to the public or where For example, if you wanted to make 10,000 a substantial number of people outside compact discs of a copyrighted song, you’d the normal circle of a family and social have to pay $600 to $800 in mechanical acquaintances are gathered. This includes, royalties to the music publisher. for example, performing sheet music live In contrast, public domain music can over the radio or on television, performing be recorded for free. Of course, tens of a song in a nightclub or concert hall, ­thousands of recordings of public domain webcasting a performance, playing sheet classical music have been made. But classical music during a football game half-time, or music is not the only public domain music playing live music at a dancing school. that is recorded. For example, ­performers The permission fees for these types of such as Peter, Paul and Mary, Pete Seeger, public performances are called performance and Joan Baez have made fortunes­ recording royalties. Almost all music publishers, public domain folk songs, like “John Henry” composers, and songwriters belong and “Down by the Riverside.” to performance rights societies. These chapter 4: Music 87

Nonprofit or Religious Musical Performances Are Permitted

It is legal to publicly perform copyrighted the net proceeds are used ­exclusively music without obtaining permission from the for education, charitable, or religious copyright owner in the following situations.­ purposes, and the music publisher is This includes performing sheet music or notified and given more than ten days playing a musical recording before­ a live to object. If the publisher objects, audience. permission must be ­obtained. • Religious services. No permission is • Agricultural fairs. Permission is also not needed to use music at a house of required to perform sheet music or play ­worship. This exemption applies to both a musical recording for a live audience ­religious and nonreligious ­music so at nonprofit agricultural or horticultural long as it is performed in the course of fairs. religious services. However, permission • Fraternal and veterans events. Permis­ is required to broadcast music ­per­ sion is not required when nonprofit formed at a ­religious service and to copy ­veterans’ organization like the American sheet music used for ­religious ­purposes. Legion or fraternal groups like the Elks • Free shows. No permission is needed or Shriners perform sheet music or play if sheet music or a musical recording musical recordings, ­provided that the is played before a live ­audience, per­ general public is not invited and the net formers are not paid, and admission is profits are used ­exclusively for charity. not charged. • Sorority and fraternity events. Permis­ • Shows for charitable or educational sion is not required to perform music purposes. No permission is needed if or play music recordings at ­college sheet music is used or a music recording ­fra­ternity and sorority social functions, is played before a live audience, so provided that the purpose is solely to long as the performers are not paid, raise funds for charity. 17 U.S.C. § 110. 88 The Public Domain

Reproducing Sheet Music From Public Domain to Public Domain Permission is also required to republish copyrighted sheet music or lyrics in a book Musician Dave Alvin and his brother or magazine, on a website, to photocopy used to collect old blues, folk, rhythm & them, or to reproduce lyrics on album liner blues, and country recordings, including notes. The fees for this vary widely. Of many long-out-of-print reissue albums on course, if sheet music and lyrics are in the ­obscure labels. When looking for material public domain, you may reproduce them in for a solo album in 2000, Alvin decided any way you want for free. No permission to use many of these public domain is necessary from anybody. songs. The result is Public Domain, a recording ­released by Oakland’s Hightone Records (www.hightone.com). Among Teaching From the Public Domain the songs ­recorded by Alvin were “Shenandoah,” “Walk Right In,” “Short Fred, a piano teacher based in Northern Life of Trouble,” “What Did the Deep Sea California, has photocopied the sheet Say,” “Engine 143,” “Delia,” and “The ­music for hundreds of public domain Murder of the Lawson Family.” Because­ ­piano pieces. These range from the works the songs were in the public domain,­ of classical composers such as Chopin Hightone Records didn’t have to pay any to folk and traditional songs. He found mechanical royalties to use them. the sheet music in used bookstores, flea ­markets, and in newly published collections of public domain music. He keeps his public domain music collection in a large filing cabinet and from time to time makes photocopies of various pieces to give to his students. Because the music is in the public domain, he may photocopy it freely for any purpose.

Public Domain, Dave Alvin, © copyright Hightone Records chapter 4: Music 89

Using Sheet Music in Adapting Sheet Music Audiovisual Works If you want to borrow or adapt a melody or Permission is also required to play lyric from a copyrighted song and use it in copyrighted sheet music or lyrics in a a new song of your own, you must obtain movie, television show, commercial, or permission from the music publisher. In the video. These types of permissions are called case of well-known works, permission may synchronization licenses or videogram not be available at any price. Permission licenses, depending on the use. These are must also be obtained to create and publish the most expensive permissions of all. For or perform an entirely new arrangement of example, you may have to pay as much as a copyrighted work. $250,000 to use a famous Gershwin song Once a song or other musical composition in a television commercial.­ Fees for using enters the public domain, you may adapt copyrighted ­music in a movie can range it in any way you wish. Thousands of from just a few thousand dollars to $25,000 the greatest melodies ever written by the or more. greatest musical geniuses are free for the Again, public domain sheet music may be taking. performed in an audiovisual work without Classical composers have been borrow­ paying these permission fees. ing from each other for centuries. For example, there is a long tradition in classical music of creating variations— Using Sheet Music in Digital Works taking a theme or melody from another composer and adapting it into a new work. You have to pay for permission as well if Beet­hoven, Hayden, Schubert, Chopin, you want to record and include copyrighted Brahms, Tchaikovsky, and many other sheet music in a digital product such as classical composers all ­created variations. a computer or video game or multimedia Classical composers have also drawn CD-ROM program. Royalty rates for such heavily from folk music—for ­example, uses vary. To use a song in a video game, Brahms’s Hungarian Dances and Liszt’s you may have to pay a royalty of 0.5% to Hungarian Rhapsodies are based on ancient 1% of the retail price of the game. Royalties Hungarian gypsy tunes, while many of for multimedia CD-ROM uses are typically Bach’s melodies are based on traditional between five and 15 cents per unit. airs. Even popular music has found its way Of course, you may make your own into classical works. For example, Charles ­recording of public domain sheet music Ives’s Fourth Symphony quotes such famous and include it on a digital product without public domain songs as ­“Yankee Doodle” having to pay any permission fees. and “Turkey in the Straw.” The Center for 90 The Public Domain

the History of Music Theory and Literature, to obtain copyright permissions refer to at Indiana University’s School of Music, has Getting Permission: How to License & Clear compiled an extraordinary bibliography Copyrighted Materials Online & Off, by listing hundreds of examples of composers ­Richard Stim (Nolo). who have borrowed from preexisting works. It can be found on the Internet at www.music.indiana.edu/borrowing. Has the Sheet Music But classical composers aren’t the only Been Published? ones who borrow. Many popular song­ writers have created hits by adapting public The first question you need to answer to domain music, including: determine whether sheet music is in the • “Besame Mucho” (1944), based on the public domain is whether or not it has been “Nightingale” aria from Goyescas by published. This will determine how long the Enrique Granados copyright in the work lasts and whether it • “A Fifth of Beethoven” (1976), based had to contain a copyright ­notice when it on Beethoven’s Fifth Symphony was published. • “Good Night Sweetheart” (1931), Sheet music is published for copyright based on themes from Schubert’s purposes when the copyright owner—or Symphony in C and the Liszt Preludes someone acting on behalf of the copyright • “Love Me Tender” (1956), based on owner—makes one or more copies of the “Aura Lee” by George Poulton music available to the general public. In • “The Lion Sleeps Tonight” (also called other words, any interested member of the “Wimoweh”) (1962), based on a public may obtain a copy. Burke v. National­ ­traditional African song. Broadcasting Co., 598 F.2d 688 (9th Cir. Public domain music is also constantly 1979). being adapted for movies, television, If sheet music is printed and the copies ­commercials, elevator music, and many offered for sale to the general public in other uses. ­music stores, bookstores, through mail What If the Work Is Not in the Public ­order, or by any other means of public Domain? If you find that the work ­distribution, publication has occurred. But you want to use is not in the public domain, to be published a work doesn’t necessarily you may be able to use it anyway under a have to be disseminated to the public legal exception called “fair use” (see Chapter through normal distribution channels such 22). If you do not qualify for this exception, as music stores. Nontraditional means of you will need to obtain permission to use distribution can also constitute a publication the work. For a detailed discussion of how —for example, where a songwriter/performer chapter 4: Music 91

sold copies of his songs to audiences or when copies of the sheet music were ­publicly sold them to the public through a website. distributed. Distribution of sound recordings Moreover, the copies don’t necessarily made before 1978 does not ­constitute a have to be offered for sale for a publication publication of the music on the recording. to occur: they can also be leased or rented, loaned, or even given away—for example, Example: Imagine that the song “Do Wa where copies of a symphony or choral work Wa” was written in 1958 and ­recorded are rented to orchestras and choruses. Nor by the Baddelles in 1959. The recording is it necessary for large numbers of copies was publicly distributed throughout to be distributed. So long as the work has 1959 by Stim Records, Inc. However, been made available to the general public, the sheet music for the song was never it makes no difference if just one copy copied and publicly distributed. As has been sold or distributed. Gottsberger a result, the song was not published v. Aldine Book Publishing Co., 33 Fed. 381 for copyright purposes, even though (C.C.D. Mass. 1887). thousands of people bought the recording.

Sheet Music Is Not Published This rule was changed beginning January by Public Performance 1, 1978. So sound recordings made and ­distributed after that date do result in For a publication to occur for copyright ­publication of the music on the recording. purposes it is crucial that copies of the work be made available to the general ­public. Example: The song “What the Gnu For this reason, merely performing music Knew” was written in 1944, and in public is not a publication. This is so ­recorded in that year and then again in whether the music is performed before a 1950, 1962, 1968, and 1979. The sheet live audience or a performance is broadcast music for the song was never copied to the public by radio or television. Copies and ­distributed. However, the song was of the sheet music must be made available published when the 1979 recording was to the general public for publication to occur.­ publicly distributed. Ferris v. Frohman, 223 U.S. 424 (1912).

Determining Whether Music Not Published by Sheet Music Is Published Pre-1978 Recordings There are a number of ways to determine Prior to 1978, a song or other musical work whether sheet music has been published. was published for copyright purposes only 92 The Public Domain

Examine a Copy works that you can consult to determine whether a work has been published. Most If you have a copy of the sheet music, of these also give the date of publication ­examine it carefully. You can be virtually that can be used to determine whether the certain that sheet music has been published copyright in the work has expired. if it has been professionally printed and ­contains a copyright notice; the familiar © Check Music Stores symbol followed by the date of publication and copyright owner’s name—for example, Try visiting or calling a music store that © 1945 by Good Music, Inc. The copyright ­carries sheet music to see if they sell copies notice normally was printed on the first of the piece. If they do, the work has been page or on the title page (or the cover, in published. the case of sheet music for a single song). Check Copyright Office Records If the Copy of the Music You’re Examining Isn’t the Original Edition You can also check the Copyright Office’s or a Facsimile of the Original, the publication records to see if the sheet music has been date in the notice may not be the date the registered. When a work is registered, the original version of the music was published. applicant must indicate on the registration application whether the work has been If the sheet music lacks a copyright published. However, not all published ­notice, it could still have been published. ­music is registered, so the Copyright Office Look for telltale signs of publication. For may have no record for it. (See Chapter 21 example: for a detailed discussion of how to search • Is the name of a music publisher listed Copyright Office records.) on the work? This almost certainly means the sheet music has been Check Library Catalogues ­published unless, for some reason, copies of the work were printed but Also, check the card catalogue of the never distributed to the public. Library of Congress in Washington, DC. You • Does the sheet music contain a selling can do this in person or on the Internet price? This almost certainly means it through the Library’s website at www.loc. was offered for sale to the public. gov. If a work is listed in the catalogue as published, you can safely assume it has been Check Music References published. However, contrary to popular belief, the ­Library of Congress does not If you’re still not sure whether the work contain copies of all works published in the is published, you will need to do some United States. A work may be published but ­research. There are many music reference not be in the Library’s card catalogue. chapter 4: Music 93

How to Determine the Year a work was published. Therefore, this date Musical Work Was Published is useless for determining whether the copyright in the original version of the It’s not enough to determine that a musical work has expired. You will usually need to work was published at some time. To deter­ do a little more research to determine the mine whether the copyright has expired, original publication date of a work. you must find out the year it was originally published. (The exact date isn’t necessary, Use Music Reference Works just the year.) There are several ways to There are many music reference works you ­determine this. can consult to determine whether a work has been published—that is, if it’s not listed Examine the Copyright Notice as published you can assume it’s unpublished. If you have access to the sheet music, You can also use these works to help ­simply look at the publication date in the ­determine when a work has been published. copyright notice. This will usually be on the These references include the following: first page or the title page. Biographical Dictionaries of Music. There Note carefully, however, that unless are several biographical musical dictionaries the sheet music you’re examining is the that alphabetically list the names of com­ original published version or a copy of posers and give the dates of publication for it, it’s quite possible that the date in the many of their best-known works. Of course, notice is not the date the music was first you must know the name of the composer published. When public domain music is of a song to efficiently use such a work. republished, you’ll often find copyright Such works include: notices containing recent publication dates. • Baker’s Biographical Dictionary of For example, one edition of several Chopin Popular Music (Ruhlmann) piano works contains a 1987 copyright • The Da Capo Companion to 20th notice. Of course, Chopin’s music was not ­Century Popular Music, by Phil Hardy originally published in 1987. In these cases, and Dave Laing (Da Capo Press) the music publisher is claiming copyright • The Harvard Biographical Dictionary protection for a new arrangement or edition of Music, Don Michael Randel (Editor) of the work or a compilation copyright for (Harvard University Press Reference the selection and grouping of the work in a Library) sheet music collection. • The Oxford Dictionary of Music, The publication date in copyright notices Michael Kennedy and Joyce Bourne such as these only represents the year the ­(Editors) (Oxford University Press). arrangement or collection was published, Musical Biographies. Hundreds of bio­ not the year the original version of the graphies of well-known composers have 94 The Public Domain

been written. These will generally list the • The Oxford Companion to Popular ­composers’ works (at least the well-known Music, by Peter Gammond (Oxford ones) and often provide publication dates. University Press), lists thousands of Song Lists. These works list songs alpha­ popular songs. When a © is included betically or by composer and give the date with a date, this is the date the work of publication: was first published. • The Book of World-Famous Music, by • Who Wrote That Song?, by Dick James J. Fuld (Dover Publications). Jacobs & Harriet Jacobs (Writer’s A stunning work of scholarship, this Digest Books), gives the publication book gives the complete publication dates for over 12,500 American history for hundreds of well-known popular songs. This is probably the works, popular, folk, and classical. cheapest and best resource if you • The Da Capo Catalog of Classical want to know the publication date of ­Music Compositions, by Jerzy any relatively well-known American Chwialkowski (Da Capo Press). This popular song. work lists all the known works ­created Guides to Public Domain Music. ­Several by 132 of the best-known classical lists have been created that contain composers. However, it ­usually hundreds of well-known popular songs in gives the dates such works were the public domain because their copy­right created, not the dates they were first has expired. However, with the exception published. This limits its usefulness of the list on the Public Domain Music for the researcher. However, it does website, these tend to be very expen­sive or include the publication date for every hard to find. They include: George Gershwin song. • Public Domain Music Song List. The • The Great Song Thesaurus, by Roger Public Domain Music website (www Lax and Frederick Smith (Oxford .pdinfo.com) has an alphabetical, ­University Press). This work lists searchable list of over 3,000 public thousands of popular songs starting in domain songs available for free to 1226. If a work is listed here, you can anyone with Internet access.­ be certain it was published sometime. • Music In the Public Domain, by Marji However, note carefully that the dates Hazen, is no longer available in print provided in this book are not always but the content—over 5,000 songs the dates the works were actually in the public domain—is available at published, but rather the dates they www.pdinfo.com. became popular (which could be some time after initial publication). chapter 4: Music 95

• Public Domain Music Bible, Vols. 1 & 2, Scott A. Johnson (Editor) (Public Special Rules for Music First Domain Research Corp.). Each volume Published Outside the U.S. lists several thousand public domain Special rules apply to music that was songs. However, the cost is $377 per first published outside the United States. volume. The same information can Much foreign music that used to be in the be obtained from the other resources public domain had its copyright renewed listed here. on Jan. 1, 1996. This included foreign • The Mini-Encyclopedia of Public works whose copyrights expired because ­Domain Songs, 1998, by Barbara they were never renewed and works Zimmerman (Bz Rights Stuff Inc.). published in countries with which the This book bills itself as “a listing of United States had no copyright relations. the best-known songs in the Public Of particular interest to the classical Domain in print today.” The book ­music world is the fact that all music contains over 800 well-known songs. ­published in the Soviet Union before The book is available in print form 1973 used to be in the public domain or on diskette for IBM compatible or in the United States because the two Macintosh computers. It costs $299 and countries had no copyright relations may be obtained from Amazon.com before that year. The copyright in all and BarnesandNoble.com. this music has been ­restored provided • Directory of Public Domain Music. that it is still under ­copyright in Russia Lists over 15,000 titles in the public or the other nations of the former Soviet domain. It costs $95. It may be Union. This ­includes, for example, ­ordered from Katzmarek Publishing at most of the works by the great Soviet P.O. Box 326, Clearwater, MN 55320; composers Prokofiev, Khachaturian, and telephone: 320-558-6801; Fax: Shostakovich, as well as early works 320-558-6637; URL: http://hometown by Schnittke, Gubaidulina, Shchedrin, .aol.com/KATZMAREK/pdmusic.htm. Denisov, and ­others. Year-by-Year Musical Bibliographies. There ASCAP, the music collective rights are several musical bibliographies that agency, has a searchable list posted on attempt to list all the sheet music ­published its website of many works in its repertory in a given year. These include: that have had their copyright restored; • Popular Music, 1900-1919, by ­Barbara the URL is: www.ascap.com/restored_ Cohen-Stratyner (Gale ­Research 1988). works/restore_index.cfm. All the songs listed here are in the See Chapter 15 for a detailed public domain. discussion. 96 The Public Domain

• Popular Music: An Annotated Index However, not all published musical works of American Popular Songs. Volume are registered with the Copyright Office, so 5: 1920-1929 (Adrian Press, 1969). there may be no record for it. All the songs listed in this book for Check Music Reference Works. Check the the years 1920-1922 are in the public music reference works listed in the previous ­domain. section. These will often provide the country • Variety Music Cavalcade, 1620- of publication. 1969: A Chronology of Vocal and Research the Composer. Researching the Instrumental Music Popular in the composer of the work may reveal where United States, by Julius Mattfeld the work was published. If the composer is (Prentice Hall, 1971). This is a year- well-known, a biography or critical study by-year list. may have a detailed publication history for his or her works. Use the Internet. Many helpful reference Determining the Country in works and much information about Which Music Was Published composers and their works are available on the Internet. Do a Web search using In addition to the year date of publication, the com­poser’s name, the name of the work you need to know the country in which the ­in­volved, and the publisher. There may sheet music was published. Published sheet be a website ­devoted to the composer or music and musical scores usually show even to the particular work, or some online the country of publication. You’ll normally reference with detailed information about find it on the title page or the same page the work. A good place to find a list of as the copyright notice. If not, try using the Internet ­reference resources is the Internet ­following resources: Public Library at www.ipl.org. Check the Library of Congress Card Contact the Publisher. The work’s ­Catalogue. You can do this in person at publisher will likely be able to tell you the Library in Washington, DC, or online where the work was first published. through the Library’s Web page (http:// catalog.loc.gov). The Library’s catalogue ­contains the publication dates for millions of written works in the Library’s collection. Has the Copyright in Check Copyright Office Records. If the the Music Expired? sheet music was registered with the U.S. Copyright Office, checking Copyright Office Copyright protection does not last forever. registration records will reveal where it When it ends the work enters the public was first published. Many of these records domain where it remains forever. The can be researched online (see Chapter 21). greatest single body of public domain ­music chapter 4: Music 97

is works for which the U.S. copyright has on a work of sheet music must contain expired. This includes most classical music three elements—the familiar © or the word and many popular songs by such famed Copyright or abbreviation “Copr.,” the composers as Irving Berlin. ­publication date, and name of copyright Unfortunately, determining whether a owner—for ­example: © Buddy Budapest copyright has expired can be somewhat 1945. You can usually find the notice on the complex. You’ll need to determine which title page or first page of sheet music. If the of several possible copyright terms apply to sheet music has been published as part of the work in question. Sheet music published a collection, it’s sufficient that the collection as recently as 1963 could be in the public itself has a notice. Each individual piece domain. On the other hand, music created included in such a collection need not have over one hundred years ago (and more) its own ­notice (although they ­often do). could still be protected by copyright. If the work has a notice in the format Copyright terms for all creative works ­described above, it will not be in the public are the same no matter what type of work domain for lack of a proper copyright. it is, so they are discussed in detail in one There is no need to read Chapter 19, which place: Chapter 18. Turn to that chapter to explains copyright notice requirements in determine whether the copyright in a work detail. Go on to the next section. you’re interested in has expired. However, if the work has no notice or the notice lacks one of the three elements described above, it could be in the public Is the Music in the Public domain. Read Chapter 19 for detailed Domain Due to Lack of a ­guidance on how to determine whether a published work is in the public domain Copyright Notice? ­because it lacks a valid copyright notice.

before reading this section, you should have determined whether Is It a Derivative Work? the sheet music you want to use has been ­published for copyright purposes. If the A derivative work is one that is based on sheet music was never published, it doesn’t or adapted from one or more preexisting need a copyright notice. You don’t need to works. A classic example of a derivative read any more of this section. Go on to the work is a movie based on a novel. The next section. movie is a new work based on or adapted from the preexisting novel. Musical works If sheet music was published before 1989 can also be derivative works. Examples without a valid copyright notice, it could ­include: be in the public domain. A copyright notice 98 The Public Domain

• musical arrangements or orchestrations to make minor changes. But substantial of preexisting works—for example, changes to the structure, such as altering when unique harmonies are added to the lyrics or melody, require explicit per­ a folk song mission. For example, you would need to • musical adaptations in which original obtain permission from Cole Porter’s estate melodies and rhythms are reworked to alter the lyrics or melody of the famous —for example, a jazz version of the 1932 Porter song “Night and Day.” “Battle Hymn of the Republic” In addition to permission to create your • adding lyrics to an instrumental work derivative work, you would also need or rewriting or translating the lyric for ­permission to reproduce those portions of an existing song the original copyrighted song included in • abridgments of existing musical works your new work. —for example, creating a new 30- Once a work enters the public domain, minute version of a four-hour Wagner all the composer’s or other copyright opera owner’s exclusive rights come to an end. • new instrumentation—for example, Anyone can play or record the work and changing an orchestral work into a can create a derivative work from the ­public form playable on the piano or other domain work without obtaining ­permission. keyboard or changing a piano piece For example, you are free to create new into a work for orchestra (as Ravel did versions of any of Stephen Foster’s songs— many times), and such as “Beautiful Dreamer,” “Oh! Susanna,” • new published editions of sheet ­music or “Jeanie With the Light Brown Hair”— in which the editor adds substantial since the copyright for these songs expired new copyrightable material. long ago.

No Permission Needed Only New Material Is Copyrightable Where Preexisting Work Is in Public Domain When a person creates a derivative work from preexisting public domain music, only When a composer creates a musical work, the new material added to the old work can one of the rights he or she receives through be copyrighted by the creator of the deriva­ copyright is the exclusive right to create tive work. All the public domain ­material ­derivative works from it. That is, only the ­included in the derivative work ­remains in composer or other copyright owner has the the public domain. For example, if you took right to fashion a new work based on the a portion of a Chopin nocturne and added existing work. However, when musicians a lyric to it, the new lyric would be copy­ obtain permission to record a copyrighted righted, but none of Chopin’s music would song, they are ordinarily given some latitude chapter 4: Music 99

be. Anyone else would be free to use the Usually one of two things is happening same Chopin nocturne, but they could not when music publishers place copyright copy your lyrics without your permission. ­notices on public domain works: • the publisher is claiming that its ­edition of the work is a copyrightable Is It an Arrangement arrangement or adaptation, or or Adaptation? • the work is published as part of a sheet music collection for which the publisher claims a compilation If you go into the sheet music department copyright. of any music store and examine recently Arrangements and adaptations are published sheet music for the works of discussed in this section. Copyright for such composers as Bach, Beethoven, and sheet music compilations is discussed in the Chopin, you’ll be surprised to find copyright next section. notices in the music publishers’ names. The There is hardly a single well-known same is true for many old popular ­music public domain work for which someone gems such as the songs of Stephen Foster hasn’t claimed to have made a new and traditional songs such as “Greensleeves” arrangement and claimed a new copyright. that have been around for centuries. For many popular public domain musical The copyright in the original versions of works, hundreds of arrangements have classic works such as these expired long been registered with the Copyright Office— ago; or, in the case of extremely old works for example, over 300 arrangements for the such as the music of J.S. Bach, they were public domain song “America the Beautiful” never entitled to copyright protection in the have been registered since 1950. first place. As explained in detail in Chapter In some cases, these claims are valid and 18, all such works are in the public domain. the creator or publisher of the arrangement So why are music publishers claiming copy­­ is entitled to copyright protection for right by placing copyright notices on them? the material added to the original work. The publisher’s copyright claim may However, in many other cases the changes be completely spurious. This would be in the new arrangement are not significant the case, for example, where a publisher enough to merit copyright protection. ­reprints an exact copy of the original sheet music for a work in the public domain and unfortunately, it can be difficult to simply adds a copyright notice. A straight determine which arrangements are reprinting of a public domain work is not protected by copyright and which are not. entitled to any new copyright protection. Refer to Chapter 1 for detailed guidance on Such a reprint may be copied as freely as how to deal with such public domain gray the original version of the work. areas. 100 The Public Domain

Use the Original Public Domain Song Music Publishers Have an Economic Incentive to You completely avoid worries about Claim a Copyright copyrighted arrangements where you use the original public domain version of Music publishers have a strong incentive the song. This involves either using the to claim copyright protection when original sheet music for the work or a they republish public domain music: later published ­edition that is identical to money. The published sheet music for the original. How do you know if a later a public ­domain song usually costs published edition of a song or other musical several dollars. It only costs a few cents work is identical to the original? Often, a page to photocopy sheet music (and the sheet music publisher will tell you so the money for ­photocopying doesn’t go somewhere on the work. The absence of a to the publisher). If a music publisher is copyright notice in the publisher’s name is able to convince you that its publication also a sure sign that the work is not a new is protected by copyright and may not arrangement. Publishers almost always add be photocopied, it will make money new copyright notices to new arrangements. because you’ll have to buy its sheet You can also tell that the music in a music rather than make a copy. If you newly published edition is the same as want more than one copy, you’ll have the original public domain music where to buy several copies. This can add up the edition consists of exact copies of the to millions of dollars in sales for sheet original sheet music. These copies are music publishers. in the public domain and can be copied freely—a music publisher doesn’t get a new copyright by publishing an exact copy Avoiding Problems of public domain sheet music. However, With Arrangements the publisher may have a collective work copyright in the work as a whole. Many Musical arrangements present a hornet’s sheet music collections consist of ­exact nest of copyright problems. But fortunately copies of the original sheet music. Before there are two simple ways to avoid these the advent of modern-day computers and problems. printing processes, sheet music printing plates were quite expensive to make. For this reason, most music collections were reprints of the original sheet music using the original plates. But, even today many exact copies of public domain sheet music are being made. chapter 4: Music 101

Use Public Domain Arrangements ­renewal was filed, it is in the public­domain and you may use the work for any purpose. Many arrangements of public domain songs are also in the public domain because their Example: The Remick Music Corp. copyrights have expired. For example, published an arrangement by pianist if the publication date in the copyright Eddie Duchin of the well-known notice is before 1923, the copyright in the popular song “My Buddy” by Gus arrangement has expired. You can use the Kahn and Walter Donaldson. The arrangement freely. original version of “My Buddy” was published in 1922 and is therefore Example: G. Schirmer, the well-known in the public domain. The copyright publisher of classical music, published notice for the Duchin ­arrangement an edition of a Beethoven sonata. The contains a 1935 publication date. The edition contains a number of editorial arrangement would only retain its comments and new fingerings. Schirmer copyright if Remick filed a ­renewal claimed copyright in the edition and notice 28 years after it was published, ­included a copyright notice on the title in 1963. Copyright Office records page. However, the copyright notice must be checked to determine if the reveals that the G. Schirmer edition was arrangement was renewed. published in 1894. Even if the changes Schirmer’s editors made to the original public domain version of the sonata Using Arrangements for were copyrightable, this edition is in the Which Copyright Is Claimed public domain because it was ­published before 1923. Unfortunately, it may not always be possible to obtain a copy of the original public Even if the date in the notice is after ­domain version of a song or an arrangement 1923, the arrangement could still be in the that is in the public domain. The only public domain. All works first published in readily available version of a work in the the United States between 1923 and 1963 public domain may be a recently published had to be renewed during the 28th year ­arrangement for which copyright is claimed. ­after publication or they entered the public In this situation, you must decide how to domain. Thus, even if the arrangement deal with the arrangement. You have two ­contained material protected by copyright, it options: will be in the public domain if the copyright • you can treat the copyright claim as was not renewed during the 28th year of valid and seek permission from the publication. You must check Copyright music publisher to copy, record, or Office records to see if a renewal was filed otherwise use the work, or (see Chapter 21). If you discover that no 102 The Public Domain

• you can determine whether the In many cases the only way to know for ­arrangement is really copyrightable sure what changes have been made is to and, if not, treat it as if it is in the compare the arrangement with the original public domain. unaltered version of the work. You’ll have to obtain a copy to compare with the new If you decide to treat the copyright arrangement. Obviously, if you have access claim as valid and seek permission to the original public domain version, you from the music publisher to copy, record, or can simply use it to copy, adapt, or play otherwise use the work, there is no need to rather than bother with the new arrangement. read the rest of this section. If you want to In this event, you can skip the rest of this determine whether the arrangement really discussion. has copyright protection, follow the step-by- Fortunately, it may be possible to deter­ step approach described below. mine what changes have been made in an arrangement without obtaining a copy of For detailed guidance on how to the original public domain version of the obtain permission to use copyrighted music—for example: music, refer to Getting Permission: How • You may be intimately familiar with to License & Clear Copyrighted Materials the original version of the music and Online & Off, by Richard Stim (Nolo). not need to compare the original with the arrangement to see what changes were made. Step #1: Determine What • The music publisher may indicate Changes Have Been Made what changes were made. This Before you can know whether an arrange­ information is often on the same page ment is or is not copyrightable, you must as the copyright notice or in a preface determine exactly what changes have been or introduction. made to the original public domain work. The well-known piano music collection It can be very difficult to determine just Easy Classics to Moderns published by what changes have been made, because Consolidated Music Publishers provides an ­arranger or publisher is not required to a good example of how a publisher may ­explain on the arrangement how it has been let you know what changes were made to altered from the original. If the arrangement public domain music. It contains a foreword has been registered with the Copyright ­Office, on the title page that says: the copyright registration will contain a brief All selections are in their easy original description of how the work was changed. form … are neither re-arranged or But this is usually too general to be of much ­simplified. In very rare cases pieces have help—for example, it may simply say “new been transposed to more suitable keys, arrangement for piano and orchestra.” but are otherwise ­unaltered. Marks of chapter 4: Music 103

phrasing and expression are often edito- the ­music (see ”Getting Paid for Your Own rial additions, especially in music of the Arrangements of Public Domain Works,” Purcell-to-Beethoven period. below). But if this is not possible, refer to Chapter 1 for detailed guidance on how to Step #2: Determine Whether the deal with public domain gray areas. Arrangement Is Copyrightable

After you determine what changes the beware of Collective Works. Be careful ­arranger or editor has made to the public if the work you want to use is printed domain version of the music, you must in a collection—that is, an edition that ­decide whether the changes are worthy of ­contains a number of individual works. Even copyright protection. Use the guidelines if an arrangement for a particular piece in in the next section to decide whether the such a collection is not copyrightable, the changes are substantial and copyrightable, publisher may have a valid collective work or trivial or obvious and therefore uncopy­ copyright in the collection as a whole. That rightable. If you decide the arrangement is, a copyright in the manner in which all is clearly not copyrightable, you may elect the individual pieces in the collection were to treat it as a public domain work. If you selected and placed. ­decide the changes are copyrightable, you must obtain permission to use the Which Arrangements arrangement. However, even if you’re Are Copyrightable? certain an arrangement is not copyrightable, a music publisher may disagree with you Some arrangements or adaptations of and complain or even sue you for copying ­public domain music can obtain copy­ it. Before you do such copying, read right protection, many others cannot. Chapter 1 for a detailed discussion of how Unfortunately, the legal standards in this to weigh the risks involved. area are hazy. It is generally accepted, however, that an ­arrangement, adaptation, In some cases, it will be clear that an or alteration of a public domain musical arrangement is not copyrightable— work must be the result of originality and for example, where the only change is the at least a minimal amount of creativity to transposition of the work from one key obtain a valid copyright. to another. In other cases where far more It is easier to tell when an arrangement is ­substantial changes have been made, it not original than when it is. No originality may be difficult to decide whether they exists where the changes to a work in the merit copyright protection or not. It may public domain are: be ­possible to remove the changes and • obvious, routine, or typical create your own public domain version of • trivial 104 The Public Domain

• mechanical in nature, or Below are examples of the types of • dictated solely by musical convention changes that are frequently made to public or tradition. domain music along with discussions as to This is so even where substantial effort, whether such changes are copyrightable. skill, or musical training is required to make such changes. For example, “cocktail pianist variations” of a piece that are “standard Copyright Notices Are fare in the music trade by any competent Not Conclusive ­musician” are not copyrightable. Woods v. Bourne, 841 F.Supp. 118 (S.D. N.Y. 1994). Even if a work contains a copyright Likewise, changes to a public domain work notice, it may not actually have copyright that can be created by music computer protection. Anyone can put a copyright software with just the press of a key—for notice on any work. No permission is ­example, transposing a work from one key required from the Copyright Office or any to another—cannot obtain a valid copyright. other government agency. All a copyright For an arrangement to be copyrightable, notice means is that someone claims that “there must be something of substance added a work is ­protected by copyright law. making the piece to some extent a new work A copyright notice is not necessarily with the old song embedded in it but from valid, even if the work has been registered which the new has developed.” See Woods with the Copyright Office. A Copyright v. Bourne Co., 60 F.3d 978 (2d Cir. 1995). In ­Office opinion that an arrangement has other words, the changes must be substantial copyright protection is not binding on or great enough so that the arrangement you or the courts. In several instances is to some extent a new work. In the courts have determined that arrangements case of a popular song, examples of such registered with the Copyright Office were substantial changes would be such things as not copyrightable. “unusual vocal treatment, additional lyrics For example, a music publisher called of consequence, unusual altered harmonies, Bourne Co. registered with the Copyright novel sequential uses of themes.” Woods v. Office 16 different arrangements for Bourne, 841 F.Supp. 118 (S.D. N.Y. 1994). the song “When the Red, Red, Robin One way to determine whether an Comes Bob, Bob, Bobbin’ Along.” When ­arranger has exercised the requisite Bourne attempted to enforce its claimed originality and creativity is to ask whether copyright in these arrangements in the arranger had to choose among a court, the judge held that they did not number of aesthetic choices in creating the merit copyright protection because they arrangement. Without choice, there can be were not sufficiently original. Woods v. no originality and no copyright protection. Bourne, 60 F.3d 978 (2d Cir. 1995). chapter 4: Music 105

New Editions Transpositions and Recleffing

Public domain music is often republished Transposition is transferring music from one in new editions and the publishers of such key to another, note for note—for ­example, new editions often claim copyright in them. transferring a piece from the key of F to the However, despite what music publishers key of B flat. Public domain musical­ works may claim, new editions of public domain are often transposed from their original keys music are not protected by copyright. to make them easier to sing or play. As mentioned above, one type of new Here is an example of transposing a edition that is clearly not copyrightable ­portion of the public domain song “My is a reproduction of a public domain Bonnie” from F to B flat: work—that is, an edition that is simply an exact copy of the original work. Making an exact copy of a piece of sheet music is purely a mechanical act. No new authorship “My Bonnie” in F is added in such an edition so there is nothing that can be copyrighted. There is also no copyrightable authorship in a new edition where the changes consist only of “My Bonnie” in B flat a new typeface or different size type. U.S. Since the relationship of all the notes to copyright law does not protect typefaces one another remains the same, and all that (see Chapter 5). is required is the simple act of measuring Often, editors who assemble a new edition intervals between the notes, transposition of a public domain work will correct mis­ is a purely mechanical act that clearly does prints in the original or later editions of the not merit copyright protection. The B flat work. Although extremely helpful, such version of “My Bonnie” is as much in the corrections are not “original” in the copy­right public domain as the F version. sense and are definitely not copyrightable. The process of recleffing very old public On the other hand, many new editions, domain music written in obsolete clefs into particularly of classical music, contain the modern bass or treble clefs also does ­significant editorial comments. These may not earn copyright protection. This is also a consist of historical notes, music criticism, purely mechanical act. or detailed guidance on how the music should be played. Comments such as these Keyboard Reductions are protected by copyright. However, the In a keyboard reduction, an arranger takes public domain music they accompany a work written for instruments other than ­remains in the public domain and may still the piano or other keyboards, such as a be copied freely. 106 The Public Domain

symphony or opera, and arranges it to be ­dictated solely by the melody or musical played on the piano or other keyboard­ ­conventions. However, conventional ­instrument. Keyboard reductions may be harmonies driven by the melody or dictated copyrightable, depending on whether the by accepted rules of musical composition keyboard arranger exercised signi­ficant are not original and are therefore not ­aesthetic choices in creating the arrangement. copyrightable. See Northern Music Corp. v. It’s likely that most reductions of ­complex King Record Distrib. Co., 105 F.Supp. 393 music such as orchestral works and (S.D. N.Y. 1952). Of course, music experts operas are copyrightable. Many ­aesthetic could differ as to which harmonies are choices must be made when ­arranging original and which are not, so determining a ­piano version­ of a symphony or opera which ­arrangements of this type are that ­originally contained many lines of copyrightable and which are not is difficult. music ­intended to be played by different instruments. Obviously, some of the original Fingering Suggestions ­music will probably have to be left out or Many new editions of public domain simplified, since a pianist with only ten music contain fingering suggestions that ­fingers cannot replicate the sound of an were not included in the original version of ­entire symphony orchestra. Such a piano the work. Some fingering suggestions are arrangement could be written in many copyrightable, but many are not. ­different ways and it’s likely that no two Often, fingering suggestions are intended ­arrangers would do it in exactly the same to make a piece of music easier to play. way. Reductions or arrangements where the These often consist of standard fingerings arranger significantly alters the music—for that have been used for centuries. This type example, adds new melodies or harmonies of fingering is not original and should not —can also obtain copyright protection. be copyrightable since it is dictated solely On the other hand, some piano reduc­ by the need to make the piece playable. No tions are clearly not copyrightable because aesthetic choices are involved—that is, the the music is created in a mechanical way. piece doesn’t sound any different because One example would be a piano reduction of the fingering suggestions. of a choral work that consisted merely of Usually, it’s not difficult for a person who writing out for piano the same notes that knows about music to tell the difference the chorus­ sings. between standard fingerings added for playing ease and nonstandard fingerings. New Harmonies The Bach minuet reproduced below is a Adding new harmonies to a public work good example of an instance where a music may result in a copyrightable arrangement publisher has added extremely simple, if the harmonies are original and not standard fingerings to public domain music. chapter 4: Music 107

Dynamic Markings

Dynamic markings consist of words and symbols composers add to sheet music telling musicians how loud or soft to play the music. Much public domain music was published without any dynamic markings because musicians didn’t need them: musicians knew the conventions On the other hand, some fingering that dictated how the music should be ­suggestions are not made to make a piece performed. Later editions often added of music easier to play. Instead, they may dynamic markings. Such markings are not be suggestions intended to change how a copyrightable if they are dictated by musical piece sounds when played by accomplished convention or are copied from earlier musicians. Choices in fingering or bowing editions of the music that are in the public methods can significantly affect how a domain. ­musical work sounds, particularly in However, changes in dynamics could com­po­sitions for string instruments. be copyrightable if they are not obvious Fingering suggestions such as these may and they significantly alter the sound of be copyrightable if they are not obvious or the piece. In other words, simply adding dictated by musical conventions. the word “fortissimo” to a public domain If you’re not sure whether the fingerings work does not result in a copyrightable merit copyright protection, the safest course arrangement. But changes in dynamics that is to assume that they are copyrightable. alter the very essence of the work could be In these cases, you can still use the sheet copyrightable. ­music if you eliminate the fingerings. It may be difficult to discern with any certainty whether dynamic markings are or Rhythm are not obvious. In these cases the safest Standard rhythms such as a bossa nova or course is to assume that they are copyright­ waltz beat are not copyrightable, but new able. However, you can still use the sheet and original rhythms can be. If you’re not music if you eliminate the markings. sure whether the rhythm is new or standard, it’s safest to assume that it is protected by copyright. 108 The Public Domain

a simple one-page work called “Theme Obtaining Expert Music Help From Ballade Opus 23.” All that remains of the original work is a simplified version of If you do not know enough about music the famous theme. In effect, the arranger to judge whether an arrangement is suffi­ has created a new work using the theme. ciently original to merit copyright protec­ This work is fully entitled to copyright tion, you’ll need to obtain assistance­ from protection. See It’s Easy to Play Chopin, someone who does. Ideally, this would arranged by Daniel Scott, (Wise Publications be a person intimately familiar with 1988). the genre of music involved—classical, popular, religious, etc. Only such a person can tell you whether the changes made to create the arrangement are obvious, routine, trivial, mechanical, or dictated by musical con­ventions. Few ­lawyers have this level of musical exper­ tise. You would be better off consulting with an experienced musician, music teacher, musicologist,­ or composer.

Simplified Versions

Popular public domain music is often ­republished in simplified versions designed to be easier for novice musicians to play. Music publishers often claim copyright in these simplified arrangements. However, simplified versions are not protected by copyright if the simplifications are trivial, mechanical, or obvious—for example, ­simplifying the chords or transposing the work to an easier key. However, a truly radical simplification of a piece could hold a valid copyright. For example, one arranger has taken Chopin’s piano masterpiece “Ballade No.1 in G Minor­ Opus 23,” a work comprising 14 pages of Harspicord (English, 1781), Classical Music Illustrations, difficult-to-play music, and reduced it to Dover Publications chapter 4: Music 109

Getting Paid for Your Using Arrangements Own Arrangements of Without Getting Sued Public Domain Works Here are two things you can do that will If you create your own arrangement of a most likely prevent a music publisher public domain work that you believe is from complaining about your use of their copyrightable, you are entitled to register ­arrangements: it with the Copyright Office and, if it’s • Don’t use new elements. Don’t use published, place a copyright notice on it those elements of the music that the in your name. This entitles you to collect publisher has added or changed. For permission fees if your arrangement is example if you want to photocopy a work for which the publisher has ­performed in public or recorded. Fees for added dynamic markings or guitar public performances are collected by the chord diagrams, white out or cover music performing rights societies ASCAP, up the markings or diagrams before BMI, and SESAC. Fees for recordings you do the photocopying. The are usually collected by the Harry Fox resulting photocopy will be a clean Agency. Typically, these agencies will public ­domain version of the work. pay you a royalty for an arrangement Alternatively, instead of photocopying of a public ­domain work equal to 10% the work, you could copy it out by to 20% of what they would pay for a hand or on a computer using music completely original song. However, if notation software. When you do the your changes are very substantial, they copying, leave out the elements the may agree to pay more. A musicologist publisher has added or changed. may be retained to compare your • Create your own public domain arrangement with the ­original public ­version of the work. If you don’t have domain version to see how ­substantial access to the original public domain your changes are. version of the work, but you can find You must join ASCAP, BMI, or SESAC a number of different arrangements, to collect performance royalties. They all you may be able to create your own have excellent websites at www.ascap public domain version of the work .com, www.bmi.com, and www.sesac using the arrangements. You do this by .com. The Harry Fox Agency website carefully examining the arrangements is at www.harryfox.com. For a detailed and looking for the elements common ­discussion of how to earn money from to them all. These elements must have been taken from the original music, refer to Music Law: How to Run public domain version of the work. Your Band’s ­Business, by ­Richard Stim By copying just these ­elements, you (Nolo). can create your own public domain version of the work. 110 The Public Domain

Is the Music a Collective Work? which are in the public domain. Dover was entitled to claim a copyright for Sheet music for public domain works is its selection of the music to include in ­often published in collections containing the collection and include a copyright many individual works. For example, ­notice for the collective work, which the collection Easy Classics to Moderns it did. However, this collective work published in 1956 by Consolidated Music copyright only protects the collection as ­Publishers contains the sheet music for a whole. None of the individual pieces 142 individual works by over two dozen is protected. Their inclusion in the new ­classical composers, almost all of which ­collective work does not ­revive their are in the public domain. Such a collection expired copyrights. is called a collective work for copyright Beware New Arrangements. Some- ­purposes. times, the material included in music When a music publisher collects and collections consists of new arrangements publishes together the sheet music for a of public domain songs. In this event, number of public domain works, it may the ­individual pieces may be copyrighted be entitled to claim copyright protection if the changes in the new arrangements for the collective work it creates. But the are substantial enough to merit copyright publisher is entitled to only a very limited ­protection. In these cases the publisher is form of copyright protection. All that is entitled both to a collective work copyright protected is the selection and grouping of in the collection as a whole and copyright the preexisting­ public domain material, not in the new arrangement of the public the preexisting material itself. This is often domain works. called a “thin” copyright. The copyright ­status of the preexisting material used to However, not all collective works are create a collective work is unaffected by ­entitled to even thin copyright protection. the collective work’s existence. Thus, if A collective work cannot obtain copyright the preexisting material was in the public protection at all if not even minimal creativity­ domain, it remains in the public domain. was required to compile it or if it doesn’t contain sufficient material. Example: In 1987, Dover Publications published a collective work of music entitled Alexander’s Ragtime Band and Minimal Creativity Required Other Favorite Song Hits, 1901-1911. A collective work is entitled to the limited The work consisted of exact copies of copyright protection it receives only the original sheet music for 49 songs ­because the author/compiler had to use published between 1901-1911, all of creativity and judgment to create it. For chapter 4: Music 111

­example, Dover Publications in the ­example or placement is not entitled to copyright above used creativity and judgment in protection if done in a mechanical way. ­selecting which of the thousands of songs An alphabetical or chronological grouping published between 1901 and 1911 should is purely ­mechanical and not entitled to be ­included in its collection of just 49 songs ­copyright protection. Thus, for example, from that decade. a collection of Stephen Foster’s songs However, if a collective work was created placed in alphabetical order by title would without using even minimal creativity and not be entitled to copyright protection. judgment, it will not be entitled to any But a grouping on some other basis could copyright protection at all—that is, it will be be—for example, from worst to best in the in the public domain. compiler’s opinion. How can you tell if a collective work contains sufficient creativity to be entitled to thin copyright protection? A collective Small Collections Not Protected work is copyrightable if either the selection In addition to the minimal creativity ­require­ or grouping of the material is minimally ment, a collective work must consist of creative. In some collections, both the more than a few elements to have copyright ­selection and grouping are minimally protection. The Copyright Office has stated ­creative. In others, only one is. that a collective work of fewer than four A selection is minimally creative if it is items does not meet this threshold. For based on the compiler’s opinion about example, a collection of three Beethoven some­thing subjective—for example, the sonatas could not hold a copyright as a compiler’s selection of the “best” Bach ­collective work. It’s very likely that courts fugues or the “100 Greatest Romantic Songs would follow this rule and you can too. Ever Written.” Here, the compiler must use selectivity and judgment to decide which fugues are “best” and which of the thousands How Much of a Collective of romantic songs ever written are the Work Can You Copy? “greatest.” But a selection is not minimally creative if The thin copyright of a collected work it does not require individual judgment. For ­protects only the selection and/or grouping example, no judgment is needed to compile of the material. None of the individual a collection consisting of every Bach fugue. pieces in the collection are protected. This Similarly, the way the individual pieces means you may copy any individual piece in a collection are ordered or placed is included in the collection, so long as it ­entitled to copyright protection only if done does not have a valid copyright as a new in a way that requires the exercise of the arrangement. compiler’s subjective judgment. An ordering 112 The Public Domain

But you are not limited to copying just for your grouping, since chronological and individual pieces. You may copy any alphabetical groupings are not protected by amount of a collection as long as you copyright law. don’t copy the publisher’s copyrighted Again, however, what you may not do is selection and/or arrangement. Let’s take as copy the publisher’s selection or grouping. an ­example Dover Publication’s collection This could get you sued. This is exactly Alexander’s Ragtime Band and Other what happened with regard to the collection ­Favorite Song Hits, 1901-1911 mentioned Easy Classics to Moderns published by above. The selection of 49 songs included ­Consolidated Music Publishers, mentioned in this collection is copyrighted, but the at the beginning of this section. Consoli­ grouping is not because it is in alphabetical dated’s collection included a selection of order. You may copy all 49 songs and sell six piano pieces by Bela Bartok published them individually. This would not infringe under the title Six Miniatures. This was the on Dover’s selection—that is, its decision first time these six pieces had ever been as to which songs to include in a collection published together. One of Consolidated’s of 49 favorite songs originally published competitors later published a collection of ­during 1901-1911. But you could not sell its own entitled World’s Favorite Classic to all 49 together, since this would be copying Contemporary Piano Music. This collection Dover’s selection. You could, however, included the same six Bartok pieces in the copy all 49 songs, add another 51 songs, same order Consolidated had published and publish a collection of the “100 best them. Consolidated sued the publisher songs 1901-1911.” Again, this would not for copyright infringement and won. The be copying Dover’s selection of 49 favorite court held that the selection and grouping songs, 1901-1911. of the six Bartok­ pieces was original and Let’s consider an example where only that Consolidated’s copyright was violated the grouping is copyrighted. If a publisher when all six were copied in the subsequent ­published a collection of all of Stephen collection. Consolidated Music Publishers, Foster’s songs and grouped them by theme, Inc. v. Ashley Publications, Inc., 197 F.Supp. it would have a copyright in the grouping, 17 (S.D. N.Y. 1961). but not in the selection, since every Foster song has been included. No creativity was required to make such a selection. You Does the Music Have could copy every song in the collection Public Domain Elements? and group them in some other way without ­violating the publisher’s copyright in its If you determine that the copyright in a ­selection—for example, you could group piece of music has not expired and that it them alphabetically or chronologically. But did not enter the public domain because you could not claim copyright protection chapter 4: Music 113

of a faulty copyright notice, the work material, if any, added by the composer of as a whole is not in the public domain. the new song is copyrightable. For example, However, it may still contain elements that the lyric written by Alan Sherman for the are in the public domain. These may be comic song “Hello Mudduh, Hello Faddah” freely copied or otherwise used although is ­copyrighted, while the melody (based on the ­entire work may not. a public domain opera) is not. Anyone can write a song based on this public domain melody, but they cannot use Sherman’s lyric Music Copied From without permission. Public Domain Sources

Composers have been borrowing from each Ideas other for hundreds of years. Here is a list of just a few well-known popular songs based Ideas are not protected by copyright, only the on previously existing works, all of which particular way a creative person ­expresses are now in the public domain: his or her ideas is protected. For example, • “Goin’ Home” (1922) was based on the idea to write a song about young love is the Largo from Dvorak’s symphony not copyrightable. Only the particular way a From the New World (1893). composer expresses this idea is ­protected. • “Hello Mudduh, Hello Faddah” (1963) was based on Ponchielli’s “Dance Simple Melodies of the Hours” from the opera La Gioconda (1876). Extremely short simple melodies are • “Love Me Tender” (1956) was based generally not copyrightable. For example: on “Aura Lee” by George Poulton • A court ruled that a three-note phrase (1861). consisting of C, D flat, C, sung over • The “Marine’s Hymn” (1919) was a background C note played on the based on a theme from the opera flute was “a common building block.” Genevieve de Brabant by Offenbach The court noted that the phrase was (1868). used over and over again by major • “Night on Disco Mountain” (1977) was composers in the 20th century, based on “Night on Bald Mountain” particularly the 1960s and 1970s. The by Mussorgsky (1887). six-second phrase was “sampled” Any portion of a song or other musical by the hip-hop group Beastie Boys composition copied from a public domain on one of its albums. Newton v. source is itself in the public domain. Diamond, 2003 U.S. App. LEXIS Incorporating it into a new song does not 22635; Copy. L. Rep. (CCH) 28,692 revive its copyright status. Only the new (9th Cir. 2003). 114 The Public Domain

• A four-note musical phrase consisting Musical Forms of the notes A, G, F, and C was held not to be copyrightable. The Musical forms and structures are all in the court noted that this identical phrase public domain. For example, the traditional ­appeared in many other songs and to AABA 32-bar structure for popular songs is grant a copyright in such a “musical in the public domain. Anyone can write a commonplace” would improperly song in this format. curb musical composition generally. Granite Music Corp. v. United Artists Information That Is Corp., 532 F.2d 718 (9th Cir. 1976). • An advertising jingle for a brand of Common Property beer consisting of the words “Tic Toc,” Certain types of musical information are juxtaposed by “Time for Muehlebach” called common property, which means they scored to the notes C and G to are available to everyone and are always in produce the sound and tempo of a the public domain. This includes diatonic clock ticking. Smith v. Muehlebach and chromatic scales and standard chords. Brewing Co., 140 F.Supp. 729 (W.D. Chord charts consisting of standard chords Mo. 1956). may be copyrightable as compilations, • The melody for the song “Johnny even though the individual chords are in One-Note” (excluding the break) the public domain. That is, the selection (Compendium of Copyright Office and arrangement of the chord chart as a Practices, Section 403). whole may be copyrighted. Method books In addition, melodies copied from other consisting of public domain chords, scales, previously existing musical works are not exercises, and public domain music likewise copyrightable. Obviously, such melodies are may be copyrightable as compilations. not original.

Song Titles Sources of Public Domain Sheet Music Song titles ordinarily are not copyrightable. For this reason, many songs have the same You can download public domain sheet or similar titles (see Chapter 13 for detailed music at these sites: discussion of titles). • Werner Icking Music Archive: (http://icking-music-archive.org) • My Sheet Music: (www.dalymusic.com) • Historic American Sheet Music (http://scriptorium.lib.duke.edu/ sheetmusic) chapter 4: Music 115

• The Lester S. Levy Sheet Music • Johns Hopkins University Peabody Collection Conservatory of Music (http://levysheetmusic.mse.jhu.edu) (www.peabody.jhu.edu/home.php) • Library of Congress Music for the • Library of Congress Music Division Nation—American Sheet Music, (http://lcweb.loc.gov/rr/perform/guide) 1870-1885 (http://memory.loc.gov/ • New York Public Library for the ammen/smhtml/smhome.html) Performing Arts • Sheet Music Online (www.nypl.org/research/lpa/lpa.html) (www.sheetmusic1.com/NEW.GREAT. • University of California, Berkeley MUSIC.HTML) Music Library • Sheet Music USA (www.lib.berkeley.edu/MUSI) (www.sheetmusicusa.com) • University of California, Los Angeles • University of California at Berkeley Music and Arts Library California Sheet Music Project (www2.library.ucla.edu/libraries/ (www.sims.berkeley.edu/~mkduggan/ Music/9597.cfm) neh.html) • University of Chicago Music Collection • University of North Carolina, Chapel (www.uchicago.edu) Hill Sheet Music Library • University of Michigan Music Library (www.lib.unc.edu/music/eam.html) (www.lib.umich.edu/music) • Public Domain Info • University of Washington (www.pdinfo.com). Ethnomusicology Archives The following U.S. music libraries are (www.lib.washington.edu) good sources for public domain music: • Yale University Irving S. Gilmore • Berklee College of Music Music Library (www.library.yale.edu/ (http://library.berklee.edu) musiclib/muslib.htm). • Columbia University Music Library For updates (and to directly link to these (www.columbia.edu/cu/libraries/ resources) check my Web page (http:// indiv/music) copyrightfree.blogspot.com). • Eastman School of Music of the University of Rochester (http://sibley.esm.rochester.edu) Sound Recordings • Free Library of Philadelphia (www.library.phila.gov) In the early part of the 20th century compo­ • Harvard University sers and music publishers made most of (http://hcl.harvard.edu/loebmusic) their money from the sale of sheet music. • Indiana University William & Gayle Of course, this is no longer true. ­Today, most Cook Music Library (www.music. of the money in music is made from the indianha.edu/muslib.html) sale of recordings of musical performances. 116 The Public Domain

Legal protection for a recording of the federal government has decided that a ­musical composition is completely state protection for recordings made before separate and distinct from protection for February 15, 1972 must end no later than the composition­ itself. Legally speaking, February 15, 2067. At that time, all music the recording­ is a separate work in its own recorded before­ 1972 will enter the public right, consisting of the performance of the domain. composition and the work of the record Moreover, these state statutes typically do producer in fixing the performance in a not have any cutoff dates for when state ­recording. law protection begins. That is, by their own Very few sound recordings are now in the terms they appear to apply to all pre-1972 public domain. Unfortunately, this ­situation recordings, even those made during the will not change until well into the 21st earliest days of sound recording. Indeed, century—indeed, substantial numbers of they even apply to foreign recordings U.S. sound recordings will not start to enter that are in the public domain in their the public domain until the year 2043. The countries of origin. (Capitol Records, Inc. following sections discuss in detail why this v. Naxos of America, Inc., 4 NY3d 540 is. If you’re not interested in these legal (2005).) Theoretically, then, unauthorized details, you can skip the rest of this section. duplication of a recording made as early as 1900 (or even earlier) could result in prosecution. As a practical matter, however, Sound Recordings Made there is a good chance that no one would Before Feb. 15, 1972 care if you ­copied such an early recording unless, ­perhaps, it was made by a very Before February 15, 1972 sound recordings famous artist such as the opera legend (as opposed to musical compositions) were Enrico Caruso. not protected by the federal copyright laws. In one of the few cases involving such Instead, if someone felt their copyright to early recordings, Capitol Records filed a musical recording was being infringed, suit against a small European recording they had to sue in state courts, relying on company that copied and distributed in the state antipiracy laws and state common law U.S. recordings made in the United Kingdom copyright. The laws of almost every state in the 1930s by the renowned classical make it a criminal offense to manufacture, musicians Yehudi Menuhin and Pablo distribute, sell, or offer to sell sound Casals. The recordings were in the public recordings without the owner’s permission. domain in the United Kingdom, but not in ­Penalties for violations include fines (up to the United States. (Capitol Records, Inc. v. $250,000 in California) and jail time. But Naxos of America, Inc., 4 NY3d 540 (2005).) chapter 4: Music 117

Sound Recordings Made or Recordings published during this ten-year Published After Feb. 15, 1972 period without a valid notice may have ­entered the public domain. However, not all Starting on February 15, 1972 federal have done so, and it can be very difficult to copyright protection began to apply to determine which ones have. (See Chapter 19 sound recordings. All sound recordings for a detailed discussion.) published—that is, distributed to the public—on or after February 15, 1972 and before 1978 are protected by copyright Foreign Sound Recordings for 95 years from the publication date. The legal protection scheme for sound Unpublished recordings­ made during this recordings made outside the United States time period continue to be protected by is complex. But the upshot of all the rules state law. described below is that virtually no foreign A new federal copyright law took effect sound recordings are in the public domain on Jan. 1, 1978 that gave protection to both in the U.S. published and unpublished sound ­recordings Recordings Made After 1972: These created anytime during or after that date. recordings receive the same copyright The copyright for such works lasts for 95 protection as recordings made in the U.S.— years from the publication date or for 70 they are protected for the life of the creator years after the composer dies. As a practical and for 70 years after his death, or for 95 matter it makes little difference which term years from the date of publication. applies right now since the ­earliest such Recordings Made 1923-1972: In the past, ­recordings will enter the ­public domain foreign sound recordings made before 1972 is the year 2049 (for works created by were treated the same as U.S. recordings composers who died in 1978; see Chapter 18 —that is, they were not protected by for a detailed discussion of copyright terms). the federal copyright law. However, this However, there is one small group of changed on January 1, 1996 when a special ­recordings made after 1972 that is in the law restored federal copyright protection for public domain: those published between foreign works published during 1923-1989 January 1, 1978 and March 1, 1989, that that were in the public domain in the U.S. contained no valid copyright notice on the for various reasons, including the fact that recording or album cover. The copyright at the time there was no federal copyright notice for a sound recording consists of protection available for recordings. Such a capital “P” surrounded by a circle, the works receive a full term of United States year of publication, and the name of the copyright protection as shown in the copyright owner. After March 1, 1989 following chart. copyright notices were made optional. 118 The Public Domain

Year in Which Work Lost Length of U.S. Copyright Term Copyright Protection

1923-1977 95 years from publication

1978 and later Life of the author plus 70 years; 95 years from publication for works made for hire, anonymous, and pseudonymous works.

Sound Recordings on the Internet

Millions of sound recordings have been Of course, people continue to upload and converted into digital form and placed download music files without permission, on the Internet. A digital copy of a sound committing copyright infringement. Record­ recording is a derivative work. Making ing industry groups have begun to file the copy and making it publicly available lawsuits against individuals who do this, and over the Internet without the copyright are working to try to get colleges to prevent owner’s permission constitutes copyright their students from engaging in the activity. infringement unless both the sound Remember, since very few recordings are recording and the underlying composition in the public domain in the United States, are in the public domain. Claims that the virtually none of the music files being shared wholesale copying of sound recordings on over the Internet are public domain in this the Internet is a fair use have been rejected country. Some recordings have entered the by the courts; most notably in a case public domain in foreign countries, but it involving Napster, a website that provided is still illegal for someone in the U.S. to music file-sharing software to Internet users download a recording that is copyrighted in and facilitated unauthorized downloading of the U.S., even if the download comes from sound recordings. The Napster website was an Internet server in a foreign country where shut down as a result. A&M Records, Inc. v. the recording is in the public domain. (For Napster, Inc., 239 F.3d 1004 (9th Cir. 2001). more information on the public domain (Napster has since reappeared under new outside the U.S., see Chapter 16.) ownership as a pay per use site.) chapter 4: Music 119

However, the restoration applied only musical compositions by composers who to foreign works that were still under died over 70 years ago are public domain in copy­right in their countries of origin on these countries. Unless the law changes— January 1, 1996. (See Chapter 15 for a something music industry groups seek— detailed discussion.) What if a foreign more recordings will enter the foreign sound recording was in the public domain public domain every year. However, these in its country of origin on Jan. 1, 1996? recordings are not in the public domain Then it is not entitled to federal copyright in the United States. (See Chapter 16 for a protection. But this does not mean that it detailed discussion of public domain status can be freely used. Reason: It is entitled outside the U.S.) to protection under state antipiracy laws. In the first case on the issue, New York’s highest court found that recordings created U.S. Government Sound Recordings in Great Britain in the 1930s were entitled The only substantial body of sound to protection under New York’s antipiracy recordings that are in the public domain law even though they were in the public are made by U.S. government employees domain in Great Britain because their as part of their jobs or by nonemployees British copyrights had expired in the 1980s. working for the government. (See Chapter 3 (Capitol Records, Inc. v. Naxos of America, for a detailed discussion.) Inc., 4 NY3d 540 (2005).) Because of this The buildings of the U.S. National Archives, decision no foreign recordings made during located in and around Washington, DC, 1923-1972 are in the public domain in the have more than 90,000 sound recordings; the U.S., even if they are in the public domain bulk of these are spoken-word recordings, in their countries of origin. not musical recordings. These recordings are Recordings Made Before 1923: Federal primarily from U.S. government agencies, copyright protection is not available for but there are also some from ­private, ­foreign sound recordings made before 1923. commercial, and foreign sources. However, it appears that they are protected The National Archives has an extensive by state antipiracy laws, just like recordings website that contains detailed information made during 1923-1977. about its audiovisual holdings. The URL is: www.archive.gov. Public Domain Status of Sound Recordings Outside the United States. Even If a Sound Recording of a Person’s Large numbers of sound recordings have Voice Is in the Public Domain, Using entered the public domain in many foreign the Speaker’s Voice for Advertising Purposes countries. In these countries, including —for Example, in a Radio Commercial— most of Europe and Canada, recordings Could Violate His or Her Right of Publicity. are protected for 50 years after publication. See Chapter 20 for a detailed discussion. n As a result, over-50-year-old recordings of

Chapter 5

Art

Part I: Original Works of Art...... 124

What Good Is Public Domain Art?...... 124 Using Public Domain Art...... 124 The Problem of Access...... 125

Deciding If Original Art Is in the Public Domain...... 126

Has the Art Been Published?...... 126 When Art Becomes Published...... 127 Limited Publications...... 129 Finding the Date and Country of Publication...... 129

Has the Copyright in the Art Expired?...... 131

Is the Art in the Public Domain Due to Lack of a Copyright Notice?...... 131

Is the Artwork Eligible for Copyright Protection?...... 132 Art Lacking Minimal Creativity...... 132 Artistic Ideas, Styles, and Techniques...... 132 Works Lacking Human Authorship...... 133 Useful Articles ...... 133 Jewelry and Other Applied Art...... 135 Fabric Designs and Clothing...... 136 Typeface Designs...... 137 Art Created by U.S. Government Employees...... 138 Art Dedicated to the Public Domain...... 139 122 The Public Domain

Do You Intend to Use the Art in Advertising or on Merchandise?...... 140

Is the Art Protected by a Design Patent?...... 141

Sources of Original Art...... 142

Part II: Art Reproductions...... 142

Is the Original Work of Art in the Public Domain?...... 143

Has the Reproduction Been Published?...... 143

Has the Copyright in the Reproduction Expired?...... 143

Is the Reproduction in the Public Domain Due to Lack of a Copyright Notice?...... 143

Does the Reproduction Lack Originality?...... 144 Reproductions Other Than Photographs...... 144 Photographs of Public Domain Artwork...... 146 Digital Reproductions...... 148

Is the Reproduction Dedicated to the Public Domain?...... 149

Will You Use the Reproduction in Advertising or on Merchandise?...... 150

Are Elements of the Reproduction in the Public Domain?...... 150

Sources of Art Reproductions...... 150 chapter 5: Art 123

his chapter will help you determine separate copyright protection, if they satisfy if a work of art is in the public the legal requirements discussed below. A T domain. It is divided into two parts: reproduction can even maintain copyright • Part I covers original works of art, and protection after the original enters the • Part II covers reproductions of public domain. artworks, such as photographs of original works of art. Many Works That Are in the Public Original art and art reproductions require Domain in the United States Are Still different steps to decide if they are in Protected by Copyright Outside the Country, the public domain. This is because both and Vice Versa. This chapter only covers the original works of art and reproductions public domain in the United States. For a are considered by the copyright law to be detailed discussion of the public domain works of authorship entitled to their own abroad, see Chapter 16.

Collage artist Claudine Hellmuth created this collage using various public domain materials, including old postage stamps (purchased on eBay), an old railroad schedule, the title from a 1911 sheet music (found in a second- hand bookshop), and a drawing of a woman (copied from a Dover book of public domain drawings). Hellmuth’s book Collage Discovery Workshop (North Light Books), describes how to create collage art from public domain materials. Other examples of her work can be viewed at her website (www.collageartist.com). 124 The Public Domain

Part I: came into existence in 1790. The famous Grant Wood painting of a farm couple is not Original Works of Art in the public domain because it was created This portion of the chapter covers original in 1930. Its copyright will last at least until works of art, which include: 2026. (See Chapter 18 for more on how • original paintings, drawings, and long copyright protection lasts.) sculpture The Mona Lisa is owned by the French • the ornamental or artistic features of government and hangs in the Louvre useful articles, such as furniture and ­Museum in Paris. Unlike many museums, other items that we use in daily life the Louvre permits the public to take • works of artistic craftsmanship—also ­photographs of its public domain paintings called applied art—such as ceramics, without advance permission. However, glassware, and toys and fabric and such a photo would probably not be of clothing designs. professional quality because you are not ­allowed to use a flash and the Mona Lisa is kept inside a large glass case. In any event, What Good Is traveling to Paris for this purpose might be too expensive or inconvenient. Public Domain Art? Fortunately, because the Mona Lisa is in the public domain, you can copy, distribute, The works of Michelangelo and Rembrandt or display an existing professional-quality are yours to use for free because­ they are photograph of the Mona Lisa without in the public domain, as is a vast amount of ­obtaining permission from the Louvre other art created through the ages. ­Museum or the French government. You may, however, have to obtain permission Using Public Domain Art from the photographer who took the ­picture. The fact that a work of art is in the public In contrast, because Grant Wood’s domain can make your life easier in a ­American Gothic is still under copyright, ­variety of ways. To illustrate, let’s compare you cannot reproduce a photo of the two well-known paintings, one that is in painting without obtaining permission from the public domain and one that is not: Wood’s heirs. When a painting or other the Mona Lisa by Leonardo Da Vinci and ­artwork is under copyright, the copyright American Gothic by Grant Wood. The owner has the exclusive right to create Mona Lisa is of course in the public domain ­copies of it, ­including photos. because it was completed in 1506 and was In addition, because the Mona Lisa is in published before the first copyright law the public domain, you may create your chapter 5: Art 125

own copy of it—for example, draw or paint Mona Lisa sculpture, animated cartoon it from memory or from a photograph. You character or computer icon, or even paint can publish or otherwise distribute your a copy of the Mona Lisa with a beard copy without seeking permission from (Marcel Duchamp did this in a painting ­anyone—for example, place it on T-shirts. called “L.H.O.O.Q.”). The only limit on how This is not the case with American Gothic. you may use the Mona Lisa is your own imagination. Tens of thousands of derivative works have been created from the Mona Lisa. Someone in Japan even created a copy of the Mona Lisa made out of toast. A fascinating website called “Mona Lisa: ­Images for the Modern World” (www .studiolo.org/Mona/MONALIST.htm) has compiled hundreds of examples of ways people have used the Mona Lisa ­image. None of these things may be done with American Gothic without first obtaining permission. (The only possible exception might be creating a parody version of the painting; this could constitute a fair use not requiring permission, but this is far from clear and you could easily get sued for ­doing it; see Chapter 22.)

Grant Wood, American 1891-1942, American The Problem of Access Gothic, oil on beaverboard, 1930, 74.3 x 62.4 cm, Friends of American Art Collection, All rights Theoretically, once a work of art enters reserved by The Art Institute of Chicago and the public domain it can be copied freely VAGA, New York, NY, 1930. Photograph ©2000. by anyone for any use. However, to make The Art Institute of Chicago. All Rights Reserved. a copy you must first have access to the original. And here lies the problem: ­Owners Moreover, because the Mona Lisa is in of works of art in the public ­domain are the public domain, you may create a new under no obligation to give anyone access derivative work from it without obtaining to copy the work. Even when a work of art permission. A “derivative” work is a work is in the public domain, the canvas, marble, based on or adapted from a preexisting clay, or other physical substance in which it work. For example, you could create a is embodied is still owned by somebody— 126 The Public Domain whether a museum, gallery, or private Deciding If Original Art Is ­collector. Since a work of art is a piece in the Public Domain of personal property as well as a work of ­authorship, the owner enjoys all the rights What If the Work Is Not in the Public of any personal property owner. Copyright Domain? If you find that the work protection may expire or never exist in you want to use is not in the public domain, the first place, but personal property rights you may be able to use it anyway under ­attach to all works of art and last forever. a legal exception called “fair use” (see Private owners of public domain works of Chapter 22). If you do not qualify for art are under no obligation to allow anyone this exception, you will need to obtain into their home to make copies of the art or permission to use the work. For a detailed even to view it. And most major ­museums discussion of how to obtain copyright in the United States restrict the public from permissions refer to Getting­ Permission: taking photographs of their collections. How to License & Clear Copyrighted Materials Some museums forbid photo­graphy entirely Online & Off, by Richard­ Stim (Nolo). or permit only amateur ­photographs that are of low quality and therefore not publishable. Other museums instruct visitors Despite the Legal Rules Discussed that they may use photos for personal use Below, Be Aware That It Is Common only. Still others require visitors to sign Practice for the Estates of Well-Known Artists camera permits in which they agree not to Claim That the Late Artist’s Works Were to reproduce any photos they shoot in the Never Published, No Matter What the Actual museum. Facts Are. This will usually provide a longer If you want a high-quality publishable term of copyright than if such works were photograph or other copy of a painting or published—the life of the artist plus 70 other artwork, you must ask the museum to years. Moreover, the art could not have provide you with one. You will be charged fallen into the public domain due to lack of a fee for this and usually required to sign a copyright notice. It may be difficult and a license agreement restricting how you costly to refute such claims. may use the photograph or other copy (see Chapter 2). Such licensing fees are a major source of income for many art museums. Has the Art Been Published? Moreover, many museums will not agree to license their works for products that might The first question you must answer is compete with their own products, such as whether the artwork was published and, if calendars and note cards. so, when. This will govern when the work enters the public domain. chapter 5: Art 127

Art is published for copyright purposes Most of the world’s most famous artworks when the copyright owner, or someone have been photographed and the photos acting on his or her behalf, makes it available published in books, museum catalogues, to the general public. In other words, any postcards, and other ways. All such artwork interested member of the public may obtain has been published for copyright purposes. a copy; or, in the case of one-of-a-kind But a work need not be famous to be artworks, at least has an opportunity to obtain published this way. Any work of art that the work. Burke v. National Broadcasting has been photographed and distributed in Co., 598 F.2d 688 (9th Cir. 1979). this way has been published for copyright purposes. When Art Becomes Published Offering the Work for One of the following actions must be taken Sale to the General Public for artwork to be considered published for A work of art is also published when it is copyright purposes. offered for sale to the general public—for example, by the artist, through an art dealer, General Distribution of a gallery, or in a public auction. It does Copies of the Work not matter whether a transaction is actually completed. The simple act of offering the Art is published for copyright purposes artwork for sale qualifies as publication for whenever copies are made ­available copyright purposes. The date the article to the general public. Such copies may is offered for sale becomes its date of consist of photographs, postcards, prints, publication. Roy Export Co. Establishment v. lithographs, castings from a statue, and CBS, Inc., 672 F.2d 1095 (2d Cir. 1982). The other reproductions. only qualification is that the offering must be to the general public. Sales or offerings Example: A Picasso sculpture com- to a restricted group of potential buyers do missioned by the City of Chicago not result in publication. was deemed published for copyright ­purposes when pictures of a large model Example: Grandma Moses created of the sculpture were published in a painting entitled Over the River to Chicago newspapers and national and Grandma’s House and exhibited it to international magazines, and postcards the public in her studio. An unidentified of the model were sold to the public. buyer came by and purchased it that ­Letter Edged in Black Press, Inc. v. Public same day. A court held that this consti- Building Commission of ­Chicago, 320 tuted publication of the work. Grandma F.Supp. 1303 (N.D. Ill. 1970). Moses Properties, Inc. v. This Week Mag- azine, 117 F.Supp. 348 (S.D. N.Y. 1953). 128 The Public Domain

Disseminations With No Restrictions case where a piece of art was ­displayed in a public park, art gallery, or museum and Artwork is also published when it is sold, there was no effort to stop people from lent, gifted, or otherwise distributed to a making replicas, drawings, photos, or other ­select group of people, or even one person, artworks based on the original work. provided that the artist has placed no An artwork was not considered published ­restrictions on reproducing, distributing, if the general public was allowed to view or selling the work, or copies of it, to the the piece, but was prevented from making ­general public. The reason for this rule is copies or replicas of it, by, for example, that such a work may ultimately become placing guards near the object to prevent available to the general public. That is, the copying of the work. person or group that receives the work may eventually make it available to the public. Example: English painter W. Dendy Sadler created a picture called Chorus, Example: Assume that Grandma Moses and later exhibited it to the public at was commissioned by a wealthy art the Royal Academy in London for three collector to create a painting. Upon months. The U.S. Supreme Court held completion, the painting was delivered that the exhibition of the work did not to the collector and Grandma was result in its publication for copyright paid. Grandma placed no restrictions purposes because the Royal Academy’s on what the collector could do with bylaws barred the public from copying the painting—for example, he could works on exhibition and there were offer it for sale to the public or sell ­officers present in the gallery to ­en­ photographs of it. This transaction force the rule. American Tobacco Co. v. published the painting for copyright Werckmeister, 207 U.S. 284 (1907). purposes. As a practical matter, it will be difficult Allowing a Work to Be for you to determine whether a work of art Copied by the Public displayed in public prior to 1978 has been published. It would be necessary to review Simply putting a work on display and the copying policies of every museum or ­allowing the public to copy it is not enough gallery where it was shown to determine to make the work published for copyright if copying was allowed in any of them. So, purposes, as long as the work was created unless you’re prepared to do some extensive after 1977. Before then, a work of art was research, you should assume that pre-1978 considered published if it was displayed to paintings, drawings, and similar works have the public and the public was allowed to not been published solely because they copy it freely. This would have been the were publicly displayed. chapter 5: Art 129

On the other hand, sculptures, frescoes, • copies of an artist’s work are friezes, and other artworks permanently distributed to newspapers or ­displayed in public places such as parks magazines for review or criticism and plazas and exteriors of public buildings (however, if the work was printed in before 1978 likely would be considered a newspaper or magazine it would be published, since the public is ordinarily published). ­allowed to freely copy such works. Beginning in 1978, the law changed. Any display of a work after 1977—even Finding the Date and if ­copying was allowed—will never result Country of Publication in publication of the work for copyright If you determine that a work of art has been ­purposes. published, you must also determine when and where it was published before you Limited Publications decide when its copyright protection ends. Many artworks contain dates, but these Publication occurs for copyright purposes are usually the date the work was created, only when any interested member of the which may not be the same year it was public can obtain a copy of the work—for published. example, can purchase a photo or bid on As a practical matter, it may be difficult the work at a public auction or sale. In to determine the exact date a painting, contrast, publication does not occur where ­sculp­ture or other work of art was first a work is only made available to a definitely published—that is, was first offered for selected group of people for a limited sale or first copied. This is particularly ­purpose and without the right of further true for works of art that are centuries diffusion, reproduction, distribution, or sale. old. Such works may be offered for sale This type of limited distribution is called and copied over and over again through “limited publication” and is not considered the years. However, it is not necessary to publication for copyright purposes. White v. determine the exact date when a work Kimmel, 193 F.2d 744 (9th Cir. 1952). was first published. It is sufficient if you Examples of limited publications include can determine that it was published in where: the United States any time before 1923 or • an artist distributes prints or copies published outside the United States any of his or her work to colleagues for time before 1909. If it was, the work is in comment with the understanding that the public domain. Works published for the the copies are not to be sold or further first time in the United States during 1923- reproduced or distributed, or 1963 are also in the public domain if their copyright was not renewed. (See Chapter 18 for a detailed discussion.) 130 The Public Domain

Art Published After 1963 Cannot Be in Do a search with an Internet search engine the Public Domain Due to Copyright such as Google using the artist’s name and Expiration. But it could be public domain the name of the work of art. A list of useful for other reasons, such as failure to use a art websites is contained at the end of copyright notice or because it’s ineligible for Part I. copyright in the first place. Copyright Office Records. If either the original artwork or a reproduction was Probably the easiest way to determine ­registered with the U.S. Copyright Office, if a work of art was published during the checking Copyright Office registration dates mentioned above is to search for a records will reveal when and where it published photographic reproduction. If you was published. Many of these records can can find a photo of the work in an artbook, be researched online (see Chapter 21). art catalogue, postcard, or newspaper it ­However, many published artworks are not must have been published at least as of the ­registered with the Copyright Office, so date of the photo. The country the photo there may be no record for them. was published in will be the country of Art Museums. An art museum that collects publication of the original artwork as well. the artist’s works may be helpful. You can Art reference works may also be helpful. find a list of art museum websites at www For example, they may tell you when and in .gallery-guide.com. The Official Museum what country a work was offered for sale to Directory, by the American Association the public (another way art is published for of Museums ­(American Association of copyright purposes). Other useful resources Museums and ­National Register Publishing to finding both the date and country of Co.) lists more than 6,000 museums in the publication of a work of art include:­ United States and is revised annually. The Library of Congress Card Catalogue. If If you are unable to determine the date the artwork has been reproduced in a book, and country of publication of the artwork, magazine, or other work, it may be listed you will not be able to determine if its in the Library of Congress card catalogue. copyright has expired or if it is in the ­public The catalogue entry will usually show both ­domain due to lack of a valid ­copyright the country and date of publication. You ­notice. However, you don’t need the date check the catalogue in person at the Library and country of publication to ­determine in Washington, DC, or online through the whether it is in the public ­domain because Library’s Web page (http://catalog.loc.gov). it is ineligible for copyright protection. So The Internet. There are thousands of skip to the section on copyright notice, websites devoted to art. There may be a below, and see if it is in the ­public domain website that provides a detailed publication on this basis. If not, you should ­assume the history of the work you’re interested in. work is not in the ­public domain. chapter 5: Art 131

Has the Copyright If the artwork was published before in the Art Expired? 1989, it could be in the public domain if it lacks a copyright notice. Examine the work carefully to determine if it has a notice—the Copyright protection does not last forever. ­familiar © symbol or the word “Copyright” When it ends, the work enters the public or abbreviation “Copr.”—and the name of domain. Some art published as recently as the copyright owner—for example: © Ralph 1963 could be in the public domain. But Raphael. If the artwork was published before­ some art created over 100 years ago or 1978, the notice didn’t have to contain a more could still be protected by copyright. publication date. If it was published between The greatest single body of ­public domain Jan. 1, 1978 and March 1, 1989 a publication art comes from works for which the U.S. date was required, except for jewelry, toys, copyright term has expired. But determining and other useful articles ­containing pictorial whether a copyright has ­expired can be or graphic works. complex. You’ll need to ­determine which The notice can be hand drawn or painted of several possible copyright terms apply to anywhere on the front or back of a canvas the work in question. or piece of drawing paper or anywhere on Copyright terms are the same for all a sculpture or piece of applied art such as copyrighted material, including art, music, jewelry or toys. and writings, so they are discussed in If the work has no notice, it could be in detail in Chapter 18. Turn to that chapter to the public domain. Since many artists failed ­determine whether the copyright in a work to place copyright notices on their works, you’re interested in has expired and fill in many artworks published before 1989 have the answer on the checklist under Line 3. entered the public domain for this reason. Read Chapter 19 for detailed guidance on how to determine whether a published Is the Art in the Public work is in the public domain because it Domain Due to Lack lacks a valid copyright notice. of a Copyright Notice?

before reading this section, you must determine whether the artwork has been published for copyright purposes. If the art was never published it doesn’t need a copyright notice. You don’t need to read any more of this section. 132 The Public Domain

Is the Artwork Eligible for • standard symbols such as an arrow or Copyright Protection? a five-pointed star, and • simple coloration—for example, a textile design consisting simply of the Even if you determine that the artwork colors green and blue. has a proper copyright notice and its Copyright Office views are not binding copyright protection has not expired, it on the courts, but it makes good sense could still be in the public domain. Some to follow its views. They are given some types of artwork can never be protected by ­deference by the courts and if you are copyright; they will be in the public domain sued for using a particular artwork, it will unless other laws protect them like, for help you defend yourself if you followed a example, trademark law. Copyright Office guideline. Although these types of artistic creations Art Lacking Minimal Creativity are not individually protected by copyright, they may obtain copyright protection if Art must be minimally creative to be they are combined in a new, creative ­protected by copyright (see Chapter 2 way. For example, a mobile or collage for a detailed discussion of creativity consisting of a number of geometrically and copyright). However, the amount of shaped pieces such as spheres and cones creativity required is very slight. Almost any may obtain copyright protection as a whole work satisfies the creativity test. It can have even though the individual pieces would, ­substantial or little artistic merit or aesthetic under Copyright Office definitions, be in value. Copyright protects everything from the ­public domain. In addition, all of these the most accomplished painting or sculpture works could be protected by state and by a professional artist to a child’s finger ­federal trademark laws if they are used as painting. part of the packaging design used to sell a However, according to the U.S. Copyright product or service. Office, there are some types of artwork that completely lack creativity and are, therefore, ineligible for copyright protection. These Artistic Ideas, Styles, and Techniques include: Copyright law only protects the particular • standard ornamentation such as ­chevron way an artist expresses his or her ideas, stripes, a conventional fleur-de-lys not the ideas themselves. For example, design, or a plain, ordinary cross the idea of painting a bowl of fruit is not • two- or three-dimensional geometric protected by copyright. Anyone can paint figures or shapes such as a hexagon, a bowl of fruit, but you cannot copy the ellipse, cone, cube, or sphere exact way another artist paints a bowl chapter 5: Art 133

of fruit unless the work is in the public pebble design that was ­produced by a domain. For example,­ Cezanne’s famous mechanical process in unrepeatable, random paintings of bowls of fruit are almost all patterns is not ­protected by copyright. in the public domain and can be copied Similarly, a work owing its form to the forces freely. Likewise, the idea of creating a doll of nature is not protected by copyright— whose face has an upturned nose, bow for ­example, a piece of driftwood is not lips, and evenly spaced eyes is in the public protected by copyright even if it has been domain. However, the particular way this polished and mounted. idea has been expressed in the Barbie doll However, the presence of human “choices” is protected by copyright. (Mattel, Inc. v. would make a work of art created by Goldberger Doll Manufacturing Co., 365 a ­machine protected by copyright. For F.3d 133 (2d Cir. 2004).) example, spin art is protectable because the Similarly, artistic styles are always in person using the spin art machine decides the public domain. For example, anyone what colors to use and when to drop the can create a painting in the cubist or paint onto the spinning platter. impressionist style. Copyright only protects the exact way an artist expresses an artistic style. For example, cubism is in the public Useful Articles domain, but a particular painting by Cubist “Useful articles” are items whose intrinsic painter Georges Braque is not. function is utilitarian—for example, auto­ ­ Artistic techniques are also not protected mobiles, boats, household appliances, by copyright. This includes, for example, furniture, work tools, and clothing. The two-point perspective or the drawing utilitarian or mechanical aspects of useful techniques an artist uses to create the articles are not protected by copyright—for illusion of a sphere on a two-dimensional example, the serrated edge of a knife is not surface such as a piece of paper. Anyone protected by copyright. is free to use these techniques, which have However, the design of a useful article or been around for centuries. work of applied art is subject to copyright protection to the degree that: Works Lacking Human Authorship 1. it contains pictorial, graphic, or ­sculptural features, and Copyright only protects works created by 2. such features can be identified as human beings. Works produced by mech­ ­existing independently of the utilitarian anical processes or random selection, with­­out object in which they are embodied. any contribution by a human ­author, are not Copyright protects such design features if protected by copyright. For example, a lino­ they are physically or conceptually separable leum floor covering featuring a multicolored from the useful article. 134 The Public Domain

Conceptually Separable Features Two-Dimensional Representations of Useful Articles Protected Unlike the Rolls-Royce hood ornament by Copyright mentioned above, many artistic features contained in utilitarian objects cannot be A two-dimensional representation of a physically separated from the object. A useful article—for example, a drawing, good example is a coffee mug that contains painting, or photograph of a chair—is a painting of a rose. You can’t physically protected by copyright even though the remove the painting from the mug. But useful article is not. But copyright only this doesn’t mean the painting can’t be extends to the drawing, painting, or copyrighted. photograph, not to the useful article itself. In cases such as these, the art is protected That is, you can’t copy a copyrighted by copyright if you can imagine it being painting of a chair, but you may build separated from the useful article and existing the chair itself. Thus, for example, an on its own without destroying the basic inventor’s copyright in drawings for shape of the useful article. a new type of pistonless engine only For example, it’s easy to imagine removing protected the drawings themselves, the rose painting from the coffee mug not the inventor’s idea depicted in the ­mentioned above. You could imagine the drawings of how to create such an painting existing on canvas or any other engine. (Rozenblat v. Sandia Corp., 2003 medium. In your mind the coffee mug is U.S. App. LEXIS 21940 (7th Cir. 2003).) left without the painting, its basic shape ­unchanged. As a result, the painting of the rose is protected by copyright. Physically Separable Features

Any feature that can be physically separated from a utilitarian object and stand on its own as a work of art, is protected by copyright, provided that it is minimally creative and original. For example, the hood ­ornament on a Rolls-Royce can be removed from the car and stand on its own as a sculpture.

Cup was created in Adobe Photoshop using the image of a cup licensed from Eyewire chapter 5: Art 135

Courts call features such as the rose Patent and Trademark Protection painting “conceptually separable,” meaning for Useful Articles you can separate them in your mind from In some cases, the purely decorative or the utilitarian objects on which they are ­ornamental aspects of a useful article may embodied. Sometimes it’s easy to tell that qualify for protection as a trademark or be an artistic feature is conceptually separable protected by a design patent. from its utilitarian object. For example, Trademark protection would be available a two-dimensional painting, drawing, or where the decorative aspects of an article are other graphic work is clearly conceptually used to advertise or sell a product—a good separable when it is printed on or applied example is the distinctive shape of a Coke to useful articles such as textile fabrics, bottle. Patent protection is available where wallpaper, containers, and the like. a useful article contains novel and un­­obvious However, in other cases, the line ornamental features. ­between unprotected-by-copyright works of industrial design and protected-by- copyright works of applied art is not always Jewelry and Other Applied Art clear. Courts have employed a number of tests to determine whether a utilitarian “Applied art” refers to works of artistic ­object contained ­conceptually separable craftsmanship such as jewelry, toys, and features, and the results­ have not always wall plaques. Unlike useful articles, their been consistent. For example, copyright ­intrinsic purpose is artistic or decorative, protection was granted to a belt buckle rather than utilitarian. but denied to a light fixture designed in a Copyright protects the artistic aspects ­modernistic style. of a work of applied art so long as they are minimally creative and original. The Since it can be very difficult to ­deter- ­protected aspects of such a work may be mine whether the artistic features of a either sculptural or pictorial in nature—for utilitarian object are protected by copyright, example, carving, cutting, molding, casting, it’s advisable to seek legal advice before shaping the work, arranging the elements copying such an object for commercial into an original combination, or decorating ­purposes.

Copyright © 2000 by Maira Dizgalvis. Bracelet incorporates a traditional Latvian symbol 136 The Public Domain

the work with pictorial matter such as functional clasp on a jeweled pin is not drawings or paintings. protected by copyright, while the design of However, works of applied art that are the pin itself may be. not minimally creative are not protected by copyright. For example, a jeweled pin ­consisting of three parallel rows of stones Fabric Designs and Clothing is not protected by copyright, while a pin Fabric designs are protected by copyright, consisting of a sculpted bee is. Reason: Placing but only if they are original and minimally three stones one over the other is not even creative. Copyright protection has been minimally creative, while sculpting a bee most ­extended to a plaid design consisting of definitely is. But, most jewelry designs are ­intersecting diamonds and to pansy and minimally creative and protected by copyright. rose designs. However, standard designs Even if the individual design elements that have been around for years are in the used to create a piece of jewelry are in public domain—for example, polka dots or the public domain, the jewelry may still traditional plaids. be protected by copyright if a minimal Clothing and dress designs ordinarily are amount of creativity was required to select not protected by copyright. In the words and combine those elements. For example, of one court: “A garden variety article of a court held that a gold and silver ring ­wearing apparel is intrinsically utilitarian with a bridge-like motif was copyrightable and therefore a nonprotected by copyright even though the elements—a channel of useful article. Equally nonprotected by princess-cut diamonds on the shank of the copyright are the elaborate designs of ring, the suspending of a marquis-shaped the high fashion industry, no matter how diamond above the shank to create the ­admired or aesthetically pleasing they may “bridge” effect, and use of flared gold be.” Whimsicality Inc. v. Rubie’s Costumes supports to hold the marquis diamond in Co., 721 F.Supp. 1566 (E.D. N.Y. 1989). a tension setting—were all familiar designs However, it is possible for specific orna­ in the public domain. The court stated mental or design elements contained in that these elements were combined so clothing to be protected by copyright, even as to create a more stylistic and flowing though the piece of clothing as a whole is look than any prior bridge ring. Weindling not—for example, a detailed embroidery, or International Corp. v. Kobi Katz Inc., 2000 a two-dimensional drawing or graphic work U.S. Dist. LEXIS 14255, 56 U.S.P.Q. 2D affixed to a portion of a garment might be (BNA) 1763 (S.D. N.Y. 2000). protected by copyright. In one case, for The utilitarian or mechanical aspects of example, drawings of strawberries, daisies, a work of applied art are not protected hearts, and tulips on children’s bed­clothes by copyright. For example, the purely were held by a court to be protected by chapter 5: Art 137

copyright. Samara Brothers Inc. v. ­­Wal-Mart protected by copyright in the United States. Stores Inc., 1998 WL 896648 (2d Cir., Dec. This is so whether they are generated by 28, 1998). a computer program, or represented in As a general rule, clothing designs can’t drawings, hard metal type, or any other be protected under the state and federal form. In other words, they are in the trademark laws. This is because trademark public domain. One very significant result law doesn’t protect functional objects such of this rule is that a public domain work as clothing. However, clothing designers does not receive a new copyright when it can rely on trademark laws to protect their is reprinted in a new typeface. Both the brand names and logos—for example the words and the typeface are in the public company name “Levi’s.” domain. Thus, for example, you are free to All of this means that clothing designers copy a public domain writing you find on have little legal protection against “style the Internet even if the person who posted ­piracy.” The fashion industry has been it on the Web changed the font from the asking for a special form of legal protection original. for clothing designs for years, but Congress has yet to act. Font Software Is Protected by Copyright Typeface Designs Font software programs (computer programs used to generate typefaces) can be protected A “typeface” is the design or style of by copyright. But this protection is limited the letterforms used for printing type. to the computer code. It does not extend A “font” is a typeface of a particular to the output these programs create: the style and size. Typefaces were originally typefaces themselves. Moreover, some font carved from wood and then cast in metal. software programs have been dedicated Today, however, typefaces are created on to the public domain. (See Chapter 8 for computers and added to word processors a ­detailed discussion of public domain and other programs used to create and print software.) Theoretically, this means documents. If you use a word processing that even though font software may be program, you know that you can produce protected, you should still be able to copy your writing in a variety of fonts such as the font itself—for ­example, by drawing Courier, Arial, and Impact. or photographing it or creating your Many typefaces have been around own program to generate a similar font. for hundreds of years, but there are Unfortunately, things are not so simple— many others that have been designed typefaces may be protected by licenses or quite recently. ­Regardless of when they laws other than copyright. were created, typefaces or fonts are not 138 The Public Domain

Other Protections for Typefaces (See Chapter 20 for a detailed discussion of trademarks.) The large companies that sell font software don’t want people copying their fonts, An excellent discussion of the legal even though they aren’t protected by issues surrounding typeface designs copyright. For this reason, they usually may be found at a website maintained by include licensing agreements along with the font foundry Southern Software Inc. The their programs. Among other things, these URL is: www.ssifonts.com/Myths.htm. licenses typically bar users from making any unauthorized copies of the fonts generated by the program. The enforceability of such Art Created by U.S. provisions is questionable. (See Chapter 2 Government Employees for a detailed discussion of this issue.) In addition, a few font software companies Works of authorship created by U.S. govern­ have obtained design patents for some of ment employees as part of their job are their fonts. For example, Adobe obtained ­ordinarily in the public domain. This includes design patents for its Garamond, Minion, works of art and art reproductions. However, and Utopia typeface families. You can there are some exceptions. For example: ­usually tell if a font program has been • The U.S. Postal Service has been ­patented: Ordinarily, the word Patent or the ­legally entitled to claim copyright in abbreviation Pat. and the patent number postage stamp designs at least since will appear on the packaging or in the 1970, when the former Post Office ­program itself. was remade into an independent It’s likely, however, that few typefaces corporation. However, the Service qualify for design patent protection. This did not ­begin to claim copyright in is because a typeface must be both novel its stamp designs until 1978. You’ll and nonobvious to qualify for a patent. find ­copyright notices on sheets of Few typefaces are either—most consist of stamps published during or after 1978. reworkings of preexisting designs. ­However, if you reproduce pre-1978 Finally, you should be aware that state public ­domain postage stamps in and federal trademark laws protect some of color, the reproduction must be the names given to fonts. For example, the at least 50% larger or 25% smaller name Helvetica is a protected trademark. than the original stamp. Black and This means that although the font itself may white reproductions can be any size. not be protected, the name could be. So, Copyrighted postage stamps may be although the Helvetica typeface may be used without obtaining permission freely copied, the name may not be used from the U.S. Postal Service in to advertise the typeface to the public. editorial matter in newspapers, chapter 5: Art 139

magazines, journals, books, stamp after final use. On the other hand, catalogues, and stamp albums. If an U.S. coins may be reproduced in uncanceled postage stamp is depicted ­photographs, illustrations, movies, and in color, it must be less than 75% or slides in any size. more than 150% of life size. • Special federal laws protect the ­characters of the Woodsy Owl used by the Department of Agriculture, the Crash Test Dummies used by the ­Department of Transportation, and Smokey Bear used by the U.S. Forest Graf Zepplin 1933 air mail stamp Service. These may not be reproduced without permission. • Federal government agency seals, Moreover, certain organizations that you logos, emblems, and insignias may might think are part of the U.S. government not be reproduced on articles—for are not considered to be so. This includes ­example, on T-shirts—without the Smithsonian Institution and all of its government permission. This branches and the National Gallery of Art includes, for example, the NASA in Washington, DC. Both are independent insignia logo (the blue “meatball” quasi-governmental entities that are entitled insignia) and the Presidential Seal. to claim copyright in the works their ­em­ In addition, such items may not ployees create, and in fact do so. be used in advertisements, posters, Information concerning art owned by the books, stationery, plays, motion U.S. government can be accessed from the pictures, telecasts, or on any General Services Administration website at building in a manner that ­conveys www.gsa.gov/pbs/pt/pts/cultural.htm. a false impression of sponsorship or ­approval by the U.S. government or any department or agency. This Art Dedicated to the Public Domain prohibition is intended to help prevent fraud. Artists need not enjoy copyright protection • U.S. currency may be reproduced if they don’t want it. Instead, they may in black and white or in color, but dedicate their work to the public domain. only if the reproduction is one-sided, This means they give up all their rights in less than 75% or more than 150% the the work forever and anyone may use the size of actual currency, and if all the work without asking their permission. ­negatives, plates, digitized storage There is no prescribed formula for ­dedi­ medium, and everything else used in cating a work to the public domain. The the creation of the image are destroyed artist or other copyright owner simply has 140 The Public Domain

to make clear his or her intentions. For • a statue used to identify a restaurant example, stating “This work is dedicated • the image of a dog listening to a to the public domain” on the work would gramophone used to identify RCA be sufficient. It’s not even necessary to ­recordings, and make the dedication in writing. It could • the unique star shape used to identify be done orally, but it’s always best to Mercedes cars. write something down to avoid possible Even art that doesn’t qualify for copyright misunderstandings. protection may be trademarked. For However, it is not at all common for artists­ ­example, copyright does not protect simple to dedicate their work to the public domain; ornamentation such as chevron stripes. so it’s not likely you’ll encounter any. However, such stripes could be protected by the trademark laws if they are used as a product logo or part of a product’s Do You Intend to Use the Art in packaging, as in the chevron logo used by Advertising or on Merchandise? the Chevron Corporation for its gas stations. Trademark laws may also protect the nonfunctional aspects of product shapes Even if a work is in the public domain—that and containers. For example, trademark is, not protected by copyright—it may protection has been extended to the shape receive some legal protection under state of a Coke bottle and the front grill on a and federal trademark laws. These laws can Rolls-Royce. prevent someone from using a work of art For artwork to receive trademark in advertising, product packaging, or on protection, it must be used to identify or merchandise such as T-shirts, mugs, and distinguish a product or service that is plates. currently being sold to the public. Typically, A trademark is any word, symbol, device, the owner of a trademark will help the logo, or symbol that identifies and distin­ public identify it by using a trademark guishes one product from another. A ­service notice on or near the trademark. A trade­ mark is the same as a trademark, except it mark notice may consist of the symbols ®, is used to identify a service rather than a TM, SM, or the words “Registered in U.S. product. Trade dress means the total image Patent and Trademark Office” or “Reg.U.S. and overall appearance of a product or Pat & Tm. Off.” If you see such a notice service—for example, the shape, size, color anywhere on or near any work you want or color combinations, texture, or graphics. to use, be sure to check to see if it is a Any work of art can function as a protected trademark. trademark, service mark, or aspect of trade But, keep in mind that trademark dress. This includes, for example: protection does not confer an absolute chapter 5: Art 141

monopoly on the use of the mark. Even 1. The design must be novel—that is, the if a work of art or design is trademarked, exact same design must not have been you may still use it without permission for used before. purposes other than advertising or product 2. The design must be nonobvious—that packaging or on merchandise. Indeed, you is, the design may not be one that a may still, in many situations, be able to designer of ordinary capability who use it for some advertising or merchandise designs articles of the type involved purposes. (See Chapter 20 for a detailed could be expected to devise. discussion of trademarks.) 3. The design must be ornamental—it must create a pleasing appearance and not be dictated by purely functional Is the Art Protected considerations. by a Design Patent? Most designs don’t qualify for design patent protection because they are not novel or nonobvious. But, if the government Federal patent law protects inventions— ­issues a design patent, it lasts for 14 years. ­everything from new types of mousetraps In the past, design patents haven’t been to satellites. This book does not cover very popular. They were expensive and ­inventions. You may be surprised to learn, ­difficult to get and many of them were however, that patent law can also protect ­invalidated by the courts because they failed the ornamental design of a useful article to satisfy the novelty or nonobvious­ness such as a clock or cement mixer. This is ­requirements. However, courts have been where design patents come in. taking a more liberal view toward ­design A design patent may be used to protect a patents in recent years and their popularity new, original ornamental design embodied is increasing. in a manufactured object. The design can How can you tell whether a useful object be a surface ornament such as a pattern on is protected by a design patent? One way a beer mug or may consist of the shape of is to look for a patent notice. Although not the article itself such as the shape of a Rolls- mandatory, patent owners typically place Royce automobile or silverware set. patent notices on their works: the word Unlike copyright protection, patent protec­ “Patent” or “Pat.” followed by the patent tion is not automatic: one must apply for a number. However, patent notices are not patent from the U.S. Patent and Trademark always used, so the absence of a notice Office in Washington, DC, a process that does not conclusively mean the object is can take years. Three basic requirements not patented. must be met to obtain a design patent: Another easy way to determine if a design patent protects a manufactured object is to 142 The Public Domain ask the manufacturer. A more difficult way Part II: is to conduct a patent search—a search of the U.S. Patent and Trademark Office’s Art Reproductions records. Such searches can be conducted online or at special patent and trademark Because of the difficulty of obtaining access depository libraries. to original works of art, most people have Finally, since design patents only last to rely on reproductions. These include for 14 years, you can safely assume any (but are not limited to) photographs, prints, object that has been sold to the public for lithographs, photoengravings, collotypes, over 14 years is not protected by a design silk-screen prints, mezzotints, and three- patent. You can usually determine how long ­dimensional reproductions of sculpture. an item has been sold by contacting the When such reproductions are in the manufacturer. Another way to determine ­public domain, you may freely copy and the age of a design patent is to conduct a reproduce them and create new works patent search. based upon them provided that the original artwork is also in the public domain. For example, a public domain photo of an Sources of Original Art ­artwork that is also in the public domain can be freely used on a website. Using computer software such as Photoshop, you You can find museum listings at: may also freely alter the image and copy • The Yahoo Directory and reproduce it. (http://dir.yahoo.com/arts/museums__ galleries__and_centers) What If the Work Is Not in the Public • The Gallery Guide Online Domain? If you find that the work (www.galleryguide.org). you want to use is not in the public domain, Other helpful art websites are: you may be able to use it anyway under • Art History Resources on the Web a legal doctrine called “fair use.” If your (http://witcombe.bcpw.sbc.edu/ ­intended use doesn’t qualify as a fair use, ARTHLinks.html) you will need to obtain permission to use • World Wide Art Resources the work. See Chapter 22 for a detailed (http://wwar.com/artists1.html). ­discussion of your options where you For updates (and to directly link to these ­determine a work is not in the public resources) check my Web page (http:// ­domain. copyrightfree.blogspot.com). chapter 5: Art 143

Is the Original Work of Art For example, a photo of a public domain in the Public Domain? painting is ­published when it is offered for sale to the general public in an art book, postcard, poster, or slide. The same rules As explained below, some art reproductions apply to art reproductions and photographs. are copyrighted and some are not. But, Read Chapter 6 for a detailed analysis of one rule applies to all reproductions: If the publication. original artwork is not in the public ­domain, the reproduction is not either. You must ­always determine the copyright status of the original before deciding whether the Has the Copyright in the ­reproduction is copyrighted. (For a detailed Reproduction Expired? discussion of copyright protection for ­original artworks, see Part I above.) The copyright in an art reproduction It is possible for a reproduction to be in ­published as recently as 1963 could be the public domain while the original artwork in the public domain. The copyright in is still protected by copyright. For ­example many unpublished reproductions expired if a photograph of a famous copyrighted in 2003. The rules for how long copyright artwork lacks originality, it would be in lasts are the same for all types of work. the public domain. However, if the original Read Chapter 18 for a detailed discussion artwork is still protected by copyright, the of copyright duration to see if the work reproduction could not be used without you are interested in using has entered permission from the copyright holder of the public domain because its copyright the original. But there would be no need ­expired. to obtain a separate permission from the creator of the reproduction. Is the Reproduction in the Public Domain Due to Lack Has the Reproduction of a Copyright Notice? Been Published? If the copyright in a reproduction has not The answer to this question determines expired, it could still be in the public how long the copyright lasts and whether domain if it fails to comply with copyright it has to contain a copyright notice. As notice rules. You should carefully examine with any work, an art reproduction is the reproduction to see if it contains a published when it is made available to copyright notice—a © symbol or the word the general public on an unrestricted basis. “copyright” or the abbreviation “Copr.” and 144 The Public Domain

the copyright owner’s name. Copyright reproductions that are not protected by ­notices for photographs published before copyright on this basis—these may include 1978 don’t need to have a publication date. reproductions created as recently as last Art reproductions published from Jan. 1, week. If the original artwork is also in the 1978 through March 3, 1989 do need a public domain, these reproduction may be publication year date, except for postcards, freely used. greeting cards, stationery, jewelry, toys, dolls, and useful articles. determining whether an art repro- If the work lacks a notice and you know duction contains sufficient originality it was published before 1989, it may have to be protected by copyright is a judgment entered the public domain. Unfortunately, call and reasonable minds can differ. If it is not always easy (or even possible) to you’re not sure whether a reproduction ­determine if such works are in the public merits copyright protection, refer to ­Chap­ter domain. (See Chapter 19 for a detailed 1 for detailed guidance on how to deal with ­discussion.) foggy areas in the law of the public domain.

If the reproduction was never pub-­ Here We Examine the Originality lished, or published after March 1, Requirement for Works Other Than 1989, it doesn’t need a copyright notice and Photographs and Digital Copies. We deal with you can skip Chapter 19. these categories separately below ­because photographs present special ­problems that have yet to be resolved by the courts. Does the Reproduction Lack Originality? Reproductions Other Than Photographs If copyright protection for an art reproduction has not expired and it has Reproductions other than photographs a proper copyright notice, it may still be ­include lithographs, photoengravings, in the ­public domain for another reason: and three-dimensional reproductions lack of originality. A reproduction of a of sculpture. The amount of originality public ­domain work of art is entitled to required for such works to receive copyright copyright protection only if it is original. protection is fairly small. All that is required It cannot be simply an exact copy of the is that the creator of a reproduction original artwork. Reproductions that lack contribute some­thing more than what the originality are in the public domain. There courts have called “a merely trivial variation” are undoubtedly a vast number of art on the original public domain work. The chapter 5: Art 145

contribution must be a substantial variation, drawing is not protected by copyright as an “something recognizably­ his [the creator’s] art reproduction. Both the original drawing own.” Alfred Bell & Co. v. Catalda Fine Arts, and the photocopy are in the ­public 191 F.2d 99 (2d Cir. 1951). domain. On the other hand, a photocopy of For example, mezzotint engravings of a montage made of several public domain public domain old master paintings were drawings would be protected by copyright. found protected by copyright because the Likewise, the act of transferring a work of engraver had to use skill and judgment to art from one medium to another is not by create the engravings—that is, the engraver itself sufficient to give copyright protection to had to decide how to portray the paintings the copy. Rather, a copy in a new ­medium through the use of different lines and dots is protected by copyright only where the on a metal plate producing varying degrees copier makes some identifiable original of light and shade. Such engraving was a contribution. For example, transferring a very different operation than creating the painting on canvas to a coffee mug or plate original public domain paintings with a does not by itself result in a copyrighted brush and paints. Thus, the engravings were ­reproduction. not mere “slavish” copies. They ­required an independent act of creation by the engraver. Example: In the late 1960s, John (Alfred Bell & Co. v. Catalda Fine Arts.) McConnel created the first “Earth Flag” On the other hand, purely trivial or ­minus­ by copying a photograph of the Earth cule variations are not enough to make a taken by Apollo astronauts onto a piece reproduction protected by copyright, even of blue fabric. The flag became a well- if they require great technical skill and known symbol of the environmental effort. For example, one court ruled that a movement. Some 30 years later, the plastic version of a public ­domain cast iron Alamo Flag Company created and mechanical coin bank was not protected sold an almost identical flag. The by copyright because the plastic bank was company that McConnel licensed his substantially the same as the public domain flag design to sued Alamo for copyright cast iron version, except that it was made infringement and lost. The court held from plastic and was slightly smaller. L. that the original Earth Flag was in the Batlin and Son, Inc. v. Snyder, 536 F.2d 486 public domain because it was not a (2d Cir. 1976). copyrightable work of authorship. The Similarly, art reproductions made by photo of the Earth McConnel used was purely mechanical or photomechanical taken by government employees and ­processes are not protected by copyright. no creativity was required to reproduce This includes photocopying—for example, a it on a flag-size piece of cloth. The flag photocopy of a public domain pen-and-ink was nothing more than a public domain 146 The Public Domain

photo transferred from paper to fabric. collection and published them without As such, it was itself in the public obtaining Bridgeman’s permission. The domain and could be freely copied. images were included on clip-art CD-ROMs McConnel did not have a copyright and placed on the Corel website where over the idea of creating a flag with they could be downloaded for a few dollars a photo of the Earth—like all artistic each. ideas, this was in the public domain. Bridgeman sued Corel claiming that the Earth Flag Ltd. v. Alamo Flag Co., 153 unauthorized duplication of the photos F.Supp.2d 349 (S.D. N.Y. 2001). was copyright infringement. The court held that no infringement was involved because the photos were in the public domain. Photographs of Public The court found that the photos lacked Domain Artwork originality and therefore could not be copyrighted as art reproductions. As noted Photographs of public domain artwork above, a ­reproduction of a public domain ­deserve special treatment. Except for those work of art is protected by copyright only relatively rare occasions where we go to if there is some nontrivial variation on the museums or art galleries, most of us rely original public domain work. The court on photographs to view public domain noted that the whole purpose of taking art works. These may be published in art the photos was to make “slavish copies” books, art slides, art exhibition catalogues, of the public domain originals—that is, to postcards, or posters. Legal protection for reproduce the underlying public domain photographs in general is discussed in works with ­absolute fidelity. While this Chapter 6. This section focuses solely on took both effort and skill, it did not require the question of whether photographs of originality. The photos stood “in the same public domain art works are protected by relation to the original works of art as a copyright as art reproductions. photocopy stands to a page of typescript, The most significant court decision on this a doodle, or a Michelangelo drawing.” question held that photographs of public Bridgeman Art ­Library Ltd. v. Corel Corp., domain paintings lack originality and are 25 F.Supp.2d 421 (S.D. N.Y. 1999). therefore in the public domain. The case The Bridgeman case has attracted much involved the Bridgeman Art Library Ltd., a attention in the art world. Some people company that has obtained the exclusive seem to think it means they can now freely rights to license photographs of hundreds of copy photographs of public domain art. public domain art masterpieces from various However, this is not true, for the following museums. Corel Corp. allegedly ­obtained reasons: more than 150 images from the Bridgeman chapter 5: Art 147

• Although the reasoning of the you could get sued for copyright Bridgeman case is persuasive and infringement, notwithstanding the is in line with some other cases that Bridgeman decision. The existence of have held that exact photographic the Bridgeman case will be helpful ­reproduction of public domain art to your case. Indeed, you probably are not protected by copyright, the have a very good chance of winning. case does not establish the law for But there is no guarantee that you will the ­entire United States. It is merely a win. Moreover, even if you win you’ll ­decision by one federal district court still have to go through the expense trial judge in New York. Other courts and trauma of court litigation. are not bound by the ruling and are • In reaction to the Bridgeman decision, free to disagree with it. companies, museums, and other • The federal courts are only bound by ­organizations that publish art photos decisions made by the federal courts are relying on license agreements of appeal or the U.S. Supreme Court. more than ever—that is, they require Unfortunately, none of these courts people who purchase or obtain has ruled on whether photographs of ­permission to use their photos to public domain art are protected by agree to a license (a type of contract) copyright. As a result, this remains limiting how they may use the photos. a legal question without a definitive In this way, they can sue for breach ­answer. of the license agreement if someone • People who take and publish photos ­violates the terms of the license. of public domain artworks have How­ever, there are limits on the claimed in the past and will continue ­effectiveness of licenses. For example, to claim copyright protection for in the Bridgeman case Corel was able their photos—look at any artbook to obtain the photos from a third party containing photos of public domain without signing a license. Moreover, art and you’ll find a copyright notice the legal enforceability of such and likely a warning statement barring licenses is questionable. (See Chapter any copying of the book without 2 for a detailed discussion.) permission. • The Bridgeman case only dealt with • The fact that copyright claims in photos of two-dimensional artworks ­photos of public domain art are made —paintings, frescoes, and drawings. does not mean that such claims are Photos of three-dimensional works legally valid. However, if you copy such as sculpture may be protectable a photo of a public domain painting as art reproductions because there are or drawing without permission, many ways to photograph a three- 148 The Public Domain

­dimensional object, particularly a large Digital Reproductions one—choices as to lighting, angle, and so forth that may add ­originality to the The newest method of reproducing a work reproduction. of art is to create a digital reproduction and • The Bridgeman case has no applica­­tion store it on a computer. Such reproductions at all to cases where a photographer are found on many websites on the Internet makes something other than a “slavish and on CD-ROMs and DVDs offered for copy” of a public domain work—that sale to the public. The most common way is, a reproduction as faithful to the of creating a digital reproduction is to use a original as photographic technology computer scanner to create a digital copy of allows. For example, a photo of the a photograph of the artwork. In some cases, Mona Lisa would be ­protected by the original work is scanned rather than copyright if the photo­grapher lit it in a ­photograph—for example, an original such a way that only Mona Lisa’s face drawing could be scanned. Photographing was visible, not the background. a work of art with a digital camera can also create a digital reproduction. whether a photograph of a public As mentioned above, art reproductions domain work of art is protected made by purely mechanical means such by copyright remains a gray area. Before as photocopying cannot obtain copyright copying such a photo, refer to Chapter 1 for ­protection. It follows logically, then, that ­detailed guidance on how to deal with these a photograph of an original work of art foggy areas in the law on public domain. ­intended to be an exact copy of the ­original should not have copyright protection. In many cases photos of public domain For this reason, the Copyright Office has artworks are in the public domain for ­refused to register many scanned images ­reasons that have nothing to do with the of public domain artworks. However, some originality issue. For example, a photo companies that own digital copies of public ­published initially­ in the United States domain artworks continue to claim copyright ­between 1923-1963 is in the public domain in them. Such claims are probably spurious, if its copyright was not renewed on time, but you might still be threatened with a as may be photos published before March lawsuit if you treat such companies’ digital 1, 1989 without a valid copyright notice copies as public domain. (See Chapter­ 1 for (see Chapter 19). ­Using photos in these detailed guidance on how to deal with such categories will virtually­ eliminate the public domain problem areas.)­ possibility of getting­ sued. Moreover, if a scanned image of a public domain artwork is altered in some way, it may acquire copyright protection. For chapter 5: Art 149

­example, a person who scans a photo of Be careful, however, where a creator a landscape painting by John Constable sends mixed messages. For example, if a could change the color of the sky, move photographer states that his art photos are the ­location of a brook or even remove a in the public domain, but then attempts to ­human figure. This sort of thing is easily restrict how the public may use them—for done with computer technology. Such example, by saying “This work is public changes represent new authorship that is domain but may not be posted on the protected by copyright. World Wide Web without my permission.” Digital copies created by directly When a work is dedicated to the public photographing artworks with digital ­domain, the author may not restrict how cameras present the same legal issues as it is used. A statement like this leaves it traditional photographs taken with film unclear whether the author really intended cameras discussed in the previous section. to dedicate the work to the public domain. It’s wise to seek clarification from the creator or ask permission for the restricted Is the Reproduction Dedicated use. to the Public Domain? Similarly the use of the phrase “copyright free” by the author need not mean the work is dedicated to the public domain. People who create protected-by-copyright The words “copyright free” are often used art reproductions need not enjoy copyright to describe photos and clip-art that are protection if they don’t want it. Instead, ­under copyright, but are sold to the public they may dedicate the reproduction to the for a set fee rather than under a royalty public domain. This means they give up all ­arrangement. their rights in the work forever and anyone may use the work without asking their Dedicating an Art Reproduction to the ­permission. Public Domain Does Not Mean That There is no prescribed formula for the Original Work of Art Enters the Public ­dedicating a work to the public domain. The Domain as Well. You must be sure the creator or other copyright owner simply ­original artwork is in the public domain has to make clear his or her intentions. For ­before deciding to use a reproduction that example, stating, “This work is dedicated has been dedicated to the public domain. to the public domain” on an art photo (See Part I above.) would be sufficient. It’s not even necessary to make the dedication in writing. It could be done orally, but it’s always best to write something down to avoid possible mis­ understandings. 150 The Public Domain

Will You Use the looked like three-dimensional embroidery. Reproduction in Advertising Copyright only protected the three- dimensional effect, not the elements of or on Merchandise? the design directly copied from the public domain ­designs. Millworth Converting Corp. An art reproduction in the public domain v. Slifka, 276 F.2d 443 (2d Cir. 1960). may receive some legal protection under You are always free to copy the original the state and federal trademark laws if public domain work. But you don’t have to some­one is using it in advertising, product go back to the original. You can copy the packaging, or on merchandise such as copy so long as you don’t copy the original T-shirts, mugs, plates, etc. If this is the elements that make the copy different than case, you may be prevented from using the the original. For example, you can use a ­reproduction for similar purposes. Read mezzotint engraving of the Mona Lisa to Chapter 20 for a detailed discussion of the paint your own version of the Mona Lisa. trademark laws. But you can’t make an exact copy of the engraving—that is, copy each line and dot made by the engraver. Are Elements of the Reproduction in the Public Domain? Sources of Art Reproductions

Art reproductions receive limited copyright Some websites that will assist in locating protection. Even if an art reproduction as public domain art reproductions include: a whole is not in the public domain, it • Art History Resources on the Web will likely contain individual elements that (http://witcombe.bcpw.sbc.edu/ are in the public domain. These may be ARTHLinks.html) copied freely even if the work as a whole • World Wide Art Resources may not be. (http://wwar.com/artists1.html) All that is protected in an art reproduction • Dover Publications is the new authorship added to the original (http://store.doverpublications.com). public domain work. For example, a For updates (and to directly link to these fabric designer reproduced public domain resources) check my Web page (http:// designs on a fabric in such a manner that copyrightfree.blogspot.com). n by arranging varying colors the flat surface Chapter 6

Photography

What Good Are Public Domain Photographs?...... 152

Deciding Whether Photographs Are in the Public Domain...... 152 Has the Photograph Been Published?...... 152 Finding the Date and Country of Publication...... 154 Has the Copyright in the Photograph Expired?...... 156 Is the Photograph in the Public Domain Due to Lack of a Copyright Notice?...... 156 Is the Photograph Eligible for Copyright?...... 157 Does the Photograph Contain Copyrighted Materials?...... 159 Will You Use a Photograph for Commercial Purposes?...... 161

Sources of Public Domain Photographs...... 162 152 The Public Domain

hotographs include any product of When a photo is in the public domain, the photographic process, such as you are free to copy, reproduce, display, or P prints, negatives, slides, and film­ alter it without obtaining permission from strips. Since the invention of photography in anyone. For example, you can use it in a 1839, it’s likely that billions of photographs book or article or post it on your website. have been taken, many millions of which However, there are some exceptions to this are in the public domain. rule: Permission may be needed if the photo contains people or trademarks and Many Works That Are in the Public you intend to use it for advertising or on Domain in the United States Are Still merchandise. Protected by Copyright Outside the United Public domain photos are not always States, and Vice Versa. This chapter only free, because you may have to pay a fee covers the public domain in the United to obtain actual or digital copies of them, States. For a detailed discussion of the but they are usually much cheaper than ­public domain abroad, see Chapter 16. ­copy­righted photos. Moreover, there are thousands and thousands of public domain photos that can be obtained for free from What Good Are books, newspapers, and magazines sitting Public Domain Photographs? on library or archive shelves.

Everyone likes to look at photographs. They are constantly being used in books, Deciding Whether Photographs magazines, newspapers, posters, postcards, Are in the Public Domain and even in documentary films. Nobody knows how many photos have been posted The first step in determining the public on the Internet, but the number must be ­domain status of a photograph is to decide well into the millions. if it has been published. Ordinarily, you need to obtain permission to use someone else’s copyrighted photo­ graph. This permission usually isn’t free. For Has the Photograph Been Published? example, high-end stock photo agencies— companies that specialize in licensing photos To determine how long a particular to the public—usually charge at least $150 photograph retains copyright protection, per photo, often much more. Famous ­photos you must determine whether it was may cost thousands of dollars to use. If published properly under the rules of you want to use a photo more than once, copyright law and, if so, when. The answer additional fees may have to be paid. to these ­questions will determine how long the copyright in the photo lasts. chapter 6: Photography 153

Free Pictures: Worth a Thousand Words

Emmy Werner, a developmental psycholo­ Through the Eyes of ­Innocents: Children gist at the University of California at Witness World War II, was published in early Davis, wanted to write a book about the 2000. The moving photo of two ­children experiences of children during World War below is from the frontispiece of the book. II. She realized that including pictures taken of children during the war would greatly ­enhance the book. So she traveled to the National ­Archives in College Park, Md., where she was given access to hundreds of photos of children taken ­during World War II by the U.S. Army Signal Corps. All these ­photos were in the ­public domain because they were taken by U.S. govern­ment ­employees—soldiers whose job was to document the war. She chose about 40 photos to ­include in her book. She had a private ­company ­duplicate the photos at a cost of from $5 to $10 each. This was the only ­expense ­involved. ­Because the photos were in the public domain, she did not have to obtain permission to use them or pay any per­mission or license fees. Werner’s book, 154 The Public Domain

Like any work of authorship, a photo­ Date of Publication graph is published for copyright purposes You just need to know the year, not the when the copyright owner, or someone ­exact date, the photo was first published. ­acting on his or her behalf, makes the You can usually determine the publication photo available to the general public. In date from the work itself. First, look for a other words, any interested member of the publication date in the copyright notice. public may obtain a copy. Burke v. ­National Photos published before 1978 didn’t have to Broadcasting Co., 598 F.2d 688 (9th Cir. ­include a publication date in their copyright 1979). notices, but they often had them anyway— For example, photographs are published for ­example, © 1986 by Kim Kodak. when they are reproduced in newspapers, Photos published 1978-1989 did need a magazines, books, postcards, sets of slides, publication date in the notice. (See Chapter greeting cards, posters, T-shirts, mugs, or 19 for a ­detailed discussion of copyright any other item that is sold or otherwise notices.) made available to the general public. Photos are sometimes published alone, Of course, many photographs have as in a postcard. In this event, they will never been made available to the general often contain their own individual copyright public, including many that are quite old. ­notices. However, photos are also often For example, your own family snapshots published as part of a larger work—for collected in a family photo album likely ­example, books, magazines, and newspapers. have never been published. Moreover, Photos published in this way will sometime photos are not deemed published when have their own notice, but often they they are displayed to the public in an art won’t. In this event, the copyright notice gallery or museum. for the larger work will provide you with the publication date for the photo (books, Finding the Date and magazines, and newspapers have always Country of Publication needed a publication date in their copyright notices). However, be sure to check any If you determine that the photograph photo credit or acknowledgment section you’re interested in has been published, in the work to make sure the photo wasn’t you should also determine the year of previously published before it was included ­publication and the country where it was in the work you have. first published. Both these factors will affect If the photo lacks a copyright notice with how long the United States copyright in the a date, you’ll have to look elsewhere for photo lasts (see Chapter 18). clues about the publication date. Try the following: chapter 6: Photography 155

Examine the Work for a Date. Examine the post your research questions on the Internet work in which the photo was published— at www.ipl.org and a reference librarian will for example, a newspaper—for a publication email you with advice. date. Most published works contain some Research the Photographer. Researching indication of when they were published. the photographer or the author of the Look on the title page, the masthead, the larger work in which the photograph was page after the title page, and anywhere else published, may reveal the publication date. that seems logical. If the photographer or author is well known, Check the Library of Congress Card a biography or critical study may have a Catalogue. Check the Library of Congress detailed publication history for his or her card catalogue to see if it has as a record works. for the larger work in which the photo was Use the Internet. Search the Internet using published or for the individual photo itself. the name of the photographer, the name of You can do this in person at the Library any larger work in which the photograph in Washington, DC, or online through the was published, and the name of the author Library’s Web page (http://catalog.loc and publisher of that work. There may be .gov). The Library’s catalogue contains the a website devoted to the photographer, publication dates for millions of works in ­author, or even to the particular work, the Library’s collection. or some online reference with detailed Check Copyright Office Records. If either ­information about the work. A good place the individual photo or the larger work to find a list of Internet reference resources is in which it was published (if any) was the Internet Public Library at www.ipl.org. ­registered with the U.S. Copyright Office, Contact the Publisher. If the photo was checking Copyright Office registration published in a larger work such as a book records will reveal the publication date. or newspaper, contact the work’s publisher Many of these records can be researched and ask them to tell you when the work online (see Chapter 21). However, not all was first published. published works are registered with the Copyright Office, so there may be no record Country of Publication for it. Unfortunately, a work’s country of publi­ Check Reference Works. There are cation is not listed in the copyright notice. hundreds of reference works that may However, most published works typically be able to tell you when a work was say where they were published or printed. published. Go to a public or university You can often find this information on the library with a good ­reference section and same page as the copyright notice. If you ask the reference ­librarian for assistance. If can’t find the country of publication from you’re too busy to go to a library, you can the work itself, try using the resources 156 The Public Domain

listed above—they will ordinarily provide exactly when the photo’s copyright will the country of publication as well as the eventually expire. publication date.

Is the Photograph in the Has the Copyright in Public Domain Due to the Photograph Expired? Lack of a Copyright Notice? Once you determine if a photo has been before reading this section, you must published, you can figure out whether its determine whether the photograph copyright has expired. When copyright you want to use has been published for ­expires in a work, it enters the public copyright purposes. If the photo was never ­domain. The greatest single body of public published, it doesn’t need a copyright notice domain photos available for use in the and you don’t need to read any more of this United States is works for which the U.S. section. copyright term has expired. Unfortunately, determining whether a If a photo was published before 1989, it copyright has expired can be somewhat could be in the public domain if it lacks a complex. You’ll need to determine which copyright notice. A copyright notice for a of several possible copyright terms apply photograph must contain three elements— to the work in question. Photos published the familiar © symbol, the word “Copyright” as recently as 1963 could be in the public or the abbreviation “Copr.,” the publication ­domain. On the other hand, photos created date, and the name of copyright owner—for over 100 years ago (and more) could still be example: protected by copyright. The length of a copyright is the same © 1965 by Amos Adams. no matter what type of work is involved Examine the photo carefully to determine ­(photos, art, writings, music, etc.), so they if it has a notice. It can be anywhere on the are discussed in detail in Chapter 18. Turn front or back of the photo. Photos are very to that chapter now to determine whether often published as part of larger works—for the copyright in a photo you’re interested in example, in books, magazines, and news­ has expired. papers. It’s sufficient that the larger work has If the photograph you’re interested a copyright notice—the individual photos in was published after 1963, its included within it need not have their own copyright protection has not expired. If you notices (though they often do). For example, wish, you may skip to Chapter 18, however, a notice in the name of a magazine will and read that chapter if you want to know cover all the photos in the magazine. chapter 6: Photography 157

However, there is one exception to this ­perspective, deployment of light and rule: Photos contained in advertisements shadow from natural or artificial light published in magazines, newspapers, and sources, and effects achieved by use similar works must contain their own of filters and developing techniques copyright notices. • there may be originality in the You can usually find the notice for a book ­arrangement of the people, scenery, on the page immediately following the title or other subjects depicted in the page or on the title page itself. Copyright photograph, or notices for magazines, newspapers, journals, • a copyright may be created because and other periodicals are usually found the photograph records a scene on the title page, the first page of text, or unlikely to recur—for example, a under the title heading. The notice may also battle between an elephant and a appear in a magazine’s masthead. tiger. Bridgeman Art Library Ltd. v. Read Chapter 19 for detailed guidance Corel Corp., 25 F.Supp.2d 421 (S.D. on how to determine whether a published N.Y. 1999). work is in the public domain because it The vast majority of photographs lacks a valid copyright notice. qualify as sufficiently original under one or more of these criteria. This includes, for example, a photo of the New York Is the Photograph Public Library, which a court ruled quali­ Eligible for Copyright? fied for copyright protection under the first criterion listed above. Photographs Certain types of photographs are ineligible made from photo footage of the John F. for copyright protection. These may be Kennedy assassination taken by an amateur copied or otherwise freely used unless cameraman named Abraham Zapruder were your use violates publicity rights, trademark also considered protected under the third rights, or if the subject of the photograph is criterion listed above. copyrighted. However, there are some types of photo­ graphs that lack originality: Photographs Lacking Originality • prints from a photographic negative Only photographs that are original can have • a photograph of a photograph that is copyright protection. There are three ways a an exact copy of the original photograph is deemed to be ­original: • a photograph that is an exact copy of • there may be originality in the way a page of text or other printed matter. the photograph is made—for example, Photographs that lack originality are such elements as choice of time not protected by copyright. However, and light exposure, camera angle or this does not necessarily mean that they 158 The Public Domain

may be freely used. A print, negative, or ­different from making a photocopy of a photograph of a preexisting photograph photograph with the photocopy machine. can only be freely copied or otherwise used Again, the only exception would be where if the original negative or photograph is the person making the scan changes or alters in the public domain. If not, permission is the ­original public domain photograph—for needed from the copyright owner of the ­example, changes a black and white photo original photograph. Similarly, a photograph into color. Such alterations are easy to do of a page in a book may not be freely used with computer technology and can obtain unless the book is in the public domain. copyright protection for the ­altered copy. But only the changes can be copyrighted, Some courts have held that exact not the original photo. photographic copies of paintings, drawings, or other two-dimensional works people who create digital copies of of art completely lack originality. However, public domain photographs by this has not been definitively decided. ­computer scanning often claim copyright (See Chapter 5 for a detailed discussion of in the copies. These claims are probably copyright protection for art photos.) ­spurious where the digital copy is an exact or ­“slavish” copy of the original photo. Mechanical Copies of Public Nevertheless, you could get sued for Domain Photographs copyright infringement if you copy such digital copies. See Chapter 1 for detailed A public domain photograph can be copied guidance on how to deal with such public by mechanical means using a photocopy domain gray areas. machine or a computer scanner, which makes a digital copy that can be stored on a computer and printed out. Photographs by U.S. A photocopy of a public domain photo Government Employees is also in the public domain, since a photo­ Works of authorship created by U.S. copier applies no originality to the public government employees as part of their domain work. The only exception is where job are ordinarily in the public domain, the copier alters the settings on the photo­ including photographs. For example, the copy machine to create something other photos taken by astronauts while on the than an exact copy of the original photo. moon are in the public domain—as are A computer scan of a public domain all other NASA photos—as well as tens of ­photograph that is an exact copy of the thousands of photos taken during World original is also likely in the public domain. War II by the U.S. Army Signal Corps. Such a digital copy is fundamentally no chapter 6: Photography 159

However, photographs of federal govern­ a natural object such as a vodka bottle. ment agency seals, logos, emblems, and However, a photo of a natural object is ­insignias may not be reproduced on ­articles entitled to copyright protection if it contains —for example, on T-shirts—without govern­ sufficient detail to make it minimally ment permission. This includes, for example, creative. In that case, you don’t have the the NASA insignia logo and the Presidential right to copy such a photo. Ets-Hopkin v. Seal. In addition, such photographs may not Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. be used in advertisements, posters, books, 2003). or stationery in a manner that conveys a For example, anybody can create a false impression of sponsorship or approval photograph of a peach. Although peaches by the U.S. government or any government are in the public domain, a photo of a department or agency. peach that makes creative use of lighting Moreover, certain organizations that you or perspective cannot be copied without might think are part of the U.S. government permission. You could also infringe on a are not considered to be so. These include prior peach photo if you took your photo the Smithsonian Institution and all of its yourself, but copied the way the prior branches and the National Gallery of Art photo looked. Yankee Candle Co. v. The in Washington, DC. Both are independent Bridgewater Candle Company, 259 F.3d 25 quasi-governmental entities that are entitled (1st Cir. 2001). to, and do, claim copyright in works ­created by their employees. (See Chapter 3 for a Photos of Copyrighted Works more detailed discussion.) Photographs are often made of copy­ righted works of authorship such as paintings, Does the Photograph drawings, and sculptures. Less frequently, Contain Copyrighted Materials? photographs may also be taken of other types of works of authorship such as Even if a photograph is in the public the pages in a copyrighted book. Such ­domain, you may not be able to use it if photographs are derivative works—new the subject matter in the photo is protected works created by transforming a preexisting under copyright law. work. The owner of the preexisting work has the exclusive right to create such Nature Is Public Domain derivative works for as long as his or her work is ­protected by copyright. Nobody “owns” the natural world around It is possible for a photograph of a work us. For example, anyone can photograph of art such as a painting to be in the public Yosemite National Park, a human face, or domain while the art itself is still protected 160 The Public Domain

by copyright. In this event, you would need to obtain permission from the copyright Architectural Photographs owner of the work of art to reproduce or otherwise use the photograph (but no permission would be needed from the owner of the photograph).

Although buildings can be protected by copyright (see Chapter 9) they may always be photographed without permission if they can be viewed from a public place— for example, a public street. When an ­architectural photograph enters the public domain it may ordinarily be used freely without permission from the owner of the copyright in the building itself. But there is one possible exception: If the building serves as a trademark—that is, it helps identify a product or service sold to the public—a photograph of it may violate the trademark laws if the photograph is also used as a trademark. For example, the The Mona Lisa by Leonardo Da Vinci, The Louvre ­distinctive pyramid-shaped Trans­america building in San Francisco serves as a trademark for the Transamerica Corpo­ ration. Using a photo of the building to advertise or promote a product or service could ­violate Transamerica’s trademark rights. This could be so even if the photo was not protected by copyright. chapter 6: Photography 161

Example: Sam finds a photograph of If you intend to use a photograph Grant Wood’s painting American Gothic containing people or trademarks that was published as a postcard in for advertising or other commercial 1960. The copyright in the postcard purposes—for example, on merchandise was not renewed on time, so it entered such as T-shirts, coffee mugs, dishes, and the public domain on January 1, 1979 ashtrays—you need to make sure that your (see Chapter 18 for detailed ­explanation use does not violate state right of publicity of copyright renewal ­requirements). laws or state and federal trademark laws. However, the original Grant Wood Such violations could occur even though painting is not in the public domain. the photograph is in the public domain, This means that permission to meaning not protected by copyright. reproduce the postcard would have to For example, there are likely hundreds be obtained from Grant Wood’s ­estate, of photographs of Elvis Presley that are but not from the photographer. in the public domain (all those published before 1964 that never had their copyright You don’t have to worry about permissions renewed). Even so, you can’t use such a if the subject of the photograph and the photo in an advertisement for a product or photograph itself are in the public domain service without consent from the Presley —for example, a public domain photograph estate. Doing so will likely get you sued for of the Mona Lisa. The Mona Lisa has always violating Presley’s right of publicity. been in the public domain, so a public Similarly, there are many photographs ­domain photo of it may be used freely. containing the Coca-Cola name and logo that are in the public domain. Even Will You Use a Photograph so, you may not use such a photo for any ­advertising or commercial purpose for Commercial Purposes? without ­violating the Coca-Cola company’s There are some special legal concerns trademark rights. where a photograph contains people or In contrast, right of publicity and trade­ trademarks. A trademark usually consists mark laws are not violated when you use of a word, phrase, logo, or other graphic a ­photograph containing people or trade­ ­symbol used to identify a product or marks for noncommercial purposes—that ­symbol. Trademarks include product logos, is, ­editorial or informational uses, such as brand names, company names, product ­using a photo in a news story, nonfiction packaging, or the distinctive shape of a book, or documentary photo or video. product such as a Coke bottle. If you see Right of publicity and trademark laws the ® or TM symbols in a photograph you are discussed in detail in Chapter 20. know it contains a trademark. 162 The Public Domain

Sources of Public • The George Eastman House Domain Photographs International Museum of Photography and Film (www.eastman.org) • New York Public Library Photo Some resources for public domain Collection (www.nypl.org/research/ photography include: chss/spe/art/photo/photo.html) • Library of Congress Prints and • National Archives and Records Photographs Reading Room Administration Archive Research (http://lcweb.loc.gov/rr/print) Center (www.archives.gov/research_ • Library of Congress Public Domain room/arch/index.html) Reprint Service • Tulane University Index of Archival (http://lcweb.loc.gov/preserv/pds) Indexes (www.tulane.edu/~lmiller/ • Price list for Public Domain Photo ArchivesResources.html) Reprints (www.loc.gov/preserv/pds/ • University of Idaho Archives photo.html) (www.uidaho.edu/special-collections/ Other.Repositories.html) • Public Domain Pictures (www.princetonol.com/groups/iad/ links/clipart.html) • Wikipedia (http://en.wikipedia.org/wiki/Public_ domain_image_resources). For updates (and to directly link to these resources) check my Web page (http:// copyrightfree.blogspot.com). ■

Theodore Roosevelt and John Muir on Glacier Point, Yosemite Valley, California. Library of Congress, Prints and Photographs Division Chapter 7

Movies and Television

Part I: Films...... 165

What Good Are Public Domain Films?...... 165

Has the Film Been Published?...... 166 Film Distribution Methods...... 166 Determining Publication Date and Country...... 167

Has the Copyright Expired?...... 168 Films Published in the U.S. Before 1923...... 168 Films First Published in the U.S. During 1923-1963 and Not Renewed...... 169

Is the Film in the Public Domain Due to Lack of a Copyright Notice?...... 175

Is the Film Protected by Copyright?...... 175 U.S. Government Films...... 176 Copies of Public Domain Films...... 176

Does the Film Contain Copyrighted Visual Art?...... 177

Do You Plan to Use the Film for Advertising or Other Commercial Purposes?...... 178

Part II: Television Programs...... 178

Has the Television Program’s Copyright Expired?...... 179 What Is Publication?...... 179 Were Television Programs Published When Syndicated?...... 179 What Should You Do?...... 180 164 The Public Domain

Is the Television Program in the Public Domain Due to Lack of a Copyright Notice?...... 181

Is It a U.S. Government TV Program?...... 181

Does the Program Contain Copyrighted Visual Art?...... 181

Will You Be Using Public Domain TV Programs for Advertising or Other Commercial Purposes?...... 182

Sources of Public Domain Films and TV Programs...... 182 chapter 7: Movies and Television 165

f a picture is worth a thousand words, a films made before 1963, and films made moving picture must be worth at least by the U.S. government. ­How­ever, this I ten thousand. But the cost of purchasing amounts to a huge treasure trove of public or licensing moving images for your own domain film footage that may have a variety projects is also much higher. One can easily of uses and save you­ substantial money. spend thousands of dollars for a few short When a film enters the public domain, clips of archival material. But there are you are free to use it in any way you wish many ways to save money on archival clips without obtaining permission from the by using the public domain. Public domain former copyright owner. For example: movies are discussed in Part I and television • you may show the film to the public programs are discussed in Part II. (there is one movie theater in Los ­Angeles that shows only silent films, Many Works That Are in the Public many of which are in the public Domain in the U.S. Are Still ­domain) Protected by Copyright Outside the United • you may make copies of the film, States, and Vice Versa. This chapter only whether on film or videocassettes, and covers the public domain in the United sell them to the public States. For a detailed discussion of the • you may remake the film—for ­public domain outside the United States see ­example, the 1937 public domain film Chapter 16. A Star Is Born has been remade twice, and • you may copy portions of the film and Part I: Films use the clips in new films. What If the Work Is Not in the Public What Good Are Domain? If you find that the film you Public Domain Films? want to use is not in the public domain, you may be able to use it (or at least part of it) Unless you’re a silent film fan, it’s not likely anyway under a legal exception called “fair that your favorite movie is in the public use” (see Chapter 22). If you do not qualify ­domain. Few sound films made by the for this exception, you will need to obtain ­major Hollywood studios are in the public permission to use the work. For a detailed domain. Most public domain films consist discussion of how to obtain copyright of silent films, obscure or low-budget sound permissions refer to Getting Permission: films made before 1963, non­theatrical films How to License & Clear Copyrighted Materials­ such as educational films and industrial Online & Off, by Richard Stim (Nolo). 166 The Public Domain

Has the Film Been Published? rental agreements with exhibitors who then showed the films to the public. Before 1949, Copyright protection begins when a film or several major studios owned their own other work is officially published and ends distribution companies and theaters. when it enters the public domain. The first Because films were rarely made available step in determining whether a particular for public sale, determining an official film is in the public domain is to determine ­publication date has been difficult for its publication date. these older films. However, a consensus Like any work of authorship, a film is has ­developed among copyright experts, published for copyright purposes when the film industry, and the courts that films the copyright owner or someone acting on were published for copyright purposes his or her behalf makes copies available when copies were placed in exchanges for to the general public. In other words, any distribution­ to theater operators. American interested member of the public may obtain Vitagraph, Inc. v. Levy, 659 F.2d 1023 (9th a copy. Burke v. National Broadcasting Co., Cir. 1981). It is safe, then, to assume that 598 F.2d 688 (9th Cir. 1979). any film that has been distributed and Publication occurs only when copies of shown to the general public in movie a film are made available to the public for ­theaters has been published for copyright purchase, rental, or loan. Showing a film to purposes. the public in theaters or on television does For films that were sold to the public, not constitute publication for copyright like educational films sold to schools, ­purposes. This is true even if thousands or ­publication began at the time they were first millions of people have seen the film. offered for sale or rental to the public. Films are also published when videotape copies are sold or rented to the public. Film Distribution Methods However, the consumer VCR is such a recent technology that this form of Before the invention of the VCR, copies publication is largely useless for our of theatrical films were almost never sold purposes. In other words, a film must to the public. Instead, they were leased have been published long before the VCR or rented to film distributors and theater became commonplace for it to be in the ­owners. The process worked like this: public domain. The only exceptions are Once the film was produced, prints of the those films published on videotape during film were transferred to an independent the 1970s and 1980s ­without a copyright film distributor that made several hundred notice—but there are probably very few ­copies and sent them to its branch offices films in this category. Films that are released (also called “exchanges”) around the ­directly to video, bypassing a release world. The exchanges entered into film chapter 7: Movies and Television 167

in theaters, are published for copyright If you do not have access to the Internet, ­purposes when they are first offered for sale or if the film you are searching for is not on to the general public. the database, there are a number of printed film guides that may help. Perhaps the best one-volume film guide is Halliwell’s Film Determining Publication and Video Guide (HarperReference), which Date and Country is updated each year. If you can’t find a ­reference to a film in Halliwell’s or a similar If you have a copy of the film, take a look one-volume guide, try consulting the multi- at the copyright notice—the symbol © or volume AFI Catalog of Feature Films, ­pub­- word copyright followed by a year date lished by the American Film Institute. The and name of the copyright owner—for most comprehensive national filmography, ­example: © Copyright 1935 Paramount it consists of a series of ­volumes providing ­Pictures, Inc. The date in the notice is the documentation on all films produced in the date the ­copyright owner states the film United States from 1893 to 1970. A library was first published. You can ordinarily find with an outstanding film collection or film the copyright notice for a film either at the archive may have a copy. ­beginning or end of the film as part of the If none of these methods result in finding title or credits. If you have a videotape of a a publication date, you will be able to film, a copyright notice may be printed on ­determine the publication date for a film by the packaging. However, this may not ­always examining copyright registration records— be the date the film was first ­published. provided that the film was registered with If you don’t have a copy of the film, the the Copyright Office (not all films were; easiest way to determine whether or when see Chapter 21). However, this is usually a film was published is to use the Internet not necessary, since the history of motion Movie Database website at www.imdb.com. ­pictures has been so well documented in This will give you the year the film was books and on the Internet. ­“released,” which would ordinarily have In addition to the publication date, you been the year it was placed in exchanges need to know the country in which the for distribution. The Internet Movie Data­ film was first published. Check the Internet base contains detailed historical information Movie Database (www.imdb.com). It will on over 200,000 films and videos. If you ordinarily indicate a film’s country of origin check the “release information” link you and may also show the film’s release dates can often find the exact date the film was in various countries. The various film released, which is more information than ­reference works discussed above may also you really need, because knowing the year prove helpful. Checking the Copyright is sufficient. ­Office registration records for the films will 168 The Public Domain also reveal the country of origin, copyright Films Published in the owner, and publication dates for a film. (See U.S. Before 1923 Chapter 21 for a detailed discussion.) You may have problems checking the All films published in the United States status of British films, because they were ­before January 1, 1923 are in the public ­often released with different titles in the ­domain. Since sound films did not become United States and Great Britain. The Internet popular until the 1927 release of The Jazz Movie Database will usually show these Singer, all these public domain films are ­alternate titles. Also, a book called The ­silent films. However, there are many works ­British Film Catalog 1895-1970, by Denis of interest in this group, including famous Giford, lists more than 15,000 British films, films by Charles Chaplin, Buster Keaton, often including their U.S. titles. This book and Harold Lloyd. Even those silent movies is out of print, but you may be able to find that aren’t artistically exciting may contain it in a good collection of film materials or interesting historical footage. purchase it from used booksellers. For an excellent introduction to the glories of the silent film era, see The Has the Copyright Expired? Parade’s Gone By, by Kevin Brownlow (University of California Press). In addition, you can find a list of dozens of websites Once you have determined the official about all aspects of silent films at: www.cs ­publication date of a film, you can determine .monash.edu.au/~pringle/silent/faq/sites.html. whether its copyright protection has expired. Remember, once copyright has expired, the All pre-1923 newsreels (of which there work of art has entered the public domain were many) are also in the public domain. and may be used for any purpose without These were collections of filmed news paying a fee to the creator or former events, much like today’s television news, owner of the product. (With a few possible and are the only film record we have of restrictions detailed later in this chapter.) the early years of the 20th century. They The largest single group of public domain are a treasure trove of public domain film films are those whose copyright has expired. footage on thousands of subjects, from early Generally, these are older films, but some attempts at flight to the rural electrification films published as recently as the early of the country and the creation of the 1960s are in the public domain. Copyright automobile. Be aware, however, that many duration in general is discussed in detail in early newsreels contain phony recreations Chapter 18. Read that chapter now to get of historic events rather than authentic on- a general background. Then read the rest the-scene footage, and their creative lineage of this section, which applies these general is difficult to trace. rules specifically to films. chapter 7: Movies and Television 169

Unfortunately, film preservation experts it been renewed, it would have been estimate that 85% of all silent films have ­protected by copyright for 95 years, or been lost. Many were simply thrown until the end of 2055. away, while many others were allowed to deteriorate until their chemically unstable The compilers of the Film Superlist (see nitrate film stock turned to dust. For a below) estimate that about 20,000 theatrical detailed study of the sad history of film films are in the public ­domain because they preservation, see Nitrate Won’t Wait, by were never renewed. One third of all films Anthony Slide (McFarland & Company). published between 1912 and 1939 were not renewed. Of course, most of these were See below for more reference silent films that were not renewed because materials on how to locate public their owners viewed them as having no domain silent films. value after the introduction of films with sound. Nevertheless, there are a number of well-known films made during the late Films First Published in the 1920s, 1930s, 1940s, and 1950s that are in U.S. During 1923-1963 and the public ­domain ­because they were not Not Renewed renewed. These ­include: • A Star Is Born, (1937), directed by Under the copyright law in effect at the ­William Wellman and starring Janet time, all films published between 1923 and Gaynor and Fredric March 1963 received an initial copyright term of • The General, (1927), directed by and 28 years. They were also eligible to receive starring Buster Keaton a second term of 67 years if the copyright • The Gold Rush, (1925), directed by owner (or someone acting on their behalf) and starring Charlie Chaplin filed a renewal application with the Copy­ • McClintock! (1963), starring John right Office during the 28th year after publi­ Wayne cation. If the copyright owner failed to do • Of Human Bondage, (1934), starring this, the film entered the public domain on Bette Davis, and January 1 of the 29th year after the year it • Nothing Sacred, (1937), starring Carole was published. Lombard. The major Hollywood film studios—Metro- Example: Little Shop of Horrors, a cult Goldwyn-Mayer, Paramount, Warner Brothers, classic horror film directed by Roger Universal, Columbia, RKO, and Twentieth Corman and starring Jack Nicholson, Century Fox—generally took care to renew was published in 1960, but not renewed their films, although even they sometimes during 1988. As a result, it entered the made mistakes. For example, MGM missed public domain on Jan. 1, 1989. Had renewing some films released in 1950 and 170 The Public Domain

Universal did not renew 11 features­ copy­ private search firm to do it for you. (See righted during the summer of 1938. Chapter 21 for a detailed discussion of More commonly, however, it was small copyright renewal searches.) However, studios and independent producers who there are special problems posed by films neglected to renew their films. This was that were not renewed. These problems particularly likely where they were no ­exist in part because film is a collaborative longer in business by the time renewal was medium combining many different works of required (28 years after the film was first authorship. released). Some studios that are notorious Even if the film was not renewed, there for failing to renew their films are Hal are several problems you must resolve Roach Studios, Chesterfield, Invincible ­before you can finally decide whether the ­Pictures, and KBS Films. film is in the public domain. Particularly likely not to be renewed were “B” pictures (low-budget films), The Film Superlist such as low-budget westerns, horror films, exploitation films, and serials. These include You can avoid going to the trouble of many early John Wayne westerns, B-movies checking Copyright Office renewal such as Teenagers­ From Outer Space (1959), records yourself or hiring someone to and Francis Ford Coppola’s first directorial do it for you if you can find a copy of ­effort—a “nudie cutie” film called Tonight a publication called The Film Superlist: for Sure (1961). 20,000 Motion Pictures in the Public Even more likely not to have been Domain, by Johnny Minus and William ­renewed are nontheatrical films—that is, Storm Hale (7 Arts Press). The compilers films never meant to be shown in movie of the Superlist have gone through all theaters, such as industrial films, training the Copyright Office ­renewal records for films, and educational films. (Make sure, films and noted which were renewed. however, that such films were sold or The List consists of three volumes, leased to the public—if not, they were covering 50,000 films from the years not published for copyright purposes and, 1894–1939, 1940–49, and 1950–59. It therefore, they didn’t have to be renewed. can be obtained from the Hollywood The copyright for such unpublished films Film Archive, 8391 Beverly Blvd., PMB will not expire for many years.) 321, Hollywood, CA 90048 (323-655- To determine whether a film has been 4968). Copies of this expensive reference ­renewed, you ordinarily must search guide can also be found in some research ­Copyright Office records. You can do this libraries. yourself (many of the records are available online) or hire the Copyright Office or a chapter 7: Movies and Television 171

Problem #1: Was the Film First Published Outside the U.S.? No Copyright Restoration for Some Foreign Films Before 1996, thousands of foreign films published during 1923-1963 entered the There is one group of foreign films that public domain in the United States because were not renewed on time that still do not they were never renewed. These included qualify for copyright restoration: Those such classics as Grand Illusion (France, that had entered the public domain in 1937), Breathless (France, 1959), The their home countries as of Jan. 1, 1996. Bicycle Thief (Italy, 1949), The Blue Angel Copyright terms for films in most Western (Germany, 1931), The Third Man (United ­European countries last at least 70 Kingdom, 1949), and Yojimbo (Japan, 1962). years (usually much longer), so virtually However, a new law took effect on no films from these countries fall into ­January 1, 1996 that automatically restored this group. But, many non-European copyright protection for most foreign countries—for example, Japan—protect works—including films—that fell into the films for as few as 50 years. Some films public domain because they were not from these countries may have entered ­renewed on time. The full term of copyright the public domain in their home countries protection was restored to all these films. as of January 1, 1996 and therefore were Ordinarily, they are protected for 95 years not eligible for restoration of their U.S. from the date of publication. (See Chapter copyrights. As a result, they remain in the 18 for a detailed discussion of copyright public domain in the U.S. (See Chapter terms.) This law has greatly ­decreased the 15 for a detailed ­discussion.) number of films in the public domain in the In addition, some foreign films entered United States. the public domain in their home countries Copyright restoration was made for any due to a failure to comply with legal film first published outside the United requirements. For example, seven films States during 1923-1963 that, at the time of released in Mexico in the late 1940s publication: were in the public domain in that country • had at least one author that was a because they were never registered with ­citizen or resident of a country other the Mexican government (a formality that than the United States. The author is no longer required). The films entered of a film is usually a film studio or the U.S. public domain because they ­production company—for example, were never renewed, and their copyrights Germany’s famed UFA Studios. could not be restored because they were • was first published outside the United public domain in Mexico. Alameda Films States and not published in the United v. Authors Rights Restoration Corporation, States until 30 days after the initial Inc., 331 F.3d 472 (5th Cir. 2003). foreign publication, and 172 The Public Domain

• whose copyright term has not time, but for the work it was based on to expired under the copyright laws still be protected because it was renewed of the country in which it was first on time. When this happens, the preexisting published. work remains protected by copyright, as The great bulk of foreign films published do those portions of the film based on the during 1923-1963 that were never renewed copyright-protected previous work. As a satisfy these requirements and are no longer practical matter, this means you cannot in the public domain. In fact, it is usually use the film without obtaining permission a waste of time to determine whether from the copyright owner of the preexisting such films were renewed or not. You work. should simply consider that any film in this For example, the film His Girl Friday ­category has a valid copyright for 95 years was not renewed and therefore entered the from the date of publication. But, see “No public domain in 1969. However, the play Copyright Restoration for Some Foreign The Front Page was renewed and will be Films,” above, for some films that have not protected by copyright until the year 2024. had their copyrights restored. This means that the film His Girl Friday If the country of origin for a film is is basically unusable unless you obtain some­where in Western Europe, you can ­permission from the copyright owners of safely assume that the copyright is intact The Front Page. But you don’t need to in the United States. If the film originated ­obtain permission from the producers of His outside of Western Europe, it may not Girl Friday. have qualified for copyright restoration The upshot of all this is that whenever because it is in the public domain in its you determine that a film has not been home country. But to determine this, you’ll ­renewed on time, you must also check to have to ­research the copyright law of this see if it was based upon a preexisting work. country. (See Chapter 16 for a discussion of copyright terms in many foreign countries.)

Problem #2: Is the Film Based on a Preexisting Work?

Many films are based on preexisting works, particularly novels, plays, and short stories. For example, the 1940 Cary Grant film His Girl Friday is based on the famous 1928 play The Front Page. It is possible for a film to enter the public domain because it was not renewed on His Girl Friday, Columbia, 1940 chapter 7: Movies and Television 173

Screenplays Become Public The Saga of Domain When Films Do It’s a Wonderful Life

Does a screenplay upon which a film is Undoubtedly the most famous film that based enter the public domain when the ran afoul of the preexisting works rule dis- film does? This is not an idle question. If cussed above is the Christmas classic It’s a the screenplay does not enter the public Wonder­ful Life, starring James Stewart and domain when the film does, you would directed by Frank Capra. This 1947 film was need permission from the owner of the never renewed and was thought to have screenplay to use the public domain film. ­entered the public domain for this reason in 1976. Spelling Entertainment, the owner Several screenplay owners argued that of the studio that made the film, ­apparently their screenplays did not enter the public believed that it was in the ­public domain domain because the screenplays were not and initially made no effort to enforce­ its published when the films were made and copyright. Because the movie was thought distributed. As unpublished works, the to be in the public domain,­ television sta- screenplays didn’t have to be renewed tions all around the country began playing and still had copyright protection even it repeatedly during the Christmas season though the films made from them were in and ironically, this is why the film, not a the ­public domain because they were not­ hit when it was first released, became so ­renewed on time. popular. Federal appellate courts in both New ­However,­ in 1996 Spelling Entertainment York and California have ­rejected this had a change of heart and decided that argument. In cases involving the films It’s a ­Wonder­ful Life was not in the public McClintock! and The Little Shop of ­domain. Spelling asserted this because it Horrors the courts held that the ­publi­- was based on a short story that was still pro- cation of a film publishes as much of the tected by copyright. Whether this claim is screenplay as is used in the film. This legally valid is not clear. The movie contains means that you can safely assume that so few elements from the short story that it’s the portion of the screenplay used in the quite possible that a court would rule that it’s not really based on it at all. Neverthe- film enters the public domain when the less, Spelling sent warning letters to televi- film does. Shop-talk, Ltd. v. Concorde- sion stations not to air It’s a ­Wonder­ful Life New Horizons, Corp., 168 F.3d 586 (2d without permission. Fearing a lawsuit, the Cir. 1999), Batjac Productions, Inc. v. stations complied. Goodtimes Home Video Corp., 160 F.3d In summary, we really­ don’t know 1223 (9th Cir. 1998). whether It’s a ­Wonder­ful Life is in the public domain or not. But we do know that if you use it without permission you’ll risk getting sued by Spelling. 174 The Public Domain

If it was, you must determine if that work encyclopedias. Copyright Office registration is also in the public domain. You can freely records will also reveal this ­information (see use the film only if the preexisting work is Chapter 21 on how to ­obtain copies of such also in the public domain. records). Another useful guide is the book To do this, you must determine if and Filmed Books and Plays, by A.G.S. Enser when the preexisting work was published. (Andre Deutsch ­Limited), which lists books Read Chapter 3 for detailed guidance on and plays from which films have been how to determine whether novels, plays, adapted. short stories, and other written works are in the public domain. If the preexisting work Problem #3: Is the Music was published during 1923-1963, you’ll have in the Public Domain? to check Copyright Office records to see if Most theatrical films contain music, including it was renewed. You can do this yourself background music and songs. It may seem (many of the records can be searched amazing, but no court has ever decided the on the Internet) or hire someone to do question of whether the music included in it for you. (See Chapter 21 for a ­detailed a film that was not renewed is also in the discussion of copyright renewal searches.) If public domain. the preexisting work was not renewed, it is Film music presents a hornet’s nest in the public domain. of unresolved copyright problems—for If the preexisting work is still under copy­ example, no one knows for sure if music right, you’ll have to wait until it expires was pub­lished for copyright purposes when ­before you can use the film based upon the it was included in a film. Before 1978, prior work, or make an arrangement with music ordinarily was published only when the owner of the preexisting work to use it. copies of sheet music were distributed to Usually this means you have to pay a fee to the ­public. Recording or playing music in obtain a license for use. ­public didn’t constitute publication. (See How can you tell if a film is based upon a Chapter 4.) Since it’s unclear if film music preexisting work? If you have a copy, look was published when the film was, no one at the credits. They will usually indicate knows for sure how long the copyright in whether the film was based on a prior such music lasts or if it had to be renewed. work. Also, check the listing for the film on The simplest way to avoid these problems the Internet Movie Database (www.imdb is not to use music contained in films that .com)—the writer’s credit area will usually lost their copyright protection because they show if the film was based on a prior work. were not timely renewed. You can also determine this by checking But if you want to use such music, you the American Film Institute catalogues must first check Copyright Office renewal mentioned above as well as many other film records to see if the music was separately chapter 7: Movies and Television 175

renewed. In many cases songs (and even name of the copyright owner—for example, background music) written for films were Copyright 1940 RKO Pictures, Inc. separately copyrighted and registered It’s not likely you’ll find many films with the Copyright Office. If renewed, ­published before 1989 without a copyright this music would still be under copyright, notice. Most films were so expensive to even though the film it was first used in is make that their owners took great care to not. Look in the Copyright Office records ensure they contained copyright notices. under the composer’s name, the name of Probably the most famous American film the movie, the name of the film studio, published without a copyright notice is the and the name of any songs. Many of these 1968 horror classic Night of the Living Dead. renewal records can be searched online. This film entered the public domain the (See Chapter 21 for a detailed discussion moment it was published without a notice of how to do renewal search.) If there is and can be used by anyone for any ­purpose no renewal record for the film music, you except if one of the actors’ right of publicity may elect to use it. It probably is in the is involved. public domain, but be aware that there is an Foreign filmmakers failed more often than element of risk involved. Americans to place copyright notices on their films, since notices were not ­required See Chapter 1 for a detailed dis- in most foreign countries. There used to be cussion of how to deal with public many foreign films in the public domain domain gray areas such as use of music in in the United States because they lacked a films that have not been renewed. copyright notice. However, the copyright in the great majority of these films was automatically restored on January 1, 1996 Is the Film in the Public under the law discussed above. Domain Due to Lack of a If you do find a film first published in the Copyright Notice? United States without a notice, read ­Chapter 19 to determine if it is in the public ­domain.

Any film first published in the United States before March 1, 1989 had to have a copy­right notice on it or it entered the Is the Film Protected public domain, unless the lack of notice by Copyright? was ­excused or cured. A copyright notice consists of the symbol ©, the word Copy­ Certain categories of films are never right or the abbreviation “Copr.” followed ­protected by copyright and are in the ­public by the date the film was published and the domain regardless of when they were published. 176 The Public Domain

U.S. Government Films making copies of public domain films and newsreels and reselling them. Of course, You may be surprised to learn that Uncle they can charge you for buying a copy of Sam, not Sam Goldwyn, is the largest film the material. Many of these companies will producer in the United States. The various try to license the copies to you in an effort branches of the U.S. government have to restrict how you use it. ­produced thousands of films—everything However, people and companies that from World War II combat footage made by make and sell copies of public domain the U.S. Army Signal Corps to training films films often make changes or add new for expectant mothers. ­elements to the films. For example, a new All films created by U.S. government soundtrack may be added to a silent film in ­employees as part of their job automatically the public domain, a black and white film enter the public domain the moment they in the public domain may be colorized, or are created. Technically, even secret films a public domain film may be dubbed from created by the government are in the ­public English into another language. Changes domain, but they are protected by other such as these are protected by copyright if laws from use by the public. they are minimally creative. (See Chapter Films created for the government by non­ 2 for a detailed discussion of creativity and employees are also in the public domain copyright.) unless the government allowed the non­ Not only are new soundtracks and employee to claim copyright in the film. If colorizations copyrightable, but courts have the government film has a copyright notice, held that “panned and scanned” versions it is likely that the private vendor who of wide-screen films are copyrightable ­created it holds the rights to the film. as well. “Pan and scan” means creating a reduced-size version of a film so it will fit on a television screen. The process is Copies of Public Domain Films copyrightable because minimally creative An exact copy of a public domain film artistic decisions must be made about how ­cannot hold a copyright. This is true even much of each frame should be chopped where a film is transferred from one format off. Remixing or making a stereo version to another—for example, from 35-millimeter of a one-channel film soundtrack is also film to videotape. copyrightable since creativity must be Thus, a company that makes exact copies employed to remix and balance the sounds. of public domain films and sells them to Maljack Productions, Inc. v. UAV Corp., 964 the public cannot hold a copyright in the F.Supp. 1416 (C.D. Cal. 1997). material. Some companies specialize in chapter 7: Movies and Television 177

However, copyright protection only Does the Film Contain ­extends to changes, not to the original Copyrighted Visual Art? ­public domain film. For example, if remixed soundtrack music is added to a public Films sometimes include footage of copy­ ­domain film, you can still use the original righted works of visual art—for example, film, just don’t use the copyrighted sound­ paintings, sculptures, photographs, posters, track without permission. However, it’s hard and toys. It’s possible for a film containing to see how you could use a pan and scan such footage to be in the public domain version of a public domain film without while the work of visual art is still protected violating the copyright in the panning and by copyright. This could occur, for example, scanning. where the copyright in the film was not People who make such changes to public ­renewed while the copyright in the artwork domain films often register their new was renewed, or the artwork was never ­versions with the Copyright Office. For this published and therefore didn’t have to be reason, when you check Copyright Office renewed, or where the film was made by a registration and renewal records for a film, U.S. government agency. you’ll often find original copyright records If the artwork appears in the film for only and renewal records for a new version a few seconds, or is unidentifiable ­because of film that was itself never renewed. For it is obscured or out of focus, you don’t ­example, the original version of Buster need to obtain permission to use it. These Keaton’s 1927 silent classic The General was uses of art in a film constitute a fair use. never renewed, and therefore entered the (See Chapter 22 for a detailed discussion of public domain in 1956. However, in 1953, fair use.) However, if the art is still under Raymond Rohauer, a film collector and copyright, permission may be needed from distributor, created a new version of the film the copyright owner. that contained new editing, an ­introduction, In this event, it is prudent to check to and music. This version was registered with see if the art really is still protected by the Copyright Office in 1953 and renewed copyright. (See Chapter 5 for a detailed on time in 1981. The changes made in this discussion of copyright protection for art.) new version of The General are still under It may be difficult to identify the artist or copyright, but the original film remains in copyright owner if the art is not identified the public domain, as are those original in the film or is not well known. There is elements included in Rohauer’s version. no need to include a copyright notice for any artwork that appears in a film. The studio that made the film may have a record of who created it, but it’s unlikely you could obtain access to such records. 178 The Public Domain

If you’re unable to determine whether or Doing so will likely get you sued for not the art is in the public domain, the safe violating Nicholson’s right of publicity.­ course is to remove the footage containing Similarly, there are probably many public the art or obscure it, or obtain permission to domain films containing the Coca-Cola use it from the copyright owner (if you can name and logo. Even so, you may not find the owner). use such footage for commercial purpose without violating the Coca-Cola company’s trademark rights. Do You Plan to Use the Film In contrast, right of publicity and trade­ for Advertising or Other mark laws are not violated when you use public film footage containing people or Commercial Purposes? trademarks for noncommercial purposes— that is, editorial or informational uses, such There are some special legal concerns as using it in a documentary. (Publicity and where a film contains people or trademarks. trademark laws are discussed in detail in A trademark usually consists of a word, Chapter 20.) phrase, logo, or other graphic symbol used to identify a product or symbol. Trademarks include product logos, brand names, com­ pany names, product packaging, or the Part II: distinctive­ shape of a product such as a Television Programs Coke bottle. If you intend to use a film containing Television programs include television people or trademarks for advertising or broadcasts that were recorded on videotape other commercial purposes—for example, or film, and works filmed with video cameras in a television commercial—you need to for distribution on videocassettes. It does make sure that your use does not violate not include movies that were transferred state right of publicity laws or state and to videotape after they were first shown federal trademark laws. Such violations in theaters (such videos follow the rules could occur even though the film footage is outlined in Part I above). in the public domain—that is, not protected The good news about television programs by copyright. is that there are thousands of them made For example, the footage of the actor Jack by the U.S. government that are in the Nicholson in the film Little Shop of Horrors is ­public domain. The bad news is that it may in the public domain because the film was be impossible to determine whether many never renewed. Even so, you can’t use such commercially broadcast TV shows are in the footage in a TV commercial for a product public domain or not. or service without consent from Nicholson. chapter 7: Movies and Television 179

What If the Work Is Not in the Public purposes before 1963? If not, they didn’t Domain? If you find that the tele­ have to be renewed and are not in the vision program you want to use is not in the public domain. Unfortunately, there is no ­public domain, you may be able to use it definitive answer to this question. (or at least part of it) anyway under a legal exception called “fair use” (see Chapter 22). If you do not qualify for this exception, What Is Publication? you will need to obtain permission to use A television program is published for the work. For a detailed discussion of how copyright purposes when the copyright to obtain copyright permissions refer to owner, or someone acting on his or her Getting Permission: How to License & Clear behalf, makes it available to the general Copyrighted Materials Online & Off, by public. In other words, any interested ­Richard Stim (Nolo). member of the public may obtain a copy. Burke v. National Broadcasting Co., 598 F.2d 688 (9th Cir. 1979). Has the Television Program’s Broadcasting a program on television Copyright Expired? does not constitute publication. Copies of the TV program must be distributed to the Television broadcasting began in earnest public. Of course, television programs are in the late 1940s. Any television programs, published when they are sold or leased ­published in the United States from this to the public in videocassette tapes. But time until the end of 1963 that were not ­commercial sales of TV programs to the ­renewed on time 28 years after their first public didn’t begin until long after 1963. publication are now in the public domain. Only TV programs published before 1964 Television programs published after 1963 can be in the public domain because they didn’t have to be renewed and ordinarily were not renewed on time. receive 95 years of copyright protection. They won’t enter the public domain for Were Television Programs many decades. Copyright duration rules are discussed in Published When Syndicated? detail in Chapter 18, and how to determine Given the nature of the broadcasting whether a copyright was renewed is ­industry at the time, the only way television ­covered in Chapter 21. programs could conceivably have been However, before you turn to those published before 1964 is if they were chapters, there is an unresolved threshold taped or filmed and the tapes or films ­question that must be considered: Were any were syndicated. Syndication occurs when television programs published for copyright 180 The Public Domain a television program is licensed to local What Should You Do? television ­stations. After popular television programs were initially broadcast on the So, what should you do? The conservative networks they were often syndicated, course of action is to assume that programs often years ­after the initial broadcast. A syndicated before 1964 are not in the perfect ­example is the I Love Lucy television ­public domain, even if they were not timely series, which was filmed before a live renewed. This means that no television audience during the 1950s and has been in programs are in the public domain because syndication ever since. their copyrights have expired. However, most programs such as talk The riskier course of action is to rely on shows, sporting events, news, and variety the assumption that programs syndicated and game shows were only aired once and in 1964 and earlier have been published never syndicated. Programs such as these for copyright purposes. Therefore, if they have never been published for copyright were syndicated before 1964, they had to purposes. be ­renewed 28 years later or they entered Unfortunately, two federal trial courts the public domain. This means you must have held that such syndication did not find out if the program was syndicated amount to publication. This was because before 1964. You must then research the the syndication agreements prohibited the Copyright Office renewal records to find television stations from making copies of out if the program was renewed. This is the TV programs or from licensing them to easy to do because most of the records you other stations. Paramount Pictures Corp. need are available online at the Copyright v. Rubinowitz, 217 U.S.P.Q. 48 (E.D. N.Y. Office website. (See Chapter 21 for a 1981); NBC v. Sonneborn, 630 F.Supp. 524 detailed discussion of researching copyright (D. Conn. 1985). renewals.) These decisions by federal trial courts are However, even if the program was not not binding on other courts and other courts renewed, your problems are not over. The might have a different view. Moreover, some program may still not be in the public leading copyright experts believe they were ­domain. This would be the case where the wrongly decided. However, they are not television program was initially published encouraging. The best that can be said is outside the United States before 1964 or the that as of now there is no clear answer as to program was based on a preexisting work whether syndication of a television ­program such as a novel or play that is still under amounts to publication. copyright. In addition, it’s unclear whether music used in television programs that were not renewed is in the public domain. chapter 7: Movies and Television 181

Is the Television Program in Even if the program was published the Public Domain Due to without a notice, it may not be in the public ­domain. The lack of notice could have Lack of a Copyright Notice? been excused. See Chapter 19 for a detailed ­discussion of copyright notice requirements. Any television program first published in the United States before March 1, 1989 without a valid copyright notice may be in the public domain. A copyright notice Is It a U.S. Government ­consists of the symbol © or the word TV Program? Copyright followed by the date the program was published and the name of the copy­ Fortunately, there is one group of television right owner—for example, Copyright 1980 programs that are definitely in the public CBS, Inc. domain: Those created by U.S. government It’s unclear whether television programs employees as part of their jobs. U.S. gov­ were published for copyright purposes ern­­ment agencies have created tens of when they were syndicated. But publication thousands of television programs on a wide would have ­occurred where television variety of topics. programs were made available to the public for sale or rental on videocassettes. But note carefully that such sales or rentals Does the Program Contain must have occurred before March 1, 1989. Copyrighted Visual Art? After that date no notice is required on any published work. Television programs sometimes include There are probably not large numbers footage of copyrighted works of visual of television programs that were published art—for example, paintings, sculptures, before March 1, 1989 without a copyright ­photographs, posters, and toys. It’s possible notice. One notable exception is the tele­ for a film containing such footage to be in vision series Star Trek, which was broadcast the public domain while the work of visual its entire first year without a copyright art is still protected by copyright. This could ­notice. However, this did not result in occur, for example, where the ­program was those ­programs entering the public domain made by a U.S. government agency. ­because a court held that they had not been If the artwork appears in the program published for copyright purposes when only for a few seconds, or is unidentifiable ­initially broadcast or syndicated. Paramount because it is obscured or out of focus, you Pictures Corp. v. Rubinowitz, 217 U.S.P.Q. don’t need to obtain permission to use it. 48 (E.D. N.Y. 1981). These uses of art in a television program 182 The Public Domain

constitute a fair use. (See Chapter 22 for a packaging, or the distinctive shape of a detailed discussion of fair use.) product such as a Coke bottle. However, if the art is still under copyright, If you intend to use a television program permission may be needed from the containing people or trademarks for copyright owner if it appears in its entirety advertising or other commercial purposes— or in a close-up shot for more than a few for example, in a television commercial— seconds. In this event, it is prudent to check you need to make sure that your use does to see if the art really is still protected by not violate state right of publicity laws or copyright. (See Chapter 5 for a detailed state and federal trademark laws. Such ­discussion of copyright protection for art.) violations could occur even though the It may be difficult to identify the artist or program is in the public domain—that is, copyright owner if the art is not identified not protected by copyright. in the film or is not well known. There is In contrast, right of publicity and trade­ no need to include a copyright notice for mark laws are not violated when you use any artwork that appears in a television public domain film or television programs program. containing people or trademarks for If you’re unable to determine whether noncommercial purposes—-that is, editorial or not the art is in the public domain, the or informational uses, such as use in a safe course is to remove the portion of documentary. Publicity and trademark laws the ­program containing the art or obscure are discussed in detail in Chapter 20. it, or obtain permission to use it from the copyright owner (if you can find the owner). Sources of Public Domain Films and TV Programs Will You Be Using Public Domain TV Programs The most comprehensive guide to program for Advertising or Other archives and other sources of public Commercial Purposes? domain movies is Footage: The Worldwide Moving Image Sourcebook, by Philip Kadish (Second Line Search). The following There are some special legal concerns Internet resources may also be helpful: where a television program contains people • The National Archives and Records or trademarks. A trademark usually consists Administration (NARA) (www. of a word, phrase, logo, or other graphic archives.gov) has a website for film symbol used to identify a product or and video holdings (www.archives. ­symbol. Trademarks include product logos, gov/research_room/media_formats/ brand names, company names, product film_sound_video.html) chapter 7: Movies and Television 183

• NASA (www.nasa.gov) • Silents Are Golden • The George Eastman House (www.silentsaregolden.com/ International Museum of Photography silentvideolist.html) and Film (www.eastman.org) • Kino International Corp. • Library of Congress Motion Picture, (www.kino.com) Broadcasting and Recorded Sound • Movies Unlimited Division (www.moviesunlimited.com) (http://lcweb.loc.gov/rr/mopic) • Video Oyster (www.videooyster.com). • Museum of Modern Art Department of For updates (and to directly link to these Film and Video (www.moma.org) resources) check my Web page (http:// • UCLA Film and Television Archive copyrightfree.blogspot.com). n (www.cinema.ucla.edu) • Cinema Web (www.cinemaweb.com/silentfilm)

Chapter 8

Computer Software

Is the Software Dedicated to the Public Domain?...... 186 How to Tell Whether Software Is Dedicated to the Public Domain...... 187 Software Not in the Public Domain...... 188 Potential Problems Using Public Domain Software...... 189

Was the Software Created by the U.S. Government?...... 190

Has the Copyright in the Software Expired?...... 191 When Is Software Published?...... 191

Is the Software in the Public Domain Due to Lack of a Copyright Notice?...... 192

Sources of Public Domain Software...... 194 186 The Public Domain

omputer software is what makes Is the Software Dedicated computers work. Without software to the Public Domain? C a computer would be just a box filled with electronic parts. Although ­computers and the software they use are Software dedicated to the public domain relatively new technologies, a surprisingly accounts for, by far, the largest amount large amount of software is in the public of software available without copyright domain. This is because many software ­restrictions. Much of it can be found on ­creators have elected to dedicate their the Internet or in computer programming ­programs to the public domain. texts, which often contain code dedicated Anyone is free to use public domain to the public domain that programmers are software any way they desire. You can ­encouraged to copy. freely copy it, modify or adapt it to create While copyright protection is automatically new software, give it away, or even sell it to given to a new creative work, the author the public. It can be placed on websites or or owner of the work is free to reject that the source code can be printed in computer ­protection and dedicate a product to the programming textbooks and magazines. The public domain. By doing so, the author only limit to what you can do with public gives up all ownership rights in the work, domain software is your own creativity and which allows anyone to copy or use the imagination. work in any way they want to without Public domain software falls into the ­obtaining permission. ­following categories: Dedication of a work of authorship to • software dedicated to the public the public domain is more common with ­domain ­com­puter software than for any other type • software created by the U.S. of work. There is a long tradition in the government software programming community of ­sharing • software whose copyright has ­expired, work with others and not seeking to profit and from the work. These programmers simply • software in the public domain ­because want to create good software and experience it was published before 1989 without the satisfaction of having others use and a valid copyright. appreciate it. Each category is discussed in turn below. Of course, software giants like Microsoft Public domain elements contained in don’t dedicate their software to the public ­copyrighted software are discussed later in domain. Individual programmers working this chapter. on their own—hobbyists, students, aca­ demics, and others with a strong libertarian streak—have created most software dedicated to the public domain. Public chapter 8: Computer Software 187

domain dedicated software is usually not The Public Domain and a slick, commercial-looking product, but it the Molecule may still get the job done. In fact, it may work better than a commercial product One example of software that has been designed for the same purpose. dedicated to the public domain is a Authors who dedicate software to the ­program called RasMol. This program public domain give up all their copyright ­allows chemistry students and researchers to view molecular structures in three rights. This means you can use their soft­ ­dimensions. The structures can be rotated ware any way you wish without restriction. and even animated. Below is an example You can revise it and incorporate it into of a molecular structure graphic created other software, charge the public for copies using RasMol: of it, or do anything else you wish.

How to Tell Whether Software Is Dedicated to the Public Domain

There is widespread confusion in the RasMol was developed by Roger software community about what the words A. Sayle during the early 1990s. It is “public domain” mean. Many people believe currently the most widely used molecular that public domain software is software that graphics program in the world, with is given away for free. This is not the case. nearly three quarters of a million users. Both public domain software and software Because RasMol has been dedicated protected by copyright can be given away to the public domain, anyone is free to for free—for example, on the Internet. copy it and even sell it without obtaining ­Indeed, most of the software given away permission from its creator. At least eight for free on the Internet is not in the public publishers currently bundle it with CD- domain. ROMs or textbooks and several companies So long as it’s free, why should you care sell it as a stand-alone product for profit. whether software is in the public domain Because he dedicated his program to the or not? Because only public domain public domain, Sayle receives no royalties software can be used by anyone for any from these companies. Nevertheless, Sayle purpose. Copyrighted software, even if you says he’s happy that he dedicated RasMol obtained it for free, is still controlled by the to the public domain. He was recently copyright owner. You could, for example, awarded a medal by the Biochemical be prevented from reselling or altering Society for his contributions to the the software ­without permission of the advancement of science. copyright owner. RasMol has its own website at www.umass.edu/microbio/rasmol. 188 The Public Domain

There is no official form for dedicating domain and avoid even the possibility of a creative work to the public domain. The getting sued later on. author must simply state clearly somewhere For this reason, examine all the documen­ on the work that no copyright is claimed tation that comes with the program to make in the work—for example “This program is sure its creator really intended to dedicate it public domain” or other words to this effect. to the public domain. You should be tipped If the software has been dedicated to the off that the creator either didn’t really public domain, you will ordinarily find a intend to dedicate the program to the public statement like this on the software itself. It domain or may simply be confused about may be on one of the first screens you see what the words “public domain” mean if: as the software is loading into your computer, • you are required to agree to a license or in a file on the program known as a restricting how you use the program “readme” file or in the Frequently Asked • you are asked to register the software Questions (FAQ) file or a manual distributed • any type of restrictions are imposed with the program. on your use of the software For example, the RasMol program • the software is described with any mentioned above (“The Public Domain of the words listed in the following and the Molecule”) contains a FAQ that ­section, or says “The RasMol molecular graphics • the creator places a copyright notice package is ‘public­ domain,’ which in the on the software. legal definition is more than just freely In this event, you should contact the redistributable but actually free of all ­creator and ask if the software has been intellectual property rights.” A small Internet dedicated to the public domain. Explain utility program called IC Helper contains a that this means not only is the software free, Read Me file that says “This code is released but that it is not protected by copyright and into the public domain and can be used, can be used by the public in any way, even modified, etc. as desired.” sold. (Most software contains some kind of If the words “public domain” appear on contact information for the creator, whether software you would have a very strong an email address, website, or postal ­defense if the owner later claimed the address.) ­software wasn’t really in the public domain and attempted to sue you for copyright ­infringement. Indeed, you’d very likely Software Not in the Public Domain win the lawsuit. But you still might have Following is a list of terms commonly used to go through the trauma and expense of to describe software that is distributed for a lawsuit. It’s best to make sure in advance free but is not in the public domain. The that the software is really in the public software is copyrighted and users are often chapter 8: Computer Software 189

required to agree to license agreements modify, and redistribute the software (whose terms are usually quite generous). freely. The source code must be made If the software you’re interested in is ­de­ available so users can improve or scribed with one of these terms, it isn’t in modify the program. Many parts of the the public domain. UNIX ­operating system, (including the There is nothing wrong with using such Linux program) were developed this software, but you should be aware that way. For more information, see www it comes with legal restrictions on how it .opensource.org. is used. Make sure you understand these • Copyleft software. This software ­restrictions. They will usually be spelled contains a provision requiring users out in a Read Me file, license agreement, who publicly distribute modifications manual, or other documentation included to license them as open source within the software or inside its packaging. software. • Free software. Free software (also • Semifree software. This is software that called freeware) is open source is not free, but comes with ­permission software that is licensed under the for individuals to use, copy, distribute, most commonly used open source and modify it so long as they do so license—the GPL (General Public solely for nonprofit purposes. PGP License). Like all open source (Pretty Good Privacy), a popular software, free software may be freely program used to encrypt email, is one used, but is not necessarily available example. for free—that is, without financial cost. • Shareware. Shareware refers to a Potential Problems Using method of marketing software by Public Domain Software making trial copies available to users There is one potential problem when you for free. If the user wishes to keep the use software that someone says has been software, he or she is supposed to pay dedicated to the public domain: It may the shareware owner a fee. Share­ware ­actually be copyrighted. Anyone can place is fully protected by copyright and a copy of a program on the Internet and may be used only in the manner and say that it has been dedicated to the public to the extent permitted by the owner. domain. This doesn’t mean it really is. For • Open source software. Open source this reason, it’s wise to trace its history to software is copyrighted and it make sure it really has been dedicated to can ­either be sold or given away. the public domain. This is not something However, it must be distributed you need to worry much about if you under an open source license that just intend to use the program yourself. guarantees users’ rights to read, use, 190 The Public Domain

However, you should always do this before you publicly distribute the program Profiting From or incorporate it into a program of your Government Software own you plan to publicly distribute. Most Because it’s in the public domain, U.S. software lists the name of the person(s) government software can be freely who created it and provides contact copied and distributed to the public information for them, whether an email (unless the government places restrictions address, website, or postal address. Contact on its use for security or other reasons). the creators and verify that they really are It can even be sold for a profit. That is the creators of the program, and they have what Ralph Carmichael, a retired NASA dedicated it to the public ­domain. Make employee, has done. He obtained copies sure they understand what public domain of 23 programs developed by NASA for means. use by aeronautical engineers, airplane If you can’t find any information about designers, and aviation technicians. Some the creators of the program, ask the people of these programs had been given by in charge of the place where they got it NASA to major airplane manufacturers, from, who created it, and how they know but few had been updated for the desktop it was dedicated to the public domain. For computers that are in widespread use example, if you obtained the software from today. Many of the programs had never a website, contact the webmaster and ask left NASA’s labs. Carmichael updated the him or her for this information. programs to run on desktop computers. He then copied the software onto a CD- ROM and is selling it through his own Was the Software Created website for $295. This is perfectly legal by the U.S. Government? because the software is in the public domain. You can find his website at Any work created by U.S. government www.pdas.com. ­employees as part of their job duties is in the public domain, including software. Creative works made for the U.S. government by public domain. These include, for example, outside contractors are also in the public weather forecasting programs created by domain unless the government allows the the National Weather Service, mapmaking contractor to retain ownership in the ­product. programs ­created by the U.S. Geological (See Chapter 3 for a detailed ­discussion.) Survey, and aeronautical programs created Thousands of software programs by NASA. have been created by U.S. government Although they are in the public domain, employees and contractors and are in the not all of these programs are publicly chapter 8: Computer Software 191

­available. For example, the Department of determine if a renewal registration was filed Defense or the CIA probably have a good for a software program (see Chapter 21). Of deal of top secret software that the public course, not much software was published is not allowed to see. However, some before 1964, and what was published government-created public domain software probably has little or no value today. is available to the public. Some can even be Moreover, note that this rule applies only downloaded from the Internet. For example, to published software. Copyright ­protection public domain software created by the for all unpublished software, whenever it U.S. Geological Survey that is used to view is written, will last over 70 years, because USGS geographic data can be downloaded ­unpublished works are ­protected for the life from the USGS website at www.usgs.gov. of the author plus 70 years. In 2001, NASA released more than 200 of its scientific and engineering software applications for public use. The Robert C. When Is Software Published? Byrd National Technology Transfer Center Software is published for copyright purposes (www.nttc.edu) distributes more than 500 when it is sold, licensed, rented, lent, given programs created by NASA. away, or otherwise distributed to the public. Selling copies to the public through retail outlets or by mail order, publishing code in Has the Copyright in a magazine, selling a program at a widely the Software Expired? attended computer show, and selling or ­licensing it for use by educational institutions Copyright protection does not last forever. are all examples of publication. When it expires, the work enters the public However, publication occurs only when domain. (See Chapter 18 for a detailed software is made available to the general ­discussion of copyright expiration.) public on an unrestricted basis. Distributing The only software now in the public copies of software to a restricted group ­domain because of copyright expiration is of users does not constitute publication. software published before 1964 that was not For example, sending copies to a few renewed on time with the Copyright Office friends or beta testers would not constitute during the 28th year after publication. This a publication. Similarly, a court held that software entered the public domain at the software used by a company’s salespeople start of the 29th year after publication. For solely for sales presentations for customers example, a program published in 1960 that was not published. Gates Rubber, Inc. v. was not renewed during 1988 entered the Bando American, 798 F.Supp. 1499 (D. public domain on January 1, 1989. You must Colo. 1992). check Copyright Office renewal records to 192 The Public Domain

Is the Software in the Are Computer Languages Public Domain Due to Protected by Copyright? Lack of a Copyright Notice? Although no court has ruled on whether Another relatively small group of public high-level computer languages like ­domain software is software published C++ can themselves be protected by in the United States before March 1, 1989 copyright, they are almost certainly in without a valid copyright notice. Before the public domain.­ The Copyright Office March 1, 1989 all works initially published is so sure of this that it refuses to register in the United States had to contain a a work ­consisting solely of a computer copyright notice or they entered the public language. No one has challenged this domain unless the lack of notice was Copyright ­Office policy. excused for some reason. The Copyright Office is following A copyright notice consists of a “c” in a court decisions stretching back many circle or the word Copyright or abbreviation decades involving telegraphic codes Copr., the year of publication, and the and stenographic systems. The courts in copyright owner’s name—for example: © these cases ruled that the component 1985 by Phil Fates. elements of shorthand systems and Copyright notices for software can be telegraphic codes—that is, the individual found in a variety of places, including: coined words or symbols that form • the package or box the software the vocabulary of the system—are not comes in protected by copyright. But a particular • the manual and other written arrangement of such ­symbols is protected documentation if it meets the basic requirements for • the computer disks or other media copyright protection discussed in Chapter containing the software, and 2. Hartfield v. Peterson, 91 F.2d 998 (2d • the computer screens. Cir. 1937). If you don’t find a copyright notice in Therefore, anyone is free to write any any of these places on software published program in any computer language. before March 1, 1989 the software could be Although the language itself is not in the public domain. Unfortunately, it can protected, a particular program written be difficult to know for sure, because there in that language is. Similarly, the English are a number of exceptions to the ­notice language is not copyrighted, but a poem requirement. See Chapter 19 for a detailed written in ­English can be. discussion of copyright notices and the public domain. chapter 8: Computer Software 193

Protecting Software by Other Means

Copyright law is not the only legal means However, you should worry about these available to protect computer software. types of protection if you’re interested in ­Because so many elements contained copying elements of a software program in most software programs can’t be that are not protectable by copyright, copyrighted, software developers usually ­particularly if it is relatively new or popular supplement their copyright protection with software. The elements of the software that other forms of protection. These include: are not protected by copyright could still • patents—the federal law that protects be protected by one or more of these other inventions means. As a result, copying them could get • licenses—contracts restricting how you you sued. may use software, including when you Understanding all these complex laws and can copy it how they apply to software is a difficult task. • trade secrets—state laws protecting Explaining them in detail would take a book valuable information that is not generally in itself. This is why it’s important for you known, and to consult a knowledgeable attorney before • trademarks—federal and state laws copying software not in the public domain ­protecting product names, logos, and as a whole. For more information about all designs. the laws used to protected software, refer to You ordinarily don’t need to worry about Software Development: A Legal Guide, by any of these types of legal protections when Stephen Fishman (Nolo). This book is out software has been dedicated to the public of print, but is available in many libraries. domain, created by the U.S. government, A helpful legal treatise available in many or had its copyright expire because it was law libraries is The Law and Business of ­published before 1964 and not renewed. Computer Software, edited by D.C. Toedt III It’s theoretically possible, but not likely, that (Clark Boardman Callaghan). software published before 1989 without a valid copyright notice could be protected by a license or trade secrecy. 194 The Public Domain

Sources of Public Domain Software

Thousands of websites have public domain software. The following are some of the most popular: • www.freeware.com • www.freewarefiles.com • www.freewarehome.com • www.freewareweb.com • www.shareware.com. For updates (and to directly link to these resources) check my Web page at http:// copyrightfree.blogspot.com. ■ Chapter 9

Architecture

What Good Is Public Domain Architecture?...... 196

Architectural Plans...... 197 Have the Plans Been Published?...... 197 Has Copyright in the Plans Expired?...... 199 Are the Plans in the Public Domain Due to Lack of a Copyright Notice?...... 199 Were the Plans Created by U.S. Government Employees?...... 200 Are the Plans Original?...... 200 Is It Okay to Use Copyrighted Plans?...... 200 Sources of Architecture Plans...... 202

Constructed Buildings...... 202 Was the Building Constructed Before Dec. 1, 1990?...... 202 Was the Building Constructed After Dec. 1, 1990?...... 203 Is the Building Protected by Trademark or Patent Laws?...... 205 196 The Public Domain

ou may be surprised to learn that Visit any major university, and there’s a copyright law not only protects good chance you’ll see buildings modeled Y words, pictures, and music, but after medieval cathedrals, such as Salisbury ­architecture, which includes: or Westminster in England. Look at the • the plans, blueprints, renderings, ­skyline of any modern city and you’ll drawings, or models for buildings and see skyscrapers whose design is heavily other structures (referred to here as influenced by the work of such 20th century “plans”), and ­architectural giants as Walter Gropius, Mies • actual constructed buildings van der Rohe, and Philip Johnson. themselves. Many of the most famous buildings Luckily, however, most buildings and in America are copied from, or heavily many plans are in the public domain. influenced by, prior works. For example, Copyright protection differs for plans the design of the Lincoln Memorial is similar and buildings, and the two are covered to the Parthenon in Athens, while Thomas separately below. Jefferson’s design for his home, Monticello, was heavily influenced by the work of Many Works in the Public Domain in the 16th century Italian architect Andrea the United States Are Still Protected Palladio. by Copyright Abroad, and Vice Versa. This Perhaps the most extraordinary modern chapter only covers the public domain in examples of copying of public domain the United States. For a detailed discussion buildings can be seen in Las Vegas, Nevada. of the public domain outside the United Along the famed Las Vegas “Strip” one can States, see Chapter 16. see copies of Egyptian pyramids, the Casino at Monte Carlo, and the Paris Opera House. Most extraordinary of all is the New York, What Good Is Public New York, Casino and Hotel. It contains Domain Architecture? one-third scale replicas of many of the most famous buildings in the Manhattan skyline, Architects have been copying from each including the Empire State Building and other for millennia. Take a look at the Chrysler Building. buildings around you and it’s very likely All this copying is perfectly legal because you will see echoes of public domain all buildings constructed before 1990 are in ­architecture. Older public buildings such the public domain. Millions of architectural as courthouses, libraries, banks, post plans for existing buildings and those ­yet to offices, and city halls—with their reliance be built—along with other types of ­structures on columns­ and arches—frequently copy —are also in the public domain. Modern- ­ancient Greek and Roman architecture. day architects are free to draw upon this chapter 9: Architecture 197

Architectural Plans

Once architectural plans enter the public domain, they may be freely copied and ­distributed and new buildings may be built from them. Copyrighted plans may not be copied, but in many cases buildings can be constructed based on the plans without ­obtaining permission from the copyright owner.

Have the Plans Been Published?

You must first determine whether the plans you’re interested in have been published and, if so, when. This will determine how long their copyright protection lasts and what rights the copyright holder has to ­protect and determine how those plans are used. New York, New York, Hotel and Casino, Las Vegas, Like any other work of authorship, Nevada. © copyright 1999 by Joe Schwartz ­architectural plans are published for copyright purposes when the copyright ­architectural heritage in any way they owner, or someone acting on his or her desire—from outright imitation like that behalf, makes the plans available to seen in Las Vegas to far more sophisticated the general public. In other words, any and subtle forms of borrowing. interested member of the public may obtain Nonarchitects such as building contractors a copy. Burke v. National Broadcasting Co., and ordinary people who just want to 598 F.2d 688 (9th Cir. 1979). build a home or other structure can also Publication occurs, for example, when benefit from the public domain. Millions of plans are published in newspapers, architectural plans and blueprints are in the magazines, books, advertising brochures, public domain and may be freely copied promotional flyers, or otherwise made and used to build new structures without available to the general public. However, having to go to the time and expense of the following activities do not result in hiring an architect. publication of architectural­ plans: 198 The Public Domain

• where a person engages an architect page after the title page, and anywhere to create custom plans for a building else that seems logical. and the plans are not made available • Check the Library of Congress. Check to the general public the Library of Congress card catalogue • where copies of plans are sent to to see if it has as a record for the ­potential contractors and subcontractors plans themselves or the work in for bidding purposes or to actually which they were published. You can construct a building do this in person at the Library in • where copies of plans are placed in Washington, DC, or online through the public files, such as filed with a local Library’s Web page (http://catalog.loc zoning board or planning department, .gov). The Library’s catalogue contains or the publication dates for ­millions of • where photographs of a building works in the Library’s ­collection. are published—for example, in a • Check Copyright Office Records. If magazine, newspaper, or book. ­either the individual plans or any larger work in which they were Date of Publication ­published was registered with the U.S. Copyright Office, checking ­Copyright If you determine that the plans have been Office registration records will reveal published, you should also find out the date the publication date. Many of these of publication. The date in the copyright records can be researched online. notice for the plans themselves or the (See Chapter 21.) However, not all work in which the plans were published— published works are registered with for example, an architecture book—is the Copyright Office, so there may be the date of publication. If there is no no record for it. copyright notice, but you have nonetheless • Check Reference Works. There are determined that the plans have been ­hundreds of reference works that may published, you’ll have to look elsewhere be able to tell you when a work was for clues about the publication date. Try the published. Go to a public or university following: library with a good reference section • Examine the Work for a Date. Examine and ask the reference librarian for the plans and the work in which the ­assistance. If you’re too busy to go to plans were published—for example, a a library, you can post your research brochure or book—for a publication questions on the Internet at www.ipl date. Most published works contain .org and a reference librarian will some indication of when they were email you with advice. published. Look on the title page, the chapter 9: Architecture 199

• Contact the Architect. Contact the domain where it will forever remain. Plans ­architect or the architectural firm that published as recently as 1963 could be in created the plans and ask when they the public domain. However, the copyright were published. for plans published any time after 1963 will • Use the Internet. Search the Internet not expire for many decades. using the name of the architect, the If the plans were published before 1964, name of any larger work in which the carefully review Chapter 18 for a detailed plans were published, and the name discussion of how to determine whether of the author and publisher of that the copyright has expired. If the plans have work. There may be a website ­devoted never been published, they could enter the to the architect, or some online refer­ public domain as soon as Jan. 1, 2003. See ence with detailed information about Chapter 18 for a detailed discussion. the plans. A good place to find a list of Internet reference resources is the Internet Public Library at www.ipl.org. Are the Plans in the Public Domain • Contact the Publisher. If the plans were Due to Lack of a Copyright Notice? published in a larger work such as a If the plans were published before 1989, book, contact the work’s publisher they could be in the public domain if they and ask them to tell you when the lack a valid copyright notice—the familiar work was first published. “c” in a circle ©, publication date, and name of copyright owner. In one case, for Country of Publication ­example, the plans for five different styles You also need to know the country in of tract homes entered the public domain which the plans were published. If this isn’t when they were published without a readily apparent by examining the plans ­copyright notice in advertising brochures, themselves or any larger work in which promotional flyers, and a newspaper they were published—for example, an ­advertising supplement. Donald Frederick ­architecture book—try using the resources Evans & Assocs. v. Continental Homes, 785 listed above. F.2d 897 (11th Cir. 1986). Read Chapter 19 for detailed guidance on how to determine whether a published work Has Copyright in the Plans Expired? is in the public domain because it lacks a valid copyright notice. If the plans have Copyright protection does not last forever. never been published, they do not need a When it ends the work enters the public notice and you need not read Chapter 19. 200 The Public Domain

Were the Plans Created by U.S. Is It Okay to Use Copyrighted Plans? Government Employees? If you’ve gotten to this point and determined All works of authorship created by U.S. that the plans are not in the public domain government employees as part of their jobs for any of the reasons described above, then are in the public domain. This rule applies they are protected by copyright. However, to architectural plans as well as to all types this doesn’t necessarily mean you are of writings (see Chapter 3). The National barred from constructing a building based Archives houses the plans for 28,000 U.S. on the copyrighted plans. This depends on government buildings across the country, whether the plans are only copyrighted as such as post offices, courthouses, and military a pictorial work or also receive copyright installations. For information on these protection as an “architectural work” under holdings contact: a special provision of the copyright law. If the plans are only protected as a ­picto­ Cartographic and Architectural Branch rial work, you can’t photocopy or ­otherwise (NWDNC) duplicate them without the ­copyright National Archives owner’s permission. But you can construct 8601 Adelphi Road a building based upon them. If the plans College Park, MD 20740-6001 are protected as an architectural work, not Phone: 301-713-7040 only can’t you photocopy them, you can’t email: [email protected]. construct a building based upon them The National Archives also has an either. extensive website at www.archives.gov. All Copyrighted Plans Are Are the Plans Original? Protected From Photocopying All copyrighted plans are protected as Architectural plans are protected by copy­ ­pictorial or graphic works—that is, they right only if, and to the extent, they are ­receive the same type of protection as a original. Elements copied from other plans painting, photograph, or drawing. Any or constructed buildings that are themselves type of plan can be protected in this way, in the public domain are not protected. whether for a building or for any other Thus, for example, standard design features structure such as a parking garage, bridge, that have been used over and over again for dam, or walkway. Landscape architecture decades or centuries are not protected by designs can also be protected. copyright—for example, the standard design This form of protection gives the copy­ for a Georgian window, with the window right owner the exclusive right to copy, divided into several small panes, has been distribute, and create derivative works in use for centuries and is not protected. chapter 9: Architecture 201

from the plans. For example, an architect or magazine, you could obtain numerous who creates a building plan can sue for ­copies of the book or magazine. copyright infringement against anyone who photocopies the plans without permission. Some Plans Are Protected However, there is a huge limitation on as Architectural Works this form of copyright protection for plans: In addition to being protected as pictorial The copyright owner has no right to prevent works, some architectural plans qualify others from constructing the work ­described for copyright protection as architectural in the plans. This is because the copyright works. In this event, the copyright owner owner of a drawing of a useful article of ­architectural plans has the exclusive right (such as a building) can’t prevent others to construct a building based on the plans. from building the article. He or she can A person who constructs a building based only prevent unauthorized copying of the on such plans without authorization would drawing itself. Demetriades v. Kaufmann, be guilty of copyright infringement even if 680 F.Supp. 658 (S.D. N.Y. 1988). he or she didn’t actually make copies of the As a practical matter, however, it may plans. be difficult (if not impossible) for you to This form of copyright protection for construct a building or other structure based plans began on Dec. 1, 1990 and applies on preexisting plans without first making only to buildings, which includes structures copies of those plans. The unauthorized that are habitable by humans and intended making of the copies would constitute to be both permanent and stationary, copyright infringement, even if the actual such as houses and office buildings. Also construction would not. In one case, for ­covered are other permanent and stationary ­example, the defendant copied house plans structures designed for human occupancy on tracing paper and used the unauthorized such as churches, museums, gazebos, and copy to build the house. The copyright garden pavilions. Structures not designed owner of the plans sued and the court held for human occupancy such as dams, that the copying of the plans was copyright chicken coops, or barns, are not covered; infringement, although the construction was neither are elements of the transportation not. The court issued an order impounding system such as highways, bridges, and the unauthorized copies of the plans, walkways. which effectively shut down construction. In addition, there are important limitations Demetriades v. Kaufmann, 680 F.Supp. 658 on the extent of this form of copyright (S.D. N.Y. 1988). protection for architectural plans: However, it might be possible for you to • All plans created after Dec. 1, obtain multiple copies of the plans without 1990—whether or not they are making the copies yourself. For example, published—are protected as if the plans have been published in a book architectural works. 202 The Public Domain

• Unpublished plans created before • Dover Publications Dec. 1, 1990 are covered only if the (http://store.doverpublications.com). building described in the plans was For updates (and to directly link to these not actually built by Dec. 1, 1990. resources) check my Web page (http:// If the building described in the copyrightfree.blogspot.com). pre-1990 plan was still not built by Dec. 31, 2002 this form of copyright protection for the plans ended (but Constructed Buildings they would still be protected as pictorial works). If the building was Determining whether the design of a constructed by that deadline, the full ­constructed building like the Empire State term of copyright applies—the plans Building or White House is in the public would usually receive 95 years of domain is relatively easy. You just have to copyright protection, but never less know whether the building was constructed than 70. (See Chapter 18 for a detailed before or after Dec. 1, 1990. discussion of copyright terms.) • Plans that were published before Dec. 1, 1990 are not protected as Was the Building Constructed architectural works. Before Dec. 1, 1990?

Copyright does not protect any building Sources of Architecture Plans constructed before Dec. 1, 1990. This means that, unless the building is protected by The following resources may be helpful for trademark laws, anyone can photograph or locating public domain architectural plans: draw such a building or other structure and • Columbia University Avery Architec­ construct a new building or structure based ture and Fine Arts Library upon the picture or drawing they made. (www.cc.columbia.edu/cu/libraries/ For example, this is what the creators of the indiv/avery) New York, New York, Casino in Las Vegas • Harvard Design School did. The plans for such a building may also (www.gsd.harvard.edu/library) be used, but they may not be photocopied • University of Florida, Architecture & or otherwise ­duplicated unless they are also Fine Arts Library in the ­public domain. (http://afalib.uflib.ufl.edu/afa) However, structures other than buildings • University of Nevada Las Vegas that were built before Dec. 1, 1990 can be Architecture Studies Library (http:// protected as works of sculpture if they serve library.nevada.edu/arch/index.html) no functional (that is, practical) purpose— chapter 9: Architecture 203

for example, cemetery monuments are Structures not designed for human ­protected as artworks, as long as they are occupancy such as dams, dog houses, original. chicken coops, or barns are not covered; Copyright protection is also available for neither are elements of the transportation separately identifiable sculptural or pictorial system such as highways, bridges, and elements or ornamentation attached to a walkways. building—for example, statues, friezes, or frescoes. These kinds of structures Copyrighted Elements of Buildings or elements receive the same term of Copyright protection for buildings copyright protection as sculptures or constructed after Dec. 1, 1990 extends other works of art. But only these artistic only to the “overall form as well as the elements are protected, not the building arrangement and composition of spaces itself. For example, if a building contains and elements of the design.” This vague an ornamental frieze still under copyright, definition seems broad enough to cover you couldn’t copy the frieze, but you could just about any ­original design element in copy the rest of the building. These types of a building whose purpose is not purely structures or building­ elements built before functional (see below). December 1990 receive the same copyright Copyright does not extend to “individual protection as other works of art. (See standard features.” 17 U.S.C. Section Chapter 5 for a detailed­ discussion of when 101. Such standard features include, for artworks enter the public domain.) example, ­windows, doors, and other standard building components. However, Was the Building Constructed After windows, doors, and other features that Dec. 1, 1990? are not “standard” presumably would be protected—for ­example, highly stylized Buildings constructed after Dec. 1, 1990 or unusual windows, doors, or other are entitled to copyright protection as components. archi­tectural works. This means they are No copyright protection is given to design protected against unauthorized reproduction. elements that are functionally required. In Only build­ings receive such protection. other words, no copyright protection is “Buildings” means structures that are habit­ available for those elements of a building able by ­humans and intended to be both whose purpose is to keep the rain and permanent and stationary, such as houses wind out or prevent the building from and office buildings. Also included are other ­falling down. Only design elements whose permanent and stationary structures designed purpose is aesthetic or decorative may be for human occupancy such as churches, protected. museums, ­gazebos, and garden pavilions. 204 The Public Domain

A two-step analysis is required to determine which elements of a building are protectable. First, the work should be ­examined to determine whether there are original design elements present, including overall shape and interior architecture. If such elements are present, go on to step two and examine whether the design ­elements are functionally required. If the design elements are not functionally ­required, the work is protected. An outstanding example of a building whose overall shape and interior archi­ tecture is clearly original and nonfunctional is the Guggenheim Museum of Modern Art in Bilbao, Spain. The highly imaginative form of this building, designed by Frank Gehry, obviously serves an aesthetic, rather than functional, purpose. In addition, as with all works of authorship, buildings are protected by copyright only to the extent they are Guggenheim Museum of Modern Art, Bilbao, Spain. original. Design elements copied from © copyright Rosmi Duaso/Time Pix other buildings or standard in the field of architectural design cannot hold a valid copyright. Examples ­include common Photographing Permissible architecture moldings or the volute used to decorate the capitals of Ionic or Corinthian There is one important limitation on copy­ columns. right protection for a building constructed after Dec. 1, 1990. If a building is located in or visible from a public place (for example, the sidewalk), the owner may not prevent others from making, distributing, or displaying photographs, movies, paintings, drawings, or other pictorial representations of the building. You can use such architec­ tural photographs, drawings, or other chapter 9: Architecture 205

copies in almost any way you desire. For infringement. Moreover, entering private example, you could use them in books, property without permission to photograph magazines, posters, or postcards. There a building may cause you to be charged is one exception: If a building qualifies with trespassing. To avoid such claims, as a trademark, you can’t use a picture, photographers, publishers, and filmmakers drawing, or other representation of it as have the property owner sign a property a trademark—that is, to identify goods or release (also known as a location release) services in advertising, product packaging, in which the owner agrees to permit the on merchandise, etc. photographing or other copying.

Example: Part of the movie Batman For a sample property release form, Forever was filmed at a building in refer to Getting Permission: How downtown Los Angeles that contained to License & Clear Copyrighted Materials sculptural elements such as a vampire Online & Off, by Richard Stim (Nolo). figure on a series of towers. The designer of the towers sued the movie’s producers for copyright infringement, Is the Building Protected by claiming that the sculptural elements he Trademark or Patent Laws? designed were copyrighted and could not be used in the film without his Some buildings are entitled to legal permission. He lost. The court held that protection under the state and federal the towers were part of the building; trademark laws. A few buildings have since they were part of an architectural actually been patented. Such protection is work, the public was entitled to available for buildings constructed before photograph them without permission. or after Dec. 1, 1990 and—unlike copyright The right to photograph publicly protection—is not limited to structures accessible buildings includes not habitable by humans.­ just the building itself, but sculptural elements the building contains. Leicester Trademark Protection for Buildings v. Warner Brothers, Inc., 232 F.3d 1212 The design or appearance of a building can (9th Cir. 2000). be protected by state and federal trademark laws if it is used to identify and distinguish If a building is not located in or goods or services that are sold to the public. visible from a public place, you need For example, trademark protection was permission to photograph or otherwise ­extended to the distinctive design of White copy it. Photographing such a building Tower hamburger stands, consisting of a without permission constitutes copyright white structure designed like a miniature 206 The Public Domain

and so forth. The distinctive ­design of the Transamerica Pyramid building in San Francisco is a good example of a building design that is used to market a ­service—in this case, Transamerica Corpo­ration’s financial and insurance ­services. The design has been registered as a trademark. Distinctive interior design can also qualify for trademark protection. For example, the interior design of the decor used by the Courtesy of White Castle System, Inc. ­restaurant chain Taco Cabana was protected. Two Pesos, Inc. v. Taco Cabana, 112 S.Ct. castle. White Tower was able to prevent a 2753 (1992). competitor from using a similar design for Of course, most building designs are not a competing hamburger stand. White Tower used to identify a product or service and System v. White Castle System, 90 F.2d 67 are not protected as trademarks. Also, keep (6th Cir. 1937). in mind that trademark protection does not Over 50 years later, a court held that confer an absolute monopoly on the use the design of the façade of the New York of the mark. Even if a building design is Stock Exchange building was an inherently trademarked, it still may be copied without distinctive trademark that could have been permission in many situations without infringed upon by a replica at the New violating the trademark laws. Moreover, York, New York casino in Las Vegas. New trademarks cannot protect the purely York Stock Exchange, Inc. v. New York, New functional aspects of building design. (See York Hotel, 293 F.3d 550 (2d Cir. 2002). Chapter 20 for a detailed discussion of Distinctive decorative portions of buildings trademarks.) can also be trademarked, such as the golden arches that used to appear on all Design Patent Protection McDonald’s hamburger stands. Architectural designs and structures can also However, most buildings don’t qualify for be protected by design patents. To qualify, trademark protection. The building must the design or structure must be ornamental, become associated in the public’s mind with nonfunctional, and not obvious—for a particular product or service. One way for ­example, a design patent was obtained for this to occur is for the building ­design to a spaceship-shaped restaurant building. be used to market a product or service—for However, this form of protection is not example, by using it on menus, letterheads, ­often used. (See Chapter 5 for a detailed in newspaper and magazine advertising, discussion of design patents.) ■ Chapter 10

Maps

Has Copyright in the Map Expired?...... 209

Is the Map in the Public Domain Due to Lack of a Copyright Notice?...... 209

Was the Map Created by the U.S. Government?...... 210

Is the Map Eligible for Copyright Protection?...... 211

Are Elements of the Map in the Public Domain?...... 211 Elements Copied From Other Maps...... 211 Place Names...... 212 Signs, Symbols and Colors...... 212 Geographic Features...... 213

Sources of Public Domain Maps...... 213 208 The Public Domain

hen we talk about maps we mean flat maps, atlases, globes, Mapping in the Public Domain marine charts, celestial maps, W The U.S. Geological Survey has entered and three-dimensional relief maps. Maps into a partnership with the Microsoft generally receive less copyright protection Terra Server website to place digital than most other graphic or pictorial works copies of thousands of its maps and aerial because they are used to describe as photographs on the Internet. Because ­accurately as possible the physical world, a these maps were created by the USGS, world that is itself never copyrightable. a U.S. government agency, they are in Many maps are in the public domain, the public domain. They may be freely ­including hundreds of thousands of maps downloaded, copied, distributed, and made by the U.S. government. These used in any way you desire. The map public domain maps may be freely copied, reproduced below shows a portion of ­republished, used to create new maps, or the city of San Francisco. You can obtain for any other purpose. a USGS map of your own hometown by What If the Work Is Not in the Public visiting the Terra Server website at http:// Domain? If you find that the map you terraserver.microsoft.com. want to use is not in the public domain, there may be parts of the material you can use, even if the entire work is not in the public domain. It may also be possible to use the entire work under a legal exception called “fair use” (see ­Chapter 22). If you do not qualify for this exception, you will need to obtain ­permission to use the work. For a detailed discussion of how to obtain copyright ­permissions refer to Getting Permission: How to License & Clear Portion of map of San Francisco, USGS Copyrighted ­Materials Online & Off, by Richard Stim (Nolo). chapter 10: Maps 209

Has Copyright in Is the Map in the Public the Map Expired? Domain Due to Lack of a Copyright Notice? The copyright for all maps published in the United States before 1923 has expired. A map published before 1989 could be in You may use these maps for whatever the public domain if it lacks a copyright purpose you desire. They are in the public ­notice. Examine the map carefully to domain. The copyright for many other maps determine if it has a notice. A copyright published from 1923-1963 has expired as notice on a map must contain at least two well. In addition, many unpublished maps elements—the familiar © symbol, the word entered the public domain on January Copyright or abbreviation “Copr.,” and 1, 2003. (See Chapter 18 for a detailed name of copyright owner—for example: © discussion of copyright duration.) Mel Mercator. Maps published after 1977 You cannot know whether the copyright must also include the publication year-date in a map has expired unless you know in the notice. Maps published before 1978 whether or not it has been published and did not need a date. the date and country of publication. The If the map has been published as part rules for publication of maps are the same of a larger work—for example, in an atlas as for written works—publication occurs containing many maps or in a book, ­ency­- when the work is made available to the clopedia, magazine, newspaper, or other general public. (See Chapter 3 for a detailed work—it is sufficient that the larger work discussion.) has a proper notice. For example, a notice in the name of an atlas publisher will cover all the maps in the atlas.

Political map of the world, www.cia.gov/cia/publications/factbook 210 The Public Domain

If the work has a notice in the format The USGS alone has nearly 70,000 maps described above, you can forget available for sale. These include topographic about it being in the public domain for maps, thematic maps, and even maps of the lack of a notice. There is no need to read moon. Many more USGS maps are out of ­Chapter 19, which explains copyright notice print and are available from the National requirements in detail. Archives, libraries, or from map dealers. Since all these maps are in the public However, if the work has no notice or ­domain, it would be possible for a person if the notice lacks one of the elements or company to sell them to the public described above, it could be in the public without having to pay the government any ­domain. Read Chapter 19 for detailed fees at all. ­guidance on how to determine whether To obtain free map indexes and cata­ a published map is in the public domain logues and to order USGS maps contact the ­because it lacks a valid copyright notice. USGS at: Unpublished maps have never required USGS Information Services a copyright notice. So if the map you’re Box 25286 ­interested in has never been published, you Denver, CO 80225 need not read Chapter 19. Phone: 888-ASK-USGS Fax: 303-202-4693. Was the Map Created The USGS also has a very informative by the U.S. Government? website at www.usgs.gov.

All maps created by U.S. government ­employees as part of their jobs are in the public domain. This includes all the maps created by the U.S. Geological Survey (USGS), the U.S. Forest Service, and the ­Bureau of Land Management. However, maps created by state and local government employees may be protected by copyright— for example, a map created by a state Map of California as an island, 1650, highway or forestry department, or a county Library of Congress, Geography and Map Division tax map. County of Suffolk v. First American Real Estate Solutions, 261 F.3d 179 (2d Cir. 2001). chapter 10: Maps 211

Is the Map Eligible for domain and may be freely copied. These Copyright Protection? public domain elements include the following:

To be protected by copyright, a mapmaker’s­ Elements Copied From Other Maps selection and arrangement of the elements that make up the map must be original To create a new map, a cartographer will and minimally creative. If the ­components typically use preexisting maps as a starting ­selected to create the map are entirely point. Often, U.S. Geological Survey maps ­obvious, the map will not be ­copyrightable. are used or other maps that are in the For example, an outline map of the United ­public domain. The cartographer selects States showing the state boundaries is not and rearranges the information on these copyrightable. maps and adds new information to create And a survey map of a building site that a “new” map. For example, one mapmaker used standard cartographic conventions created real estate ownership maps by was not copyrightable since there was no drawing the location of real estate tracts originality used to show boundaries, zoning onto topographical maps obtained from the districts, plot lines, streets, elevations, and USGS. Mason v. Montgomery Data, Inc., 967 buildings. Sparaco v. Lawler, Matusky & F.2d 135 (5th Cir. 1992). Skelly Engrs., 303 F.3d 460, (2d Cir. 2003). A mapmaker’s copyright only extends to the new authorship he or she adds It’s far from clear what types of maps, to the preexisting materials, not material other than simple outline maps, that is borrowed or copied from previous are so obvious as not to be protected by maps. Typically, this consists of the ­copyright. What may seem obvious to you selection, ­arrangement, and presentation may not seem so obvious to a mapmaker of the ­component parts of the map. The or publisher. See Chapter 1 for detailed preexisting materials remain in the public guidance on how to deal with such public domain and may be freely copied. domain gray areas. Example: A mapmaker created a map of an Idaho county by starting with a Are Elements of the Map map prepared by the Idaho Highway in the Public Domain? Department that was in the public ­domain and adding to it the location and Even if a map as a whole is not in the ­public names of rifle ranges, landing strips, domain, it will ordinarily contain many motorcycle and jeep trails, landmarks, ­individual elements that are in the public and subdivisions all obtained from other sources. The resulting map was 212 The Public Domain

a copyrightable “synthesis,” but the elements copied from the Highway Fictional and Humorous Maps ­Department map remained in the ­public Are maps of fictional places in the public domain. United States v. Hamilton, 583 domain? Can anyone use the famous F.2d 448 (9th Cir. 1978). map drawn by author William Faulker of Yoknapatawpha County, the fictional area of Mississippi where most of his Place Names stories and novels took place? And what The names shown on maps for cities, streets, about the humorous maps of the late mountains, rivers, and other geographic New Yorker Magazine cartoonist Saul ­features are always in the public domain. Steinberg. His most famous joke map This is so even if a cartographer creates depicts the world from a New Yorker’s a place name. For example, a court ruled point of view—the map presents a bird’s that the names a cartographer devised for eye view across a portion of the western over 200 lakes, streams, creeks, and tourist edge of Manhattan (which dominates camps in the Sierra Nevada mountains the map) and a telescoped version of the of California were in the public domain. rest of the United States and the Pacific Hayden v. Chalfant­­­ Press, Inc., 281 F.2d 543 Ocean, to a red strip of horizon, beneath (9th Cir. 1960). which are three flat land masses labeled China, Japan, and ­Russia. Fictional or humorous maps receive far Signs, Symbols and Colors more copyright protection than ordinary maps that describe the real geographical Signs, symbols, and keys used on maps world. They are more like works of art ­cannot obtain copyright protection, even if than maps. Unless they are in the public they are original. This includes, for example, domain due to copyright expiration or the use of particular symbols to indicate the lack of notice, copying such maps is comparative populations of cities. Andrews not advisable. You could get sued and v. Guenther, 60 F.2d 555 (S.D. N.Y. 1932). easily lose. This is what happened when Similarly, the use of particular colors to Columbia Pictures copied many of the identify topographic features is not protected elements of Steinberg’s New York map by copyright. For example, one can’t in a poster for the movie Moscow on the copyright the use of the color green to Hudson. Steinberg sued the movie studio delineate a forest, blue the sea, or brown a for copyright infringement and won. desert. Steinberg v. Columbia Pictures Industries, 663 F.Supp. 706 (S.D. N.Y. 1987). chapter 10: Maps 213

Geographic Features Sources of Public Domain Maps Geographic or topographic features are facts or discoveries that are in the public These Internet resources may help you find domain. Thus, no one can hold a copyright public domain map information: on topographic features such as the shape • University of Minnesota Links to Map of the state of Florida or on the location of Libraries (http://map.lib.umn.edu) boundaries, cities, or roads. This applies • Oddens’ Bookmarks even to geographic features newly ­discovered (http://oddens.geog.uu.nl/main.html) by a cartographer. For example, if a cartog­ • Geography and Map Division of the rapher discovers a river, island, or even a Library of Congress (http://lcweb.loc. new shopping mall and depicts them on a gov/rr/geogmap/gmpage.html). map, the name and location would not be For updates (and to directly link to these protected by copyright. resources) check my Web page (http:// copyrightfree.blogspot.com). ■

Chapter 11

Choreography

Deciding If Choreography Is in the Public Domain...... 216 Has the Choreography Been Fixed?...... 216 Has the Choreography Been Published?...... 217 Has the Copyright in the Choreography Expired?...... 217 Is the Choreography in the Public Domain Due to Lack of a Copyright Notice?.....218 Is the Choreography Eligible for Copyright Protection?.­...... 219

Sources of Public Domain Choreography...... 219 216 The Public Domain

his chapter covers all forms of chore- How to License & Clear Copyrighted ography, including ballet and modern Materials Online & Off, by Richard Stim T dance. The owner of the copyright in (Nolo). a work of choreography has the exclusive right to perform it in public or grant ­licenses permitting others to do so. Such ­licenses Has the Choreography Been Fixed? usually cost money. But once a ballet or The first question you need to answer to dance enters the public domain, anyone determine whether choreography is in the can perform it without obtaining permission public domain is whether or not it has been from the former copyright owner. Public fixed in a tangible medium of expression. domain choreography can also be freely Only choreography that has been recorded adapted and revised to form new dance in some concrete way can be in the public works. domain. There are a variety of ways choreography Many Works That Are in the Public can be fixed, including: Domain in the United States Are • on film or videotape Still Protected by Copyright Outside the • written down using dance notation (the United States, and Vice Versa. This chapter only covers the public domain in the United most popular forms of dance ­notation States. For a detailed discussion of the are Labanotation and Benesch; for a ­public domain outside the United States, see good introduction to such notation see Chapter 16. www.dancenotation.org) • by writing down or tape-recording a detailed verbal description • by creating pictorial or graphic Deciding If Choreography Is in ­diagrams the Public Domain • by using computer dance notation software programs, or What If the Work Is Not in the Public • by a combination of any of the above. Domain? If you find that the work A good deal of choreography has been you want to use is not in the public fixed using one of these methods. However, ­domain, you may be able to use it anyway most choreography has never been fixed. under a legal exception called “fair use” Instead, it exists in the memories of dancers (see Chapter 22). If you do not qualify for and choreographers and is passed down this exception, you will need to obtain orally and by repetition from generation to ­permission to use the work. For a detailed generation. discussion of how to obtain copyright Federal copyright law does not protect ­permissions refer to Getting Permission: choreography that has never been filmed, chapter 11: Choreography 217 written down, or otherwise fixed in a Has the Choreography ­tangible medium of expression. But this Been Published? does not mean that such unfixed works are in the public domain. To the extent a work If the choreography has been fixed in is original, state copyright law—also known a tangible medium of expression, you as common law copyright—protects unfixed must then determine whether it has been choreography. Such state law protection published. This will determine how long the lasts as long as the work remains unfixed; copyright in the work lasts and whether it in other words, it could last forever. As a needed a copyright notice. practical matter, though, it can be difficult A choreographic work is published for to enforce legal rights in an unfixed work. copyright purposes when the copyright Without a concrete record of the work owner, or someone acting on his or (such as a film or dance notation) it can be her ­behalf, makes the work available to difficult to prove the exact contents of the the general public. In other words, any work. Nevertheless, such unfixed works are interested member of the public may obtain not in the public domain and using them a copy. Burke v. National Broadcasting Co., without permission invites legal trouble. 598 F.2d 688 (9th Cir. 1979). For example, a choreographic work Seek legal advice from a copyright is published if it is filmed and copies of attorney before using an unfixed the film are offered for sale or rent to the choreographic work without permission. public. Likewise, a dance that is written The remainder of this chapter covers down in Labanotation is published if copies ­federal copyright protection for choreography of the writing are made part of a dance that has been fixed. book that is offered for sale to the public. Distributions of copies of choreographic works to limited or restricted audiences do not count as publication. For example, providing copies of dance notation to the cast of a dance group is not a publication.

Has the Copyright in the Choreography Expired?

Copyright protection does not last forever. When it ends the work enters the public domain where it will forever remain. The 1001 Cartoon-Style Illustrations, Dover Publications copyright in a choreographic work expires 218 The Public Domain

when the copyright in the work in which it so may violate their right of publicity if is fixed expires. the photo or film is used for advertising or other commercial purposes. For example, Example: If a dance has been filmed, you can’t use a photo of Fred Astaire to the copyright in the dance expires ­advertise a product even if the photograph when the film enters the public domain. is in the public domain (See Chapter 20). This means, for example, that when the 1935 musical Top Hat enters the public domain in 2031, the famous dances Is the Choreography in the it contains will also enter the public Public Domain Due to Lack ­domain. Similarly, if a choreographic of a Copyright Notice? work has been fixed in a book of Copyright expiration is not the only ­photographs, the work will enter the way choreography may enter the public public domain when the book does. domain. Choreography published in the Unfortunately, determining whether a United States before 1989 had to contain a copyright has expired can be somewhat copyright notice—the familiar “c” in a circle complex. You need to determine which of © or the word Copyright or abbreviation several possible copyright terms apply to the Copr., publication date, and name of work in question. Choreography ­published copyright owner. Choreography published as recently as 1963 could be in the public without such a notice could be in the public domain. On the other hand, ­choreography domain. created over 100 years ago (and more) Examine the work carefully—whether could still be protected by copyright. a book, article, movie, video, or work in The copyright terms are the same no which the choreography has been fixed. ­matter what type of work is involved If the work lacks a copyright notice or if (writings, music, art, etc.). They are the notice lacks one of the three elements discussed in detail in Chapter 18. Turn ­described above (copyright symbol or word, to that chapter to determine whether the publication date, copyright owner’s name) copyright in a work you’re interested in has it could be in the public domain. Read expired. Chapter 19 for detailed guidance on how to determine whether a published work is in beware the Right of Publicity. If a film the public domain because it lacks a valid or photograph of a dance enters the copyright notice. public domain, you may copy the dance If the choreography has never been steps, but this doesn’t mean you may freely ­published, it needs no notice and you need copy a film or picture of the dancers.­D oing not read Chapter 19. chapter 11: Choreography 219

Is the Choreography Eligible folk-dance steps, and individual ballet steps for Copyright Protection? may be utilized as the choreographer’s ­basic material in much the same way that words Not all choreography is protected by are the writer’s basic material. Horgan v. ­copyright under either federal or state law. MacMillan, 789 F.2d 157 (9th Cir. 1986). For example, choreography copied from previous public domain choreographic For a detailed discussion by a dance works is not protected. expert of what elements of chore­ ography are copyrightable, refer to the Example: Serge, a modern dance article “Copyright of Choreographic ­choreographer, finds a little-known Works,” by Julie Van Camp, published in modern ballet described in Labanotation 1994-95 ­Entertainment, Publishing and in a book published in 1928. The book the Arts Handbook, edited by Stephen F. and the ballet it describes are in the Breimer, Robert Thorne, and John David public domain because the copyright Viera (Clark Boardman Callaghan). This expired. Serge copies the ballet step- article may be downloaded at www.csulb. for-step and claims credit for the “new” edu/~jvancamp/copyrigh.html. ballet. The ballet is later published in a written collection­ of Serge’s works. However, because Serge copied the Sources of Public ballet from a public domain work, the Domain Choreography ballet cannot be protected by copyright. It is in the public domain. The leading resource for choreography materials is the Jerome Robbins Dance In addition, social dance steps and simple Division of the New York Library for the routines do not have copyright protection. Performing Arts (www.nypl.org/research/ Thus, for example, the basic waltz step, the lpa/dan/dan.html). For updates (and to hustle step, basic classical ballet movements directly link to this resource) check my Web —such as the second position—cannot be page (http://copyrightfree.blogspot.com). ■ protected by copyright. Social dance steps,

Chapter 12

Databases and Collections

Part I. Databases...... 223

Is the Work a Database?...... 224 Limited Copyright Protection for Databases...... 225 Raw Facts in Databases Not Protected by Copyright...... 225

Does the Database Lack Creativity?...... 227 Is the Arrangement of the Data Creative?...... 227 Is the Selection of the Data Creative?...... 228 Examples of Databases That Lack Creativity...... 228

Was the Database Created by the U.S. Government?...... 229 Copyrighted Materials in Government Databases...... 231 Copyright Claims Outside the United States ...... 231 Privacy and Security Limitations...... 231 U.S. Department of Commerce Databases...... 232 State and Local Databases...... 232

Has the Copyright in the Database Expired?...... 232

Is the Database in the Public Domain for Lack of a Copyright Notice?...... 233

Is the Database Protected by Means Other Than Copyright?...... 234 Licenses...... 234 Trade Secrets...... 236 Encryption...... 237 222 The Public Domain

Part II: Collections of Public Domain Works...... 238

Are the Collected Materials in the Public Domain?...... 238 Copyright Protection for Public Domain Collections...... 239 Copying Collections of Public Domain Works...... 240

Does the Collection Lack Minimal Creativity? ...... 241

Is It a De Minimis Collection?...... 241

Is It a U.S. Government Collection?...... 242

Has the Collection’s Copyright Expired?...... 242

Is the Collection in the Public Domain for Lack of a Copyright Notice?...... 242

Is the Collection Protected by Means Other Than Copyright?...... 243 chapter 12: Databases and Collections 223

his chapter is about a special type of to know whether a work is in the public work of authorship: what the copy- domain outside the United States, see T right law refers to as a “compilation.” Chapter 16. This is a work that is created by collecting data or materials that already exist. There are two types of compilations: Part I. Databases • Raw data or facts—for example, a list of names, addresses, and phone When a database is in the public domain ­numbers in a phone book. These are and not protected by the other legal called databases. restrictions discussed in this chapter, you • A collection of works of authorship, can use the data it contains in any way you such as a collection of short stories, want without obtaining permission from drawings, or photographs. These are the ­person or entity that originally created called collections. the database—permission that often must As you can imagine, there are millions of be paid for. You can use the data to create databases and collections. As this chapter and publish your own database or use it explains in detail, such works can receive in any other way you desire. For example, limited copyright protection if a minimal you can take U.S. State Department statistics amount of creativity was required to create about worldwide terrorism and write your them. But many databases and collections own article, book, or report on terrorism fail the creativity requirement and receive and even sell it at a profit. You could even no copyright protection at all. However, post these statistics on your website to those databases and collections that are not warn overseas travelers about dangerous copyrighted are not always freely available, destinations. (Most U.S. government because the people who created them may databases are in the public domain.) attempt to use means other than copyright Unfortunately, determining which law to protect them, such as licenses, trade databases are and are not protected can secrecy, or encryption. require that you navigate a complex legal Part I covers databases and Part II covers maze. For a variety of reasons explained collections. below, many databases are not protected by ­copyright at all; and, even where copyright It Is Possible for a Database or protection is available, it is extremely Collection to Be in the Public ­limited. As a result, database creators and Domain in the United States but Protected owners frequently resort to other means to by Copyright in a Foreign Country, and Vice protect their works, including using ­licenses. Versa. This chapter only covers the public The extent to which these other means of domain in the United States. If you want protecting databases are legally effective is not always clear. 224 The Public Domain

However, it is clear that database owners any form—for example, they can consist of have become increasingly aggressive in numbers, names, dates, addresses, or just ­asserting ownership claims in their data. about anything else. For example, The New York Times sued the online bookseller Amazon.com when Example: Cynthia Powell, a romance it ­began posting the Times’s weekly list of novel fan in Michigan, created a website best-selling books on its website. The case called the Romance Novel Database. was settled when the Times agreed that Here she lists 244 romance novels Amazon could post the list in alphabetical and rates them by quality—five hearts order, rather than by sales volume. is best, one heart is worst. Cynthia’s As a result, you should exercise caution website is a database consisting of 244 before you copy any database. If you’re not facts—the names of 244 romance novels sure it is in the public domain, seek legal —unprotected by copyright. You can advice. view the list at www-personal.umich .edu/~sooty/romance. What If the Work Is Not in the Public Domain? If you find that the database you want to use is not in the public domain, Example: Key Publications, a publisher you may be able to use it (or at least part of phone book Yellow Pages, compiles of it) anyway under a legal ­exception a Yellow Pages directory for New York called “fair use” (see Chapter 22). If you City’s Chinese-American community. do not qualify for this exception, you Key selects which businesses qualify will need to obtain permission to use the for inclusion in its Yellow Pages and work. For a detailed discussion of how ­arranges the directory into categories to obtain copyright permissions refer to such as Accountants, Shoe Stores, and ­Getting Permission: How to License & Clear Bean Curd & Bean Sprout Shops. Key’s Copyrighted Materials Online & Off, by Yellow Pages are a database consisting ­Richard Stim (Nolo). of hundreds of public domain facts— the names, addresses, and phone ­numbers of Chinese-owned businesses Is the Work a Database? in New York City.

You probably create databases all the A database (also known as a fact compila­ time. For example, your personal rolodex or tion) is a work created by selecting and other list of phone numbers you frequently ­arranging facts. “Data” is just a fancy word call is a database. So is a shopping list, for facts. The facts in a database can take Christmas card list, daily “to do” list, list of chapter 12: Databases and Collections 225

appointments, or checking account register. When we speak of a database as being Other types of databases include such in the public domain, we mean that—for works as bibliographies, directories, price one reason or another—the particular lists, real estate and stock listings, listings of selection and arrangement is not protected scientific data, and catalogues of all types. by copyright. As explained below, the raw Prior to the computer age, databases facts con­tained in a database can never be ­typically took the form of a list or a paper copyrighted, but might be protected by card system or file. With the advent of other means. ­computer technology, traditional hard copy databases have been largely eclipsed in ­importance by electronic databases. These Raw Facts in Databases may be accessed on the Internet, via online Not Protected by Copyright subscription services like Nexis and Dialog, Since the copyright in a database extends or are available on computer CD-ROMs. only to the selection and arrangement of the facts, the raw facts or data themselves Limited Copyright Protection are never protected by copyright. The U.S. for Databases Supreme Court has stated that the raw facts may be copied at will without violating the Databases receive limited copyright protec­ copyright law. This means that a database tion. All that is protected is the selection creator is free to use the facts contained in and arrangement of the material making up an existing database to prepare a competing the database, not the preexisting material database. Feist Publications, Inc. v. ­Rural itself. This is sometimes referred to as a thin Telephone Service Co., 111 S.Ct. 1282 (1991). copyright. But, the competing work may not feature For example, the only protected element the same selection and arrangement as the of Cynthia’s romance novel list mentioned earlier database and must be minimally in Example 1 above is her selection and ­creative. ­arrangement of the names of the novels in her catalogue. Cynthia had to employ Example: A website called Who’s creativity and judgment in deciding which Alive and Who’s Dead (www. of the thousands of romance novels in whosaliveandwhosdead.com) contains existence belonged on her list of 244 the birth and—where applicable—death novels and in deciding what rating each dates for over 1,700 celebrities, political novel should receive.­ The exercise of ­figures, sports stars, and others. This this creativity and judgment is the type ­information is organized in a variety of of authorship that can obtain copyright interesting ways. For example, you look protection. 226 The Public Domain

up your favorite television show and see But, don’t get the idea that raw facts in when the cast members were born and databases may always be freely copied. if any are dead. This website is a simple ­Database owners often try to use laws other database. The creators of this database than copyright to prevent the public from are entitled to copyright protection doing just that. for the way they have ­selected and arranged the material on their Opinions Are Not Facts website. However, they do not have a copyright in the individual facts in their Facts themselves cannot be protected database—meaning they don’t own by copyright. This is particularly true for the birth and death dates of celebrities. ­numerical or statistical data. However, These facts are not protectable by some things you might think are facts in copyright. Anyone writing an article the public domain really aren’t. At least or book about a celebrity can look up that’s what two federal appellate courts his birth date in the database and use have held. These cases involved copying that date in the article or book without of databases containing pricing data. ­obtaining permission from the creators In one case, someone copied the price of the database. There is no need to go ­quotations in coin dealer newsletters. In back to the original sources the data­ the other, the prices for used cars listed base’s creators used to compile their in a used car price guide called the database, such as newspaper obituary Red Book were copied. In both cases, records or government records of births the courts held that the individual price and deaths. quotations ­involved were copyrighted because they were ­entirely subjective— It may seem unfair that the facts contained they were ­simply ­estimates devised in a database gathered at great trouble and by the publishers of the guides. They expense may be used by others without represented the ­publishers’ opinions of violating the copyright laws. However, the what the coins and used cars were worth, purpose of copyright is to advance the not what someone actually paid for them. progress of knowledge, not to enrich authors. The courts held that ­sufficient creativity If the first person to compile a group of was required to devise these estimates for raw facts acquired a monopoly over them, them to be ­protected by copyright. CCC progress would be greatly impeded. This Info. Servs., Inc. v. Maclean Hunter Mkt. might not seem so serious if we were only Reports, 44 F.3d 61 (2d Cir. 1994); CDN talking about birth and death dates of Inc. v. Kenneth A. Kapes, 197 F.3d 1256 ­celebrities. But many databases contain far (9th Cir. 1999). more vital information that no one should be allowed to monopolize. chapter 12: Databases and Collections 227

Does the Database phone book included all the residents and Lack Creativity? businesses in the geographic area covered. No selectivity was needed to do this. The arrangement wasn’t creative because the A work of authorship must be the product phone book was arranged alpha­betically. of a minimal amount of creativity to be Alphabetizing a list of names and phone ­protected by copyright. This requirement numbers is a purely mechanical act—that applies to databases as well as all other is, you just follow the alphabet. Feist Publi­ work. The amount of creativity required cations, Inc. v. Rural Telephone Service Co., for a work to be protected by copyright 111 S.Ct. 1282 (1991). There are doubt­less is very small. A work need not be novel, many other types of databases that are in unique, ingenious, or even any good to be the public domain for the same reason. sufficiently creative for copyright purposes. It To tell if a database is sufficiently creative need only be the product of a very minimal to be protected by copyright, you need to creative spark. answer two questions: Most types of works easily satisfy the 1. Is the arrangement of the data ­creativity requirement. However, many ­minimally creative? ­databases don’t make the grade. The 2. Is the selection of the data minimally data contained in a database need not be creative? presented in an innovative or surprising A database is eligible for copyright protec­ way, but the selection or arrangement tion if either the selection or arrange­ment is cannot be so mechanical or routine that it minimally creative. Of course, many data­ requires no creativity at all. If no creativity bases satisfy both criteria. was employed in selecting or arranging the data, the database is not eligible for copyright protection—that is, the selection Is the Arrangement and arrangement of the data will be in the of the Data Creative? public domain as well as the data itself. This selection and arrangement­ may be copied Famed “information architect” Richard freely unless it’s protected through a means Saul Wurman, in his book Information other than copyright. Architects, points out that there are only six In a landmark decision on databases, the ways to arrange data. You may use: U.S. Supreme Court ruled that the selection • location and arrangement of white pages in a • alphabet typical telephone directory fails to satisfy • time the creativity requirement and is therefore • number not protected by copyright. The selection • category, or wasn’t creative because the compiler of the • hierarchy. 228 The Public Domain

Common sense tells us that of these six Examples of Databases methods only location, category, and hier­ That Lack Creativity archy can require minimal creativity and can be protected by copyright. No creativity Representatives of the Copyright Office is involved in arranging a database by have indicated that, in their view, the ­alphabet, time, or number. These types of ­following types of databases will usually fail organization are purely mechanical—that to satisfy the minimal creativity requirement. is, they require no exercise in judgment. The Copyright Office’s views don’t have the You just have to know the alphabet, how to force of law, but the courts likely would tell time, or count to arrange a database by follow them. these methods. • Street address directories, alumni ­directories, membership lists, mailing lists, and subscriber lists. Works such as Is the Selection of these often require no more ­creativity the Data Creative? to compile than the white pages in a phone book. This would be the case The selection of the data in a database where (1) the material is arranged in ­satisfies the minimal creativity test only if alphabetical or numerical order, and the compiler has: (2) no judgment was needed to decide • chosen less than all of the data in which names and addresses should be a given body of relevant material, included. ­regardless of whether it is taken from one or more sources, and Examples: An alphabetical list of all • the selection is based on the Harvard alumni, all the members of the compiler’s opinion about something. ACLU, or all the subscribers to Time For example, no selectivity is required to Magazine; a mailing list in numerical compile a directory of all the restaurants order according to zip code of all in New York City. The compiler of such a ­persons who have contributed more ­directory need not employ any judgment than $1,000 to the Republican Party. in deciding which restaurants belong in the directory. • Parts lists. An alphabetical or numerical But a list of the 100 “best” restaurants in list of all the parts in a given inventory New York City is minimally creative and clearly fails the creativity test: If the protected by copyright. Here, the compiler list is exhaustive, no selectivity is must use selectivity and judgment to decide ­required to compile it; if it is arranged which 100 of the thousands of restaurants in in alphabetical or numerical order, no New York City are “best.” creativity is required to arrange it. chapter 12: Databases and Collections 229

• Genealogies. A genealogy (that is, a By doing so, you would be copying not table or diagram recording a person’s only unprotectable facts but the protected or family’s ancestry) consisting expression in the database as well. merely of transcriptions of public records, such as census or courthouse Example: Robert compiles a bibli­ records, or transcriptions made from ography containing the titles, authors, headstones in a few local cemeteries, and publishers of every book published are also deemed by the Copyright in the United States on the Civil War Office to lack minimal creativity. (about 50,000 in all). The bibliography On the other hand, the creativity is simply in alphabetical order and lists requirement may be satisfied where every work in its category, so it probably­ the creator of a genealogy compilation lacks sufficient creativity to be protected uses judgment in selecting material by copyright. However, ­Robert also from a number of different sources. includes an introduction and annotates • De minimis compilations. De minimis some of the selections with explanatory in Latin means trifling or insignificant. notes. Both the introduction and A de minimis compilation is one notes constitute expression that can be that contains only a few items. protected by copyright. Thus, if someone The Copyright Office considers a copied the entire bibliography they compilation of only three items would be copying protected authorship, to be clearly de minimis and not and therefore committing copyright protected by copyright. Even if a infringement. Of course, ­anyone could de minimis compilation meets the still copy the ­individual bibliographic minimal creativity requirement, the entries so long as they left the protected Copyright Office will refuse to register authorship alone. it. This means the compiler can’t file a copyright infringement suit if anyone else uses their list of three or fewer Was the Database Created things. by the U.S. Government? beware of Databases Containing Protected Authorship. A database Most U.S. Government databases are in the ­author may add additional material to a ­data­ public domain. U.S. government employees base that is protected by copyright. If such and contractors have compiled millions material is included throughout a database, of databases on nearly every conceivable it will be much more difficult and risky to ­subject. Many of these databases can be copy the entire work or large chunks of it. ­accessed through the Internet. For example: 230 The Public Domain

• all types of population data can be United States selected and arranged by found at the U.S. Census Bureau state, race, education, and many other website at www.census.org ways and write your own report on U.S. • statistics on all aspects of the U.S. population growth and even sell it at a education system can be found at the profit. If your selection and arrangement is Department of Education website at minimally ­creative, you may even claim a www.ed.gov copyright in your database, even though all • statistics on crime and the justice the data came from a public domain source. ­system can be found at a Department You cannot, however, prevent others from of Justice website at www.ojp.usdoj using the public domain data. .gov/bjs. However, the material in U.S. government The U.S. government has created a Web databases is not always freely available. portal (www.firstgov.gov) containing links Some of it may be copyrighted in the to its many websites. United States, it might be copyrighted Most of these and other U.S. government outside the United States, or there may databases are in the public domain—that is, be other legal restrictions on its use. not just the data itself, but the selection and Government databases ordinarily contain arrangement of the database, is free for the warning statements or lists of terms and taking. conditions of use describing any limitation For example, you can take Census Bureau on use of the database. You need to read statistics about population growth in the these ­carefully.

Countries Ranked by Population: 2000

Rank Country Population Rank Country Population

1 China 1,261,832,482 6 Russia 146,001,176 2 India 1,014,003,817 7 Pakistan 141,553,775 3 United States 275,562,673 8 Bangladesh 129,194,224 4 Indonesia 224,784,210 9 Japan 126,549,976 5 Brazil 172,860,370 10 Nigeria 123,337,822

Note: Data updated 05-10-2000. Source: U.S. Census Bureau, International Data Base. chapter 12: Databases and Collections 231

Copyrighted Materials in Copyright Claims Government Databases Outside the United States

Some material on U.S. government databases While works created by U.S. government has been created by outside contractors employees are always in the public domain and is copyrighted by them. For example, in the United States, the U.S. government is the U.S. Department of Commerce National legally entitled to claim copyright outside Technical Information Service (NTIS) the United States if the foreign country ­maintains the AGRICOLA Database, which ­involved allows government materials to contains over 3,300,000 citations to journal be copyrighted under its own laws. For articles and other materials related to ­example, the U.S. government may claim ­agriculture. Some of the material in the copyright protection for its materials in AGRICOLA Database is copyrighted. The Canada or Great Britain because their laws Database contains the following statement: provide copyright protection for most ­government works. You understand that these databases Ordinarily, the United States does not may contain copyrighted material. You ­assert such claims, but it has for some of may not publish, distribute, broadcast, its databases. For example, the AGRICOLA retransmit, sell or otherwise reproduce ­Database mentioned above contains a any copyrighted item to anyone in any ­statement that states: media, or create a derivative product, without the permission of the copyright With respect to the database as a whole, owner. outside the United States, NTIS reserves all copyright protections under applicable Similarly, a database containing millions law and treaty. of citations to medical articles maintained by the United States National Library of If the U.S. government claims copyright Medicine (NLM) contains a warning that protection for a database outside the United states: States, you will have to get government permission to use it in a foreign country. Some material in the NLM databases You could be sued if you do not obtain is from copyrighted publications of the permission. ­respective copyright claimants. Users of the NLM databases are solely respon- sible for compliance with any copyright Privacy and Security Limitations ­restrictions. Many U.S. government databases contain sensitive information that is not made ­publicly available—for example, databases 232 The Public Domain

maintained by the Department of Defense or the Department of Health and Human Private Databases Containing U.S. Services. Privacy and national security laws Government Materials and regulations may prevent the data in Many private publishers and other ­com­­- such databases from being disseminated. panies maintain and sell to the public ­databases that contain U.S. government U.S. Department of data. These private companies may claim Commerce Databases copyright protection for their selection and ­arrangement of the data in their The U.S. Department of Commerce runs databases if it is minimally creative, as something called the Standard Reference described above. However, they often Data Program. This program creates also require users to agree to licenses publications and databases of technical restricting how they may use the data. data ­regarding metals, chemicals, industrial By using these licenses, they attempt to ­fluids and materials, and similar items for obtain far more legal protection for their solving technical problems, research, and databases than can be obtained under development by scientists and engineers. the copyright law. Whether these licenses The ­Commerce Department is allowed to are legally enforce­able is unclear. claim a copyright in such standard reference data so it can sell it and help earn extra ­income to support its programs. 15 U.S.C. Section 290(e). Has the Copyright in the Database Expired? State and Local Databases Like any other work of authorship, a In addition, databases created by state and database enters the public domain when its local government agencies are entitled to copyright expires, at which time its selection copyright protection if a minimal amount and arrangement no longer receives of creativity is evident. Thus, for example, copyright protection. Databases published a list compiled by your state department of as ­recently as 1963 could be in the public fish and game about the places to catch fish ­domain due to copyright expiration. can be copyrighted if minimally creative. Copyright duration rules are discussed in detail in Chapter 18. But before you can know whether a database’s copyright has expired, you must first determine whether it has been published. This is because chapter 12: Databases and Collections 233

­published and unpublished works receive Once you have determined the publi­ very different copyright terms. cation date, you should refer to Chapter 18 A database is published for copyright to determine if and when the database has purposes when the copyright owner—or ­entered the public domain. someone acting on his or her behalf—makes one or more copies of the work available to the general public. In other words, any Is the Database in the interested member of the public may obtain Public Domain for Lack a copy. Burke v. National Broadcasting Co., 598 F.2d 688 (9th Cir. 1979). of a Copyright Notice? The copies don’t necessarily have to be sold for a publication to occur—they can If the database was never published, also be leased or rented, loaned, or even it doesn’t need a copyright notice. given away. For example, a telephone You don’t need to read any more of this ­directory is published when it is given section. away to customers. Nor is it necessary for large numbers of copies to be distributed. If a database was published before 1989, So long as the work has been made freely it could be in the public domain if it lacks available to the general public, it makes no a copyright notice. Examine the database difference if just one copy has been sold carefully to determine if it has a notice. or distributed. Gottsberger v. Aldine Book A copyright notice on a database must ­Publishing Co., 33 Fed. 381 (C.C.D. Mass. contain three elements—the familiar © 1887). symbol or the word Copyright or abbre­ Obviously, a database has been published viation “Copr.,” the publication date, and if copies were made and offered for sale to name of copyright owner—for example: © the general public in bookstores, through DataBest, Inc. 1975. mail order, or by any other means of public If the database has a notice in the format distribution. In contrast, a publication described above, you can forget about it does not occur where copies are limited being in the public domain for lack of a to a definitely selected group of people notice. There is no need to read Chapter for a limited purpose without the right of 19, which explains copyright notice further reproduction, distribution, or sale. ­requirements in detail. Go on to the next For ­example, a customer list distributed section. to the sales employees of a company for However, if the database has no notice or marketing purposes, but carefully kept if the notice lacks one of the three elements secret from the general public, would not described above (copyright symbol © or be considered published. word Copyright, publication date, copyright 234 The Public Domain

owner’s name), it could be in the public on a computer screen as part of software, domain. Read Chapter 19 for detailed online, or in a combination of these formats. ­guidance on how to determine whether The terms of database licenses also vary, a published work is in the public domain but they generally restrict or limit how the ­because it lacks a valid copyright notice. database can be used. For example, an online license typically dictates when the database can be downloaded or disseminated Is the Database to others. These restrictions put limits on Protected by Means a user’s ability to use the contents of the ­database beyond what copyright law allows.­ Other Than Copyright? Licenses also usually establish enforce­ ment procedures and remedies should the Given the limitations on copyright protec­ licensee violate the terms of the license. tion for databases and the fact that many Such terms can include terminating a databases don’t qualify for any protection subscriber’s access, suspending services, or at all, the owners of valuable databases suing the subscriber for damages. often try to use other ways to protect their creations. These means are used not only to Are Licenses Legally Enforceable? protect the selection and arrangement of the data, but the data itself. Many database owners resort to licenses when their databases cannot be protected by copyright law because they do not Licenses meet the standards for copyright protection outlined earlier in this chapter. In other A database license is a contract restricting words, they are probably in the public what a person can do with the data. These domain. Most courts have held that such licenses are commonly used to protect licenses are legally enforceable. ­databases that are not made freely available to the public. People who use the database Example: Matthew Zeidenberg pur­ must agree in advance to the terms of the chased from a company called ProCD license. a CD-ROM containing a data­base of Database licenses take many forms. 95 million business telephone listings. Some are form contracts, while others are This database was not entitled to any negotiated agreements tailored to particular copyright protection at all because there ­individuals or institutions. They may appear was nothing even minimally creative in traditional print form, under the shrink- about the selection or arrangement wrapping of a computer disk or CD-ROM, of the listings. ProCD simply took the chapter 12: Databases and Collections 235

contents of 3,000 telephone alphabetical Example: Applied Technologies of directories and placed them on a CD- Wisconsin created a computer program, ROM. However, when Zeidenberg Market Drive, to help Wisconsin loaded the CD-ROM onto his computer, county assessors’ offices compile real he was required to agree to a “click- estate data, such as property addresses wrap” license agreement obliging and the names of the owners, in an users to agree to certain restrictions electronic database. The counties used before they could access the data on the data for tax assessment purposes. the disk. For example, the license Applied required the counties to barred purchasers of the CD-ROM license Market Drive from it; the license from copying, adapting, or modifying forbade them from releasing the raw the listings. Zeidenberg agreed to the data in the database created with license terms, but then went ahead and Market Drive to others, even though violated them by copying the listings this raw data was in the public domain. and placing them on his website where A company called WIREdata attempted they were sold to the public for far to obtain the raw data from the counties less than ProCD charged. ProCD sued to create its own database for use by Zeidenberg for violating the license real estate brokers. A court held that agreement and won. The court held Applied could not sue WIREdata for that the license restrictions­ were legally violating the license because it had enforceable even though the listings never signed it, only the Wisconsin were in the public domain. ProCD counties had. Applied could only sue v. Zeidenberg, 86 F.3d 1447 (7th Cir. WIREdata for copyright infringement, 1996). but this suit failed because the raw data WIREdata wanted was public domain. (See Chapter 2 for more on the legal Applied Technologies of Wisconsin v. ­enforceability of licenses.) WIREdata, Inc., 350 F.3d 640 (7th Cir. 2003). The Privity Limitation So, if you can obtain access to a database An important limitation of database licenses without signing a license, you can’t be sued is the legal requirement of privity. A license for violating the license. Unfortunately, (or any other contract) is enforceable only this may be difficult or impossible to do in against a person who signs it or otherwise many cases. agrees to it. People who don’t agree to it are not legally bound by it. 236 The Public Domain

Trade Secrets • industrial spies, and • competitors who wrongfully acquire We’ve seen above that databases get the information such as through theft ­extremely limited copyright protection or, or bribery. in many cases, none at all. For this reason, This means that the trade secret owner database owners often attempt to use state may be able to sue the person who stole or trade secrecy laws to protect their works. disclosed the secret and obtain an injunction For example, computer databases that are (a court order preventing someone from maintained by companies on their internal doing something, like stealing or disclosing —that is, nonpublic—computer networks trade secrets) and damages. However, the are usually protected as trade secrets. This trade secret owner must truly take steps to form of legal protection may be used to preserve the trade secret; the more widely supplement copyright protection. If the known a trade secret is, the less willing the ­database cannot be protected by copyright, courts are to protect it. it may be the owner’s main line of defense against unauthorized use. Databases That Are Trade Secrets

What Is a Trade Secret? Not everything can be a trade secret. The database owner must take reasonable steps A trade secret is information that is not to keep the data in the database secret—for ­generally known in the business community example, carefully restrict access by keeping and that provides its owner with a com­ it in a password-protected computer system. petitive advantage in the marketplace. This Databases that are published or otherwise can, and often does, include information in made available to the public cannot be ­databases such as customer lists, formulas, ­protected as trade secrets; nor can databases and technical data of all kinds. that contain information that is ­generally If a trade secret owner takes reasonable known in the industry involved. Data that steps to keep the confidential information everybody knows cannot provide anyone secret, the courts will protect the owner with a competitive advantage. However, the from unauthorized disclosures of the secret information in a database need not be novel to others by: or unique to qualify as a trade secret. All • the owner’s employees that is required is that the information not • other persons with a duty not to be generally known by people who could make such disclosures, such as profit from its disclosure and use. nonemployees who work for the company and people who sign nondisclosure agreements promising not to disclose the secret chapter 12: Databases and Collections 237

Do You Have a Duty of Confidentiality? laws generally make it illegal for anyone to obtain access to a database or other work Generally, it is very easy for you to know by circumventing technological measures whether you might run afoul of someone’s such as encryption. trade secret rights if you copy or otherwise The use of encryption technologies may use a database. First, the company or make it impossible for you to obtain access ­person who developed it must keep the to many databases that are in the public ­database secret. In addition, your use domain. And there may be nothing you can or disclosure of the data must constitute do about it. a breach of an obligation to keep the material confidential. Such a confidential obligation may arise because you work for the person or company that developed the database. Or, you agreed not to disclose it—for ­example by signing a nondisclosure ­agreement. Or you must have improperly learned or obtained the data from someone else who had a duty not to disclose it. For example, you obtained a company’s idea for a new product by bribing an employee of the company or by theft.

Encryption

Another form of protection for electronic databases is encryption—that is, encoding the data in an unreadable form that can be “unlocked” and read only with the proper key. This is not a legal protection, but it makes it difficult or impossible to obtain access to a database, even if it is in Enigma Coding Machine. During World War II, the Germans developed the Enigma, an electromechanical the public domain. The government has cipher machine, to send coded messages. There were been encrypting its sensitive data for years. 150,000,000,000,000,000,000 possible solutions. ­Powerful encryption technologies that can The Allies were eventually able to crack its code and prevent unauthorized access to and changes intelligence from the decoded German messages helped the Allies to win the war. Online CIA Exhibit Center in databases are now commercially available. (www.cia.gov/cia/information/artifacts/enigma.htm) Moreover, recent changes to the copyright 238 The Public Domain

Part II: Are the Collected Materials Collections of in the Public Domain?

Public Domain Works The first question you must answer to deter­ mine whether a collection is in the public Publishers and others are constantly domain is whether the works of ­authorship collecting and republishing public domain gathered together to create the collection materials. This includes, for example, are themselves in the public ­domain. When ­collections of public domain fiction and public domain materials are used, the author ­poetry, drawings and other artwork, of the collection does not need to obtain photographs, and sheet music. Often, a permis­sion to use them and neither do you. public ­domain work is readily accessible Here are some real examples of collec­tions only because it has been republished (or consisting of public domain materials: published for the first time) as part of such • Fourteen public domain short stories a collection. culled from the over 60 the author Collections of preexisting works of Frank Norris published during his ­authorship are called “collective works” ­lifetime were published together by by the copyright law. But, for the sake of Ironweed Press under the title The ­convenience, we’ll refer to them simply Best Short Stories of Frank Norris. Each as collections. Collections differ from story is a separate and independent databases because they are created from work. However, Ironweed has created works of ­authorship, such as writings, while a new copyrighted collection by databases are created from facts or data. ­selecting and arranging the stories Good examples of collections are news­ into a collective whole—that is, a papers, magazines, and other periodicals in ­collection of the best short stories of which separate articles are combined into a Frank Norris. collective whole. However, the preexisting • The original sheet music for dozens material in a collection can consist of any of public domain songs originally work of authorship, including any type of published during 1901-1911 was writing, music, photographs, or drawings or ­collected and published together other artwork. ­under the title Alexander’s Ragtime Copyright notices are routinely included Band by Dover Publications. Dover’s on such collections. However, it’s important collection is entitled to copyright for you to understand that copyright ­protection because it has selected protection for collections of public domain and arranged the materials to form a ­materials is extremely limited, if it is new work—a collection of songs from available at all. 1901-1911. chapter 12: Databases and Collections 239

• 132 public domain postcards were Copyright Protection for collected and reproduced in a book Public Domain Collections called Delivering Views: Distant ­Cultures in Early Postcards, published When an author creates a collection by the Smithsonian Institution Press. consisting of public domain materials it Each postcard is a separate work may be entitled to copyright protection, of authorship, but the collection but such protection is very limited. All that is nonetheless entitled to its own can be protected is the selection and/or copyright protection because it is a arrangement of the preexisting material, new collection. not the preexisting material itself. In some On the other hand, a collection may cases both the selection and arrangement ­contain materials that are still protected are copyrighted. In others, only one or by copyright. In this event, you need the other is. This limited form of copyright permission to use the materials in the protection is sometimes called a thin collection. A good example is both the copyright. current print and online edition of the Encyclopaedia Britannica. Each article in Example: The copyright in Ironweed the encyclopedia is protected by copyright Press’s Frank Norris short story and you need permission to copy or anthology extends only to its selection republish them. and arrangement, not to the stories To determine whether the materials themselves. This means that anyone ­included in a collection are in the public could reprint any one of the stories domain, turn to the chapter covering the contained in the collection without types of works involved. For example, if violating Ironweed’s compilation the collection consist of written works, copyright. But another publisher could go to Chapter 3, covering writings. If the not, without Ironweed’s permission, ­collection contains sheet music, turn to publish a book of the best short stories Chapter 4, covering music. of Frank Norris using the exact same If you determine that the materials in the stories in Iron­weed’s book, printed in collection are copyrighted, the collection the exact same order. isn’t in the public domain and you need not read the rest of this chapter. If, on the As the above example shows, the copy­ other hand, the materials are in the public right status of the preexisting material domain the entire collection may be in the used to create a collection is unaffected public domain as well, or it may receive by the collection’s existence. Thus, if the the extremely limited copyright protection preexisting material was in the public described below. domain, it ­remains in the public domain. 240 The Public Domain

When we speak of a collection as being copyright infringement and won. The court in the public domain below, we mean held that the selection and arrangement that—for the reasons stated—the selection of the six Bartok pieces was original and and arrangement are not protected by that Con­solidated’s copyright was violated copyright. when all six were copied in the subsequent collection. Consolidated Music Publishers, Inc. v. Ashley Publications, Inc., 197 F.Supp. Copying Collections of 17 (S.D. N.Y. 1961). Public Domain Works However, you may copy any amount of a collection as long as you don’t copy Since a thin copyright protects only the the publisher’s copyrighted selection and/ ­selection and/or arrangement of the material or ­arrangement. Let’s take as an example in a collection, none of the individual ­Dover Publication’s collection Alexander’s ­public domain works in the collection Ragtime Band and Other Favorite Song are protected. This means you may copy Hits, 1901-1911, mentioned above. The any individual work included in the ­selection of 49 songs included in this collection. However, you may not copy the ­collection is copyrighted, but the grouping copyrighted selection and/or arrangement. is not because it is in alphabetical order. This would occur where you copy the You may copy all 49 songs and sell them entire collection (or a substantial portion of individually. This would not infringe on it) and leave it unchanged. Dover’s selection—that is, its decision as to This is exactly what happened with a which songs to include in a collection of 49 ­collection called Easy Classic to Moderns favorite songs originally published during published by Consolidated Music Publishers. 1901-1911. But you could not sell all 49 The collection contained the sheet music ­together, since this would be copying Dover’s for 142 individual piano pieces by over selection. You could, however, copy all 49 two dozen classical composers, almost all songs, add another 51 songs, and publish a of which were in the public domain. Con­ collection called 100 Best Songs 1901-1911. solidated’s collection included a selection of Again, this would not be copying Dover’s six piano pieces by Bela Bartok published selection of 49 favorite songs, 1901-1911. under the title Six Miniatures. This was the Let’s consider an example where only the first time these six pieces had ever been arrangement is copyrighted. A collection published together. One of Consolidated’s of all of Edgar Allan Poe’s short stories competitors later published a collection of (which are all in the public domain because its own entitled World’s ­Favorite Classic their copyrights have expired) arranged to Contemporary Piano Music. This by theme would have a copyright in the collection included the same six Bartok ­arrangement, but not in the selection, since pieces. Consolidated sued the publisher for chapter 12: Databases and Collections 241

every Poe story is included. No creativity author’s selection of the “best” short stories was required to make such a selection. You written by O. Henry or the “100 Greatest could copy every story in the collection Romantic Poems Ever Written.” But an and group them in some other way without anthology of every short story O. Henry violating the publisher’s copyright in its ever wrote would not be an example of a ­selection—for example, you could group minimally creative selection. them alphabetically or chronologically. An arrangement is entitled to copyright protection only if it is created in some nonmechanical way. For example, an Does the Collection alphabetical, chronological, or numerical Lack Minimal Creativity? arrangement is purely mechanical and not entitled to copyright protection. An arrangement on some other basis such A collection is entitled to limited copyright as category or ­hierarchy could be—for protection because the author had to example, an ­arrangement of O. Henry’s use creativity and judgment to create it. short stories from the worst to the best For ­example, a person who compiled an in the editor’s opinion, or according to a ­anthology of the 25 “best” short stories of the theme, would be copyrightable. (See above 19th century would have to use creativity for a more detailed discussion of the type of and judgment in selecting which of the ­arrangements that are entitled to copyright thousands of short stories published during protection.) the 19th century belonged in the anthology, Thus, for example, an anthology and in deciding on the arrangement (that is, consisting of ten stories arranged in order) of the stories. chronological order by the same author However, if a collection was created who wrote only those ten stories in without using even minimal creativity and her entire life would probably not be judgment, it would not be entitled to any protectable, because ­compiling such an copyright protection at all—that is, the anthology would require no selectivity ­selection and arrangement of the work or judgment. Anyone could publish an would be in the public domain. identical anthology. How can you tell if a collection contains sufficient creativity to be entitled to thin copyright protection? A collection is copy­ right­able if either the selection or arrange­ Is It a De Minimis Collection? ment of the material is minimally creative. A selection is minimally creative if it In addition to the minimal creativity is based on the author’s opinion about ­requirement, a collection must consist something subjective—for example, the of more than a small number of elements 242 The Public Domain to be copyrightable. The Copyright Office Has the Collection’s has stated that a collection consisting only of three or fewer items does not meet this Copyright Expired? threshold. For example, a collection of three one-act plays is not protectable as Like any other work, a collection enters a collection. If the plays are in the public the public domain when its copyright ­domain, the collection as a whole will be too. expires. The copyright term for a collection begins to run when the work is created or published, not when the works it contains Is It a U.S. were created or published. The rules for determining whether a collection has been Government Collection? ­published for copyright purposes are the same as the rules for databases. Copyright Collections compiled by U.S. government terms for published and unpublished employees as part of their jobs are also in the collections differ greatly, so read this section public domain. But this rule does not apply carefully. Once you ­understand these rules to collection by state or local ­employees. you can determine how long a copyright (See Chapter 3 for a detailed ­discussion.) will last in a particular work by reading Chapter 18.

Is the Collection in the Public Domain for Lack of a Copyright Notice?

A collection published before March 1, 1989 had to contain a valid copyright notice. A collection published without such a notice African-American Sheet Music 1850-1920, may have entered the public domain. See Library of Congress. Selected from the collections Chapter 19 for a detailed discussion. of Brown ­University chapter 12: Databases and Collections 243

Is the Collection Protected by the license, the publisher might sue you for Means Other Than Copyright? breach of contract. (The publisher couldn’t sue for copyright infringement, since the decisions are in the public domain.) Because copyright protection for collections This is what happened when a website is so limited, people who create them often called Jurisline placed online thousands of attempt to use means other than copy­ legal decisions it copied from 60 CD-ROMs right to protect them. For example, some purchased from the legal publisher Lexis. collections may be protected as trade Lexis immediately filed suit, claiming that secrets. the copying violated the terms of a license Far more common, however, is the use of that the person who bought the CD-ROMs licenses to protect collections. For example, had agreed to. Following a preliminary trial legal publishers who collect public domain court ruling that the license was legally court decisions and place them online or ­enforceable, Jurisline settled the case by on CD-ROMs typically require purchasers to agreeing to remove from its website all of agree to licenses restricting how they may the legal decisions it had copied from the use the materials. Among other things, these CD-ROMs. (See Chapter 2 for a detailed licenses typically bar users from ­republishing discussion of licenses.) ■ the decisions. If you violate the terms of

Chapter 13

Titles

Titles of Copyrighted Works...... 246 No Copyright Protection for Titles...... 246 Protection for Titles Under Trademark and Unfair Competition Laws...... 246

Titles of Public Domain Works...... 250 Republishing a Public Domain Work...... 250 Public Domain Titles on Derivative Works...... 251

Using Disclaimers to Avoid Public Confusion...... 252

Titles Used on Merchandise and Other Products...... 252

The First Amendment and Titles...... 253 246 The Public Domain

hakespeare may have asked, “What’s Protection for Titles Under in a name?” but in today’s world, a Trademark and Unfair S title can be as valuable as a work Competition Laws ­itself. For this reason, it’s important to ­understand when titles can be legally Although titles are never protected by ­protected and when they are in the public copyright, state unfair competition laws domain. and state and federal trademark laws may This chapter covers titles of literary and ­protect them. If a title is protected, you may artistic works, including titles of books, be legally prevented from using it. magazines, newspapers, periodicals, journals, Unfair competition and trademark laws plays, movies, television shows, songs and are designed to protect the public from other musical compositions, and sound ­deception and preserve the good will that a ­recordings. Titles of copyrighted works company builds when it sells a product or ­receive more legal protection than those for service to the public. works in the public domain, so we’ll cover For a title to be protected under these them first. laws, it must meet two requirements: • the title must be strongly identified in the public’s mind with the underlying Titles of Copyrighted Works work, and • the owner or publisher must prove If a work of authorship is still under that: copyright—that is, it’s copyright has not 1. the public will be confused if the expired or been lost—its title may receive title is used in another work, or some ­legal protection, but only if it is very 2. the unauthorized use of the title well known. dilutes or tarnishes the title’s value as a trademark. Let’s look at each requirement separately. No Copyright Protection for Titles Identification Copyright law does not protect titles, even if the work itself is protected by copyright. For a title to be protected, it must be This is because titles are not considered ­associated in the public’s mind with one to be works of authorship with their own work. In other words, when a member copyright protection. Instead, they merely of the general public hears the title, he or describe and identify a work of authorship. she automatically thinks of a single work. For example, if you hear the title A Chorus Line, it’s likely you immediately think of the famous Broadway musical known by chapter 13: Titles 247

that name. Lawyers call this “secondary meaning? It can be impossible to come up meaning.” with a conclusive answer. If you’re dealing Other examples of titles that have with a title for an extremely well-known ­secondary meaning include: work like those listed above, secondary • Gone With the Wind meaning has very likely been achieved. On • Conan the Barbarian the other hand, if the title is for a work that • Jaws is so obscure or sold so poorly that only a • The Green Hornet few people have ever heard of it, there is • Chanticleer, and no secondary meaning. In between these • The Sensuous Woman. two extremes there is a vast gray area. However, most titles of individual literary One way to help determine if a title works don’t have secondary meaning has secondary meaning is to have a title and are therefore not protected by unfair ­availability search done. A private search ­competition or trademark laws. firm researches the complete history of a Whether a title has acquired secondary title, showing you how its been used in the meaning is a judgment call that depends on past—for example, whether it’s been used a variety of factors, including: for movies, books, articles, or other works. • how long it’s been used Companies that sell liability insurance to • the amount of advertising and other producers of television shows and movies publicity the title has been given, and may require that such a search be done. • the number of people who bought or The best known title availability search viewed the work. The better known a company is Thomson & Thomson in work, the more likely it has acquired ­Washington, DC. You can call them at ­ secondary meaning. 800-356-8630 to order a search or receive Ordinarily, a literary work must be additional information. ­published and widely circulated before its title can acquire secondary meaning. If you’re unsure whether a title has How­ever, it is possible for a title to acquire achieved secondary meaning, ­consult ­secondary meaning before it’s published with an attorney before using it. where the work has been given substantial prerelease publicity. Confusion It’s not necessary that the public know the name of the author or publisher of In addition, to prevent others from using a the work for the title to have secondary title, an author or publisher must prove that meaning. It’s sufficient that it identifies the the public would likely be confused as to title with the work itself. the source of the work. Public confusion How can you tell whether a title makes exists if the public is deceived into buying the grade and has achieved secondary one work, believing it to be another. 248 The Public Domain

Confusion also is found where the public is ­deceived as to the sponsorship or approval of a work. For example, if a film is called Rocky VII, the public is likely to believe the creators of the original Rocky film produced it or at least approved it. Factors considered by the courts to ­determine if someone challenges your use of a title include: • whether the title has artistic relevance to the underlying work—that is, does Trademark Dilution the title describe or conjure up the Trademark dilution occurs when the work integrity of a famous trademark is • the design of the works involved “muddied” by an offensive association, • the similarity between the two titles either by a vulgar or insulting affiliation • the similarity in the contents of the (tarnishment) or by a connection with a works lesser product (blurring). • how the works are marketed • Tarnishment. The image of a famous • the care likely to be exercised by trademark is used in such a way that it ­purchasers image may be tarnished in the public’s • whether the defendant intended to mind—for example, using the title confuse the public, and “Braveheart” for a sexually ­explicit • the distinctiveness of the prior title. website. • Blurring. A use that blurs the identity Example: Playboy Magazine brought of a famous trademark—for example, suit to stop a competitor from using the using “The X Files” on toilet paper. title Playmen Magazine and won. The Dilution is a vague concept, often used by court held that a likelihood of confusion companies to justify going after an ­offensive existed because some consumers would use of a trademark. Critical book or movie mistake Playmen for Playboy. Moreover, reviews or other editorial uses of titles are even those consumers who wouldn’t not considered dilution. News reporting confuse one magazine with the other and commentary and other noncommercial might believe Playboy and Playmen uses are also exempted from the federal were both published by Hugh Hefner. dilution law. A use is noncommercial if Playboy Enterprises v. Chuckleberry it does more than propose a commercial Publishing, 486 F.Supp. 484 (S.D. N.Y. transaction. For example, a court held that 1980). the song title “Barbie Girl” did not dilute chapter 13: Titles 249

Mattel’s trademark in the Barbie doll. The Journal with a lawsuit if it didn’t change its song was noncommercial speech because name. it lampooned Barbie’s image—thus, the An easy way to tell if a series title has title did more than “propose a commercial been registered is to check if the ® symbol transaction”—that is, act just to get is used near it. If it is, the title has been consumers to buy the song. Mattel, Inc. v. registered. However, the ® symbol is not MCA Records, Inc., 296 F.3d 894 (9th Cir. always used for registered trademarks, so 2002). its absence doesn’t necessarily mean the title is not registered. You can determine for Series Titles certain if a title is registered by conducting a trademark search—that is, a search of the Titles of a series of works receive much PTO’s trademark registration records. You more legal protection than titles of single can do this yourself online or hire someone works. These include titles of newspapers, to do it for you. magazines, and other periodicals; titles for a series of books—for example, the popular For a detailed discussion of trade- Dummies series of reference books or mark searches, see Trademark: Legal the series of novels known as the Hardy Care for Your Business & Product Name, by Boys Mysteries; titles of television series or Richard Stim and Stephen Elias (Nolo). a ­series of movies; and encyclopedia and ­dictionary titles. Unlike titles of individual works, series Use in Other Media titles can be registered as trademarks with If the title of a copyrighted work has the U.S. Patent and Trademark Office PT( O). ­secondary meaning as described above— When such a series title is registered, it is whether it is a title of an individual work or presumed to have secondary meaning. This a series title—courts are particularly likely to makes it much easier for the owners of such protect it against unauthorized exploitation titles to win trademark infringement suits. in different media. For example, the Because of this, you should not use such magazine National Lampoon was able to a series title—for example, you should not prevent the use of the words “National use the words Dummies Guide to… in a Lampoon” or “lampoon” in the title for a title. Doing so will likely result in a lawsuit television ­series. National Lampoon, Inc. v. that you will probably lose. Indeed, you’ll American Broadcasting Cos., 497 F.2d 1343 likely be threatened with litigation if your (2d Cir. 1974). This is because the reason title is similar, though not identical to, a such a title is being used is not to describe well-known series title. For example, The the work, but to make the public believe Wall Street Journal recently threatened a that the creator of the original work is in student publication called The Small Street some way connected with the new work. 250 The Public Domain

Avoiding Title Lawsuits. Unless you’re Titles of Public Domain Works prepared to get involved in litigation, you should avoid using extremely well- When a work enters the public domain, known titles of non-public-domain works. its title receives much less legal protection This is true even though you think your use than titles of works still under copyright. will not lead to public confusion or dilution. Ordinarily, the unfair competition and The prior user of the title may disagree trademark laws described earlier in this with you. section cannot protect the title of a public domain work, but there can be exceptions.

Registering Movie Titles Republishing a Public Domain Work The major Hollywood film studios have established their own private system of If you republish a public domain work, movie title protection and registration. you are ordinarily free to use the title to Through the auspices of the Motion identify it. However, there is one very ­Picture Association of America (MPAA), limited ­exception: If the title has acquired a film industry trade group, they have such strong secondary meaning that the ­established a title registration bureau. public identifies it with its original publisher MPAA members (which include all the or other distributor, the title cannot be used major film studios) and independent in a way that deceives the public as to the producers may apply to register a film source of the work. title. If the title has not been used, Very few public domain titles qualify for registration is granted. But if a subscriber protection under this exception because objects that the title is confusingly similar they don’t have strong enough secondary to one of its own titles, the dispute is meaning. Remember, the public must referred to an MPAA arbitration panel not only identify the title with the public that holds a hearing and issues a ­decision ­domain work, it must also identify it with resolving the dispute. The studios and the ­original publisher or other source. This producers who use the registration is very difficult to show. Only rarely does system have agreed by contract to be the public identify a work’s title with a bound by the panel’s decision. However, particular publisher or other source. For the panel’s decisions are not binding ­example, do you know who first published on the public, only on those who have Alice in Wonderland or the Irving Berlin agreed to participate in the registration song “Alexander’s Ragtime Band”? You system. The MPAA title registration ­probably recognize the title, but not the bureau can be reached at 818-995-6600. source. chapter 13: Titles 251

Even where a title of a public domain example, create a movie based on Mark work has acquired such strong secondary Twain’s novel Huckleberry Finn and call it meaning, it may still be used so long as the Huckleberry Finn? Ordinarily, this doesn’t public isn’t misled into believing the ­original pose a problem. publisher or other source is behind the new However, if someone has already created publication. Ordinarily, you don’t have to a similar derivative work with the same use a disclaimer; it’s enough that the name title, there could be trouble. The creator of the new publisher or other ­distributor is of the prior work might be able to prevent clearly identified on the work. your using the title on the grounds of ­unfair competition. He would have to prove in Example: A John Wayne movie called court that the public identifies the title with McClintock! entered the public domain his particular derivative work (whether or when it was not renewed with the not it also identifies the title with the public U.S. Copyright Office in the 28th year domain work). after its publication. About 20 years This is hard to establish, at least where later, a video distributor called Good­ the public domain work is well known. In times Home Video began selling a one case, for example, Walt Disney studios video­cassette of the movie. The cassette created an animated cartoon based on the contained a label clearly identifying public domain novel Alice in Wonderland Goodtimes as producer of the video. A and brought suit against the producer of court held this was sufficient to prevent a movie based on the novel that used public confusion about the source the same title. The suit was unsuccessful of the video. Maljack Productions v. ­because Disney was unable to show that, Goodtimes Home Video Corp., 81 F.3d as far as movies were concerned, the ­public 881 (9th Cir. 1996). identified the title Alice in Wonderland solely with the Disney movie, not a film However, if you really want to make sure based on the book Alice in Wonderland. there is not even a possibility of public Walt Disney Prods. v. Souvaine ­Selective confusion, you can use a disclaimer. Pictures, Inc., 192 F.2d 856 (2d Cir. 1951). If a title of a derivative work based on a public domain work has attained such Public Domain Titles ­secondary meaning, you may be able to on Derivative Works avoid liability for unfair competition or What if you want to create a derivative trademark violations by using a disclaimer (new) work based on a public domain work making clear to the public that your work and use the work’s title to identify it—for is not connected with the prior work (see below). 252 The Public Domain

Using Disclaimers to This work is not published by the original Avoid Public Confusion publishers of [TITLE OF WORK] or by their successors.

A disclaimer is a statement that makes Where a title of a new work is the same clear to the public that even though your or similar to that of a copyrighted work, work has a title that is the same or similar the words “based on” or “derived from” are to the title of a previous work, the creator ­often used in a disclaimer to make clear that or ­publisher of the previous work has not the work doesn’t owe its origin to the prior ­produced or approved it. work with the same title. Courts have held that even if the title of a public domain work has attained secondary Example: The producers of the film meaning, anyone may use it so long as the ­Elephant Man used the following title is used in a way that does not deceive ­disclaimer to make clear to the public or confuse the public. A good way to help that their film was not connected with avoid such confusion is to use a disclaimer. a previous Broadway play of the same If you’re using a title of a work that is not title: in the public domain, use of a disclaimer “Based upon the life of John Merrick, may limit or avoid liability for unfair The Elephant Man, and not upon the ­competition or trademark violations. Courts Broadway play or any other fictional sometimes require the use of disclaimers account.” rather than prohibit use of a title, so if you already have a disclaimer you’re way ahead of the game. Using a disclaimer may not always Titles Used on Merchandise avoid problems with unfair competition and Other Products or ­trademark laws, but it can only help. Such a disclaimer should be clearly written, Some titles are used on merchandise, such prominently displayed, and permanently as cups, toys, T-shirts, and other clothing. ­affixed to your work. This is often the case with movie titles such Here is an example of a disclaimer you Star Wars or Godzilla. Titles used in this can use when you republish a public way may be registered with the U.S. Patent ­domain work. It makes clear to the public and Trademark Office. Such uses receive that the original publisher of the work is strong trademark law protection. You not involved with your republication of ­ordinarily need permission to use a well- the work: known title on merchandise. If you don’t, you’ll likely receive a call or letter from a lawyer. chapter 13: Titles 253

Titles of public domain works can also The First Amendment and Titles be used to identify goods and services. For example, the words Moby Dick could Trademark and unfair competition laws be used to identify a chain of seafood ­apply only to commercial uses of titles— ­restaurants or a company could come up that is, using them to identify products or with a line of Scarlet Letter chocolates. Titles services. Informational or “editorial” uses used in this way may receive trademark of a trademark do not require permission. protection, but only against uses that would These are uses that inform, educate, or ­confuse the public or dilute the value of the ­express opinions or ideas protected under trademark. For example, even if there is a the First Amendment of the United States Moby Dick seafood restaurant chain, you Constitution ­(pro­­tecting freedom of speech may continue to use the title for purposes and of the press). For example, permission not related to selling seafood. is not ­required to use a book title in a book ­review, even if the review is very negative. ■

Chapter 14

Public Domain Elements in Copyrighted Writings

Ideas...... 256 State Contract Law...... 258 Trade Secret Laws...... 259 Federal Patent Law...... 260

Facts...... 261 Legal Protection for Fictional “Facts”...... 261 Legal Protection for Hot News...... 262 The Merger Doctrine—When Ideas, Facts, and Their Expression Merge...... 262

Unprotected Elements in Works of Fiction...... 264 Themes...... 264 Factual Settings...... 265 Plots...... 265 Stock Characters...... 266 Standard Situations (Scènes à Faire)...... 266 Literary Devices...... 268

Unprotected Elements in Works of Fact...... 268 Research...... 269 Interpretations...... 270 Quotations...... 270 Fictional Elements...... 273 Organization of Material...... 273 256 The Public Domain

f you have concluded that a work you (See 17 U.S.C. Section 102(b) for the exact want to use is protected by copyright, wording of this statute.) There is a good I all is not lost. You cannot use the reason for this: If authors were allowed to whole work, or substantial portions of it, obtain a monopoly over their ideas, the without first obtaining permission from the copyright laws would end up discouraging copyright owner, and possibly paying a fee new ­authorship and the progress of knowl­ for its use. However, almost all copyrighted edge, which are the two goals copyright is works contain elements that are in the intended to foster. public ­domain. These elements consist of Copyright does not protect three kinds of things other than the actual words or other ideas: creative building blocks the author uses • The idea to create a work. The idea to create the work. Such public domain to create a particular type of work elements include: is never protected by copyright. For • ideas, facts, systems, and discoveries ­example, the idea to write a biography • a fictional work’s themes, settings, of Winston Churchill is not copyrighted. plots, stock characters, and standard Anyone can write such a work. The scenes fact that many such biographies • a nonfiction work’s research, inter­ have already been written does not pretations, quotations, fictional prevent an author from writing a new elements, and unoriginal organization. one. But this doesn’t mean you can This chapter focuses on public domain copy or closely paraphrase the words elements in written works—that is, works ­contained in a previous Churchill consisting of words—because these kinds ­biography. of works contain more public domain • Creative building blocks. The building ­elements than any other. However, the ­basic blocks of creative expression are also ­principles discussed here apply to all types in the public domain. If these were of copyrighted works. protected by copyright, it would be virtually impossible for anyone to fashion a new creative work. What Ideas these building blocks consist of ­depends on the nature of the work Copyright only protects the particular way involved. In the realm of fiction, they an author expresses his or her ideas, not include a work’s theme, settings, the ideas themselves. Ideas, procedures, plot, stock characters and situations, processes, systems, methods of operation, and ­literary devices. In the case of a concepts, principles, and discoveries are nonfiction work, they ­include the facts all in the public domain, free for all to use. contained in the work. chapter 14: Public Domain Elements in Copyrighted Writings 257

When Does Copying Become Plagiarism?

Ideas, facts, research, concepts, principles, To avoid charges of plagiarism, authors and discoveries are ordinarily in the public of scholarly works (histories, biographies, domain. So are the words contained in legal and scientific treatises, student papers, books and other writings that are in the etc.) must always give proper credit to the public domain.­ This means you can copy or sources of their ideas and facts, as well as otherwise use these things without obtaining to any words they borrow. Authors of less ­permission. But this doesn’t necessarily mean ­serious works—for example, how-to books you shouldn’t provide credit for the source of or newspaper or magazine articles—should such words, ideas, facts, or ­research. Failure always attribute direct quotations, but may to do so may constitute plagiarism. not always need to give credit for ideas and A plagiarist is a person who poses as the facts they borrow (authors of such works originator of words he did not write, ideas should discuss this with their editors or he did not conceive, or facts he did not ­publishers). discover. “Plagiarism” is not a legal term; it’s It is neither customary nor necessary for an ethical term. If a plagiarist only copies authors of works of fancy, such as novels, public domain materials, he can’t be sued screenplays, or stage plays to credit the for copyright infringement. But there still sources of their inspiration, whether other could be severe consequences. College works of fancy, newspaper accounts, or ­professors and journalists have been fired ­histories. But they should, of course, give because of plagiarism. proper attribution for direct quotations from public domain materials.

First paragraph from A Tale of Two Cities, Charles Dickens (1812-1870) 258 The Public Domain

• Methods, systems, and processes. In Usually there is no express (stated) ­addition, copyright protection does ­promise to pay for an idea. Instead, person not extend to methods of operation, A tells person B an idea without an advance systems, or processes. Thus, for promise from B to pay for it. B later uses ­example, copyright did not protect a the idea and A claims he should therefore bookkeeping system described in a be paid for it. Courts will sometimes hold book. Copyright protected the words that an implied (unstated) contract was the author used to describe the system, ­created under these circumstances and but not the system itself. Anyone was make B pay A. However, A must prove that entitled to use the system without the B actually received the idea from A and author’s permission, or even write ­actually used it. Moreover, A must show ­another book about it, but could not that B agreed to pay for the idea, but did copy the author’s description without not expressly say so. This might arise on permission. Baker v. Selden, 101 U.S. the basis of prior dealings between A and B 99 (1879). (for example, B paid A for previous similar While copyright law does not protect ideas), or the custom in the trade A and B ideas, they can receive legal protection in are engaged in. other ways. In addition, most courts require that the idea be both novel and concrete. An idea is novel when it is not commonly known. State Contract Law An idea is concrete when it is ready for ­immediate use without any additional As a general rule, ideas are as free as air. ­embellishment. However, if you promise to pay someone You don’t need to worry about contract for telling you an idea, your promise may law protection for ideas you obtain from constitute an enforceable contract. This a book or other written work you buy means that if you fail to pay as promised, or ­obtain from a library. You must have the person who disclosed the idea may be ­personal contact with the idea creator for an able to sue you in court and collect the express or implied contract to be formed. promised payment. The suit would be for That is, the idea originator must have breach of your contract, not for copyright personally told you the idea (either orally or infringement, and would be brought in a writing directed to you) and you must under your state’s contract law. In real have acted in such a way as to create an life, however, such suits are rarely brought express or implied contract. because it’s very unusual for a person to agree to pay for an idea before he or she knows what the idea is. chapter 14: Public Domain Elements in Copyrighted Writings 259

Trade Secret Laws (a court order preventing someone from doing something, like stealing or disclosing There is a very important exception to the trade secrets) and damages. However, the general rule that ideas, procedures, processes, trade secret owner must truly take steps to systems, methods of operation, concepts, preserve the trade secret; the more widely principles, and discoveries are in the public known a trade secret is, the less willing the domain. All of these things can be protected courts are to protect it. under state trade secret laws. Not everything can be a trade secret. A trade secret is information or know-how Ideas and information that are public that is not generally known in the business knowledge or generally known in the community and that provides its owner with ­industry involved cannot be trade secrets. a competitive advantage in the marketplace. This is because things that everybody The information can be an idea, written knows cannot provide anyone with words (such as an instructional manual), a competitive advantage. However, formula, process or procedure, technical information constituting a trade secret design, list, marketing plan, or any other need not be novel or unique. All that is ­secret that gives the owner an economic required is that information not be generally advantage. known by people who could profit from its If a trade secret owner takes reasonable disclosure and use. steps to keep the confidential information Generally, it is very easy for you to know or know-how secret, the courts will protect whether you might run afoul of someone’s the owner from unauthorized disclosures of trade secret rights. First of all, the company the secret to others by: or person who developed it must keep the • the owner’s employees idea secret. Ideas you find in published • other persons with a duty not to books, articles, and other works distributed make such disclosures, such as to the public cannot be trade secrets. On nonemployees who work for the the other hand, if you discover an idea in company and people who sign a closely guarded internal company memo nondisclosure agreements promising marked “Confidential,” you may not have not to disclose the secret the legal right to use or disclose it to the • industrial spies, and public. • competitors who wrongfully acquire In addition, your use or disclosure of the information such as through theft the idea must constitute a breach of an or bribery. obligation to keep the idea confidential. This means that the trade secret owner Such a confidential obligation may arise may be able to sue the person who stole or because you work for the person or disclosed the secret and obtain an injunction company that developed the idea or you 260 The Public Domain

agreed not to disclose it, for example by • a manufactured article (such as a tire, signing a nondisclosure agreement. Or you transistor, or hand tool) must have improperly obtained the idea • a composition of matter (such as a from someone else who had a duty not chemical composition, drug, soap, or to disclose it. For example, you obtained genetically altered life form), a company’s idea for a new product by • the unique, ornamental, or visible bribing an ­employee of the company or by shape or design of an object (such as theft. a unique ornamental design of a lamp As mentioned above, you don’t have to or desk), or worry about trade secrecy when you’re • an asexually reproduced plant. dealing with published works. The issue Patents can also be obtained for methods arises only when you’re dealing with of doing business. For example, a patent ­unpublished documents that contain was obtained by a mutual fund company ­economically valuable ideas or information for a method by which mutual funds could that a person or company has sought to pool their assets in an investment portfolio keep secret from competitors and the organized as a partnership. See State Street ­general public. Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998). Filing for and obtaining a patent from the Federal Patent Law U.S. Patent and Trademark Office grants an inventor a monopoly on the use and This book is about works of authorship ­commercial exploitation of an invention for such as writings, movies, music, and up to 20 years. That is, the inventor has the art. However, you should be aware that legal right to prevent others from making, ideas, methods, and systems embodied in using, or selling the invention claimed in inventions can be protected under U.S. the patent. and foreign patent laws. Inventions are not For example, an inventor who obtains a works of authorship and generally cannot patent on a new type of mousetrap can pre­ be ­protected by copyright. In the United vent others from copying and selling the trap States, patentable inventions include: to others. But such an inventor could not pre- • a process or method of getting vent anyon­ e from writing a book or creating a something useful done (such as a film or video about how to catch mice, even if genetic engineering procedure, a the book, film, or video described how to use manufacturing technique, or computer the inventor’s new mousetrap. software) • a machine (usually something with For a detailed discussion of patents, moving parts or circuitry, such as a see Patent It Yourself, by David cigarette lighter, laser, or photocopier) Pressman (Nolo). chapter 14: Public Domain Elements in Copyrighted Writings 261

Facts DiMaggio and playwright Arthur Miller—are unprotectable facts. Moreover, incorporating Copyright does not protect facts, whether these facts into a fictional work does not scientific, historical, biographical, or news give the author a copyright over them. of the day. If the first person to write about Only the way the author expresses such a fact had a monopoly over it, the spread facts, to the extent original, is protectable. of knowledge would be greatly impeded. (Whitehead v. CBS/VIACOM, 315 F.Supp.2d Another reason why copyright law does 1 (D.C. 2004).) not protect facts is that an author does not However, state trade secret laws may independently create facts; at most, he or protect economically valuable facts not she may discover a previously unknown generally known to the public that have fact. For example, Nicholas Copernicus did been kept secret. not create the fact that the earth revolves around the sun when he wrote his landmark Legal Protection for Fictional “Facts” book De Revolutionibus Orbium Caelestium in 1543. This fact existed in nature and One reason facts are not protected by Copernicus discovered it through close copyright is that authors do not create them. ­observation and the exercise of his genius. Facts exist in nature or history. ­Authors Copyright does not protect discoveries (17 simply discover them and express them U.S.C. Section 102(b)). in words. It’s the author’s words that are So, the facts contained in works such as copyrighted, not the facts themselves. news stories, histories, biographies, and However, “fictional facts” contained in ­scientific treatises are not protected by a television show, movie, play, or novel copyright. Subject to the important limitation are created by the author, as are the words of the merger doctrine, all that is protected used to express them. Such “facts” are is the author’s original expression of the ­entitled to copyright protection. For this facts contained in such works—that is, reason, a trivia quiz book that contained the words the author uses to describe detailed information about the Seinfeld the facts and possibly the way he or she ­television show was found to have infringed organizes or shapes the material. Thus, for upon the producers’ copyright. The book example, anyone who writes a novel, play, didn’t ask questions about who acted in the or other fictional work based on Marilyn program, who directed each show, or how Monroe’s life is free to cull the historical many seasons it ran. These are nonfiction facts about her from biographies and other facts that are not protected by copyright. sources and use them in the fictional work. Instead, the book posed questions about The events of Marilyn Monroe’s life—for the fictional events depicted during the example, her marriages to baseball great Joe ­episodes. These events were created by the 262 The Public Domain

authors of the shows and were copyrighted. a court has held that hot news is protected See Castle Rock Entertainment v. Carol under such laws if: Publishing Group, 955 F.Supp. 260 (S.D. • a person or company generates highly N.Y. 1997). time-sensitive factual information at In contrast, the creators of the board some cost or expense game Trivial Pursuit did not commit • another person’s or entity’s use of ­copyright infringement when they used the the information constitutes free-riding facts contained in two trivia encyclopedias on the fact gatherer’s costly efforts to to write the questions for their game. The ­collect the information facts contained in these encyclopedias— • the use of the information is in direct The Complete Unabridged Super Trivia competition with a product or service ­Encyclopedia, volumes 1 and 2—were in offered by the fact gatherer, and the public domain, free for all to use. These • other people free-riding on the fact books contained facts about geography, gatherer’s efforts would threaten its art, literature, sports, and history, not ability to stay in business. fictional facts such as contained in the Seinfeld TV show. Unlike the case of the EXAMPLE: It would probably be unlaw­ authors of the Seinfeld show, the author of ful for a newspaper to copy news the encyclopedias did not create the facts ­stories contained in a competing news­ expressed in his works. Worth v. Selchow paper and print them as its own. But a and Righter Co., 827 F.2d 569 (9th Cir. company that used pagers to transmit 1987). to subscribers real-time NBA game scores and other information tabulated Check the Facts. Copyright protection from television and radio broadcasts for “fictional” facts makes it important of basketball games did not commit for anyone using a fact from a work of misappropriation because there was ­authorship to make sure that what they no free-riding involved. The company are using is actually a fact. Failure to check ­collected the scores itself; it didn’t whether a fact is actually a fact could cause steal them from the NBA. See National you to unintentionally violate someone’s ­Basketball Assoc. v. Motorola, Inc., 105 copyright in a “fictional” fact. F.3d 84 (2d Cir. 1996).

Legal Protection for Hot News The Merger Doctrine—When Ideas,

Although facts are not protected by Facts, and Their Expression Merge copyright, unfair competition laws in the Sometimes there is just one way, or only a 50 states might protect them in certain few ways, to adequately express a particular ­narrowly defined situations. For example, idea or fact. If the first person to write chapter 14: Public Domain Elements in Copyrighted Writings 263

about such an idea or fact could copyright The particular selection and arrangement his expression, he would effectively have a of words in the above paragraph appears to monopoly over that idea or fact itself—that satisfy the three requirements for copyright is, no one else could write about it without protection: fixation, originality, and minimal his permission. The copyright law does creativity. (See Chapter 2 for a detailed not permit this, since it would discourage discussion of these require­ments.) Does ­authorship of new works and thereby ­retard this mean that if anyone used these three the progress of knowledge. In these cases, sentences without your permission they the idea or fact and its particular ­expression would be liable for copyright infringement? are deemed to merge and the expression— Because of the merger doctrine, the answer the way the author placed the words—is is probably not. This is because if anyone either treated as if it were in the public else wrote a brief factual account of Paul domain or given very limited copyright Revere’s ride, it would necessarily have to protection. contain sentences looking very much like The merger doctrine applies mainly to those in your paragraph. This would be so factual works such as histories, biographies, even though the author had never read your and scientific treatises, rather than to works account, because there are just not many of fancy such as novels, plays, and poems. different ways to express the facts described This is because the ideas and facts in ­factual in your paragraph. For ­example, how many works can often be expressed only in one different words can an author use to explain particular way or only in a few ways, while that one lantern meant that the British were the ideas contained in novels and similar coming by land and two by sea? The facts works can usually be expressed in a wide pretty much ­dictate the form of expression variety of ways. here. For example, assume you wish to write As a result, if your paragraph were ­pro­- an unadorned factual account of Paul tected by copyright, nobody else could ever Revere’s famous midnight ride during the write a factual account of Paul Revere’s ride Revolutionary War. You research Revere’s without your permission. Copyright law life and create a work containing, in part, does not permit this kind of control, since the following sequence of words: it would effectively give you a monopoly over the facts concerning Paul Revere’s ride. On April 18, 1775, the Boston minute- To prevent this, the facts of Paul Revere’s men learned that the British intended to ride and the words you used to express march on Concord with a detachment them would be deemed to merge. Many of 700 men. Paul Revere arranged for a courts would hold that your paragraph signal to be flashed from the steeple of the was in the public domain, and could be Old North Church in Boston. Two lan- copied verbatim (or used in any other way) terns would mean that the British were without your permission. Other courts coming by water, and one, by land. 264 The Public Domain

would not go quite this far; they would give No one must copy this particular word your paragraph limited protection by holding sequence in order to convey the same facts that your paragraph was protected from or to write another work of fancy about unauthorized verbatim copying, but nothing Paul Revere’s ride. A person who copied else. See Kregos v. Associated Press, 937 F.2d even the first two lines would probably be 700 (2d Cir. 1991). found to have infringed on the copyright in In contrast, the merger doctrine would the poem. not be applied to a work of fancy—for A work need not be written in poetic me- ­example, a poem—about Paul Revere’s ride. ter to obtain copyright protection. But the Consider this: more distinctive an author’s words, the more protection his or her work will receive.­ An Listen, my children, and you shall hear elegantly written biography of Paul Revere Of the midnight ride of Paul Revere, will receive more copyright protection than On the eighteenth of April, in Seventy-five. an unadorned factual account.­ Hardly a man is now alive Who remembers that famous day and You may have trouble determining year. when a work receives little or no He said to his friend, If the British march copyright because of the merger doctrine. By land or sea from the town tonight, This is an issue about which reasonable Hold a lantern aloft in the belfry arch minds can easily differ. See Chapter 1 for Of the North Church tower as a signal detailed guidance on how to deal with such light, public domain gray areas. One, if by land, and two, if by sea.

These stanzas were written by Henry Wadsworth Longfellow over 100 years ago Unprotected Elements and are thus in the public domain because in Works of Fiction the copyright has expired. But let’s pretend, for purposes of our example, they were Works of fiction include novels, short stories, written just the other day. poems, and plays. There are elements This verse conveys almost exactly the in works of fiction that do not secure same factual information as your paragraph copyright protection and are, thus, in the above, yet the facts and expression would public domain. not be deemed to merge. Why? Because the author’s words are embellished and highly distinctive. The sequence of words has not Themes been dictated solely by the facts. Indeed, it is the unique word sequence ­itself, not In fictional works, the theme is simply its the facts, that is the work’s main attraction. underlying idea, which is never protected. chapter 14: Public Domain Elements in Copyrighted Writings 265

Only the original way an author expresses Since there are, in reality, few indepen­ his or her theme is protected. For example, dently created plots, it is rare for a plot anyone can write a work expressing the to have copyright protection. One literary theme of man against nature, but this doesn’t critic has noted that “authors spin their plots mean you can copy wholesale from Ernest from a relatively small number of ­‘basic Hemingway’s famous novel The Old Man situations,’ changing characters, ­reversing and the Sea. roles, giving modern twists to classic themes.” The Thirty-Six Dramatic Situations, by Polti (The Writer, Inc.). For example, Factual Settings authors have recycled the time-tested plot of boy meets girl, boy gets girl, boy loses A fictional work’s factual setting—that is, girl, boy gets girl back over and over again the factual time and place in which the throughout the centuries. ­Naturally, these story occurs—is likewise not protected by basic plots are all in the public domain; copyright. For example, anyone can write otherwise, it would be very difficult, if not a story set on the RMS Titanic or in New impossible, for anyone to create a “new” York City. However, the particular words work of fiction. an ­author uses to describe a setting are Independently created variations or twists protected. Fictional settings are another on basic plots would constitute protected matter, however. Where a story takes place expression. But there aren’t very many new in an entirely imaginary world—such as the plot twists either. For example, can you world created by J.R.R. Tolkien in his Lord think of any variations on the boy-meets-girl of the Rings novels—the setting is probably scenario that haven’t been done before? ­protected by copyright. You shouldn’t copy Although a plot itself usually cannot be such an imaginary setting without permission. protected by copyright, the particular way an author expresses a plot ordinarily is—that Plots is, the particular words an author uses to flesh out and advance a plot are protected. For The plot of a fictional work—the sequence example, if Shakespeare’s play Romeo and of events by which the author expresses Juliet was protected by copyright (it isn’t, of her theme or idea—is a selection and course, because it was created so long ago; ­arrangement of ideas. While ideas them­ see Chapter 18), anyone could write a play selves are not protected, an author’s selection about young lovers from feuding families and arrangement of ideas are protected who commit suicide, but no one could copy as long as they are original, that is, inde- the words Shakespeare used in Romeo and pendently created. Thus, a plot constitutes Juliet to express this plot. ­protected expression only to the extent it was independently created by an author. 266 The Public Domain

Stock Characters This leads to an important question: When the first work in which a character There are many standard character types that appears enters the public domain, is the have developed in fiction over time—for character available for use in new stories example, the eccentric little old lady; the and contexts despite the fact that other wicked stepmother; the tall, silent, strong works containing the same character are cowboy; the two-fisted, hard-drinking still under copyright? In other words, can ­private detective; the street-wise, fast-talking you use the Holmes character even though urban hustler. Since they are not original he is portrayed in many works that are still creations, these character types are not copyrighted? protectable by copyright; they are part of The answer is yes. You can copy the the stock of ideas that all fiction writers may char­acter as it appeared in its original draw upon. Again, however, the ­particular ­public domain source. But you cannot copy way an author describes a stock character is any new traits or other character changes protectable to the extent it’s original. that were added in the later copyrighted However, once a written work of fiction works. For example, you can copy Sherlock enters the public domain, any element of Holmes as he appeared in the original the work can be used without permission, Conan Doyle stories. But you can’t copy including the characters. any new material later authors added to Some well-known characters take on a their own works about Holmes that are still life of their own and end up appearing over under copyright. a number of years in a variety of works, ­often in different media—for example, Other Laws Besides Copyright Law both novels and movies or television. The Have Been Used to Legally Protect literary character Sherlock Holmes is a good Characters, Particularly Visual Characters ­example. Arthur Conan Doyle first created Such as Cartoon Characters. These laws Holmes in a series of short stories in the late ­include state and federal trademark laws 19th century. Since then he has been the and state unfair use and misappropriation subject of numerous plays, movies, ­televi­- laws (see Chapter 20). sion shows, and even a novel based on the idea that Sigmund Freud cured Holmes Standard Situations of a cocaine addiction (The Seven Percent Solution, by Nicholas Meyer). All the original (Scènes à Faire) Conan Doyle stories about Holmes are There are certain sequences of events, in the public domain in the United States scenes, situations, or details that necessarily because their copyrights have expired. But follow from a fictional work’s given theme most of these more modern works involving or setting. The French call these scènes à Holmes are still under copyright. chapter 14: Public Domain Elements in Copyrighted Writings 267

Distinctive Characters Are Not in the Public Domain

In contrast to stock characters, distinctive characters, the less they can be copyrighted.” characters are not in the public domain, See Nichols v. Universal Pictures Corp., 45 ­unless the work they are based on has F.2d 119 (2d Cir. 1930). ­entered the public domain. This means that Since the legal standards in this area no one can copy the particular original are far from clear, never use a well-known combination and selection of qualities— character from a copyrighted work—either such as personality traits, physical attributes, by name or detailed description—without and mode of dress—that make the character first consulting a copyright attorney or distinctive. An author’s selection and ­disguising the character to such an extent ­combination of such distinctive qualities that it is not recognizable. Even if the (ideas) is deemed to be copyrighted. character doesn’t seem sufficiently distinctive Unfortunately, there are no uniform to you to merit protection, its creator and ­standards for judging when a character ­publisher may feel quite differently and sue is, or is not, sufficiently distinctive to be you for copyright infringement. In one case, protectable. Copyright protection has been for ­example, the son of the late novelist extended to such disparate characters as Vladimir Nabokov filed suit when an author Tarzan, Amos & Andy, Hopalong Cassidy, wrote and attempted to publish a fictional and E.T., and denied to Sam Spade and diary by Lolita Haze, the main character of the Lone Ranger. Is Sam Spade any less Nabokov’s novel Lolita. (The suit was settled distinctive than Hopalong Cassidy? The only and the book subsequently published to ­general rule is that “the less developed the mixed reviews.)

864 Humorous Cuts from the Twenties and Thirties, Dover Publications (modified) 268 The Public Domain

faire (that which must follow from a certain ­describe or narrate a scène à faire are situation). Scènes à faire are indispensable, ­protected by copyright, even though the or at least standard, in the treatment of a idea for the scene is not. Thus, although given topic. They flow conventionally from any author can write a police novel that the situation being portrayed and are there­ ­includes a scene involving a high-speed fore in the public domain. Examples of chase, he could not copy the words another scènes à faire include: author used to describe a similar chase in a • a scene in the reality game show ­previously published police novel. Survivor in which the contestants on a hostile deserted island who were deprived of food ate worms. CBS Literary Devices Broad­casting, Inc. v. ABC, Inc., 2003 Literary devices such as the story-within- U.S. Dist. LEXIS 20258 (S.D. N.Y. a-story, flashbacks, the epistolary novel 2003). ­(novels consisting of fictional letters), • scenes involving attempted escapes, stream of consciousness, prosodic forms, flights through the woods pursued and rhetorical devices such as alliteration, by baying dogs, and the sorrowful or are all unprotectable ideas. These and most happy singing of slaves, in a novel other literary devices are all in the public about slavery. Alexander v. Haley, 460 domain. Only the particular way an author F.Supp. 40 (S.D. N.Y. 1978). uses such a device is copyrighted, not the • scenes involving hard-drinking Irish device itself. cops, drunks, prostitutes, vermin, and derelict cars, in a story about police work in the South Bronx. Walker v. Time-Life Films, 784 F.2d 44 (2d Cir. Unprotected Elements 1986). in Works of Fact • scenes involving treasure hidden in a cave inhabited by snakes, the use of Works of fact include histories, biographies, fire to repel the snakes, and seeking political science, philosophy, law, the social solace in a tavern, in the movie and hard sciences, reference works, and Raiders of the Lost Ark. Zambito v. similar works. This includes not just books Paramount Pictures, 613 F.Supp. 1107 devoted to these subjects, but magazines, (E.D. N.Y. 1985). journals, and periodicals as well. There are However, to the extent they are original, elements contained in works of fact that are the particular words an author uses to in the public domain. chapter 14: Public Domain Elements in Copyrighted Writings 269

Research records that had never before been analyzed. Subsequently, a freelance The facts that an author discovers in the writer wrote a magazine article on course of research are in the public domain, Lincoln’s assassination that used many free to all. This is so even if an author of the new facts unearthed by Eisen­ spends considerable effort conducting the schiml. The freelancer could have research. Copyright does not protect the ­examined the police records himself, fruits of creative research, no matter how but he didn’t. He simply used in his grueling or time-consuming the research own article the facts as represented may have been. Copyright only protects the by Eisenschiml. Eishenschiml sued the way an author expresses the facts. writer and magazine for copyright infringement and lost. The court held Example: Otto Eisenschiml, a renowned that the facts he had unearthed were Civil War historian, wrote a book on in the public domain. Eisenschiml v. Abraham Lincoln’s assassination. The Fawcett Publications, 246 F.2d 598 (7th book contained much original research, Cir. 1957). including facts obtained from police

Reward poster; Rocking chair used by President Lincoln in Ford’s Theater; President Lincoln’s box at Ford’s Theater; Old Ford’s Theater, where Lincoln was assassinated; President Lincoln’s funeral procession on ­Pennsylvania Avenue 270 The Public Domain

Interpretations they were not original—that is, the author didn’t say them, Michael Wayne An author’s interpretation of facts is itself did. Suid v. Newsweek Magazine, 503 a fact (or a purported fact) that is deduced F.Supp. 146 (D. D.C. 1980). from other facts. Interpretations are there­ fore also in the public domain. This is so However, this doesn’t mean that quota­ whether or not they are really true. For tions are always in the public domain. If ­example, an author’s theory that the Hinden­ the quote is written down or otherwise burg dirigible crashed because of sabotage ­recorded with the speaker’s authorization, was held to be in the public ­domain. This federal copyright law protects it. meant that a screenwriter was free to write Typically, the person who writes down a screenplay based on the idea that the or records the speaker’s words will have Hindenburg blew up due to sabotage. the speaker’s permission to use the Hoehling v. Universal City Studios, 618 F.2d quotes. Such permission may be express 972 (2d Cir. 1980). or implied by the fact that the speaker consented to an interview. In some cases, the interview ­subject may transfer his or Quotations her copyright rights to the interviewer. A written transfer agreement must be signed The author of a news story, biography, to accomplish this. ­history, oral history, or similar work may not claim copyright ownership of statements Example: In the case involving Michael made by others and quoted in the work. Wayne mentioned above, the author This is because a verbatim quotation of had Wayne sign a release giving him what someone else says is not original. the right to use Wayne’s words in his book. Michael Wayne could have Example: The author of a book about sued Newsweek for copying his words motion pictures conducted an interview without permission. However, it’s highly with Michael Wayne, John Wayne’s son, likely such a lawsuit would have been and included quotes from the ­interview unsuccessful. News organizations have in the book. Subsequently, Newsweek broad latitude under the fair use ­privilege magazine published an obituary of to use quotations without ­permission. Wayne that used some of these quota­ tions. The author sued Newsweek for In addition, a conversation reconstructed copyright infringement and lost. The by an author from memory, rather than court held that the author held no quoted verbatim from written notes or a copyright in the quotations ­because ­recording, may be protectable by the author chapter 14: Public Domain Elements in Copyrighted Writings 271

(not the person who made the original If a person creates a book of quotations ­remarks) if some originality was involved that are in the public domain because they in reconstructing the conversation. Harris v. are copied from public domain books, Miller, 50 U.S.P.Q. 306 (S.D. N.Y. 1941). ­articles, and other sources, the book may be a copyrighted compilation, although the Example: Imagine that a famous writer ­individual quotations are not protected. named Evelyn writes a memoir about Quinto v. Legal Times of Washington, 506 her experiences over many decades. F.Supp. 554 (D. D.C. 1981). One or more She discusses all the famous writers and of the individual quotations in such a book other interesting people she has known. could be copied without the compiler’s She also includes in her book many permission, but verbatim copying of the fascinating and witty conversations she ­entire book would infringe on the compiler’s has had with the great and near-great. copyright. However, none of these conversations There are many instances where quotations contain verbatim quotations. Rather, she are in the public domain. For example: has reconstructed them from memory. • A quotation by a federal government She has embellished or even made employee spoken as part of his up the words in these ­reconstructed duties is in the public domain. (See conversations. Evelyn is entitled to a copyright in these reconstructions.

Will Rogers, Illustration from 864 Humorous Cuts from the Twenties and Thirties, Dover Publications 272 The Public Domain

Chapter 3.) This includes official recorded at the time or soon after? Are they speeches by the president and entitled to any legal protection? The federal members of Congress. copyright laws do not protect a quotation • Quotations that are written down and that is spoken by someone but not recorded published enter the public domain in any way, but it might be protected under when the copyright in the published state law. State copyright laws, also called work expires (see Chapter 18) or, in common law copyright, can protect works some cases, if the work is published of authorship that have never been written without a valid copyright notice (see down or otherwise fixed in a tangible Chapter 19). ­medium of expression (see Chapter 2). • Quotations that are simply short However, the extent of such protection phrases may also be in the public is far from clear. Several state courts have ­domain (see Chapter 3). been reluctant to extend such protection • Quotations from public domain very far. For example, a New York state sources—for example, from a book court refused to give state law protection whose copyright has expired, such as to a conversation the author Ernest the King James Version of the Bible— Hemingway had with his biographer A.E. are in the public domain. Republishing Hotchner, which Hotchner reproduced in them in a new work does not revive the book Papa Hemingway many years their copyright. after Hemingway’s death. The court held In addition, for a quotation to be copy­ that for an oral statement to be protected rightable, it must be written down or by state law, the speaker would have to ­recorded with the speaker’s authorization. “mark off the utterance in question from A quotation recorded without the speaker’s the ordinary stream of speech” and ­indicate authorization is not protected by copyright. that he or she wished to exercise control Good examples are the many phone over its ­publication. Hemingway v. Random ­conversations Linda Tripp had with Monica House, 296 N.Y.S.2d 771, (N.Y. 1969). Of Lewinsky that Tripp secretly recorded course, people rarely do this in ordinary without Lewinsky’s permission. Lewinsky’s conversation. ­portions of these conversations are not ­protected by copyright. Unless they can be the extent of legal protection for protected under state law (see below), they quotations that have never been are in the public domain. written down or recorded is a gray area The above discussion applies only of the law. See Chapter 1 for a detailed to quotations that are written down or discussion about how to deal with such otherwise recorded. What about things public domain gray areas. people say that are not written down or chapter 14: Public Domain Elements in Copyrighted Writings 273

Fictional Elements This means that if the author of a history, biography, or other nonfiction work Fictional elements in otherwise factual works does not expressly state that the work is are entitled to full copyright protection. For completely factual, a person who copies example, a biographer who finds his subject’s fictional elements from such a work could actual life story boring and embellishes be liable for copyright infringement. One his biography with a fictional love affair way to avoid such liability, of course, is to is ­entitled to copyright protection for the double-check the author’s work to make ­fictional portions of the work. DeAcosta v. sure you are only using facts. Brown, 146 F.2d 408 (2d Cir. 1944). However, if an author represents his work to be completely factual, he may not Organization of Material bring a copyright infringement suit against To write a factual work, the author must someone who relied on that representation ­select and arrange the factual material. The and copied a portion of it thinking it was facts themselves are in the public domain, unprotectable fact when it was really pro­ but the author’s selection and arrangement tectable fiction. In other words, an ­author of them can be copyrightable if it’s original. cannot trick the public into thinking that a However, where the range of choices fictional element is really factual and then available to an author as to how to arrange sue for copyright infringement. Houts v. the work is severely limited, there will be Universal City Studios, 603 F.Supp. 26 (C.D. little or no copyright protection for the Cal. 1984). ­arrangement. For example, an author of a If the work involved is a news story, work of history who selects and arranges there need be no express statement in the the historical facts in chronological order story that it is completely factual. News cannot claim copyright in such arrangement. ­stories are presumed by the public to be Obviously, any other historian who factual. Davies v. Bowes, 209 Fed. 53 (S.D. wishes to write about the same events in N.Y. 1913). But, if the work is a history chronological order—the most common or ­biography, the author must expressly method of organizing historical material— state that the work is completely factual. must follow a similar or identical selection For ­example, the author of a biography and arrangement. Moreover, an historical of Wyatt Earp was not allowed to sue for chronology is itself a fact that is not copy­ copyright infringement when someone rightable. Norman v. CBS, 333 F.Supp. 788 ­copied fictional elements contained in the (S.D. N.Y. 1978). biography because the book stated that it But, an historian who writes about an was “in no part a mythic tale.” Lake v. CBS, event in an unconventional—that is, a ­non- 104 F.Supp. 707 (S.D. Cal. 1956). chronological—way, could likely claim 274 The Public Domain

copyright protection for his selection and this eccentric selection and arrangement arrangement. For example, if an author would likely be copyrightable. If a second writes a history of the kings and queens of author copied this same selection and England and organizes the material on the ­arrangement, he would likely be guilty of basis of the monarchs’ astrological signs, copyright infringement. ■ Chapter 15

Copyrights Restored From the Public Domain

The GATT Agreement...... 276

What Works Were Restored?...... 277 Three Requirements for Restoration...... 277 How Many Works Have Been Restored?...... 280

Which Works Were Not Restored?...... 280 Works in the Public Domain in Their Home Countries...... 280 Works Simultaneously Published in the U.S. and Abroad...... 281 Works Published in Countries With No U.S. Copyright Relations...... 281

Who Owns Restored Works?...... 282

Copyright Infringement of Restored Works...... 282 Liability for Continuing to Use Restored Works...... 282 Notice of Intent to Enforce Copyright to Reliance Parties...... 284 276 The Public Domain

n January 1, 1996 something If the work you’re interested in was unprecedented in the history of first published in the United States, O American copyright law occurred. it doesn’t qualify for copyright restoration Because of an international trade treaty and you don’t have to read this chapter. called GATT, millions of foreign works in Nor does copyright restoration apply to any the U.S. public domain had their copyrights ­unpublished work. restored. In other words, many works first published outside the United States were withdrawn from the public domain. The GATT Agreement Among the foreign works whose copy­ right protection was restored were many The copyright restoration came about as masterpieces of world cinema, including a result of longtime efforts by the U.S. Grand Illusion (France, 1937), Breathless ­government to enter into comprehensive (France, 1959), The Bicycle Thief (Italy, international trade agreements reducing 1949), The Blue Angel (Germany, 1931), and or eliminating tariffs and otherwise freeing The Third Man (United Kingdom, 1949). up world trade. In 1994, the United States Untold thousands of foreign musical signed the General Agreement on ­Tariffs works that used to be in the public and Trade (known as GATT), an ­extensive domain in the United States also had international treaty dealing with many their protection restored. This includes ­aspects of international trade. The GATT virtually the complete works of the great agreement required that the United States Soviet composers Sergei Prokofiev, Aram restore copyright protection for ­foreign Khachaturian, and Dimitri Shostakovich. works that had entered the public domain No one can even guess how many foreign because the foreign copyright ­owners written works have had their copyrights failed to comply with certain copyright ­restored, but the number must be formalities or because the United States enormous. had no copyright relations with the foreign You need to clearly understand which country where the work was ­published. foreign works have had their copyrights The U.S. copyright law has, in fact, been ­restored before you can conclude that any rewritten to implement this provision, and work first published outside theU nited States works meeting the GATT requirements had is in the public domain in the United States. their copyrights automatically restored on January 1, 1996. chapter 15: Copyrights Restored from the Public Domain 277

What Works Were Restored? • its copyright protection had not ­expired under the copyright laws of Foreign works in the public domain as the country of foreign publication as of January 1, 1996 qualified for copyright of January 1, 1996 (see below). ­restoration if they were published: Works meeting these requirements receive • between January 1, 1923 and March the same term of copyright protection in the 1, 1989 without a proper copyright United States that they would have had if notice (see Chapter 19), or they had never entered the public domain. • during the years 1923-1963 but never had their copyrights renewed by filing Example: Assume that in 1950, Thames an application with the U.S. Copyright Press, a British publisher, published Office during the 28th year after in Great Britain a novel called Sticky ­publication (see Chapter 21), or Wicket, by the English writer John • in countries with which the United Jones, who died in 1970. Thames failed States had no copyright relations. to file a renewal registration for the book in 1978, and as result it entered the public domain in the United States Three Requirements for Restoration on January 1, 1979. However, the U.S. copyright in the book was automatically Any foreign published work falling into any restored by the GATT agreement on one of the three categories listed above had January 1, 1996. This is because the its U.S. copyright automatically restored on work was written by a British subject, January 1, 1996 if: first published in a country with which • it had at least one author who was the United States has copyright relations, a citizen or resident of a country and the British copy­right on the book other than the United States that has had not expired as of 1995, because copyright relations with the United British copyrights last for the life of the States, which includes all the countries author plus 70 years. of the world except for Afghanistan, The book receives the same term of Eritrea, Ethiopia, Iran, Iraq, and San copyright protection in the United States Marino. that it would have had a renewal been • it was first published in a country with filed on time—a term of 95 years from which the United States has copyright the date of publication. The novel will relations, but not published in the be protected by copyright in the United United States within 30 days following States until December 31, 2045. the foreign publication, and 278 The Public Domain

Where a Work Was First Published

Copyright restoration applies only to records for books, magazines, newspapers, works first published outside the United and other serials, cartographic materials, States. There is no single source for finding music, and visual materials in the Library’s where a work was first published. You may collection. The Library’s records typically have to look in a variety of places and do give a work’s country of publication. extensive research. There is no one best Check Copyright Office records. If the way to make this determination. How you work was registered with the U.S. Copyright go about your research depends on the Office, checking Copyright Office registration type of work ­involved, how much time you records will reveal in what country it was have, and whether you have access to the first published. Many of these records can Internet. Here are some useful resources and be researched online. (See Chapter 21.) techniques you can use: However, not all published works are Examine the work. If possible, obtain a ­registered with the Copyright Office, so there copy of the work and examine it carefully. may be no record for it. Books, magazines, newspapers, sheet ­music, Check reference works. There are films, maps, and other published works often hundreds of reference works that may be say where they were published or printed. able to tell you where a work was published. But even if the work you obtain shows it was For example, in the realm of literature published in the United States, it may not these include­ such works as Contemporary have been originally published here. Many ­Authors, Contemporary Literary Criticism, works initially published outside the United and the Dictionary of Literary Biography, States are republished in the United States. all published by Gale Research. Go to a Very often, the work will indicate­ where it public or university library with a good was first published. reference section and ask the reference If the work is in a language other than librarian for assistance. If you’re too busy to ­English or was translated into English from a go to a ­library, you can post your research foreign language, it likely was first published questions on the Internet at www.ipl.org outside the United States; but this isn’t and a reference librarian will email you with ­always the case. advice. Check library catalogues. You may be able Research the author. Researching the to determine whether a work was published ­author of the work may reveal where the by checking the Library of Congress work was published. First, determine the Online Catalog at http://catalog.loc.gov. author’s home country. Works by authors The ­catalogue contains over 12 million who are not U.S. citizens or residents are chapter 15: Copyrights Restored from the Public Domain 279

Where a Work Was First Published No Restoration for Works (continued) by Americans

typically first published outside the United The copyright restoration law applies only States and vice versa. However, this isn’t to works with at least one non-American always the case. If the author is well known, author. Works authored solely by Americans a biography or critical study may have a don’t qualify, even if they were first detailed publication history for his or her published outside the U.S. An American works. photographer named George Barris found Use the Internet. Many helpful reference this out the hard way. In 1962, he took a works and information about authors and series of photographs of Marilyn Monroe their works are available on the Internet. which were published that year in the Do a Web search using the author’s name, British newspaper The Daily Mirror. Two or the name of the work involved, and the three years later an American artist used publisher. There may be a website devoted the photos without Barris’s permission to the author or even to the particular in a collage. Unfortunately, Barris never work, or some online reference with timely renewed the photos. So, by the ­detailed information about the work. Other time he got around to suing the artist and specialized websites may prove helpful. For others for copyright infringement in the example, the Internet Movie Database at late 1990s, his photos had entered the www.imdb.com lists the country of origin public domain in the United States. The for most theatrical films. A good place to restoration law didn’t help Barris because find a list of Internet ­reference resources is he was an American. Had he been British the Internet Public Library at www.ipl.org. (or any other non-American), the copyright Contact the publisher. Contact the in the photos would have been restored work’s publisher and ask them to tell you if on Jan. 1, 1996 and he could have had a the work was first published in the United successful lawsuit. Who said life was fair? States or abroad. Barris v. Hamilton, 51 U.S.P.Q. 2d 1191 (S.D. N.Y. 1999).

A Useful Rule of Thumb: It’s very likely copyright restoration. You can assume that that any work first published within such works are not in the public domain. the last 50 years in any foreign country Or, if you wish, you can ­research the work’s other than Afghanistan, Eritrea, Ethiopia, publishing history to make sure. Iran, Iraq, or San Marino qualifies for 280 The Public Domain

How Many Works Have You can visit the Copyright Office website Been Restored? at www.copyright.gov and view lists the Copyright Office has compiled of some of Nobody has any idea of the exact number the works whose copyrights have been of foreign works that had their U.S. restored. These lists were ­complied from copyrights restored, but the number is large. legal notices that foreign copyright owners This is because substantial numbers of filed with the Copyright Office informing ­foreign copyright owners failed to comply the Office and the world that they intended with U.S. copyright formalities. Foreign to enforce their newly restored copyrights. ­authors and publishers often failed to place Most of the works on the lists are foreign copyright notices on their published works, films and musical works. However, these since notices have never been required lists represent only a tiny fraction of all the in most foreign countries. Even more ­foreign works whose copyrights have been common, however, they failed to renew restored. works published before 1964. Renewal was required even for works published outside the U.S. The Copyright Office Which Works Were estimates that only about 15% of pre-1964 Not Restored? published works were ever renewed. The percentage may be even lower for foreign Don’t get the idea that every foreign work works. The result of this noncompliance has had its U.S. copyright restored. Millions with U.S. copyright formalities was that of foreign works are still in the public millions of foreign works entered the U.S. ­domain in the United States. These include public domain even though they were still the following: protected in their home countries and most other countries. Moreover, a surprisingly large number Works in the Public Domain of works were in the public domain in the in Their Home Countries United States because it had no copyright relations with the country of publication. Another significant group of foreign For example, until 1973 the United States works that does not qualify for copyright had no copyright relations with the Soviet restoration is works whose copyright Union. All works published before 1973 in expired in their home countries as of the Soviet Union were in the public domain January 1, 1996, the date U.S. copyright in the United States. Most of these works restoration took effect.­ have now had their copyrights restored. chapter 15: Copyrights Restored from the Public Domain 281

To know if this exception applies, you So this exception would apply only to need to know the copyright term of the works published by most European authors ­foreign author’s country. You also need to who died before 1926. know when the author died. This is because, See Chapter 16 for a detailed discussion in most foreign countries, the copyright of foreign copyright terms. terms for most works last for a given ­number of years after the author dies. Copyright terms differ from country to Works Simultaneously Published country, and also differ according to the in the U.S. and Abroad type of work involved. However, copyrights Before 1989, U.S. publishers could obtain last for at least 50 years in almost all foreign copyright protection in many foreign countries, so this exception could only ­countries only by publishing a work apply to works published before 1946. ­simultaneously at home and in a foreign In the case of most individually authored country that had signed a major international works such as books, music, and art, copyright treaty called the Berne Convent­ copyrights in most countries last for the life ion. The work had to be published in of the author plus 50 years, or the life of the both countries within 30 days. American author plus 70 years. publishers commonly had their works published ­simultaneously in the United Example: Ken published a song with States and Canada or Great Britain. This fact a copyright notice in Canada in 1940. was ­usually indicated on the same page as The song was never renewed and the copyright notice. These works do not so entered the public domain in the qualify for copyright restoration because United States on January 1, 1969. Ken they are really American works that were died in 1942, so the song entered the also published abroad. public domain in Canada on January 1, 1993 because copyrights last for the life of the author plus 50 years in Works Published in Countries Canada. Because the song was in the With No U.S. Copyright Relations public domain­ in Canada on January 1, 1996 it didn’t qualify for U.S. copyright Works published in almost all foreign ­restoration. It remains in the public ­countries are entitled to full U.S. copyright ­domain in the United States. protection. However, there are a handful of countries with which the United States has Unlike Canada, virtually all Western no copyright relations. These are: ­European countries extend copyright Afghanistan Iran ­protection for 70 years after an author dies. Eritrea Iraq Ethiopia San Marino 282 The Public Domain

A work first published in any of these owner’s exclusive rights to copy, ­distribute, countries by a citizen or resident of any create derivative works from, or publicly of these countries is not entitled to U.S. display or perform the work. The owner copyright protection. Nor does it qualify for of a restored work can bring a copyright copyright restoration. In other words, it is in ­infringement action against anyone who the public domain. unlawfully uses the work after January 1, 1996 just as for any other work still under­ copyright. Who Owns Restored Works? But what if you used a restored foreign work before January 1, 1996, when it was The author initially owns the U.S. copyright in the public domain? There’s no need to in a restored work. The laws of the country worry about this. You aren’t liable for any where the work was first published defined uses you made of the work before 1996. who the author is. If the author died before January 1, 1996 ownership is determined Liability for Continuing under the inheritance laws of the author’s to Use Restored Works country. U.S. federal courts, applying the law of the country of origin, decide ­disputes Things are more complicated, however, if concerning initial ownership of restored businesses or people used a restored work foreign copyrights. without permission before January 1, 1996 If the author at any time assigned, and continued to use the work in the same licensed, or otherwise transferred all or part way after that date. Such people are called of his or her rights, the transfer is supposed “reliance parties.” They can’t be sued for to be given effect according to the terms copyright infringement unless: of the agreement. Disputes concerning • the owner of the restored copyright copyright transfers must be resolved in U.S. sends them directly a Notice of Intent state courts applying U.S. copyright law. to Enforce Copyright, or • the owner filed such a notice with the Copyright Office between 1996 and Copyright Infringement 1997 when such notices were permitted of Restored Works to be filed there. The filing of a Notice of Intent to Enforce a No one can use a restored work for the first Copyright starts a 12-month clock running, time after January 1, 1996 without obtaining­ during which time the copyright owner the copyright owner’s permission. “Use” is not allowed to enforce the copyright means exercising any of the copyright against the reliance party. During this 12- chapter 15: Copyrights Restored from the Public Domain 283

month period, the reliance party may sell a reasonable license fee for using the work off previously manufactured stock, publicly after its copyright was restored. This is a perform or display the work, or authorize mandatory license—that is, the owner of the others to do so. A reliance party cannot restored work must let the reliance party make new copies of the restored work exploit the derivative work so long as it is ­during this period or use it differently than compensated. it was used before January 1, 1996, unless permission is obtained from the work’s Example: In the 1950s, a Danish copyright owner. woodcarver named Thomas Dam After the 12 months are up, the reliance created a troll doll out of rubber for his party must stop using the restored work daughter. The doll proved very popular unless a licensing agreement is reached with children, and Dam eventually with the copyright owner for continued use opened his own factory to manufacture of the work. If the copyright owner filed and sell it. He exported the doll into the Notice of Intent to Enforce Copyright the U.S. in 1961. Unfortunately, proper with the Copyright Office between 1996 and copyright notice was not included on 1997, the 12-month period is already up. the dolls and as a result they entered If a licensing agreement is not reached the public domain in the U.S. under and the reliance party continues to use the law then in effect. A few years the restored work, the copyright owner later, Russ Berrie began manufacturing can sue for copyright infringement for and selling a very similar troll doll in any unauthorized uses occurring after the the U.S. The Danish company that 12-month ­period expires. But a copyright manufactured the authorized Dam trolls owner cannot sue a reliance party for any could do nothing about it at the time ­unauthorized uses that occurred before the because the Dam troll doll was public 12-month ­notice period ended, provided the domain in the U.S. On Jan. 1, 1996 the party used the work the same way ­before U.S. copyright in the Dam troll doll ­January 1, 1996. was automatically restored. On Feb. However, the rules are different if the 13, 2001 Dam gave Berrie a Notice of reliance party created a derivative work Intent to Enforce Copyright in the doll, from the restored work while it was in the and litigation ensued. The trial court public domain. In this event, the reliance held that the copyright in the doll had party may continue to exploit the derivative been restored and therefore Berrie work—and may do so forever, even after had to stop selling his troll doll after being sent a Notice of Intent to Enforce Feb. 13, 2002 one year after it received Copyright. But the reliance party must pay Dam’s Notice. Berrie appealed, and the the copyright owner of the restored work court agreed that Dam’s U.S. copyright 284 The Public Domain

in the troll doll had been restored. Example: In 1960, Thomas Hoepker, However, the court threw a wrench in a German artist, photographed a the works because it held that it was woman holding a large magnifying unclear whether Berrie‘s troll doll was glass over her left eye. The photo was a derivative work based upon Dam’s published in Germany in 1960, but original troll doll. If true, this meant the U.S. copyright in the photo was Berrie could continue to sell his doll never renewed; thus, it entered the in the U.S., but would have to pay U.S. public domain on Jan. 1, 1989, 28 Dam reasonable compensation for its years after publication. In 1990, Barbara mandatory license. The matter was sent Kruger, an American collage artist, back to a trial court for a determination used a copy of the photo in a collage. as to whether Berrie’s doll was a deriva­ In 2000, Hoep­ker filed a copyright tive work, and the parties eventually infringement suit against Kruger and a settled. Dam Things from Denmark v. museum that had licensed her work. Russ Berrie & Co., Inc., 290 F.3d 548 (3d He lost, even though the U.S. copyright Cir. 2002). in his photo was automatically restored on Jan. 1, 1996. The reason was that Kruger was a “reliance party”—that is, Notice of Intent to Enforce she had used the photo while it was in Copyright to Reliance Parties the public domain in the U.S. and then continued to use it after the copyright As discussed above, the owner of a restored was restored. As such, she could be work has no rights against a reliance liable for infringing the photo only if party unless a Notice of Intent to Enforce she was given notice by Hoepker of his Copyright (NIE) is sent to them or unless intent to enforce his restored copyright, the owner filed an NIE with the copyright and only for infringing acts occurring office ­during the years 1996-1998. 12 months or more after such notice was given. Hoepker never gave Kruger or the museum such notice. Therefore, neither Kruger nor the museum were liable for copyright infringement. Hoep­ ker v. Kruger, 200 F.Supp.2d 340 (S.D. N.Y. 2002). chapter 15: Copyrights Restored from the Public Domain 285

An NIE is a short document identifying the title and owner of the work that has What to Do If You’re a Reliance Party had its copyright restored. A sample NIE is If you’re a reliance party—here’s what reproduced below. you should do: As of the time you’re reading this book, First, check Copyright Office records to the NIE must be sent directly to the reliance see if the owner of the work filed an NIE party. The Copyright Office no longer with the Copyright Office during 1996- ­accepts NIEs. NIEs can be sent to reliance 1997. The Copyright Office has posted a parties until the end of the U.S. copyright list of all filed NIEs on its website at www term for the restored work. After that date, .copyright.gov. You can also search for the U.S. copyright expires and the work ­­re- them by using the Copyright Office’s enters the public domain. online database, which is ­accessed from It is not necessary to file an NIE to have the same website. the copyright in a foreign work restored. As If an NIE has been filed, stop using explained above, they only need be filed to the work. You’ll be liable for any obtain legal rights against people who used unauthorized uses of the work that the restored work before January 1, 1996 occurred 12 months after the NIE was when it was in the public domain. filed, even though you were not aware of the filing. You could seek out the copyright owners of the restored work and obtain their ­permission to use it again. Be aware, however, that this could bring your infringement to the owners’ ­attention and open you up to a lawsuit if you can’t reach an agreement on licensing the work. If no NIE was filed with the Copyright ­Office or sent to you directly, you may ­decide to continue to use the restored work. But you must use it in the exact same way as you did before 1996. You won’t be ­liable for that kind of use until one year after the copyright owner sends you an NIE, if they ever do. Alternatively, you may stop using the work or obtain permission from the copyright owner to continue using it. 286 The Public Domain

Notice of Intent to Enforce a Copyright Restored Under the Uruguay Round Agreements Act (URAA)

1. Title: Sticky Wicket (If this work does not have a title, state “No title.”) OR Brief description of work (for untitled works only).

2. English translation of title (if applicable):

3. Alternative title(s) (if any):

4. Type of work (e.g., painting, sculpture, music, motion picture, sound recording, book): book 5. Name of author(s) Eric Blair

6. Source country: United Kingdom 7. Approximate year of publication: 1935 8. Additional identifying information (e.g., for movies: director, leading ­actors, screenwriter, animator; for photographs: subject matter; for books: editor, publisher, contributors, subject matter): Published by Thames Press Edited by John Malcolm 9. Name of copyright owner (statements may be filed in the name of the owner of the restored copyright or the owner of an exclusive right therein): Sally Blair

chapter 15: Copyrights Restored from the Public Domain 287

10. If you are not the owner of all rights, specify the rights you own (e.g., the right to reproduce/distribute/publicly display/publicly perform the work, or to prepare a derivative work based on the work).

11. Address at which copyright owner may be contacted. (Give the complete address, including the country, and an “attention” line, or “in care of” name, if necessary.) Sally Blair 123 Mayfield Road Walton-on-Thames, Surrey United Kingdom 12. Telephone number of owner: 123-555-6789 13. Telefax number of owner: 123-555-8900 14. Certification and signature I hereby certify that, for each of the work(s) listed above, I am the copyright owner, or the owner of an exclusive right, or one’s authorized agent, the agency relationship having been constituted in a writing signed by the owner before the filing of this notice, and that the information given herein is true and correct to the best of my knowledge. Signature: Sally Blair Name (printed or typed): Sally Blair As agent for (if applicable): Date: 2/1/99

Note: Notices of Intent to Enforce must be in English, except for the original title, and either typed or printed by hand legibly in dark, preferably black, ink. They must be on 8½" × 11" white paper of good quality, with at least a one-inch (or three cm) margin.

■

Chapter 16

The Public Domain Outside the United States

Introduction...... 290 Different Copyright Terms...... 290 Different Coverage of Copyright Laws...... 291 Moral Rights...... 291 If a Work Is in the Public Domain in the United States but Not Abroad...... 292

Copyright Duration in Other Countries...... 293 European Union...... 293 Canada...... 297 China...... 299 Japan...... 300 Russia...... 301

The Rule of the Shorter Term...... 302 Impact of Rule on U.S. Works...... 302 Countries That Follow the Rule...... 302 Countries Where Application of the Rule of the Shorter Term Is Unclear...... 304

Researching Foreign Copyright Laws...... 304 Books...... 304 Websites...... 304 290 The Public Domain

o explain the rules of copyright whether the book is in the public domain around the world would take a in Germany, you must look to German T whole book. Here, we give you a copyright law. If you want to know whether general idea of how long copyright lasts the book is in the public domain in Canada, in most major countries and explain why you must look to Canadian copyright law. many works created in the United States are Because the copyright laws of various still under copyright here, but in the public countries often differ dramatically, a work domain outside the United States. in the public domain in the United States is not necessarily in the public domain outside If You Want to Know Whether a Work the United States. Is in the Public Domain in a Foreign Country You Must Research That Country’s Copyright Laws. You can do this yourself Different Copyright Terms with the aid of the resources listed at the end of this chapter, or hire an experienced In 1998, the United States amended its ­international copyright attorney to help you. copyright law, bringing the length of copy­ right terms more in line with Western Europe. However, for works published before 1978, the U.S. copy­right terms are Introduction still very different than most foreign terms. As a result, millions of works that are in the There is no single international copyright public domain in the United States are still law that applies in all the countries of the under copyright in many foreign countries. world. Instead, each country has its own For example, all the songs of Irving Berlin copyright law that operates within its own published before 1923 are in the public borders. However, through a series of domain in the United States because the ­international treaties, almost every nation copyright has expired. However, all of these has agreed to give citizens of other nations songs are still under copyright in Canada the same protection they give their own because Canadian copy­right lasts for the citizens. life of the author plus 50 years (Berlin This means that you must look at the died in 1990). This means if you want to laws of the country where you want to use use the songs in Canada, you must obtain the work to determine whether it is in the permission from Berlin’s heirs. public domain. For example, if you want There are also many works that are know whether a book published in Germany ­protected in the United States that are in in 1925 is in the public domain in the United the public domain in many foreign countries States, you must rely on U.S. copyright because their copyrights have expired in law for the answer. If you want to know those countries. chapter 16: The Public Domain Outside the United States 291

On the other hand, because of something reproduced in a manner that repro­ called the rule of the shorter term, works duces the typography, although the that are in the public domain in the United words of the public domain work can States are automatically in the public domain be copied by hand or typed. United in many foreign countries as well, including States copyright law does not protect most of Western Europe. Countries that use typography. the rule of the shorter term treat works in • In many countries, including the the public domain in the United States as United Kingdom and Italy, copyright in the public domain in their own countries protection is granted to new typefaces. as well. If a public domain work is ­republished with a copyrighted typeface, the work may not be photocopied or other­ Different Coverage wise reproduced in a manner that of Copyright Laws repro­duces the typeface, although the words of the public domain work There are also major differences in what can can be copied by hand or typed. U.S. obtain copyright protection in the United copy­right law does not protect type­ States and many foreign countries. Here are faces (see Chapter 5). just a few examples: • U.S. government publications are in the public domain under U.S. copy­ Moral Rights right law, while many foreign govern­ ments, including the United King­dom Another major difference between U.S. and Canada, claim copyright in their copyright law and the copyright laws of publications under their own copy­ most foreign countries is what are called right laws. moral rights, which consist of: • In most of Western Europe, commercial • the right of integrity—the author’s databases are given a unique form right to control alterations of his of copyright protection prohibiting or her work and to prevent its unauthorized extraction of the data for destruction ten years. This is not the case ­under • the right of paternity—the right to be U.S. law. recognized as author of a work, or, • In several countries, including the if the author so chooses, the right to United Kingdom and China, copyright disclaim authorship, and protection is granted to typography. If • the right of disclosure (also called the a public domain work is republished right of dissemination), which is the with original typography, the work author’s right to decide when to release may not be photocopied or otherwise his or her work into the public­ arena. 292 The Public Domain

Moral rights last at least as long as a Argentina Hungary work’s copyright and in many countries Australia India they last longer. In several countries, the Belgium Israel rights of integrity and paternity last forever. Brazil Italy For example, because of moral rights it Canada Japan may be illegal in some countries to: China Netherlands • colorize a black and white movie, Czech Republic poland even if its copyright has expired France Spain • republish a public domain work Germany Sweden ­without identifying the author, or Greece Switzerland • destroy or deface a work of art in the Hong Kong united Kingdom public domain. United States copyright law gives some limited moral rights—the rights of attribution If a Work Is in the Public Domain in and paternity—to visual artists, but the the United States but Not Abroad rights don’t apply to any works that are in What should you do if a work is in the the public domain in the United States. public domain in the United States, but not Ordinarily, you don’t need to worry about in the public domain in a foreign country moral rights if you plan to republish a work such as Canada or the United Kingdom? If that has been published and is now in the you want to use the material copyrighted in public domain in the country where you that country, you’ll have to get permission. want to use it and you are careful to give credit to the author. However, if you plan Example: Repulsive Pictures creates to alter the work in any way, you could end a movie based on a play that is in the up violating the author’s moral rights unless public domain in the United States, you get permission for the changes. but not in Canada. Repulsive needs Moral rights laws differ from country to permission from the copyright owner country. To know how they may affect of the play to distribute the movie in your use of a work in a particular country, Canada. you must research that country’s copyright laws (or hire an attorney to do so for you). If you fail to get such permission, you A list of foreign copyright law resources is could be sued for copyright infringement in provided at the end of this chapter. the foreign country. It might even be ­possible Among the countries that recognize for the copyright owner to sue you in the one or more of the moral rights described United States for violating his or her foreign above are: copyright rights. chapter 16: The Public Domain Outside the United States 293

To avoid such potential legal liability, Belgium, Cyprus, the Czech Republic, some companies won’t sell copies of works Denmark, Estonia,­ Finland, France, in the public domain in the United States Germany, Greece, Hungary, Ireland, Italy, in foreign countries where they are still Latvia, Lithuania, Luxembourg, Malta, the protected by copyright. For example, Dover Nether­lands, Poland, ­Portugal, Slovakia, Publications, Inc., a U.S. company that Slovenia, Spain, Sweden, and the United publishes many public domain works in the Kingdom. United States, won’t ship such works to any Among the EU’s many accomplishments country in which they still have copyright is establishment of a frontier-free internal protection. market allowing for free movement of people, goods, services, and capital; and adoption of a single currency, the Euro. Copyright Duration The EU nations have also standardized in Other Countries many aspects of their legal systems, a process called harmonization. This includes Euro­pean copyright laws. Every EU Almost all of the world’s developed country has its own copyright law, but they countries have signed an international have all adopted a single set of copyright copy­right treaty called the Berne Conven­ duration rules. tion, requiring them to grant copyright protection for 50 years after the author dies. The Basic Copyright Terms However, this is a minimum requirement. Most ­countries grant authors much longer The copyright terms discussed below apply copyright terms. throughout the EU to any work authored by an EU national. It makes no difference if the this section explains the copyright work was published in an EU country, or a terms of many of the largest countries. country outside the EU such as the United If the country you are interested in is not States. Thus, for example, a work published discussed here, refer to the end of this in the United States by a French national chapter for resources you can use to learn receives the same copyright term in the EU about its copyright term, or consult with a as if it were published in France or another copyright attorney. EU country (but its copyright term in the United States would be determined under European Union American, not EU, copyright law). Works by Americans are also given these The European Union (EU) is a unique copyright terms within the EU unless the supranational union made up of most of rule of the shorter term requires that the the nations of Europe, ­including Austria, U.S. copyright term be applied. Subject to 294 The Public Domain

some minor variations, the copyright terms • If the copyright in an unpublished in all the EU countries are as follows (all work has expired—because the author terms run to the end of the calendar year): died over 70 years ago—the first • The general copyright term is the ­person to publish the work is entitled life of the author plus 70 years—this to a copyright in the work that lasts ­applies to both published and for 25 years from the first publication. unpublished works. If a work has • The copyright in media productions, more than one author, the copyright such as performances, sound record­ term lasts for 70 years after the ings, and broadcasts lasts for 50 years death of the last living author. If a from the date of first publication. If work is published anonymously or a production is never published,­ the if the author uses a pseudonym, the copyright lasts for 50 years after the copyright lasts for 70 years from the production was made. date of publication. However, if the identity of the real author is not in Wartime Extensions doubt, the copyright protection lasts Many of the EU countries were directly for 70 years after the author dies. ­involved in both World War I and World • The copyright in movies lasts for 70 War II. WWI lasted from August 1914 years after the death of the last of through November 1918. WWII in Europe the following people: the principal lasted from September 1939 though May ­director, the author of the screenplay, 1945. It was often difficult or impossible the author of the dialogue, and the for authors and publishers to profit from ­composer of any music created for their works during these war years. For the movie. this ­reason, many European countries • Collective works such as magazines, granted special wartime extensions of their periodicals, and encyclopedias are copyright terms. protected for 70 years from the date of For example, Belgium extended its publication. However, if the individual ­copyright term by ten years in 1921, while authors who have contributed to such Italian copyright law provides a six-year a work are identified by name, the ­extension for works published by non- copyright continues until 70 years Italians before the end of WWII. Some of after the author’s death. But, if the the EU countries eliminated these wartime ­individual author was anonymous extensions when they adopted the new or used a pseudonym, the copyright standard EU copyright terms discussed lasts for 70 years from the date of above. However, ­others did not. It’s unclear publication, instead of 70 years from whether the ­extensions are still enforced in the author’s death. chapter 16: The Public Domain Outside the United States 295

50-Year Public Domain Rule for Non-U.S. Sound Recordings

In the European Union (EU), Canada, domain in the EU. It’s expected that several Australia, and New Zealand the copyright companies will publish these because they in sound recordings lasts for 50 years after still sell extremely well. Early recordings the recording is published; or, if it’s never by many post-World War II popular music published, 50 years after the recording greats such as Elvis Presley will also soon was made. Thus, all recordings made over become public domain as well. However, 50 years ago are in the public domain the musical compositions Presley and the in these countries. However, this doesn’t others recorded will remain copyrighted mean that the music that was recorded is unless the composer is dead more than 70 public domain. The copyright in a musical years. composition, as opposed to a recording, As you might expect, record companies lasts for 70 years after the composer’s death are adamantly opposed to their recordings in the EU (50 years in Canada). Thus, the entering the public domain anywhere in music on many old sound recordings is the world. Music industry groups such still under copyright in these countries, as the Recording Industry Association of even though the recording itself is not. America have attempted to get the EU to For example, a 1950 recording of a song extend the copyright in sound recordings by Irving Berlin would be in the public beyond 50 years, and to make the domain in the EU, but the song itself would extension retroactive. As of yet, they’ve not be public domain because Berlin died proved unsuccessful. in 1989 (at the age of 101). Thus, anyone What does this mean for people living who wanted to copy the recording would in the U.S.? Theoretically, it will have no need to get permission from the copyright effect since the recordings involved are owner of the song. But no permission all still under copyright in the U.S. or would be needed from the former protected by state law (see Chapter 4). As copyright owner of the recording for use in a practical matter, however, it’s likely that the EU since it is public domain there. many of these public domain recordings Recordings of musical compositions by will be placed on the Internet in Europe composers who have been dead over 70 and elsewhere; and it’s hard to see years are completely public domain in the how the RIAA or anyone else can stop EU. This includes, of course, a vast classical Americans from downloading them, even music repertoire. Thus, for example, though downloading into the U.S. from a famous recordings made in the early foreign Internet server recordings that are 1950s by legendary opera singer Maria copyrighted in the U.S. is likely a copyright Callas have, or soon will, enter the public infringement. 296 The Public Domain

these ­countries. The conservative approach public domain because Monet died in 1926. is to assume that they are. It’s advisable to This decision should be highly influential be conservative. This way you know you and hopefully make it much easier to won’t be sued for copyright infringement in calculate the French copyright term. the foreign country. This means you need to add ten years Restoration of Public Domain Works to the normal Belgian copyright term for Before the members of the EU harmonized works published before August 4, 1924. The their copyright terms in the late 1990s, most ­Italian copyright terms for works published of the EU countries had copyright protection before 1946 need to be increased by six during the life of the author and for 50 years. However, this applies only to works years after his or her death. For example, published by non-Italians. this was the basic copyright term in the France has the most complex wartime United Kingdom before January 1, 1996. ­extensions. Works published before or However, Germany had a much longer ­during WWI receive an extension of six copyright term: The basic copyright term years and 152 days. Another extension under German law was the life of the ­covers WWII, and runs for eight years ­author plus 70 years after the author died. and 120 days. An additional extension of Germany refused to reduce its copyright 30 years applies to authors who “died for term to the life of the author plus 50 years. France.” These extensions are cumulative So, to achieve a single uniform copyright and must be added to the normal copyright term within the EU, the other EU countries term of 70 years after an author dies. Thus, had to change their copyright laws to match in the case of a work published before or Germany’s copyright term. during World War I by an author who later To achieve this uniformity, EU law ­requires “died for France,” the copyright could be that any work still under copyright in extended by over 44 years. ­Germany on July 1, 1995 must be given the Whether these wartime extensions still full German term of protection in every EU need to be added to the French copyright country. This is required even if it means terms is not entirely clear. Courts in France ­restoring the copyright in a work that had have disagreed on this issue. However, the previously entered the public domain. This latest judicial word, from the highest French required most of the EU countries to extend court, is that such extensions should not their copyright protection by 20 years. be applied. The case involved a painting created by Claude Monet in 1906. The Example: All of the works of James French Court of Cassation held that neither Joyce entered the public domain in the the World War I nor World War II extensions United Kingdom and most of the rest of should be applied. Under the normal life- Europe on January 1, 1991 (Joyce died plus-70-year term, the work was in the chapter 16: The Public Domain Outside the United States 297

in 1941). However, Joyce’s works were continue to publish derivative works based still under copyright in Germany on on restored works. These provisions vary July 1, 1995 because Germany allowed from country to country. copyright protection to extend for 70 years beyond the death of the author. Under EU law, this meant that Joyce’s Canada works were entitled to 70 years of The basic copyright term in Canada ends copyright protection throughout the EU. 50 years after an author dies. If a work has As a result, the UK copyright in Joyce’s more than one author, the copyright lasts works was restored on January 1, 1996 for 50 years after the last author dies. All and will now last until December 31, copyright terms last until the end of the 2011. year in which the author dies and then As a result of this change, millions of continue for an additional 50 calendar years. works that had been in the public domain However, different terms apply to the works in most EU countries have had their listed below. copyrights restored for an additional 20 years. To prevent this copyright restoration Photographs from causing economic hardship, the The term of protection for photographs EU nations adopted special copyright ­depends upon the author. There are three provisions allowing­ the owners of copies possible terms of protection: of restored works to sell their stock and to

Canadian Rockies, copyright © 2000 by Terri Hearsh 298 The Public Domain

• First, where the author is a human copyright law. It appears to be either the ­being (as opposed to a business ­entity person who shoots the film or controls how such as a corporation), the copyright it is shot. This could be the film director lasts for 50 years after the author dies. or producer. So if you are considering the • If the author of a photograph is a use of a work that falls into this category, ­corporation in which the majority you should determine the years when all of voting shares are owned by a of these people died (if they have). Only if human being who is the author of they have all been dead for over 50 years the photograph, the copyright lasts 50 should you treat the film as in the Canadian years ­after the photographer dies. public domain due to copyright expiration. • If the author of the photograph is a corporation in which the majority Sound Recordings of voting shares are not owned by The copyright in a sound recording lasts for a ­human being who is the author of 50 years from the end of the year in which the the photograph, the copyright lasts original master or tape was created. But this 50 years after the photo was taken or does not mean that the composition played ­derived. in the recording is in the public ­domain, since copyright protection for the sheet music lasts Movies for the life of the author and for 50 years after Canadian copyright differentiates between his death. If you want to use a public domain films (including videos) that have a dramatic recording, you may still need permission from quality and those that do not. Films with the song’s creator or owner. dramatic quality usually have actors and tell stories. Theatrical films and videos Canadian Government Works ordinarily have dramatic quality. Examples Works created by Canadian federal and of works that don’t have a dramatic quality provincial government employees are pro­ are home movies. tected by Crown copyright. Copyright Films and videos that do not have a in these works lasts for 50 years from dramatic quality are protected for 50 years the year of publication. Copyright in from the date of their creation. However, unpublished Canadian government works is if they are published within 50 years from perpetual—that is, it lasts forever. However, creation, the copyright lasts for 50 years anyone may, without charge or request from the date of publication. for permission, reproduce laws enacted by Films and videos that have a dramatic the Government of Canada, decisions and quality are protected for the life of the reasons for decisions of ­Canadian federal ­author plus 50 years. It’s not entirely clear courts and administrative tribunals. The who the author of a film is under Canadian chapter 16: The Public Domain Outside the United States 299

copier must exercise “due diligence”—in • If the author died before 1927—and other words, reasonable care—to ensure the the work was not published before accuracy of the materials reproduced and July 25, 1997—the work is in the that the reproduction is not represented as Canadian public domain. an official version. China Unknown Authors

The copyright in a work written by an The basic copyright term in China lasts anonymous or pseudonymous author lasts for the life of the author plus 50 years. for either 50 years after publication or 75 If a work has more than one author, the years after creation, whichever is shorter. copyright lasts for 50 years after the last However, if the author’s identity becomes author dies. The copyright in an anonymous known, the copyright will last for 50 years or pseudonymous work lasts for 50 years after the author dies. from publication. In cases where a copyright is owned by Posthumous Works a business entity such as a corporation, the copyright lasts for 50 years from publi­ A posthumous work is a work that was cation. If the work is never published, the under copyright when its author died, but copyright lasts for 50 years after it was had not been published before his death. created. These terms apply to works created The duration of the copyright in these by ­employees for their employers and works depends upon their date of creation. works commissioned by business entities. For such works created after July 25, 1997, The copyright in a movie, television the term of copyright protection is the broadcast, or photograph lasts for 50 years normal life-of-the-author-plus-50-year term. from publication. If the work is never However, any of three different terms may ­published, the copyrighted lasts for 50 years apply if the work was created before July after it was created. 25, 1997: Sound recordings are protected for 50 • If the author died and the work was years after publication. If a sound recording subsequently published, performed, is never published, its copyright lasts for 50 or delivered before July 25, 1997, the years after it was created. copyright lasts for 50 years after such Computer software owned by an indi­ publication. vidual is protected for life plus 50 years. • If the author died during the period Software initially owned by a business entity from 1927 through 1997—and the (such as a corporation) receives a 50-year work was not published, performed, term, counted from the year the software is or delivered before July 25, 1997—the first made public. However, this term lapses copyright lasts until January 1, 2048. 300 The Public Domain

50 years after the year of creation if such The copyright in an anonymous or pseu­ software is not made public in that period. donymous work lasts for 50 years from The typographic arrangement of a book publication. But if the author’s pseudonym or periodical is protectible under Chinese is as well known as his real name, the law for ten years after the first publication ­normal term of 50 years after the author’s of the work using the typographic death applies. arrangement. In cases where a copyright is owned by a business entity such as a corporation, the copyright lasts for 50 years from publication, Japan or, if the work has not been published, 50 years from creation. This term applies The basic copyright term in Japan is the life to works created by employees for their of the author plus 50 years. If a work has ­employers and works commissioned by more than one author, the copyright lasts business entities. for 50 years after the last one dies. The copyright in a movie lasts for 50 years after publication; or, if it’s not ­pub­- lished, 50 years from creation. Prior to March 25, 1997, a photograph was protected for 50 years from the year it was made public or 50 years from creation, whichever was shorter. Starting on March 25, 1997, photographs received the regular life-plus-50-year term. However, photographs that were in the Japanese public domain as of March 25, 1997 under the old rule did not have their copyrights extended. Sound recordings and television broadcasts are protected for 50 years after publication. Finally, Japanese copyright provides an extension of copyright terms for works ­created or owned by nationals of the Allied Powers—that is, the nations who fought ­Japan in World War II. This extension ­applies to all works copyrighted when the war started—Dec. 7, 1941—or created or A Beauty, Kitagawa Utamaro (1753-1808), acquired during the war, which officially color woodblock ended in September 1945. chapter 16: The Public Domain Outside the United States 301

Works created by Americans have their There are some further wrinkles in copyright protection extended by 3,794 Russian copyright law. Before 1992, days—for example, if a book was published copyrights belonging to legal entities were in the United States during WWII, 3,794 valid for an unlimited period of time. days have to be added to the normal life- When these legal entities were broken plus-50 Japanese copyright term. This up following the collapse of the Soviet means that such works are protected in Union, their copyrights were automatically Japan for the life of the American author transferred to the Russian government. The plus 60.3 years, instead of life plus 50 years. new law abolished ownership of copyrights by entities. Copyrights owned by entities in existence before 1993, were given a 50-year Russia term from creation or publication. There are also wartime and rehabilitation Russia (formally known as the Russian extensions. If an author worked during Federation) adopted its first copyright law World War II (known as the Great Patriotic in 1993. It provided for a basic copyright War in Russia) or participated in it directly, term of life of the author plus 50 years. the copyright term was extended by four If there were two or more authors, the years. Russian copyright law also provides copyright lasted until 50 years after the that if an author was repressed and rehabili­ death of the last survivor. The copyright for tated posthumously, the applicable copy­ a work published anonymously or under a right period begins on January 1 of the year pseudonym lasted for 50 years after the date following the year of rehabilitation. of its authorized publication. If the author’s As a result of these enactments, January identity was revealed, copyright protection 1, 1954 is the key date for Russian copyright lasted for the life of the author plus 50 protection. Any work published before that years. The copyright for a work published date is in the Russian public domain if (1) for the first time after the author’s death the author died before that date, and (2) the lasted for 50 years after its publication. author’s identity was known while it was In 2004, all of these copyright terms under copyright. However, if the author was were extended by 20 years. However, this entitled to a wartime extension of copyright, extension was not retroactive—that is, January 1, 1950 is the key date instead of works already in the Russian public domain January 1, 1954. Works belonging to the as of January 1, 1993 remained there. More­ former Soviet government or other Soviet over, for the first time, these copyright terms legal entities published before January 1, were made applicable to all foreign works. 1954, are also public domain in Russia. 302 The Public Domain

The Rule of the Shorter Term He died in 1960. The song entered the public domain in the United States on When it comes to calculating how long the Jan. 1, 1996 (75 years after publication). copyright in a foreign work lasts, many The work is in the public domain in the countries use something called the “rule of Netherlands as well because it follows the shorter term.” This rule provides that the rule of the shorter term. The U.S. copyright in a work created or published copyright term for the song is shorter in a foreign country lasts the shorter of than the Dutch term of life plus 70 years. ­either: The rule of the shorter term is particularly 1. the term the work receives in its home important for works first published in the country, or United States during the years 1923-1963 2. the term the work would receive that were never renewed. These works ­under the laws of the foreign country ­entered the U.S. public domain on the 29th involved. year after publication and will be in the public domain in countries that use the rule Impact of Rule on U.S. Works of the shorter term.

A work created or first published in the Example: Nathaniel published a novel United States that is now in the public in the United States in 1950 but did not ­domain in the United States will also be renew it 28 years after publication. As a in the public domain in all countries that result, the work entered the U.S. public follow the rule of the shorter term. This will domain in 1969. The work is in the be the case even though the work would public domain in France as well, even not be in the public domain under the though a novel published in France in foreign country’s own copyright law. 1950 would not be in the public domain, For example, all works first published since it would retain copyright protection in the United States before 1923 are in the for 70 years after the author dies. public domain in the United States and are, ­Because the novel was not renewed, therefore, in the public domain in all the the U.S. copyright term is far shorter countries that follow the rule of the shorter than the French term. term. Without the rule, many of these works would not be in the public domain in these foreign countries, based on their own Countries That Follow the Rule copyright laws. Most of the nations of the world apply the Example: Irving wrote and published rule of the shorter term. Thus, a work in the a song in the United States in 1920. United States public domain will be in their chapter 16: The Public Domain Outside the United States 303

public domain as well. However, there are For example, if a book whose country of exceptions and legal uncertainties. origin was the United States was published Canada. Canada does not apply the in 1928, it would receive an initial 28-year rule of the shorter term to works whose U.S. copyright term. If not renewed, it country of origin is one of its fellow NAFTA would then enter the U.S. public domain. (North American Free Trade Association) However, the book would be entitled to members—that is, the United States and the then life-plus-50-year German term Mexico. It does apply it to the rest of the because the rule of the shorter term did not world. apply (assume the author died in 1968). In Germany. German copyright law in this 1989, the book would not receive the life- area is particularly complex because of the plus-70-year German term because it was way that Germany applies various copyright in the public domain in the United States. treaties it entered into with the United States Had the book been renewed in 1956, its in past years. The impact of these treaties U.S. copyright would have been extended on the copyright term in Germany for to 2018 and therefore qualified for the life- works created in the United States is shown plus-70-year German term in 1989. in the following chart. Switzerland. Switzerland, does not employ the rule of the shorter term. Year in Which Length of German The United Kingdom. The United Kingdom U.S. Work Was Copyright Term has applied the rule of the shorter term Created since July 1, 1996. However, the UK does not follow the rule for works that were May 15, 1892- Life plus 50 years; if work under copyright before then. The basic Sept. 15, 1955 still under copyright in copyright term for such works is the life of U.S. and Germany on the author plus 50 years. For example, if a March 1, 1989, term work was originally published in the United increased by 20 years (life States in 1950, and the author died in 1980, plus 70 years) the work remains under copyright in the Sept. 16, 1955- Shorter of life plus 50 UK until 2021. This would be so even if Feb. 28, 1989 years or United States the work was in the public domain in the copyright term; if work still United States as of 1979 due to nonrenewal. under copyright in U.S. and Germany on March 1, 1989, term increased by 20 years (life plus 70 years)

March 1, 1989 Life plus 70 years and later 304 The Public Domain

Countries Where Application of the The three-volume work Copyright Laws Rule of the Shorter Term Is Unclear and Treaties of the World was compiled by the United Nations Educational, Scientific It is not entirely clear how or whether and Cultural Organization (UNESCO) the rule of the shorter term should or will and published by BNA Books. It contains be applied in Brazil, China, the Czech ­summaries of the copyright laws of Republic, Hungary, Israel, Italy, Poland or every country and copies of all the major Spain. The safest course is to calculate the international copyright treaties. This treatise applicable term in these countries with costs over $750 and you’re likely to find it and without the rule and assume that the only in a large law library. However, you work is in the country’s public domain can ­access many of these copyright laws only if its copyright has expired under both for free at the UNESCO website listed in the calculations. next section below. An excellent book on Canadian copyright is called Canadian Copyright Law, by Lesley Researching Foreign Ellen Harris. It’s published by McGraw-Hill Copyright Laws Ryerson. The standard work on British copyright law is Copinger and Skone James on Following are some suggested resources Copyright, by Kevin Garnett QC, Jonathan you can use if you need to research the Rayner James QC, and Gillian Davie. It is copyright law of a foreign country. published by Sweet & Maxwell.

Books Websites The best book available in English on A number of websites contain information international copyright law is the two- on foreign copyright laws. volume treatise International Copyright This website, maintained by UNESCO, Protection, edited by Paul Geller. It’s contains the text of the copyright laws published by Matthew Bender and can of most of the countries of the world, be found in many law libraries. This translated into English: www.unesco.org/ work contains in-depth discussions of the culture/copyrightlaws. copyright laws of most large countries. The World Intellectual Property Organiza­ However, it does not cover every country of tion (a United Nations agency) has a website the world. For example, Russia and Mexico with useful information on ­international are not included. copyright. The URL is: www.wipo.int. chapter 16: The Public Domain Outside the United States 305

The following copyright websites are Canada listed by the countries they cover. • http://cipo.gc.ca. Australia United Kingdom • www.copyright.org.au (a ­superb • www.patent.gov.uk/copy/index.htm. ­government-sponsored website with a ■ vast store of information).

Chapter 17

The Internet and the Public Domain

Two Preliminary Rules...... 308 Rule #1: Works on the Internet Are Not Automatically in the Public Domain...... 308 Rule #2: The Presence or Lack of a Copyright Notice Is Meaningless...... 308

Internet Content in the Public Domain...... 309. Works Not Protected by Copyright...... 310 Works in the Public Domain Before Being Placed on the Internet...... 311 Works Dedicated to the Public Domain...... 312

Potential Problems Using Public Domain Materials on the Internet...... 316 Copyright Claims in Digital Copies of Public Domain Works...... 316 Websites as Collective Works...... 317 Use of Licenses to Protect Internet Content...... 319

Hyperlinks and the Public Domain...... 321

Copyright and the Internet’s Global Dimension...... 322 Check Foreign Copyright Terms...... 323 Use a Disclaimer...... 324 308 The Public Domain

ost of the material on the Internet Rather, they are in the public domain for is not in the public domain; some other reason—for example, because Mbut much is. Unfortunately, their copyright expired, they are U.S. material on the Internet is not ­always clearly ­government works, or the copyright owner or correctly identified as in the ­public dedicated them to the public domain. domain or protected by copyright. There is widespread confusion both among purveyors and users, of content on the Rule #2: The Presence or Lack of Internet about what can be used for free a Copyright Notice Is Meaningless and what must be licensed. There is no requirement that a copyright notice accompany a protected work on the Internet, just like material in any other Two Preliminary Rules ­format—a novel, for example. Put another way, as long as material is protected by Before we discuss in detail what works copyright, it makes no difference whether on the Internet are in the public domain, or not it has a notice claiming copyright here are two simple rules you should learn. ownership. Of course, many people place ­Applying them will help you avoid stupid copyright notices on their websites and on mistakes. individual items posted on the Internet, such as photographs. If a work contains a Rule #1: Works on the Internet copyright notice, you know someone claims it is copyrighted. While that claim may be Are Not Automatically in the valid, it also may not be. It’s not uncommon Public Domain for people to place notices on public ­domain materials, either out of ignorance There is a widespread belief among people or because they want to deceive others into using the Internet that simply placing a thinking they own the materials. work on the Internet automatically places it Moreover, many websites contain a mix in the public domain. Many people wrongly of copyrighted and public domain materials. believe that if they find something on the The owners of these sites are legally entitled Internet they are free to download, copy, to use copyright notices. Unfortunately, retransmit, and use it in any other way they there is no requirement that they indicate like. No—this is simply not true. A work in their notices (or anywhere else) which does not lose copyright protection just ­portions of their site are copyrighted and ­because it’s on the Internet. which are in the public domain. As a result, Although many works on the Internet these copyright notices can mislead people are in the public domain, this is not simply into believing that public domain materials ­because they were published in this ­medium. are protected by copyright. chapter 17: The Internet and The Public Domain 309

Here’s just one example. The magazine Atlantic Monthly has reproduced President Downloading Public Domain Abraham Lincoln’s Gettysburg Address on Material From the Internet its website with the following notice at the You need to be careful when you end: “Copyright © 1999 by The Atlantic download public domain material from Monthly Company. All rights reserved.” You the Internet that you don’t also download can see it at the following Web page: www copyrighted material as well. For .theatlantic.com/issues/99sep/9909lincgetty example, if you downloaded a complete .htm. copy of The Atlantic Monthly Web page Of course, the official speeches of containing the Gettysburg Address you every president, including Lincoln, are would download not only the speech in the public domain. (All works by itself, but the HTML (Hypertext Markup U.S. government employees, including Language) code used to design the Web presidents, are in the public domain.) The page. This code may be copyrighted. You Atlantic Monthly was perfectly entitled to can avoid this by downloading only the place a copyright notice on its Web page public domain ­elements of a website to protect such elements as the format of instead of the whole site. For example, the Web page and the computer code used you could download just the words of to create it. However, The Atlantic Monthly the Gettysburg Address and save them does not own Lincoln’s words. Placing a with a word processing program such as copyright notice at the end of the speech Microsoft Word without copying any of doesn’t change this. the website’s code. It is also possible to On the other hand, the absence of remove HTML coding with text editor a copyright notice means nothing. For software. ­example, one issue of The Atlantic Monthly has an article on faulty software (www .theatlantic.com/unbound/digicult/dc2000- 03-15.htm). This article has a copyright Internet Content in ­notice at the end but, even if it didn’t, the the Public Domain article would not be in the public ­domain because notices are not required on ­pub­ Never assume that anything you find on lished works. The March 15, 2000 edition­ the Internet is in the public domain. Public of The Atlantic Monthly will not enter­ the ­domain works on the Internet fall into one public domain until Jan. 1, 2096 when of three broad categories: its copyright expires. Remember: use of • works not protected by copyright copyright notices on the Internet is purely • works that were in the public domain optional. People who don’t use them don’t before they were placed on the lose their copyright rights, if they have any, Internet, and in the published work. 310 The Public Domain

• works dedicated to the public domain. materials created by their employees. For Any work you find on the Internet that example, materials on a website maintained does not fall into one of these categories is by your state motor vehicle agency may be not in the public domain. copyrighted. Even highly sensitive documents by ­­­super-secret government agencies—like Works Not Protected by Copyright the ­Central Intelligence Agency—are in the public domain. They are protected from Probably the largest category of public disclosure by other laws. But once they are ­domain works on the Internet are those that declassified and released, they are in the are not eligible for copyright protection. public domain. U.S. Government Works Laws and Court Decisions All works of authorship created by U.S. All laws, whether federal, state, local, or government employees as part of their even foreign, are in the public domain in jobs are in the public domain. Almost all the United States. Written legal decisions federal agencies have websites, and virtually by all American courts (whether federal or everything on them is in the public domain state) are also in the public domain. Copies and free for the taking. This includes, for of these decisions are available on various ­example, the excellent IRS website (www websites. However, some of these websites .irs.gov) and the Copyright Office website charge users subscription fees and require (www.copyright.gov). them to agree to licenses restricting how For more information on the types of U.S. they may use these public domain materials. government materials that are in the public (For a detailed discussion, see Chapter 3.) domain and additional Web links refer to the following chapters: • writings (see Chapter 3) Databases • artwork (see Chapter 5) Huge numbers of databases are on the • maps (see Chapter 10) Internet. Many of these are in the public • photography (see Chapter 6) domain because their selection and • film and video (see Chapter 7) arrangement are not sufficiently creative • software (see Chapter 8) to be ­protected by copyright. However, • databases (see Chapter 12). licenses and other means are frequently However, state, local, and foreign govern­ used to protect such databases. (For a ments can claim copyright ownership in detailed ­discussion, see Chapter 12.) chapter 17: The Internet and The Public Domain 311

Blank Forms Typefaces

Many websites contain blank forms that Typefaces are in the public domain in the ­users fill out to register with the site or United States. However, computer software ­order goods or services. Blank forms used used to generate typefaces is protected by solely to record information are in the copyright. (For a detailed discussion, see ­public domain. (For a detailed discussion, Chapter 5.) ­­see Chapter 3.) Food and Drink Recipes Information That Is Common Property Food and drink recipes are also in the Information that is common property is ­public domain. (For a detailed discussion, in the public domain. Examples include see Chapter 3.) ­standard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from Works in the Public Domain public documents or other common sources Before Being Placed on the Internet (37 C.F.R. Section 202.1(d)). Any such The other large body of public domain ­information on a website is in the public ­material on the Internet consists of copies domain. Likewise, there is no copyright of materials that were in the public domain protection for the format of a Frequently before being placed on the Internet. Asked Questions (FAQ) page on a website. Digital copies of such public domain The FAQ format, used in thousands of works have been posted on many websites. websites, is common property. Mist-On The vast majority of these works are in the Systems, Inc. v. Gilley’s European Tan Spa, public domain because their copyrights 303 F.Supp2d 974 (D. Wis. 2002). ­expired before they were placed on the However, new material added to such Internet. Thousands of copyright-expired works is protectable. For example, although books, magazines, and other written works, a standard calendar is not copyrightable, photographs, maps, and old films and photos, illustrations, or quotations added to television shows have been scanned and a calendar can be protected. But copyright placed on the Internet where the public protection only extends to this new material, can view them and, if they wish, download not to the standard calendar itself. them to their own computers. 312 The Public Domain

Works Dedicated to The Public Domain on the Internet the Public Domain One person who is busy making digital A good deal of material on the Internet has copies of public domain books and been dedicated to the public domain—in placing them on the Internet is Eric other words, the copyright owner has elected Eldred, a ­Massachusetts-based technical to give up his or her copyright ­protection. analyst and founder of Eldritch Press. The author of any work that can be Eldred has digitally scanned and placed ­protected by copyright is free to reject that on his website copies of dozens of public protection and dedicate the work to the domain works, including books by public domain. By doing this, the author Nathaniel Hawthorne, Oliver Wendell gives up all ownership rights in the work, Holmes, William Dean Howells, and which permits anyone to copy or otherwise Joseph Conrad. Also included on the site use the work without permission. are public domain works about small Much of this dedicated material consists boats, 19th century natural histories, of computer software. See Chapter 8 for a and children’s stories. In 1997, the detailed discussion of how to determine ­National Endowment for the Humanities whether software has been dedicated to recognized Eldritch Press as one of the the public domain. There are also graphics, 20 best humanities sites on the Web. writings, and even sound files that have You can find the Eldritch Press website at been dedicated to the public domain. www.ibiblio.org/eldritch. There is no prescribed formula for dedicating a work to the public domain. To determine whether a particular work The ­author or other copyright owner ­simply was public domain before it was placed on has to make his or her intention to do so the Internet, turn to the chapter covering clear. For example, by stating “This work is that type of work and read the detailed ­dedicated to the public domain” on a Web ­discussion there. Each of these chapters also page would be sufficient. contains a list of websites on which public domain materials can be found. Example: A website containing a • writings (see Chapter 3) ­number of simple graphics for use by • music (see Chapter 4) website designers has an excellent • artwork (see Chapter 5) ­unequivocal public domain dedication: • architectural plans (see Chapter 9) “Anywhere you see my cute face on • maps (see Chapter 10) these pages—the graphics were created • photography (see Chapter 6) by me and are 100% public domain. • film and video (see Chapter 7) Modify any way you wish, use as you • computer software (see Chapter 8). chapter 17: The Internet and The Public Domain 313

see fit, business or personal. No link ­restrict how it is used. A statement like back required, or credit given to me for this leaves it unclear whether the author them. No strings!” really intended to dedicate the work to the public domain. It’s wise to seek clarification Double-Check the Status of a Dedi- from the author or ask permission for the cated Work. Anyone can put a digital ­restricted use. copy of any work on the Internet and say Similarly, use of the phrase “copyright it has been dedicated to the public domain. free” does not mean the work is dedicated This doesn’t necessarily mean it’s true. For to the public domain. The words “copyright this reason, you need to be careful. Before free” are often used to describe works you distribute such materials to the public— ­(particularly photos and clip-art) that are for example, by placing them on your own under copyright, copies of which are sold website—double-check to make sure they to the public for a set fee rather than under really have been dedicated to the public a royalty arrangement. “Copyright free” domain. Send an email to the webmaster is also used where copyrighted materials (person in charge) of the site where you are licensed to the public for free. For got the materials. Ask if the webmaster or example, a website called the Primate someone else created the material. If it was Gallery contains a number of illustrations of created by someone else, find out who ­monkeys that are described as “copyright and send this person an email asking if the free.” However, the website’s copyright ­person dedicated it to the public domain. statements says that the “images are not Explain that this means that, not only is the in the public domain” and restricts users material free, but that it is not protected by to downloading them for free solely for copyright and can be used by the public in ­personal and educational use. any way, even sold. Nonexclusive Licenses Are Watch for Mixed Messages Not Public Domain Dedications

Be careful, however, where an author People and companies that post material on sends mixed messages. For example, if an the Internet frequently grant users permission author states that his work is in the public to use the material in particular ways domain, but then attempts to restrict how without obtaining specific permission. the public may use it—for example, “This For ­example, you’ll often see a statement work is public domain but may not be somewhere on a website’s home page or on used for commercial purposes without my a “Terms and Conditions” Web page that the permission.” When a work is dedicated material can be downloaded for personal to the public domain, the author may not use. Some website owners even grant users 314 The Public Domain

Dedicating Works to the Public Domain Through the Creative Commons

The Creative Commons, a nonprofit by the Creative Commons. These licenses organization designed to foster the public were developed to “let authors, scientists, domain, has established a program to help artists, and educators easily mark their copyright owners dedicate their works to creative work with the freedoms they want the public domain. Copyright owners may it to carry.” (Creative Commons, “About dedicate their works to the public domain Us,” http://creativecommons.org/about/ immediately; or, they can elect to use what history.) the Commons calls “Founders’ Copyright”— Copyright owners may choose among six the original copyright term adopted by the basic types of licenses that allow varying first copyright law in 1790. This consists of degrees of permission-free use of the an initial term of 14 years after publication, work involved. Every license allows any and an additional 14 years if the copyright member of the public to make use of the owner wants it. The copyright owner fills work for noncommercial purposes. This out an online application and sells the includes permission to copy and distribute copyright to the Creative Commons for the work, display or perform it publicly, $1, and then the organization gives them and create digital public performances of an exclusive license to the work for 14 or it (e.g., webcasting). All the licenses are 28 years. If desired, users of the dedicated nonexclusive, apply worldwide, last for the works can be required to provide attribution duration of the work’s copyright, and are to the original author. Works so dedicated to nonrevocable. All require that attribution of the public domain are listed in the Creative the original copyright owner be provided Commons website so people can easily find when the work is used, but the copyright them. It is also possible to conduct Internet owner may require users to remove his searches for works that have been dedicated name from derivative and collective works. to the public domain through the Creative The licenses differ in imposing restrictions Commons. Those who dedicate their on creation of derivative works from the work are also given the following Creative licensed work, and whether the work can Commons dedication, below. For detailed be used for commercial purposes. The most information, see the Creative Commons permissive license is the attribution-only website (www.creativecommons.org). license permitting any use of the work so However, most people who use Creative long as attribution of the original copyright Commons licenses do not dedicate owner is provided. their works to the public domain or use Creative commons licensed material Founders’ Copyright. Instead, they use one placed on the Internet is supposed of several open content licenses developed to contain a Creative Commons logo chapter 17: The Internet and The Public Domain 315

Dedicating Works to the Public Domain Through the Creative Commons (cont’d) consisting of two “C”s within a circle. of the license, referred to as “legal code.” Clicking on the logo or a plain text hyper­ For more information Creative Commons link sends the user to a page on the licenses, refer to http://creativecommons. Creative Commons website that contains org/about/licenses/meet-the-licenses. a “Creative Commons deed”—an easy to To see how this statement is laid read brief description of the license. The out at a website, check out: http:// deed in turn contains a hyperlink that sends creativecommons.org/licenses/ the user to a copy of the complete version publicdomain.

Copyright-Only Dedication (based on United States law) or Public Domain Certification The person or persons who have associated work with this document (the “Dedicator” or “Certifier”) hereby either (a) certifies that, to the best of his knowledge, the work of authorship identified is in the public domain of the country from which the work is published, or (b) hereby dedicates whatever copyright the dedicator holds in the work of authorship identified below (the “Work”) to the public domain. A certifier, moreover, dedicates any copyright interest he may have in the associated work, and for these purposes, is described as a “dedicator” below. A certifier has taken reasonable steps to verify the copyright status of this work. Certifier recognizes that his good faith efforts may not shield him from liability if in fact the work certified is not in the public domain. Dedicator makes this dedication for the benefit of the public at large and to the detriment of the Dedicator’s heirs and successors. Dedicator intends this dedication to be an overt act of relinquishment in perpetuity of all present and future rights under copyright law, whether vested or contingent, in the Work. Dedicator understands that such relinquishment of all rights includes the relinquishment of all rights to enforce (by lawsuit or otherwise) those copyrights in the Work. Dedicator recognizes that, once placed in the public domain, the Work may be freely reproduced, distributed, transmitted, used, modified, built upon, or otherwise exploited by anyone for any purpose, commercial or noncommercial, and in any way, including by methods that have not yet been invented or conceived. 316 The Public Domain

permission to email the content to anyone The people who make statements like in the world, as long as they do not charge this apparently believe that anything they for it. find on the Internet is in the public domain Statements like this are what the copyright and can be freely copied unless someone law terms nonexclusive licenses, ­permitting tells them otherwise. Of course, this is not free public use of the material. But the true. A statement like this should tip you off materials are still protected by copyright and that the materials on the site are very likely there are restrictions on how they may be not in the public domain. It certainly does used. This type of license does not dedicate not constitute a dedication of the ­materials the material to the public ­domain. Typically, to the public domain. Nor will it protect commercial uses are not permitted. the people who include these statements on their websites from getting sued for When Public Domain Doesn’t copyright infringement, or protect you from Mean Dedicated to the Public a lawsuit if you copy the material for use on your website. Many (perhaps most) of the people who use the Internet don’t really understand what the phrase “public domain” means. You’ll often see it used in conjunction with Potential Problems works that clearly haven’t been dedicated to Using Public Domain the public domain and aren’t public ­domain Materials on the Internet for any other reason. For example, there are tens of thousands of websites that contain People who place digital copies of public digital copies of photographs of ­actors, domain works on the Internet often claim fashion models, and other celebrities. that they are protected by copyright or These photos have been scanned from ­attempt to use licenses to restrict how magazines and other sources and placed on the public may use them. You need to the Internet, where they are often recopied understand how to recognize and deal with thousands of times. Virtually none of these such claims. photos are in the public domain. Often, these sites contain statements that the images are “presumed,” “deemed,” Copyright Claims in Digital ­“believed,” or “assumed” to be in the public Copies of Public Domain Works domain. For example, one such website contains the following statement: “ALL Obviously, you can’t place a public domain ­IMAGES FOUND WITHIN THESE PAGES book or photograph on the Internet. The WERE OBTAINED FROM THE WEB AND work has to be reduced to digital form—a WERE DEEMED IN THE PUBLIC DOMAIN.” series of ones and zeros that can be read chapter 17: The Internet and The Public Domain 317

and stored by computers. This is typically this question for photographs in general, done using a digital scanner—a device and see Chapter 5 for a discussion of copy­ similar to a photocopy machine, except it right claims in photos­ of public domain makes digital rather than physical copies. artworks such as paintings.) Sometimes the people who create digital copies of public domain writings or photographs claim that the copies are Websites as Collective Works protected by copyright, even though the A collective work is a work created by original works are not. This is particularly ­selecting and arranging more than one common for photographs. For example, work of authorship into a single new corbis.com, one of the largest stock photo work. Good examples of collective works agencies in the world, has digitized tens are newspapers, magazines, and other of thousands of public domain photos and periodicals in which separate articles are placed them on its website. Corbis claims combined into a collective whole. However, that these ­digital copies are copyrighted. the preexisting material can consist of any Corbis puts copyright notices on these work of authorship, including any type of copies and requires­ anyone who licenses writing, music, photographs, or drawings or the photos to include the notices as well. other artwork. Any claim that digitally scanning a book Most websites that have public domain or other text document is copyrightable is materials qualify as collective works. almost certainly not legally enforceable. Sometimes this will be made clear in a This is so even if the typeface is changed statement next to a copyright notice on or the text rehyphenated, spellchecked, or the website or in an area called “terms reformatted. These types of changes are not and conditions.” For example, The Atlantic copyrightable because they do not meet a Monthly magazine website contains the legal standard of being a minimally creative following statement: “The Atlantic Monthly change to the original public domain work. retains the copyright in all of the material (See Chapter 3 for a detailed discussion.) on these Web pages as a collective work A stronger argument might be made that under copyright laws.” a digitally scanned photograph should However, a website need not include a be copyrighted. This would be the case, notice like this to have a collective work for example, where the original photo is copyright. If a site qualifies as a collective ­altered—for example, where a black and work, it will automatically be protected as white photo is colorized. But, if the digital such by American copyright law the ­moment copy is an exact copy of the original photo, it is created. copyright claims are much more difficult to justify. (See Chapter 6, for a discussion of 318 The Public Domain

Fortunately, these collective work You are not limited to copying individual copy­rights usually don’t pose much of a items. You may copy any amount of a problem. This is because copyright protec­ ­collection as long as you don’t copy the tion for a collective work is extremely website creator’s copyrighted selection and/ ­limited. All that is protected is the selection or arrangement. and/or ­arrangement of the preexisting material, not the preexisting material itself. Example: Let’s assume that a website called The Presidents Speak contains How Much of a Collective digital copies of 50 presidential Work Website Can You Copy? speeches arranged in order from the best to the worst, according to the Since the copyright on a collective work website creator’s opinion. This selection protects only the selection and/or arrange­ and arrangement is copyrighted, but ment of the material, none of the individual the speeches aren’t because there is public domain works in the collection are no copyright protection for speeches protected. This means you may copy any of any president. You are free to copy individual public domain work included them all, so long as you don’t duplicate in the collection. However, you may not the selection and arrangement. For copy the copyrighted selection and/or ­example, you could use them all in arrangement. This would occur where you a website containing copies of 500 copy the entire collection (or a substantial ­important historic speeches arranged portion of it). chronologically. This would duplicate For example, The Atlantic Monthly’s neither the selection nor arrangement of ­collective work copyright in its website The Presidents Speak site. ­extends only to the way articles and other materials are arranged or ordered. It does not extend to the individual articles Minimal Creativity Required themselves. For example, the Monthly’s editors have placed a copy of Lincoln’s Not all websites qualify for even the minimal Gettysburg Address­ on their website. Their copyright protection afforded to collective collective work copyright does not protect works. A website is protected as a collective Lincoln’s public domain speech. However, work only if the author/compiler had to most ­articles on the website, as with any use creativity and judgment to create it. If site, are probably protected by copyright not even minimal creativity was employed individually. If you want to use a particular to select and/or arrange the materials on work from a website you must still check to a website, it will not be protected as a see if it is in the public domain. If it is not, collective work. you must ­obtain permission, and often pay How can you tell if a website contains a fee, for using the work. sufficient creativity to be entitled to chapter 17: The Internet and The Public Domain 319

copyright protection as a collective work? A or placement is not entitled to copyright website is copyrightable as a collective work protection if done in a mechanical way. An if either the selection or arrangement of alphabetical or chronological arrangement the material is minimally creative. In some is purely mechanical and not entitled to websites, both the selection and ­arrangement copyright protection. Thus, for example, a are minimally creative. In ­others, only one collection of the sheet music for Stephen or the other is. Foster’s songs placed in alphabetical order by title would not be entitled to Selection copyright protection for the grouping. But A selection is minimally creative if: an arrangement on some other basis could 1. it consists of less than all of the data be—for example, ­according to theme or in a given body of relevant material, from worst to best in the opinion of the regardless of whether it is taken from website creator. one or more sources, or 2. it is based on the compiler’s opinion about something subjective. Use of Licenses to For example, The Atlantic Monthly’s Protect Internet Content ­editors had to select which articles included A license is a type of contract that gives in the physical magazine over the years someone permission to do something. should be posted on their website. This People who own copyrights often license ­selection is copyrightable. Similarly, a their works—for example, a photographer website consisting of a collection of the will grant a license allowing a magazine or “greatest” speeches by U.S. presidents website to copy and publish a photo. would be copyrightable. Licenses are being increasingly used by But a selection is not minimally creative if website owners to restrict how the public it does not require individual judgment. For may use the content on the Internet. These example, no judgment is needed to compile licenses usually take one of two forms. a website containing a copy of every Websites that require users to pay for presidential speech or every article ever ­access to the site’s content, often display published in The Atlantic Monthly. the license agreement in a window or Web Arrangement page and ­require the user to agree to the license terms by clicking a “yes” or “I agree” Similarly, the way the individual items on a box before he or she can access the site. website are ordered or placed is entitled to For example, the online databases Nexis copyright protection only if done in a way and Lexis require subscribers to agree to that requires the exercise of the website such licenses. ­Licenses such as these are creator’s subjective judgment. An ordering sometimes called “click-wrap” licenses. 320 The Public Domain

However, most websites don’t require ­Typically, users are permitted only to use ­users to click a “yes” box or otherwise the material for their personal use—for ­indicate that they have read and agree to ­example, the Ticketmaster website contains the terms of the license. Indeed, the user the following license restriction: “You agree isn’t even required to read the license that you are only authorized to visit, view ­before ­accessing the website’s content. and to ­retain a copy of pages of this Site for ­Instead, the license is more or less hidden your own personal use.” in a “Terms and Conditions,” “Terms of “Personal use” means that you may down­ ­Service,” or “Terms of Use” page on the load the material to your own ­com­­­­­­­puter website. Only users who click on the and read and view it and make a copy for Terms and Conditions link at the bottom of yourself. You can’t make multiple copies or the site’s home page will even know the republish the material on your own website ­purported license exists.­ These Terms and or in some other form—for example, in a Conditions typically include a statement that book or magazine. You also can’t adapt the by simply using the website the user agrees ­­material into a new work. to the restrictions listed in the Terms and Unfortunately, many websites that contain Conditions. Or it may say that use of the public domain materials attempt to use website is conditioned upon agreement to ­restrictive licenses. For example, the Lexis the Terms and Conditions. For example, the website, an online database containing website jurisline.com contains the following­ ­copies of thousands of public domain Terms of Service: court decisions and state and federal laws, ­requires all users to agree to the following THIS WEB SITE IS OFFERED TO YOU license restriction: CONDITIONED ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THE With respect to Materials that are court TERMS, CONDITIONS, AND ­NOTICES cases, [you are granted the] right to CONTAINED HEREIN (COLLEC­ TIVELY, ­retrieve via downloading commands THE “TERMS OF SERVICE”).­ YOUR USE … and store in machine-readable form, OF THIS WEB SITE CONSTITUTES YOUR primarily for one person’s exclusive AGREEMENT TO ALL SUCH TERMS OF use, a single copy of insubstantial SERVICE. ­portions of those Materials included in any individual file….

License Restrictions Translated into English, people who subscribe to the Lexis website are only Whatever form a website license takes, it allowed to download and store in their ­ordinarily imposes restrictions on how the computers a single copy of any public public may use the material on the site. domain court case. chapter 17: The Internet and The Public Domain 321

Another website called harpweek.com to a license or have restrictive terms and consists of a database of digital copies conditions. The exact same public ­domain of the magazine Harper’s Weekly. All the materials could be available on ­another magazine copies on the website were website that doesn’t use licenses or they ­originally published during the 19th century could be available at a library or some other and are in the public domain because their site in the real world. copyrights have expired. Nevertheless, If the material is not readily available else­ harpweek requires subscribers to its where, try asking for permission for your database (primarily university libraries) intended use. Sometimes, permission is to agree to a license restricting how they available for free or may be very inexpensive. may use these public domain materials. Only limited numbers of pages from the harpweek database may be printed out for Hyperlinks and purposes of teaching and research. the Public Domain Are Licenses Enforceable? One of the major features of the World Wide Clearly, these websites are attempting to Web is the use of hypertext links (also called use licenses to obtain and keep control hyperlinks) that allow users to instantly move over public domain materials that are from one website to another by clicking ­supposed to be free to us all. Is this legal? on the hyperlink. Since there are so many Unfortunately, the answer appears to websites on the Internet, users typically be yes. To date, almost all courts have save hyperlinks to useful or ­interesting enforced these licenses. sites on lists in their computer. Hyperlinks are often gathered together and placed on What to Do About Licenses websites. Indeed, many websites consist of nothing but collections of hyper­links. For You should carefully read any license example, the On-Line Books Page (http:// agreement or terms and conditions posted digital.library.upenn.edu/books) contains on any website. It’s possible that your a collection of over 30,000 hyperlinks to ­intended use of the public domain materials websites containing digital copies of public on the site won’t be prohibited by the domain books and other writings. ­license or terms. But, if it is, you’ll have to A “hyperlink” consists simply of the obey the license’s terms or face a possible ­address of a particular Web page or other lawsuit (or at least the threat of a lawsuit). location on the Internet. An individual Web Probably the best advice is to try to ­obtain address is not protected by copyright or the public domain materials from another any other law. It’s as much in the public source that doesn’t require you to agree domain as a street address. For example, 322 The Public Domain

the Internet address of Nolo’s website home collection, not the individual hyperlinks page is www.nolo.com. Its street address is themselves. But even this won’t be 950 Parker St., Berkeley, CA. Both addresses protectable if the ­selection or arrangement is are public domain. not at least minimally creative. For example, Moreover, since no copying is involved, a collection of every hyperlink on the Web placing a hyperlink to another website on concerning the writings of the Bronte sisters your own website does not constitute a arranged in alphabetical order wouldn’t be copyright violation. In the words of one minimally creative. court, “This is analogous to using a library’s card index to get reference to particular Domain Names Are Not Free to Use. items, albeit faster and more efficiently.” An Internet domain name is the Ticketmaster Corp. v. Tickets.com, 54 unique part of an Internet address (Uni­ U.S.P.Q. 2d 1344 (C.D. Cal. 2000). versal Resource Locator or URL). The However, a collection of Web hyperlinks Nolo URL, for ­instance, is www.nolo.com. is a type of database (also called a The last part—nolo.com—is the ­domain compilation). Although the individual name. ­Domain names are not ­protected hyperlinks in a hyperlink collection are by copyright, but this does not mean they public domain and may be freely copied can be freely used. Trademark laws often and used, the collection as a whole may ­protect domain names. They must also be be copyrighted. Some website owners registered for use on the Internet. You can’t expressly claim ­protection for their use a ­domain name somebody else has hyperlink collections in copyright notices already registered. or terms and conditions statements. For example, the On-Line Books Page contains a copyright notice that, “The On-Line Books Copyright and the Internet’s Page, its subpages, and its compilation of Global Dimension listings are copyright 1993-2007 by John Mark Ockerbloom.” However, it is not One unique feature of the Internet is that necessary to use such a notice or statement it can be accessed from almost anywhere to have copyright protection for a hyperlink in the world. For example, a website collection. If such a collection qualifies for maintained by a person or company in the copyright, U.S. copyright law will protect it United States can easily be accessed by automatically the moment it is created. people in Canada, France, South Africa, But, as with collective works, this form of Brazil, and Japan. copyright protection is extremely limited. The Internet’s global dimension leads to a All that is protected is the selection and/or unique copyright problem: Many works are arrangement of all the hyperlinks in the in the public domain in the United States, chapter 17: The Internet and The Public Domain 323

but not in a number of other countries. ­public domain in the U.S. because the There are several reasons for this. The most copyright expired—it was published important is that copyright terms differ in the in 1914 and the U.S. copyright for all United States and in many foreign countries works published before 1923 lasted a (see Chapter 16). Thus, for example, all maximum of 75 years. However, Dub­ of Irving Berlin’s songs published before liners is not in the public domain in 1923 are in the public domain in the United the United Kingdom, where copyrights States because their copyrights have expired last for the life of the author plus 70 (works published in the United States before years (Joyce died in 1941). People who 1923 received a maximum copyright term of live in the United Kingdom can easily 75 years; see Chapter 18). However, these access Jim’s website and download a songs are still under copyright in Canada, copy of Dubliners. Joyce’s heirs sue Jim where copyrights last for the life of the for copyright infringement in a British author plus 50 years—Berlin died in 1989 court. (see Chapter 16). If you’re located in the United States If you live in the United States and want and place such a work on your website, to post public domain materials on your it is possible that you could be sued for website, there are a couple of things you copyright infringement in a foreign country can do to limit the possibility that someone where the work is still under copyright. If will accusing you of violating a foreign the suit is successful, the foreign copyright copyright law. owner may then be able to enforce the foreign judgment in the United States Check Foreign Copyright Terms against your assets located here. It might even be possible for you to be sued in the Chapter 16 covers the public domain in United States for violating the copyright foreign countries. Read it carefully, parti­ laws of a foreign country. Consider the cularly the section on the copyright term in following fictional­ example: the ­European Union (EU), which consists of most of Western Europe. If a work’s Example: Jim has his own website copyright term has expired in the EU, it’s in on which he places copies of public the public domain in almost all of the rest ­domain books. Jim lives in California, of the world as well. Very few countries his Web server is in California, and his have longer copyright terms than the EU. Internet access provider is in California. Generally, for copyright protection to expire Jim scans the short story collection in the EU, the author must have died more Dubliners by James Joyce and places than 70 years ago (see Chapter 16). it on his website. Dubliners is in the 324 The Public Domain

Use a Disclaimer Disclaimers are used all the time on ­web­sites. For example, many websites Another approach is to use a disclaimer. that ­contain medical information contain Place a notice in large type and bold disclaimers that the site can’t take the place letters on your home page stating that the of a doctor. Whether website disclaimers website is intended only for U.S. residents, are actually effective in avoiding liability is or residents of countries where the work far from clear. However, they cost nothing is in the public domain. Also state that to use and can only help. At the very least the material on your site may only be it shows that you are aware of the problem downloaded from within the U.S. or the and are trying to protect the copyright other foreign countries on your list. Here’s owner’s foreign copyright rights. This can an example: only make you look better in the eyes of a judge or jury if your use of some material is THIS WEBSITE IS INTENDED ONLY challenged. ■ FOR INTERNET USERS RESIDING IN THE UNITED STATES. THE MATERIAL ON THIS WEBSITE MAY ONLY BE DOWNLOADED WITHIN THE UNITED STATES. ALL OTHER USES ARE PROHIBITED. Chapter 18

Copyright Protection: How Long Does It Last?

Works First Published in the United States...... 328 Works Published Before 1923...... 328 Works Initially Published in the U.S. Between 1923 and 1963 That Were Not Renewed on Time...... 329 Works Published Between 1964 and 1977...... 330 Works Published After 1977...... 331

Copyright Term for Unpublished Works...... 332 Unpublished Works Created Before 1978 and Published Before 2003...... 332 Authors Dead Over 70 Years...... 333 Unpublished Works for Hire Over 120 Years Old...... 336 Unpublished Works Registered With the Copyright Office Before 1978...... 337

Works First Published Outside the United States...... 337 Works Published Before 1978...... 337 Works Published With a Valid Copyright Notice...... 338 Works Published Before 1978 Without a Copyright Notice...... 339 The Rule in the Western United States...... 339 The Rule in the Rest of the United States...... 340 What You Should Do...... 340 Works Published After 1977...... 341 326 The Public Domain

opyright protection does not last ­discussion of when the work is considered forever. When a work’s copyright ­published for copyright purposes. C expires, it enters the public domain. You also need to know whether the work Works with expired copyright protection was published in the United States or in a form the largest category of works in the foreign country. U.S. copyright terms may public domain. differ for some foreign works. Unfortunately, the law describing how long copyright protection lasts is somewhat Copyright Runs in a Calendar Year. complex. There is no single time limit All copyright terms run until the end for copyright protection. This is because of the calendar year in which they expire— copyright laws have been amended many that, is until December 31. For example, times, and the old time limits were often the copyright in a work that was published left in place or only modified. So we are left in the United States in 1920 expired on with a hodgepodge of different time limits ­December 31, 1995 regardless of what for copyright protection. month and day during 1920 it was published. To know whether the copyright for a work has expired, you need to know which term applies. This chapter shows you how to do just that. The discussion of copyright terms is divided into three sections: • the first section covers works first published in the United States • the second section covers all unpublished works, and • the third section covers works first published outside the United States. Before you can know how long any work’s copyright lasts you must first deter­ mine whether or not it has been published and, if so, when. This is because copyright terms often differ depending on whether or not a work is published. If you haven’t done so already, turn to the chapter covering the particular type of work involved—for example, writings, music, Holidays, Graphic Source Clip Art, Graphic art, or photography—and read the detailed ­Products Corporation Chapter 18: Copyright Protection: how long does it last? 327

Cheat Sheet: What’s in the Public Domain Right Now

It’s not necessary that you memorize all Rule #2: Works Initially Published the copyright terms explained below. If 1923-1963 in the United States you just want to know what material is and Not ­Renewed Are in the Public in the public domain right now because ­Domain of copyright expiration, you only need to Any work initially published in the United learn four rules. Only works falling within States during 1923-1963 has had its these rules have had their copyrights ­copyright expire if the copyright wasn’t ­expire. Note, however, that on Jan. 1, 2003 ­renewed 28 years after publication. the copyrights for many unpublished works Rule #3: All Unpublished Works by ­Authors expired. Dead Over 70 Years Are in the Rule #1: Everything Published in the Public Domain United States Before 1923 Is All unpublished works created by authors in the Public Domain who died 70 or more years ago are in the Copyright protection on every work of public domain in the United States. This is so ­authorship published before 1923 has whether the author was American or a non- ­expired and all those works are now in the American. Unpublished works made for hire public domain in the United States. This created more than 120 years ago are also in is so whether the work was first published the U.S. public domain. in the United States or was originally Rule #4: Foreign Works Published ­published outside the United States and Before1923 With Copyright republished here. Notices Are in the Public Domain Any work published outside the United States before January 1, 1923 had its U.S. copyright expire if it contained a copyright notice when it was published. 328 The Public Domain

Works First Published in 1923 published works have expired and the United States such works are now in the public domain in the United States. This category includes many of the most famous public domain This section covers the copyright terms works. for works that were first published in the (Technically speaking, works published United States. before 1790 when the first U.S. copyright law was adopted were never protected by Works Published Before 1923 copyright at all. These works have always been in the public domain.) The year 1923 is the great cutoff date for Determining whether a work is in the the public domain. The copyright for any public domain can sometimes be a ­complex work first published in the United States process, but not for this category of works. before 1923 (that is, during 1922 or any If you know a work was first published in prior year) lasted a maximum of 75 years. the United States before 1923, it is almost This means that the copyrights for all ­pre- certainly in the public domain.

Copyright Duration Chart for Works First Published in the U.S.

Date and Nature of Work Copyright Term Published before 1923 The work is in the public domain Published in the U.S. 1923-1963 and The work is in the public domain never renewed Published 1923-1963 and timely renewed 95 years from the date of first publication Published between 1964-1977 95 years from the date of publication (renewal term automatic) Created 1978 or later (whether or not Single term of life plus 70 years (but if work is published) made for hire or anonymous or pseudonymous, 95 years from the date of publication or 120 years from date of creation, whichever ends first) Created, but not published or registered, Single term of 120 years from creation for before 1978 unpublished works made for hire, and unpub- lished anonymous or pseudonymous works (that is, unpublished works written under a pen name) Created before 1978 and published Copyright will expire Dec. 31, 2047 1978-2002 Chapter 18: Copyright Protection: how long does it last? 329

The only possible exception would be Works Initially Published in where the work was published before 1923 the U.S. Between 1923 and 1963 without the copyright owner’s permission. That Were Not Renewed on Time Such a publication does not start the copyright term clock ticking. However, Many works first published in the United it’s highly unlikely you’ll ever run into this States between 1923 and 1963 are also in problem. There is no reported case where the public domain because their copyrights a copyright owner (or his or her heirs) has have expired. However, you’ll usually need ever claimed that a work was not in the to check records at the U.S. Copyright public domain because it was published ­Office to determine the public domain before 1923 without permission. If such ­status of such works. a claim was made and turned out to be This is because works first published valid, the work would receive the term of ­before 1978 were protected for 28 years protection provided for unpublished works from the date of publication. This protection (if it was never subsequently published with could be extended for an additional 47 years the owner’s permission). (the “renewal term”) by filing a renewal registration with the Copyright Office. The initial and renewal terms together added “Out of Print” Does Not Mean up to 75 years of copyright protection, the Out of Copyright maximum term of protection that used to Some people mistakenly believe that be available. In 1998, the renewal term when a book or other written work is was extended from 47 to 67 years, but the “out of print” the copyright expires and ­extension didn’t apply to works already in the work enters the public domain. the public domain in 1998. Not so. A book is out of print when its Until 1992, the renewal term could only publisher is out of stock and it can’t be obtained by filing a renewal registration be obtained from normal distribution with the Copyright Office during the 28th channels. This has nothing to do with year after a work was first published. (After the work’s copyright status and certainly 1992, however, the renewal term was made doesn’t mean that the copyright has automatic and the copyright owner did expired. A book published as recently not have to file a renewal.) As you might as one year ago could be out of print, ­expect, many authors, publishers, and other but the copyright will not expire for at copyright owners failed to file a renewal for least 70 years. Similarly, books and other their works on time. The Copyright ­Office works published decades ago are often estimates that only about 15% of all works out of print but their copyright has yet to published during 1923-1963 were ever expire. renewed. 330 The Public Domain

This means that all works first published never published in the United States. Such in the United States from 1923 though 1963 works used to be in the public domain, but for which no renewal was filed are in the most of them had their copyrights restored public domain. on Jan. 1, 1996. See Chapter 15 for a detailed discussion of this issue. Example: The John Wayne movie McClintock! was published in 1963, but no renewal was filed by the movie’s Works Published Between copyright owner during the 28th year 1964 and 1977 after publication. This meant that the movie entered the public domain The renewal requirement for published on Jan. 1, 1992. Had a renewal been works discussed above means that a vast filed, the movie would have received body of work entered the public domain an ­additional 67 years of copyright 28 years after publication due to failure to protection and been protected until comply with a mere technical formality. ­December 31, 2058. This seemed unfair to many people, and as a result the law was changed in 1992. It is impossible to know how long the The new law made copyright renewals copyright will last in a work first published automatic—in other words, the renewal in the United States between 1923 and term was obtained whether or not a 1963 unless you know whether a renewal ­renewal registration was filed. Renewal registration was filed on time. You’ll usually ­registrations were made purely optional. need to research the Copyright Office’s This means that works first published in records to find out. Many of the renewal the United States between January 1, 1964 records can be searched online. (See and December 31, 1977 receive 95 years ­Chapter 21 for a detailed discussion of how of copyright protection whether or not to research copyright renewals.) a renewal was (or is) filed on time. The earliest any such work will enter the public Exception to the Renewal Require- domain because of expiration of copyright is ment for Foreign Works. There is one ­January 1, 2060 (for works published ­during very important exception to the rule that 1964). works published during 1923-1963 had to Note, however, this change in the law was be renewed after 28 years or the copyright not made retroactive. In other words, the expired. This rule does not apply to most copyright in works initially published in the works that were first published outside the United States that were already in the public United States and were never ­renewed. domain before 1992 because no ­renewal This is so whether such works were later application was filed was not­resurrected. republished in the United States or were They remain in the public domain.­ Chapter 18: Copyright Protection: how long does it last? 331

Works Published After 1977 So, the upshot of all this is that you’ll have to wait until the year 2049 for any Works published on January 1, 1978 or later works published after 1963 to enter the receive a very different term of copyright public domain due to copyright expiration. protection than those published before that date. A work published after 1977 is protected by copyright as long as the author Determining a Work’s is alive and for 70 years from the date of Publication Date his death. If there are multiple authors, the copyright lasts for 70 years after the It’s easy to determine the year a work last surviving author dies. This means that was published if it contains a copyright the earliest any work published after 1977 notice. You just have to look at the year will enter the public domain because of date in the copyright notice. (See Chapter copyright expiration is January 1, 2049 (if 19 for a detailed discussion of copyright the work was created and the author died notices.) If the year in the notice is 1922 ­during 1978). or earlier, the work is in the public Works made for hire—that is, works ­created domain. by employees as a part of their job or by independent contractors who have signed a work-for-hire agreement—are protected for Sample 1911 Copyright Notice 95 years from the date of first publication, or 120 years from the date of creation, whichever If the year is 1923-1963, the work will comes first. The earliest any such work will also be in the public domain if it was enter the public domain through copyright ­initially published in the United States expiration is January 1, 2074. and not renewed on time. When a work Works for which the author employed a is republished following renewal, the pseudonym (pen name) instead of his or copyright notice will often state that the her real name or which were written anony­ work has been renewed and give the year mously (for example, the novel Primary­ of renewal. In such cases, you know the Colors, which was later revealed to have work is not in the public domain. been written by former Newsweek journalist Joe Klein) receive the same copyright term Copyright © 1946. Copyright Renewed 1973. as works made for hire. If a pseudonymous Fred Albert Music Corporation/EMI. or anonymous author’s identity is Sample Renewal Copyright Notice subsequently revealed to the Copyright Office, the work automatically switches to the life-plus-70-year copyright term. 332 The Public Domain

Otherwise, you’ll need to search U.S. Copyright Term for Copyright Office renewal records to know Unpublished Works whether or not the work has been renewed; if not, it is in the public domain (see Unpublished works—for example, ­Chapter 21). unpublished manuscripts, photographs, If the year in the notice is 1964 or later, home movies, and computer software— the work’s copyright will not expire for retain copy­right protection for 70 years many, many years. after the author dies. This is true for However, not all published works ­contain unpublished works by both American and copyright notices. And copyright notices foreign ­authors regardless of the country in for the following types of works published which the unpublished works were created. ­before 1978 did not have to ­contain a However, there are some special rules for date of publication: maps, original works unpublished works created before 1978. of art and art reproductions, technical An unpublished work that is a work made and scientific drawings and models, for hire or a pseudonymous or anonymous photographs, ­labels used on products work is protected for 120 years from the and merchandise, and prints and pictorial date of creation. The reason works by illustrations (see Chapter 19). pseudonymous or anonymous authors are In this event, you’ll have to look else­ protected for 120 years instead of the life where for clues about when the work of the author plus 70 years is that it can be was published. It may contain a date of very difficult to discover exactly when such publication somewhere else—for example, an author died, since his or her real name on the title page of a written work or the may not be publicly known. back of a photo, or on a film can. You can also check Copyright Office registration records. If the work was registered, the Unpublished Works Created Before record will show the date of publication 1978 and Published Before 2003 (see Chapter 21). However, not all works are registered with the Copyright Office. If an unpublished work was created before Contacting the publisher may work; or January 1, 1978 the copyright in the work the publication date may be listed in a will last until 70 years after the death of reference work such as an encyclopedia or the author. However, there is one special author’s biography. twist: If the work was published ­between January 1, 1978 and December 31, 2003 the copyright will not expire ­before December 31, 2047 no matter when the author died. Chapter 18: Copyright Protection: how long does it last? 333

Example: The famed novelist Ernest The following chart shows the dates Hemingway died in 1961, leaving unpublished works by individual authors will ­behind an unpublished novel called enter the public domain over the next several True at First Light that was published in years. 1999. The novel would be copyrighted until December 31, 2031 (70 years after When Unpublished Works Hemingway’s death) if the ordinary Enter Public Domain term of 70 years after death applied. Because of this special rule, the copy­ Year the Date All of the Author’s right will last until December 31, 2047. Author Died Unpublished Works Entered the Public Domain 1932 or earlier Jan. 1, 2003 Authors Dead Over 70 Years 1933 Jan. 1, 2004 On Jan. 1, 2003 all unpublished works by 1934 Jan. 1, 2005 all authors who died in the year 1932 or 1935 Jan. 1, 2006 earlier entered the public domain. This rule 1936 Jan. 1, 2007 applies to all unpublished works by authors 1937 Jan. 1, 2008 dead over 70 years, whenever or wherever 1938 Jan. 1, 2009 created. It also applies to unpublished 1939 Jan. 1, 2010 materials yet to be discovered. Obviously, 1940 Jan. 1, 2011 this was a prodigious body of work. Indeed, 1941 Jan. 1, 2012 none of us will ever live to see again so 1942 Jan. 1, 2013 many works enter the public domain at one 1943 Jan. 1, 2014 time. On January 1 of every year after that 1944 Jan. 1, 2015 date another year’s worth of unpublished 1945 Jan. 1, 2016 works will also enter the ­public domain. For example, on January 1, 2006 unpublished 1946 Jan. 1, 2017 works by authors who died during 1935 1947 Jan. 1, 2018 entered the public domain; on January 1, 1948 Jan. 1, 2019 2007 unpublished works by authors who 1949 Jan. 1, 2020 died during 1936 became public domain, 1950 Jan. 1, 2021 and so on. 334 The Public Domain

The Saga of Huckleberry Finn

In 1990 the long-missing original hand­ didn’t apply because the unpublished written manuscript of Mark Twain’s classic material was created before 1978. A new 1885 novel The Adventures of Huckleberry “comprehensive edition” of Huckleberry Finn was discovered in an old steamer Finn was published in 1996 containing all trunk stored in the attic of a house in Los of the previously unpublished material. Angeles. To the surprise of many ­literary Because this unpublished material was experts, the manuscript contained a good published before 2003, its copyright was deal of material that never found its way extended to Dec. 31, 2047. into the published version of Twain’s novel. Some material was cut by Twain to keep the book from being too long. Other scenes were apparently omitted to keep the novel from being too dark and disturbing for 19th century readers. Following a lengthy legal battle, it was ­determined that the copyright in the manuscript belonged to The Mark Twain Foundation. Such a battle was worth fighting because the unpublished material was not in the public domain, even though the copyright in the published novel expired in 1942. Because of the copyright duration rules discussed in this section, the unpublished material was under copyright at least until Dec. 31, 2002. This was so even though Twain died in 1910. As ­explained above, the ordinary copyright term for ­unpublished works—the life of the Steamer trunk, Picture Sourcebook for Collage and author plus 70 years after the author dies— Decoupage, Dover Publications Chapter 18: Copyright Protection: how long does it last? 335

Determining When Authors Died

Since all published works by authors dead However, it may be difficult to determine more than 70 years are now in the public when a particularly obscure or unknown domain, you need to know when an author author died. Fortunately, the U.S. Copyright died to determine whether his or her Office has had a procedure in place since unpublished works are public domain. 2003 that allows you to safely assume that a If the author is well known, reference work is in the public domain even if it’s not works such as encyclopedias will probably possible to determine when the ­author died. reveal when (or if) he or she died. The Since Jan. 1, 2003, once an unpublished ­Encyclopaedia Britannica is an excellent work becomes 100 years old you are legally ­reference source for this sort of information. entitled to assume that the work is in the It can be accessed for free on the Internet public domain. But you must obtain a at www.britannica.com and is of course certified report from the Copyright Office available in libraries. Other Internet resources stating that they have no information that the ­include the website www.biography.com, author has been dead for less than 70 years. which provides the birth and death dates If it later turns out that the author in fact for over 25,000 people, the Biographical died less than 70 years ago, the existence Dictionary website at www.s9.com/­ of the report is a complete defense to any biography, which contains 28,000 birth and claim of copyright infringement. However, death dates and a list of the birth and death there is one exception: You are ­required to dates of many classical composers—it can be act in good faith. If you knew all along that found at: www.classical.net/music/composer/ the author died less than 70 years ago, you dates/comp4.html. are not entitled to rely on such a Copyright There are also dozens of biographical Office report. ­dictionaries that provide death dates for The only difficulty with the rule is that well-known people. Some of these are you must know that an unpublished work ­general, such as Merriam-Webster’s ­Bio­­­ was created more than 100 years ago for it graphical Dictionary. Many specialize in to apply. It may be difficult or impossible to people in particular fields, such as Baker’s date many unpublished works. Biographical Dictionary of Musicians, by Theodore Baker and Nicolas Slonimsky (GALE Group). 336 The Public Domain

Unpublished Works for Hire Over Date Works for Hire, 120 Years Old Pseudonymous, and Anonymous Work Unpublished works made for hire are Enter Public Domain protected by copyright for 120 years after Year in Which Date Work Enters the date of creation. Thus, all unpublished Work Was Public Domain works for hire created before 1883 (1882 Created and earlier) entered the public domain on 1882 or earlier Jan. 1, 2003 January 1, 2003. In addition, a new year’s 1883 Jan. 1, 2004 worth of works continue to enter the public 1884 Jan. 1, 2005 domain every January 1. For example, all 1885 Jan. 1, 2006 unpublished works for hire created in 1883 1886 Jan. 1, 2007 entered the public domain on January 1, 1887 Jan. 1, 2008 2004; those created in 1884 entered the 1888 Jan. 1, 2009 public domain on Jan. 1, 2005; and so on. 1889 Jan. 1, 2010 These works enter the public domain one at a time depending on the year they were 1890 Jan. 1, 2011 created. This differs from works not made 1891 Jan. 1, 2012 for hire—all such works by an author enter 1892 Jan. 1, 2013 the public domain 70 years after he or 1893 Jan. 1, 2014 she dies. 1894 Jan. 1, 2015 A work is made for hire if it was (1) 1895 Jan. 1, 2016 created by an employee as part of his or her 1896 Jan. 1, 2017 job, or (2) created by nonemployees where 1897 Jan. 1, 2018 the work was created at the hiring party’s 1898 Jan. 1, 2019 “instance and expense”—that is, the hiring 1899 Jan. 1, 2020 induced creation of the work and had the 1900 Jan. 1, 2021 right to direct and supervise how the work was carried out. No writing was required for Thus, for example, if an unpublished a work to be considered a work made for drawing created by the great American artist hire before 1978. Thomas Eakins in 1900 is discovered today, it would be in the public domain if it was not a work made for hire because Eakins died in 1916. However, if the drawing was a work made for hire, it would remain under copyright until January 1, 2021. Chapter 18: Copyright Protection: how long does it last? 337

Unpublished Works Registered With Works First Published the Copyright Office Before 1978 Outside the United States

Before 1978, authors of some types of This section covers the term of U.S. copy­ unpublished works had the option of right protection for works that were first registering them with the Copyright Office published outside the United States. as unpublished. Such works receive the Until 1996, copyright experts generally same copyright term as works published believed that works first published outside before 1978, with such protection beginning the United States received the exact same on the date a copy of the registered work copyright term as works first published in was deposited with the Copyright Office. the United States. However, during that year Not all unpublished works could be a federal appellate court in California held registered. The procedure was only that this was not always so. As ­explained available for unpublished lectures and below, according to this court ruling, many similar works, “dramatic compositions” works first published outside the United (plays), musical compositions, “dramatico- States before 1978 receive a very different musical compositions” (musicals), motion copyright term than those published in picture screenplays, motion pictures other the United States at the same time. It than screenplays, photographs, works of all depends on whether the work was art, “plastic works” (sculpture and similar published with a proper copyright ­notice. works) and drawings. Such items as unpublished writings other than lectures could not be registered; nor could art Works Published Before 1978 reproductions or sound recordings. This procedure was not often used except for The copyright duration for works first works that did not qualify as published for published outside the U.S. before 1978 copyright purposes, even though they were may depend on whether the work involved performed in public or broadcast to the contained a copyright notice. Copyright public—for example, plays, screenplays, notices have never been required for radio scripts, and teleplays. Copyright Office published works in most foreign countries, records must be searched to determine if but they were often used anyway. such works were registered. A copyright notice valid under U.S. If such a registered unpublished work law consists of the © symbol or the word was later published, no new copyright was Copyr­ight or abbreviation Copr., followed obtained in the material, and copyright term by the publi­cation date and copyright for such material was not extended. owner’s name. However, the date could be left off maps, original works of art and 338 The Public Domain

art reproductions, technical and scientific that were never renewed had their drawings and models, photographs, labels U.S. copyright protection restored in used on products and merchandise, and 1996 and are protected for a full 95 prints and pictorial illustrations. years. But a few foreign works didn’t qualify for copyright restoration and are still in the public domain in the Works Published With United States. These are primarily a Valid Copyright Notice works that were in the public domain in their home countries as of Jan. Any work first published in a foreign 1, 1996. Also, works by Americans country before January 1, 1978 with a copy­ first published outside the United right notice receives the same copyright States during 1923-1963 are not term in the United States as works pub­ eligible for copyright restoration. lished in the United States during these Thus, for example, photographs of years (with one big exception, noted Marilyn Monroe by an American below, for works whose copyright was photographer that were initially never renewed). The term begins with the published in a British newspaper year of publi­cation of the foreign work. in 1962 with a copyright notice and The copyright terms for such works are as not timely renewed 28 years later follows: were not eligible for restoration. As • Works published before 1923: All a result, the photos were in the U.S. these works received a 75-year U.S. public domain. Barris v. Hamilton, 51 copyright term and, therefore, are all U.S.P.Q. 2d 1191 (S.D. N.Y. 1999). (See in the public domain in the United Chapter 15 for a detailed discussion States. of restoration of copyrights in foreign • Works published 1923-1963: The vast works.) majority of these works received a 95- • Works published 1964-1977: Any work year copyright term, dating from the first published outside the United year of publication with a copyright States during the years 1964 through notice. 1977 with a copyright notice receives Note that many works published a 95-year copyright term, from the during 1923-1963 used to be in the date of publication with notice. This public domain in the United States means that the earliest any foreign because their U.S. copyrights were work published between 1964 and not renewed with the U.S. Copyright 1978 will enter the public domain in Office during the 28th year after the United States because of copyright publication. However, most foreign expiration is January 1, 2060. works published during 1923-1963 Chapter 18: Copyright Protection: how long does it last? 339

Works Published Before 1978 Example: The artists Pierre-Auguste Without a Copyright Notice Renoir and Richard Guino created a series of sculptures that were first Many works first published outside the published in France in 1917 without a United States did not contain copyright copyright notice. In 2003, the owner notices because they were not required in of the sculptures filed a copyright the country of publication. Should these infringement suit in Arizona against works be treated any differently than a company that was selling bronze works first published outside the U.S. with copies of them without permission. a notice? This is a crucial question whose Under the Ninth Circuit rule, which answer is far from clear. As a result, it’s applied in Arizona, the sculptures did possible for a work first published outside not acquire United States copyright the United States before 1978 without a protection when published outside the copyright notice to be in the public domain United States, and were also not in in some states and still under copyright the United States public domain. The in others! district court concluded that such works receive the copyright term applicable to unpublished works, which lasts The Rule in the for 70 years after the death of the last Western United States surviving author. Renoir died in 1919, but Guino lived until 1973. Thus, the Federal courts in the Ninth Judicial Circuit— court held that the copyright for the which covers the states of Alaska, Arizona, sculptures lasted until January 1, 2043. California, Hawaii, Idaho, Montana, Nevada, (Societe Civile Succession Richard Guino Oregon, and Washington—have determined v. Beseder, Inc., 414 F.Supp.2d 944 that works first published outside theU nited (D. Ariz. 2006).) States without valid copyright notices should not be considered as having been However, there is an important excep­ published under the U.S. copyright law in tion to this rule. If the work was later effect at the time. Twin Books v. Walt Disney republished before 1978 with a valid copy­ Co., 83 F.3d 1162 (9th Cir. 1996). Since right notice, whether in the United States these works are viewed as unpublished for or abroad, it received the same term of American copyright purposes, they receive U.S. copyright protection as if it were first the same copyright term as unpublished published in the United States that year. works: They are protected for the life of These copyright terms are listed in the the author and for 70 years after his or previous section. her death. 340 The Public Domain

Example: The children’s book Bambi: public domain because they were published A Life in the Woods, by Felix Salten, before 1923. However, to date no court was originally published in Germany outside the Ninth Circuit has ruled on this without a copyright notice in 1923. issue, so no one can be absolutely certain It was then republished in Germany what courts outside the Ninth Circuit will do. with a copyright notice in 1926. The 1926 publication triggered the 95-year copyright term provided for U.S. works What You Should Do published at this time. This means So what should you do? Unless you’re Bambi won’t be in the public domain in certain that the work involved will not the United States until 2022. Had Bambi be used or made available in any of the not been republished with a copyright states that make up the Ninth Circuit notice, it would have been protected for (which notably includes California), the 70 years after Salten died. Twin Books v. only prudent course is to follow both the Walt Disney Co., 83 F.3d 1162 (9th Cir. Ninth Circuit’s ruling and the rule that most 1996). experts believe should be used. Under this approach, a work first pub­ lished outside the U.S. without a copy­right The Rule in the Rest notice before 1978, and never republished of the United States before 1978 with valid notice, would be treated as in the public domain only if (1) Most copyright experts don’t agree with the the author has been dead more than 70 decision reached by the Court of Appeals years (the same rule as for unpublished in the Twin Books case. They believe there works); and (2) the work was first pub­ should be no difference in copyright terms lished before 1923 (the same rule as for for works published in the United States works published outside the U.S. with a or abroad. Although the court’s ruling is a valid notice). binding legal precedent that all trial courts located in the Ninth Circuit must follow, Example: Assume that Pierre-Auguste courts in other parts of the country are Renoir created a sculpture which not required to follow it, and it is likely was first published in France without they won’t. Thus, for example, if the case notice in 1917 and never republished involving the Renoir sculptures discussed in with notice. The work would be in the above example had been filed in New the public domain under the Ninth York instead of Arizona, it is likely that the Circuit’s ruling because Renoir died in New York federal district court would have 1919—more than 70 years ago; and, held that the sculptures were in the U.S. since the work was first published more Chapter 18: Copyright Protection: how long does it last? 341

than 95 years ago, it would be in the they contain a copyright ­notice. None of public domain under the rule likely to these works will enter the public domain due be followed in the rest of the country. to copyright expiration for many decades. Thus the work is in the public domain (However, some works published abroad in the entire United States. without a copyright ­notice during 1978 through 1989 may have entered the United States public domain due to the lack of a Works Published After 1977 copyright notice (but not due to copyright expiration); see Chapter­ 19.) Works published in almost all foreign The only exception is for works from ­countries after 1977 receive the same U.S. countries with which the United States has copyright term as works published in the no copyright relations. (See below.) United States. This is true whether or not

Works Published in Countries With Which the U.S. Has No Copyright Relations

Today, works published in almost all ­foreign Afghanistan Iran countries are entitled to U.S. copyright­ Eritrea Iraq protection. However, there are a handful of Ethiopia San Marino countries with which the United States has Works published in these countries no copyright relations. These are: by ­citizens of these countries receive no ­protection at all under U.S. law. 342 The Public Domain

The Frozen Public Domain: Impact of the Sonny Bono Copyright Term Extension Act

Before 1998, copyright protection for works the Constitution does not allow. Eldred’s published in 1977 and earlier lasted 75 suit turned into the most highly publicized years from the date of publication. This copyright case in a generation, spawning meant that all works published in 1923 “Free the Mouse” bumper stickers (referring were due to enter the public domain in to Mickey Mouse, who would have entered 1999; those published in 1924 would have the public domain in 2003 but for the become public domain in 2000; those extension). To the profound regret of public published in 1925 would have become domain proponents, the Court held that public domain in 2001; and so on every the extension was perfectly legal. Eldred year until all works published before 1978 v. Ashcroft, 537 U.S. 186 (2003). Thus, entered the public domain. the extension will remain in place (unless However, in 1998 this process was frozen Congress acts to change the law again). for 20 years when Congress passed the The Sonny Bono Act has had a devastating Sonny Bono Copyright Term Extension Act. effect on the public domain. The chart below This law extended all copyright terms by 20 shows how the many copyright extensions years. Works published between 1923 and enacted by Congress have shrunk the 1978 are now protected for 95 years from public domain. Who was behind this latest the year date of publication. This means copyright extension? works published in 1923 won’t enter the The heirs of famous songwriters such as public domain until 2019, those published George Gershwin and Irving Berlin, the in 1924 won’t enter the public domain until Hollywood film studios, and other major 2020, and so on. corporations that owned old copyrights. Eric Eldred, an individual who main­ The law greatly benefits them—it has been tained a website on which he placed estimated that the windfall to the Gershwin public domain writings, challenged the family trust alone from the copyright constitutionality of the copyright extension extension exceeds $4 million for each song. all way to the United States Supreme Court. But the law is a tragedy for the American Eldred and his supporters argued that by people as a whole. It means we’ll all have to increasing the copyright term over and pay for permission to use many great works over again, Congress was in effect making that should have been freely available to all. copyright protection perpetual, something Chapter 18: Copyright Protection: how long does it last? 343

Copyright 2003 Cabinet Magazine, created by Jay Worthington and Luke Murphy ■

Chapter 19

Copyright Notice Requirements

Copyright Notices and the Public Domain...... 346

Does the Work Lack a Valid Notice?...... 347 The Copyright Symbol...... 348 Publication Year...... 348 Owner’s Name...... 350 Wrong Placement...... 351

Is a Copyright Notice Required?...... 352 Unpublished Works...... 353 Works Published After March 1, 1989...... 353 Works Published Outside the U.S...... 354 Sound Recordings...... 355 Contributions to Collective Works...... 355 Derivative Works...... 356

Is the Omission of a Valid Notice Excused?...... 357 Works Published by Licensees...... 357 Notice Removed Without Owner’s Permission...... 360 Notice Omitted by Accident or Mistake Before 1978...... 360 Only Small Number of Unnoticed Copies Distributed 1978-1989...... 361 Corrective Measures Taken to Cure Omission for Works Published 1978-1989...... 361

What If You Make a Mistake?...... 362 346 The Public Domain

f you find a work published before to place a copyright notice on the book. March 1, 1989 without a copyright As a result, the work automatically I notice—the © symbol followed by the entered the public domain upon the copyright owner’s name and publication date of publication. date—it could be in the public domain. This chapter shows you how to determine Works published without valid notices whether a work lacking a proper copyright beginning in 1978, and continuing through notice is in the public domain in the United March 1, 1989, did not automatically enter States. the public domain upon the date of publication. Instead, owners of such works You may skip this chapter if the work were given five years after the publication you are researching was published to cure the omission. They automatically after March 1, 1989 or was never published. entered the public domain after that time if These works do not need copyright notices. the owner failed to add a proper notice. It is impossible to know how many works published before 1989 lacked proper copy­ right notices. Most American publishers Copyright Notices and routinely included copyright notices on the Public Domain their products. As a result, there aren’t many ­famous works that were published without One unusual feature of U.S. copyright law copyright notices. Perhaps the most famous is that before March 1, 1989 all published work that entered the public domain because works had to contain a copyright notice it was published without a notice is the —the familiar © symbol or the word children’s book The Tale of Peter Rabbit by “copyright” along with the publication date Beatrix Potter. More often, notices were left and the name of the copyright owner. The off works that were thought to have limited ­punishment for failure to comply with this or only temporary value—for example, rule was severe: A work published before ­advertisements, postcards, or newspapers. January 1, 1978 without a copyright notice However, before you start trolling libraries, automatically entered the public domain archives, flea markets, and other places for at the moment of publication unless one works published without a copyright notice, of the many exceptions discussed below be aware that there are several exceptions ­applied. to the notice requirement. Because of these exceptions, discussed below, it can be very Example: Sally self-published a book difficult to know for sure if a work lacking a of her poetry in 1975. Since she wasn’t valid notice is in the public domain or not. familiar with copyright law, she failed To determine if a work without a valid chapter 19: Copyright Notice Requirements 347

copyright notice is in the public domain, It’s likely that most works published you must answer three questions: without a valid copyright notice during • Does the work lack a notice or is the these years were never renewed notice invalid? ­(indeed, it’s estimated that 85% of all • If the work lacks a valid notice, is it works published during 1923-1964 are because a notice was not required? in the public domain because they • If notice was required, is the lack of a were never renewed). It will usually valid notice excused? be much easier to determine that a The work will be in the public domain work is in the public domain because only if it lacks a notice or has an invalid it was not renewed than for lack of a notice, if a notice was required, and if none valid copyright notice (see Chapter 21). of the excuses for failing to have a notice Now, let’s examine each question in turn. ­apply. Before moving ahead to answer these In many cases, it will be impossible ­difficult questions, first make sure the for you to know for sure whether work is not in the public domain for some a work is in the public domain because it other reason. Turn to the chapter covering lacks a valid copyright notice, though it may the type of work involved—for example, seem likely that it is. In these cases, refer to ­writings, music, art, photographs—to make Chapter 1 for detailed guidance on how to sure you have considered these other ways deal with such public domain gray areas. the work might have entered the public ­domain. For example: • Is the work eligible for copyright ­protection? Works created by the U.S. Does the Work government and certain other types of Lack a Valid Notice? works are not copyrightable and are always in the public domain. The First Step You Should Take Is to • Has the copyright expired? Any work Check the Work Carefully to See If It published in the United States before Contains a Valid Copyright Notice. If it has a 1923 is in the public domain because valid notice, you don’t need to read the rest its copyright has expired. of this chapter. • If the work was first published in the United States during 1923-1964, was Some published works contain some, the copyright renewed? All works but not all, of the required elements for a published during these years had to valid notice. If the omissions or errors in the be renewed 28 years after publication ­notice are serious enough, the notice will or they entered the public domain. not be legally valid. A work with an invalid 348 The Public Domain

notice is treated just the same as if it has no been found acceptable by several courts. notice at all. Videotronics, Inc. v. Bend Elecs., 586 F.Supp. A valid copyright notice ordinarily contains 478 (D. Nev. 1984). But courts have held three elements: that use of the letter c alone renders the 1. the copyright symbol—©—or the notice invalid. Holland Fabrics, Inc. v. Delta word “Copyright” or abbreviation Fabric, Inc., 2 U.S.P.Q. 2d 1157 (S.D. N.Y. “Copr.” 1987). 2. the publication date (however, the There is one exception to the rule that a date is not required for some types of copyright notice must contain the © symbol works), and or words Copyright or Copr. Copyright 3. the copyright owner’s name. ­notices for sound recordings are supposed These elements don’t have to appear to contain a capital P in a circle ( ) instead in any particular order (although they are of the © symbol or the words Copyright or ­usually in the order listed here). Copr. A sound recording notice without the In the past, courts were very strict about is invalid. The P stands for phonogram. enforcing complex rules concerning the However, the word phono­gram may not be format and placement of copyright notices. used in place of the . But note that notices Today, however, they tend to be much are only required for sound recordings pub­ more lenient. A notice must contain a truly lished from Feb. 15, 1972 through March 1, serious error or omission for the copyright 1989. to be invalidated. The following errors or omissions will render a notice invalid: Publication Year Subject to the important exceptions noted The Copyright Symbol below, the notice must also contain the date the work was published. The date can A copyright notice must contain either the be in either Arabic or Roman numerals. A copyright symbol “©,” or the words “Copy­ notice without a date is invalid. In addition, right” or “Copr.” The word “Copyrighted” a copyright notice with a publication date is also acceptable. If one of these is not more than one year in the future—that is, present on the work, the notice is invalid. more than one year after the actual date of Sometimes the copyright symbol is not in publication—is treated as if it had no notice the proper form—for example, where the at all. This is so even if only a small ­number letter “c” is not completely surrounded by a of copies were distributed with the defective circle. A letter c surrounded by parentheses, notice. hexagon, or some other geometric form has chapter 19: Copyright Notice Requirements 349

Example: Isaac’s book was first The following types of works published published in 1987, but the copyright before 1978 didn’t have to have a year in notice lists 1989 as the publication date. the copyright notice: The notice is invalid. • maps • original works of art and art On the other hand, where the publication reproductions date is for any year prior to the actual • technical and scientific drawings and ­publication date, the notice’s validity is not models affected. However, the year stated in the • photographs notice becomes the official legal publication • labels used on products and date for copyright duration purposes. merchandise, and • prints and pictorial illustrations. Example: Abraham’s book was first published in 1948, but the copyright Greeting Cards, Stationery, notice lists 1946 as the publication date. Jewelry, Toys, and Useful Articles The notice is valid, but 1946 is now Published After 1/1/78 considered the date of publication for purposes of computing the duration of Starting on January 1, 1978 the copyright Abraham’s copyright. law was changed to require a year in copyright notices for all types of works However, not all works need to have a except greeting cards, postcards, stationery, publication date in their notice. Whether a ­jewelry, toys, dolls, and useful articles when date was required depends on the type of they contain pictorial or graphic works. work involved and the date of publication. For ­example, a Christmas card with a drawing or photo of Santa Claus need not Works Published Before 1978 contain a publication date in the copyright notice. Useful articles are utilitarian items If a work was published before 1978, it such as furniture, clothing, pottery, dishes, needs to have a year in the copyright notice glassware, silverware, and rugs. only if it is a printed literary, musical, Although dates are not required in the or dramatic work. Such works include notices for such works, they are often books, magazines, periodicals, newspapers, ­included anyway, or a publication date lectures, speeches, plays, sheet music and may be placed elsewhere on the work. If musical scores, screenplays and movies. not, you may need to do some research. Also ­included are sound recordings, See below for a discussion of ways to published from Feb. 15, 1972 through Dec. determine the date a work was ­published. 31, 1977. (Sound recordings published before 1972 didn’t need copyright notices.) 350 The Public Domain

New Editions and Derivative Works and will place the work in the ­public domain unless one of the exceptions discussed When a published written work is later below applies. ­revised and republished as a new edition, the notice need only include the publication Example: A Massachusetts manufacturer date and copyright owner of the revised of sewing machine parts published edition. The same rule holds true when an an illustrated catalogue containing original work is later adapted into a new drawings of its parts. However, the work—for example, a novel is transformed copyright ­notice included in the into a screenplay or stageplay. Such a work catalogue said only “copyright-1933.” is called a derivative work. The company’s name—the copyright owner—was omitted. A court held Owner’s Name that the catalogue entered the public domain when it was published due The copyright owner’s name must also be to the failure to include the copyright included in the notice. The word “by” need owner’s name in the notice. This meant not be used before the name, though it that one of the company’s competitors ­often is. The name can appear in almost was free to copy the drawings in its any form, including: own catalogues. W.S. Bessett, Inc. v. • the copyright owner’s full legal name Albert S. Germain Co., 18 F.Supp. 249 (if the owner is a corporation, the (D. Mass. 1937). word “Inc.” need not appear in the notice) However, minor spelling or other minor • the owner’s surname (family name) errors in a name in a notice do not affect alone or with the owner’s first initial the copyright’s validity. For example, • an abbreviation, trade name, nickname, ­misspelling John Smith’s name as “John or initials by which the copyright Smythe” in a copyright notice would not owner is generally known—for ­affect the copyright’s validity. ­example, IBM, or But what if the wrong name is used in • for photos, sculpture, art, or graphics the notice—that is, the person or company published before 1978, the owner’s named in the notice is not really the initials can be used even if the owner copyright owner? This is obviously a much isn’t generally known by such initials, more serious error than misspelling the so long as the full name appears name. Nevertheless, the copyright law somewhere on or in the work. provides that if the work was published Omission of the copyright owner’s name during ­January 1, 1978 through March 1, from a notice makes the notice legally ­invalid 1989 it is not placed in the public domain chapter 19: Copyright Notice Requirements 351

if the name in the notice is not the actual copyright owner. Very Old Copyright Notices The rule as to works published before If you examine books or other written 1978 is not entirely clear. The law ­mentioned works published in the United States above does not apply to these works. Forty ­before 1909 you’ll find that the copyright or 50 years ago courts would usually hold notice looks different than as described that a work entered the public domain above. It was not until 1909 that if the person or company named in the Congress required that a copyright notice ­notice was not the true copyright owner. include the word “copyright” or the © In more recent years, however, courts symbol along with the date of publication have tended to be much more lenient. For and copyright owner’s name. ­example, a court held that sound recordings Between 1874 and 1909 copyright published in 1973 with the wrong name in ­owners had the option of using the word the ­copyright notice did not enter the ­public “Copyright” along with the date the work ­domain. The court reasoned that no one was entered (filed) with the Library of was harmed by the improper name ­because ­Congress and the name of the party who the company listed in the notice ­referred entered it. Or, they could use a notice all inquiries ­regarding the recording to the like the following, which was used for true copyright owner. Fantastic Fakes, Inc. a book published in New York City in v. Pickwick Int’l, Inc., 661 F.2d 479 (5th Cir. 1847: 1981). To be on the safe side, you should assume that such works do not enter the Entered according to Act of Congress, in public domain—that is, it is sufficient that the year 1847, by Wm. H. Onlerdonk, in they have any name in the notice, even the Clerk’s Office of the District Court for if it turns out not to be the true copyright the Southern District of New York. owner. Between 1802 and 1874, all copyright notices had to be like or similar to the ­example above. Wrong Placement Of course, the copyright in all such works has expired (see Chapter 18). Subject to the exceptions explained ­Therefore, it makes no difference whether below, a copyright notice can be placed they contain a valid notice. But the date anywhere on a work so long as it gives in the notice helps make it clear that the the public “reasonable notice of the claim copyright has in fact expired. of copyright.” 17 U.S.C. Section 401(c). In other words, it can be placed anywhere a person could be reasonably expected to find it. 352 The Public Domain

However, there are three important • Musical works: On the title page or ­exceptions to this general rule for works first page of music. published before 1978. Notices for such works must be in the locations indicated below or the notice is invalid: • Books: On the page immediately ­following the title page or on the title page itself.

Sample Copyright Notice for Sheet Music

Is a Copyright Notice Required?

Even if the work you’re interested in has no notice or has an invalid notice, it may not be in the public domain. This is the case Sample Pre-1978 Copyright Notice if a notice is not required for the type of work involved. Copyright notices are only • Magazines, newspapers, journals, and required for works that were published for other periodicals: On the title page, the first time in the United States before the first page of text, or under the title March 1, 1989. Notices are not required for: heading. The notice may also appear • unpublished works in a magazine’s masthead. • works published after March 1, 1989, or • works first published outside the

United States. In addition, contributions to collective works such as magazines and newspapers don’t need their own copyright notices. If you determine that a notice is not required, you don’t need to read the rest of National Geographic Magazine Copyright Notice this chapter. If a notice is required and the work lacks a valid notice, go on to the next section to determine if the lack of a valid notice is excused. chapter 19: Copyright Notice Requirements 353

After March 1, 1989 the law was changed date—in other words, if a work is published so that any published or unpublished work both before and after March 1, 1989 the has copyright protection, even without a copies published after that date don’t need copyright notice. Any work created after notices. that date automatically obtains copyright protection. (See Chapter 2 for a detailed Example: Bruno self-published a book discussion of copyright law.) of poetry in 1988. The work contained a valid copyright notice. By 1990, the work sold out and Bruno published a Unpublished Works second edition. However, this time he forgot to include a copyright notice. Although authors occasionally place copy­ Even so, the book did not enter the right notices on their unpublished works, public domain. Because the second they have never been legally required. edition was published after March 1, The lack of a valid copyright notice does 1989 no notice was required. not place a work in the public domain. Publication has a specific legal meaning Even though copyright notices are not for each kind of creative work. To learn ­required for works published after March the requirements for publication, read the 1, 1989, they are usually included anyway. chapter on the specific type of work you There are a number of reasons for this, are considering—for example, if the work ­including: you want to use is a photograph, read • force of habit Chapter 6 on photographs to learn the legal • because including copyright notices definition of publication. helps make it clear to the public that the work is copyrighted, and Works Published • because including a notice provides After March 1, 1989 certain limited advantages if the copyright owner ever files a copyright Copyright notices were made optional as ­infringement lawsuit, because the of March 1, 1989, bringing U.S. law in line ­alleged infringer can’t claim he didn’t with the laws of most foreign countries. As know the work was copyrighted. a result, a copyright notice is not required But inclusion or exclusion of the proper on any copies of a work published on or notice has no bearing on when a work after March 1, 1989. This is so regardless published after March 1, 1989 enters the of whether other copies of the same work public domain. were previously published before that 354 The Public Domain

How can you tell whether a work was searched online. Turn to the chapter published after March 1, 1989? Here are covering the type of work involved— some ways: for example, writings or music—and • Most published works are dated in you’ll find a list of library resources some way. Examine the work carefully for that type of work. to see if it contains a publication date • Various printed reference works or some other evidence of when it may also reveal when the work was was published. ­published. For example, a music or • Look at the condition of the work. If art encyclopedia may reveal when it looks old, it was probably published a particular work was published. A long before 1989, which, after all, isn’t ­biography about the author may also very long ago. For example, a book have this information. Turn to the with yellowing pages and a crumbling chapter covering the type of work leather binding was likely published ­involved—for example, writings long before 1989. or music—and you’ll find a list of • If you have Internet access, do a reference resources for that type of search under the author’s name work. You may find more resources and the name of the work. There by ­visiting or calling the reference may be an entire website devoted ­department of a good library. to the ­author that provides a If you cannot determine the publication publication date. Or there may be an date after following the steps outlined online ­encyclopedia (for example, above, the safest course of action is to britannica.com) or other reference ­assume that a work was published after work or database that provides this March 1, 1989, and is, therefore, not in the information. public domain. • If the work was registered with the U.S. Copyright Office, checking ­Copyright Office records will also Works Published Outside the U.S. ­reveal when it was published (see If the work you’re interested in was first Chapter 21). However, many works published outside the United States and were never registered. lacks a valid copyright notice, it is still not • If the publisher or printer’s name in the public domain. Works published is listed on the work, contact the ­outside the United States from January 1, ­company and ask them when the 1978 through March 3, 1989 without a valid work was published. ­notice used to be in the public domain in • The work may be listed in library the United States unless the omission was catalogues, many of which can be chapter 19: Copyright Notice Requirements 355

excused by one of the exceptions ­explained the public domain unless the omission is below. However, the U.S. copyrights in ­excused as described below. But this does almost all these works was automatically not mean that the words or music on the restored on January 1, 1996. (See Chapter recording are in the public domain. The 15 for a detailed discussion of this issue.) music and lyrics reproduced on a sound ­recording need not contain a copyright ­notice. A notice is only needed to protect Sound Recordings the recording of the performance of the music and lyrics, not the music and lyrics Before February 15, 1972 the federal themselves. copyright law did not protect sound recordings—for example, phonograph You Do Not Need Permission to Use a records. They were and are protected by Sound Recording That Fell Into the state law instead. For this reason, such Public Domain Because It Lacked a Proper works did not have to contain copyright Copyright. That means you do not need to notices. Federal copyright protection obtain permission from the former copyright replaced state law protection in 1972. owner, performers, or record company to So sound recordings published in the use the recording of the performance. But United States from February 15, 1972 you would need to obtain permission from through March 1, 1989 did have to contain the copyright owner of the music ­performed a copyright notice. A recording published on the recording. during this time without a notice is in

Contributions to Collective Works

A collective work is a work that is created by selecting and arranging preexisting ­materials that are separate and independent works entitled to copyright protection in their own right. Examples of collective works include anthologies; newspapers, magazines, and other periodicals in which separate articles (with copyright protection of their own) are combined into a collective whole; and encyclopedias consisting of Photograph of President Harding speaking into ­articles on various topics. Individual articles ­recording apparatus, Library of Congress, Prints and or other contributions to a collective work Photographs Division 356 The Public Domain

need not contain their own copyright into the public domain along with the ­notices. The single notice for the work as a derivative work? The courts disagree with whole is sufficient. each other on this question. Some have held it does place the original work into Example: Steve wrote an article on the public domain. ­Others have said it filmmaking and sold the right to publish doesn’t so long as the copyright owner it the first time to Film Weekly Magazine. of the original work did not intend to He retained all his other rights and was, abandon his or her copyright through therefore, the copyright owner of the the publication that occurred without the article. When his article was published proper copyright notice. L&L White Metal in Film Weekly in 1988, it did not Casting Corp. v. Joseph, 387 F.Supp. 1349 ­contain its own copyright notice in his (E.D. N.Y. 1975); Baldwin Cooke Co. v. name. The only notice in the magazine Keith Clark, Inc., 505 F.2d 1250 (5th Cir. was the notice that Film Weekly placed 1974). Because of this split among the on its title page in its own name. courts, the safest course is to assume that However, this was sufficient to satisfy the original work is not injected into the the notice requirement for Steve’s public domain. However, the new material article. added to the original work will be in the public domain unless the lack of a notice However, there is one exception to this is excused. rule. Advertisements published in magazines, newspapers, and other collective works Example: Sam finds two editions must contain their own copyright notices. of a book on forensic science called Murder for Blockheads. The first edition Derivative Works was published in 1980 with a proper copyright notice. The second edition—a A derivative work is one that is based upon ­major revision—was published in 1988 or adapted from a preexisting work. Good without a copyright notice. Sam should examples are movies based on novels or assume that the failure to place a notice plays, and translations and new editions of on the second edition—a derivative ­existing works. work based on the first edition—does What if an original work published not place the first edition into the with a proper notice is later incorporated ­public domain. But, the new material into a derivative work that is published added to the second edition will be in before 1989 and the derivative work lacks the public domain unless one of the a notice? Is the original work thrown excuses discussed below applies. chapter 19: Copyright Notice Requirements 357

Is the Omission of a versions of the work so that it would not Valid Notice Excused? enter the public domain. If a licensee failed to live up to this implied promise, the courts held that the faulty publication was made Even if a work published in the United without the copyright owner’s authority and States before March 1, 1989 lacks a valid therefore did not inject the work into the copyright notice, it still may have copyright public domain. Fantastic Fakes v. Pickwick protection. This is because the omission may International, 661 F.2d 479 (5th Cir. 1981). be excused. Before you can conclude that Not all courts have applied this exception any work is in the public domain because in every case in the past and it’s possible it lacks a copyright notice, you must first some might refuse to do so today. However, determine that none of these excuses apply. given the trend in the courts to be lenient to copyright owners who have failed to Works Published by Licensees have valid copyright notices placed on their works, it’s likely that most courts would Most courts do not like to see an author of ­apply this exception to save a work from a creative work lose copyright protection the public domain. It’s prudent, therefore, because of failure to comply with a technical for you to act as though this exception does formality. This seems particularly unfair apply and not treat works falling within this where the noncompliance wasn’t even the exception as being in the public domain for copyright owner’s fault. For this reason, lack of a valid notice. You’ll never get into the courts created a very important excuse, legal trouble if you follow this approach. ­saving from the public domain many works published without notices. This excuse Example: Sean, a short story writer, ­applies when a copyright owner grants a orally agreed in 1975 that the science license to a publisher or anyone else to fiction fan magazine SciFan could publish his work and, unbeknownst to the ­publish one of his stories one time only owner, the person fails to include a valid (what’s called a nonexclusive license). notice on the work. Sean retained all his other copyright This excuse came into being because sev- rights in the story—for example, eral courts held that an agreement between the right to republish the story in the author and the publisher includes the anthologies, to create a movie from it, implication—whether in writing or not— or to translate it into other languages. that the publisher would take whatever steps SciFan’s publisher failed to include a necessary to preserve the author’s copyright copyright notice in the issue containing protection. This, of course, ­included placing Sean’s story. Although Sean’s story a valid copyright notice on all published 358 The Public Domain

was ­published without a notice, it’s public domain because the ­unnoticed likely that a court would hold it’s not publication violated a written license in the public domain. By publishing it agreement. without a ­notice, SciFan breached an implied (unspoken) promise to Sean Because of this rule, if a work without that it wouldn’t do anything to harm a copyright notice was licensed, you can his copyright rights in the story. This in ­generally forget about it being in the public turn meant that for copyright purposes domain if it was published before 1978. the story was published without Sean’s If the work was published after 1978, you ­permission. must obtain and read a copy of the license agreement to know for sure whether it’s in the public domain. As a practical matter, Rule Changes for 1978 and Beyond this will often be impossible. Some license agreements are recorded with the U.S. Starting in 1978, a new copyright law took Copyright Office, so you may be able to get affect that tightened up the rules for works a copy there (see Chapter 21). However, published without copyright notices by most licenses have never been recorded. It’s ­licensees. A work published without a valid doubtful that either the licenser/copyright notice between Jan. 1, 1978 and March 1, owner or licensee would agree to give you 1989 is saved from the public domain only a copy or otherwise help you establish that if there was a written license agreement the work is in the public domain. After all, that required the licensee to include a why should they risk losing copyright in the copyright notice on the work. Without such work? a requirement in writing, the work entered the ­public domain unless one of the other If the Author Knew the Work ­exceptions discussed below applies. Was Published Without Notice

Example: In 1987, Mavis signed a However, there is an exception to this ­contract with Hackneyed Publications ­excuse: If the copyright owner/licenser granting it a license to publish her book knew that the licensee was publishing the in North America. Mavis retained all owner’s work without a valid notice and did her other copyright rights. The ­contract not object or otherwise attempt to stop the contained a clause requiring Hackneyed publication, the owner can’t later claim the to include a proper copyright notice licensee breached a promise to include such on the book when it was published. a notice. In this event, the work will be Somehow, the notice was left off all deemed to have entered the public ­domain the copies Hackneyed published in by the courts. 1988. Even so, the work is not in the chapter 19: Copyright Notice Requirements 359

Example: Assume in the example Example: Assume that David, a above that Sean was sent an advance newspaper reporter employed by the copy of the issue of SciFan containing New York Inquirer, wrote a lengthy his story. Sean saw that the issue lacked expose of the meat packing industry a copyright notice but did not object that was published in the paper in to the publisher or attempt to halt the 1985. The newspaper did not contain unnoticed publication. Sean’s story a copyright notice. Since David was would be deemed to have entered the an Inquirer employee, the story was public ­domain because it was ­published a work made for hire for which the without a notice with his knowledge. newspaper owned all the rights and was considered the author for copyright purposes. Therefore, the unnoticed Authors Who Don’t License Their Work publication injected the story into the In addition, the rules discussed here only public domain. apply to copyright owners who license their • Works for which the author transfers work to be published by others—that is, sell all of his or her copyright rights to the some, but not all, of their copyright rights. person or entity who publishes it (such See House of Hatten, Inc. v. Baby Togs, Inc., a transfer is termed an assignment, not 668 F.2d 251 (S.D. N.Y. 1987). It does not a license). apply, for example, to: • A person who publishes his or her Example: Assume that Suzy, a novelist, own work. created a novel called Golgotha and sold all her copyright rights to Acme Example: Assume that Grandma Press. Acme, not Suzy, then owned Jacobs, a well-known primitive artist, the copyright in the novel. Acme completed a painting and offered it for published the novel without a valid sale to the public in her Arizona studio copyright ­notice in 1968. The unnoticed in 1960. She failed to place a copyright publication injected the novel into the notice on the work. The painting public domain. is considered to be published (see Chapter 5), so the failure to include a In some cases it will be fairly obvious that notice on it injected it into the public a work has not been licensed. For ­example, domain. any work written by an employee and published by the employer is not ­licensed • Works created by employees and (see the example above). Another area published by their employers. where licensing is uncommon is fine art. Painters and sculptors ordinarily do not 360 The Public Domain license their work for publication by other Notice Removed Without people. Instead, they publish their works Owner’s Permission themselves by offering them for sale to the general public, museums, or galleries (see A published work does not enter the public Chapter 5). As a result, a great deal of fine domain if it originally had a valid copyright art has entered the public domain because notice and the notice is later removed, artists often did not include copyright ­destroyed, or obliterated without the copy­ ­notices on their works. But note carefully, right owner’s permission. For example, a that this only applies to art published in the book whose title page has been torn out is United States before March 1, 1989. After not in the public domain if the page had a that date a notice on the work was not valid notice. ­necessary. In other cases, you may be familiar with the work’s publishing history. However, Notice Omitted by Accident in many cases it will be very difficult, if or Mistake Before 1978 not impossible, for you to know whether There is another much more limited excep­ a work was licensed. The first thing you tion to the rule that works published before need to do in these cases is check to see if 1978 without a valid copyright notice are the work has been registered with the U.S. in the public domain. This is where the Copyright Office and, if so, obtain a copy copyright owner failed to provide notice of the registration application (see Chapter on a particular copy or copies by accident 21). This will show you if the publisher of or mistake. Accident or mistake meant the work is the same person or entity as the that there was an accident in the printing copyright owner. If so, the work has not ­process or similar mechanical error. been licensed and an unnoticed ­publication This exception has been successfully will place it into the public ­domain unless ­invoked only where a notice was omitted one of the other exceptions discussed due to a printing or similar mechanical below applies. problem. For example, lack of notice was If the work has not been registered, it excused where the printing plate on which will be much harder to determine if it has a copyright notice appeared was damaged. been licensed. You’ll need to contact the Strauss v. Penn Printing & Publishing Co., publisher or copyright owner. It’s probably 220 Fed. 977 (E.D. Pa. 1915). wise not to mention that you’re investigating Moreover, the exception applies only to determine whether the work is in the if the notice was left off only a very few public domain. Doing this kind of research ­copies of the total number published. For can be time consuming; therefore it’s only example, the exception was applied where worthwhile for a very valuable work. the copyright notice was accidentally chapter 19: Copyright Notice Requirements 361

obliterated on five jeweled pins out of left off so many copies that a diligent hundreds that were manufactured when copyright owner should have been aware the words Tiffany & Co were stamped over of the problem. the notice. Herbert Rosenthal Jewelry Corp. v. The problem is to discover how many Grossbardt, 528 F.2d 551 (2d Cir. 1970). copies of the work you want to use were People who unwittingly use a work like published without a notice. If you find a this have some legal protection because the single copy that lacks a notice, it could be owner of the work would have to prove the only one and fall into the “relatively that the user actually knew the lack of a small” category. Such a work would not copyright notice was a mistake but used the be in the public domain. If you can find work anyway. ­multiple copies lacking a notice, it’s likely that a proper copyright notice was omitted from a substantial number of copies. Only Small Number of Unnoticed However, even then you can’t be absolutely Copies Distributed 1978-1989 sure how many copies were published without a ­notice. The publisher may not A much broader exception than the accident know and probably wouldn’t tell you if it or mistake rule was created for works did. This is yet another reason why it can ­published between January 1, 1978 and be very ­difficult to know for sure whether March 1, 1989. Copyright protection was a work published without a notice is in the not lost for such works if the notice was public domain or not. omitted from no more than a “relatively small” number of copies distributed to the public. It doesn’t matter if the omission was Corrective Measures Taken by accident or on purpose. to Cure Omission for Works The “relatively small” criterion was delib­ Published 1978-1989 erately left vague by the copyright law in ­order to give courts maximum flexibility If the work was published between January to decide the question on a case-by-case 1, 1978 and February 28, 1989 there is one ­basis. Courts have held that omission of a final exception to the rule that publication proper notice from 1% and 4% of the total without notice injected the work into the copies published satisfied the criterion. public domain: The copyright owner could Courts have also ruled that the criterion take certain corrective steps to cure the was not met when notice was omitted from omission. If this was done, the work did not 10%, 22%, and 39% of the total number enter the public domain. of published copies. When applying this To cure the omission, the copyright criterion, courts ask whether notice was owner was required to: 362 The Public Domain

• register the work with the U.S. Copy­ If, unbeknownst to you, the failure to right Office within five years after the ­include a valid notice on a published work unnoticed publication is excused because of any of the last four • send certified letters to all distributors exceptions discussed above (that is, removal of the work instructing them to return of notice, accident or mistake, small number their old copies for replacement, or of copies, or corrective measures taken to offering to supply them with labels cure the omission), you will not be liable containing the proper copyright ­notice for damages for copyright infringement if to affix to the copies, and you prove the following three things: • if economically feasible, attempt to 1. You were misled by the lack of notice notify every purchaser that could be into thinking the work was in the located that the work was protected public domain. by copyright. 2. You acted in good faith and reasonably If you find a work published during 1978- under the circumstances. 1989 without a valid notice you’ll need to 3. Your copying was completed before check the Copyright Office records to see you learned that the work had been if the work was registered within the five- registered with the Copyright Office (if year time limit. If it was registered, it’s likely it was). 17 U.S.C. Section 405(b). the work is not in the public domain. (See Chapter 21 for how to search Copyright Example: In 1999, Sally obtained Office records.) ­several copies of a self-published If the work was not registered, it could book by Sam. All the copies lacked be in the public domain unless one of a copyright notice, but stated that the other exceptions discussed previously they were published in 1988. Sally ­applies. checked the Copyright Office records and discovered that the work had never been ­registered. Sally therefore What If You Make a Mistake? concluded that the work was in the public domain because it was published As the above discussion demonstrates, it before 1989 without a valid notice and can be difficult—often, impossible—to no steps had apparently been taken to know for sure whether a work published cure the omission. Sally then copied without a notice is in the public domain or most of the book onto her website. Sam not. What if you make a mistake and use a later ­discovered Sally’s copying and work that you wrongly thought was in the filed suit for copyright ­infringement. public domain? In this event, the copyright Sally will not be liable for damages law gives you some important relief. if she convinces the court that she chapter 19: Copyright Notice Requirements 363

reasonably ­believed in good faith that work. Such publications by licensees are Sam’s book was in the public domain. not considered to be authorized by the copyright owner. The book in the example Note carefully, however, that this rule above was not published by a licensee, ­applies only to authorized publications by since the copyright owner published it the copyright owner. It won’t apply, for himself. ­example, where the copy lacking a notice To convince a judge or jury that you acted was itself a pirated version of the original reasonably and in good faith, you should, work; and it may be impossible for you to at the very least, always check to see if a tell if the work you have is a pirated version work published without a notice between or not. 1978 and March 1, 1989 was subsequently Nor will it usually apply where a licensee registered with the Copyright ­Office. If the published the work before 1978. It also work was published between 1978 and won’t apply where the work was published March 1, 1989 it is also a good idea to try between 1978 and March 1, 1989 by a to find more than a single copy without a licensee and a written license agreement notice and document your efforts to do so. required that a notice be included on the ■

Chapter 20

Traps for the Unwary: Trademark and Publicity Rights

Should You Worry About Trademark or Publicity Problems?...... 366

The Right of Publicity...... 367 What Is the Right of Publicity?...... 367 Limitations on the Right of Publicity...... 367 Right of Publicity for Dead People...... 371 No National Right of Publicity Law...... 371 Obtaining Publicity Releases...... 371

Trademarks...... 372 How Do You Know If Something Is a Trademark?...... 373 Trademarks and Public Domain Materials...... 374 Limits on Trademark Rights ...... 376 Using Trademark Symbols: ®, TM, and SM...... 378 366 The Public Domain

f you intend to use public domain You don’t need to worry about the works in commercial advertising or on ­restrictions covered in this chapter if I merchandise, you may face special you’re using public domain materials for problems. In these circumstances, simply informational, editorial, or entertainment proving that a particular work is in the purposes. Uses such as these—which public domain—meaning it lacks copyright inform or ­educate the public or express protection—is not sufficient. You must also opinions—are protected under the be sure, in many cases, that you are not First Amendment of the United States ­using protected trademarks or images of Constitution, which protects freedom of people, living or dead. speech and of the press. You will not have a problem if you are ­using a public domain work in: Should You Worry • literary works such as books, stories, About Trademark or and articles, whether or not they are Publicity Problems? fiction or nonfiction • theatrical works such as plays You need to read this chapter if you want • musical compositions to use a public domain work—particularly • film, radio, or television programs photographs or film footage—for the (with an exception for trademarks ­following purposes: used in commercial films and • in advertising for a product or service television ­programs discussed in the • as part of a product’s identification or section on trademarks, ­below) packaging, or • any form of news reporting such as • on merchandise such as posters, newspaper or magazine articles on ­buttons, patches (whether or not they the news of the day, television news advertise a product), bumper stickers, programs, documentaries on political T-shirts, postcards, running shoes, or other newsworthy issues, campaign dishes, cups, clocks, games, and posters, or ­calendars that contain advertisements • original works of art. for products or services. It makes no difference whether your If you plan to use a public domain work project is profit or nonprofit. Either way, the in any of these ways, your use may violate First Amendment applies to you and you state right of publicity laws if the work don’t have to worry about the publicity and ­contains a person’s picture, name, signature, trademark issues covered in this ­chapter. likeness, or voice. Your use could violate state and federal trademark laws if the work contains a trademark. chapter 20: Traps for the Unwary 367

The Right of Publicity • image (including photographs, film, and videos) The laws in a majority of states give people • likeness (including drawings and something called the right of publicity. This ­portraits) is not the right to be famous. Rather, it is • signature, and the legal right to control how a person’s • voice. name, likeness, or other elements of Celebrities usually claim the right of personal identity are used for advertising ­publicity, but it applies to noncelebrities as and other commercial purposes. Because well. Even politicians are covered. of the right of publicity, companies or If you violate a person’s right of publicity, individuals must get permission before they they can sue you for damages, which can can use a person’s photo or name in an be substantial, particularly if a well-known advertisement or TV commercial, and must celebrity is involved. usually pay for such permission. If a public domain work such as a photo, film, or video footage, portrays a person, the Limitations on the Right of Publicity right of publicity may make it illegal for you to use it for advertising purposes without The right of publicity is far from absolute. first obtaining the person’s permission. There are significant limitations on when it applies. Indeed, it often does not apply in the definitive work on the right of situations where public domain materials publicity is The Right of Publicity are used. and Privacy, by J. Thomas McCarthy (Clark Boardman Callaghan). Only Protects Against Commercial Uses

The most important limitation on the right of publicity is that it only protects against What Is the Right of Publicity? the commercial exploitation of a person’s identity. That is, when you use a person’s A majority of states give all living human name or identity solely to help sell a beings (and many dead ones) a right of product or service. For example, an artist publicity that protects a person’s identity or violated the Three Stooges’ right of publicity “persona” from unauthorized commercial when he created a drawing of their exploitation. The right of publicity protects faces and reproduced it on T-shirts. The against unauthorized commercial use of a court held that the artist’s use was purely person’s: commercial—that is, solely to sell the T- • name (including nicknames and shirts. Comedy III Productions, Inc. v. Gary professional, former, and group Sadreup, Inc., 25 Cal.4th 387 (Cal. Sup. Ct. names) 2001). 368 The Public Domain

Entertainment, informational, or “editorial” baseball, a newspaper or magazine article uses are not protected by the right of on baseball records, a TV documentary ­publicity. These uses include anything that about the roaring 1920s, or a novel or informs, educates, or expresses opinions movie based on Babe Ruth’s life. These are protected under the First Amendment all clearly informational uses. of the United States Constitution, which But, even if it’s in the public domain, ­protects the freedom of speech and of the you may not use a photo of Babe Ruth in press. For example, California’s right of an advertisement without permission from publicity law does not apply to “a play, Ruth’s estate. The ad for the drug Viagra book, magazine, newspaper, musical ­reproduced below containing Babe Ruth’s ­composition, audiovisual work, radio or picture is one example of a use that is television program, single and original work clearly a commercial use. of art, work of political or newsworthy On the other hand, courts have held that value, or an advertisement or commercial uses that combine the commercial with the announcement for any of these works … if editorial do not violate the trademark laws. it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work.” Example: Los Angeles Magazine Calif. Civil Code Section 3344.1. published an article in which digital Common examples of uses that don’t technology was used to alter famous ­violate the right of publicity are using a film stills to make it appear that the person’s name or photograph in a news­ actors were wearing Spring 1997 paper or magazine article, an educational fashions. The magazine used a still of program, film, nonfiction book, or webzine the actor Dustin Hoffman, from the (a magazine published on the World Wide film Tootsie. The photo was altered so Web). However, informational uses are that Hoff­­man’s head was placed on not limited to nonfiction works. The First an image of a male model wearing an Amendment also protects fictional stories evening dress. The text on the page such as novels, plays, and movies. read “Dustin Hoffman isn’t a drag in For example, there are probably hundreds a butter-colored silk gown by Richard of photographs of Babe Ruth that are in the Tyler and Ralph Lauren heels.” Hoffman public domain because the copyright has sued the magazine for violating his expired (all those published before 1923 right of publicity, since it never got his and those published 1923-1963 that never permission to use his face in the article. had their copyrights renewed). You may Hoffman ultimately lost the case. The freely use such a photo without permission court held that although one of the in a biography of Babe Ruth, a history of purposes of the article was to help sell chapter 20: Traps for the Unwary 369

new fashions, it also contained humor, advertisements for the ­recordings that the and visual and verbal editorial comment arrangements had been created by Shaw. on classic films and famous actors. They could also use ­pictures of Shaw to Thus, the article was not a purely advertise their product. This did not ­violate commercial use of Hoffman’s image. Shaw’s right of publicity. Shaw v. Time-Life Hoffman v. Capital Cities/ABC, Inc., 255 Records, 38 N.Y.S.2d 201 (1975). F.3d 1180 (9th Cir. 2001). In addition, a media company may reproduce news items containing a celebrity’s name or identity in its own Incidental Use Exception advertising. For example, a photo of When a work such as a book or musical football player Joe Namath was featured composition is in the public domain, anyone on the cover of Sports Illustrated and later may copy it and sell or rent the copies to the used in advertisements to sell subscriptions public. In this event, it is legally permissible­ to Sports Illustrated. No permission was to use the author’s name, photo, or identity required because the initial use of the photo in advertisements for the work. For example, was editorial and the ­subscription ads were when musical arrangements created and “merely incidental,” ­indicating the nature published by big-band leader Artie Shaw of the magazine ­contents. Namath v. Sports fell into the public domain, ­others were Illustrated, 371 N.Y.S.2d 10 (1975). free to rerecord them and state in magazine 370 The Public Domain

Insignificant or Fleeting Use Exception Crowd Shots Are Covered The right of publicity is also not violated when a person’s name or image appears A photograph, film, or video of a group only briefly and insignificantly in an or crowd of people may violate the advertisement. For example, courts have publicity rights of any members of the ruled that there was no publicity violation group or crowd who can be individually where: recognized from the photo if the photo, • a photo of a police officer on a film, or video is used for commercial ­Rolling Stone magazine cover was purposes. In one case, for example, a shown for four seconds in a 29-minute company reproduced a team photo of television “infomercial” for a rock the 1969 New York Mets baseball team ­music anthology. Aligo v. Time-Life on baseball jerseys it sold commercially. Books, Inc., 23 Media L. Rep. 1315 The Mets players sued the company (N.D. Cal. 1994), or for violating their right of ­publicity and • a photo used in an advertising won. The court held that each member ­brochure showed a man standing of the Mets team had his own ­individual ­behind a stack of lumber wearing a right of publicity which was violated hat and was so small and fuzzy he when the group photo was sold to the was unrecognizable. Epic Metals Corp. public on the jerseys without the players’ v. Confec, Inc., 867 F.Supp. 870 (M.D. permission. Shamsky v. Garan, Inc., 632 Fla. 1994). N.Y.S.2d 930 (1995). In these cases, there is no direct con­ One way to avoid this problem, is to nection between the use of the person’s crop or retouch the work so no individual identity and the commercial purpose of the can be recognized. Of course, this is advertisement. In other words, the use of the not a viable option where you want person’s image or name is so insignificant the public to recognize the members that the company or person who created of the group or crowd. In these cases, the advertisement could not possibly profit permission must be obtained from the from it commercially. subjects in the photo, film, or video. chapter 20: Traps for the Unwary 371

Right of Publicity for Dead People No National Right of Publicity Law

The right of publicity always lasts for as There is no single federal right of publicity long as a person lives. Moreover, in several law that applies in every state. Instead, states the right of publicity survives death. those states that recognize the right have How long the right lasts varies from state their own publicity laws, which may be to state—from as few as ten years to as very different from other states. many as 100 years after death. The publicity ­statutes of some of these states reach back The Restatement (Third) of to cover people who died long before the Unfair Competition publicity law was enacted. For example, California’s publicity statute applies to any As mentioned above, there is no single one who died within 70 years before it was ­national right-of-publicity law. Each enacted in 1985—that is, to anyone who state has its own publicity law. However, died in 1915 or later. On the other hand, a model law called the Restatement some state right of publicity statutes, such (Third) of Unfair Competition, Sections as that of New York, provide for no right of 46-49, has been very influential on the publicity after death. development of the right of publicity. You don’t need to research each state’s It was drafted in 1993 by nationally publicity law to figure out how far back recognized legal ­experts. You can find the right of publicity goes. You can safely it on the Internet at www.hllaw.com/a_ ­assume that anyone who died over 100 personality.html#V. It can also be found years ago is not covered by any right of in law libraries. Reading this short model publicity—no publicity law goes back law will give you a good overview of the ­farther than this. But, anyone who died right of publicity. ­after that could be protected in one or more states. For example, you don’t have to worry about publicity rights if you want Obtaining Publicity Releases to use a photo of Abraham Lincoln in an advertisement, since Lincoln died in 1865 If you want to use a public domain photo, (though the tastefulness of such an ad may film clip, video, or other work of authorship be debatable). to advertise a product or service, you must obtain a publicity release from the subject, or the subject’s heirs, if the subject died less than 100 years ago. A publicity release­ is a legally binding promise not to sue for violating a right of publicity. A ­release can be 372 The Public Domain

oral, but it’s always wise to get it in writing Corporation to identify its gas stations because it is almost impossible to prove that and petroleum products is ­protected by someone gave you verbal permission if they the state and federal trademark laws. later challenge you in court. Anyone who used the same or similar Since the works we’re dealing with in this chevron design for a gas station sign or book are in the public domain—that is, not advertisement, or in the packaging or protected by copyright—you do not need advertising for any petroleum-related to obtain permission from whoever used product, would almost certainly violate to own the copyright. But you will need Chevron’s trademark rights. Use of a ­release from the individual or the heirs the logo for such similar products or of an individual whose likeness you wish services would likely lead the public to use. to believe that Chevron ­Corporation For a detailed discussion of how to ­obtain sponsored or was in some way a publicity release and sample forms, see associated with the product. Getting Permission: How to ­License & Clear Copyrighted Materials Online & Off, by There are many different types of ­Richard Stim (Nolo). trademarks, including: • Brand names. The most common form of trademark is a brand name—for Trademarks example, Coca-Cola or Ivory Soap. Brand names are usually words, A trademark is any word, symbol, or device ­although they can be a combination that identifies and distinguishes a product of words, letters, and numbers such as or service. It is a violation of a trademark 7-UP. owner’s rights to use the trademark in a • Slogans. A combination of words used commercial context in a way that confuses as a slogan for a product or service consumers—that is, makes them think qualifies as a trademark—for example, that the trademark owner is in some way “I’d walk a mile for a Camel” for ­associated with your (or somebody else’s) Camel cigarettes. product or service. A trademark owner can • Logos. A graphic image or symbol may sue someone who violates his rights and serve as a trademark—for ­example, obtain monetary damages and a court order the open-banded cross used by preventing the trademark from being used. Chevrolet. • Titles. Titles of literary works, espe­ Example: Copyright does not protect cially newspapers and magazines, can simple ornamentation such as chevron be trademarks (see Chapter 13). stripes (see Chapter 5). How­­ever, the • Trade dress. Any distinctive combination chevron logo used by the Chevron of elements used in a product may chapter 20: Traps for the Unwary 373

serve as a trademark—for example, product configurations, colors, and other the combination of the yellow border nontraditional trademarks. and distinctive lettering used in Another way to tell if something is a ­National Geographic Magazine, or a trademark is to conduct a trademark search. website’s distinctive combination of Trademarks can be registered by their colors, graphic borders, and buttons. ­owners with the U.S. Patent and Trademark • Product configurations. Distinctive Office in Washington, DC (PTO), and with product packaging that is primarily the Secretary of State offices of the 50 nonfunctional is protected as states. Registration is not required to obtain a trademark—for example, the trademark protection, but it gives trademark distinctive shape of the Coca-Cola owners many legal benefits if they file bottle. trademark infringement suits. You can • Fictional characters. Trademark law ­conduct online searches of these trademark protects fictional characters used to registration records to see if someone claims sell products or services. that a particular word, slogan, or other item Trademarks used to identify services are is being used as a trademark. also known as service marks. For example, You can do your own search for free on Western Union designates a company that the Internet by visiting the U.S. Patent and provides messaging services. Normally, a Trademark Office’s website at www.uspto trademark for a product appears on the .gov. Or you can visit one of the Patent and product or on packaging, while a service Trademark Depository Libraries, available mark appears in advertising for the service. in every state. These libraries offer a ­com­ Service marks have the same legal rights bination of hardcover directories of federally and follow the same rules as trademarks. registered marks and an online database of both registered marks and marks for which a registration application is pending. How Do You Know If Most of these libraries also have step-by- Something Is a Trademark? step instructions for searching ­registered and pending marks. A listing of Patent and Most trademarks—such as brand names, Trademark Depository Libraries can be found slogans, and logos—are easy to spot on the PTO website at: www.uspto.gov. because the trademark owner displays them in a distinctive manner, often using For more detailed information on stylized ­lettering—for example, capitals or trademarks and trademark searches, italics. The symbols ®, TM, or SM are also see Trademark: Legal Care for Your frequently used to identify trademarks. Business & Product Name, by Richard Stim However, many trademarks are more and Stephen Elias (Nolo). difficult to discern, particularly trade dress, 374 The Public Domain

However, trademark searches are not However, if you use such a photo in a foolproof, because a business may be able manner that is likely to confuse consumers to claim that something is a trademark even into believing that there is some connection if it is not registered. or sponsorship between the Coca-Cola Company and you or someone else, you may violate the Coca-Cola Company’s Trademarks and trademark rights in its name and logo. This Public Domain Materials could ­occur, for example, if you used such a photo on a T-shirt, coffee mug, or other The vast majority of the time users of ­public ­merchandise or in an advertisement for a domain materials don’t need to worry product or service such as a newspaper about trademarks. There are only three ­advertisement for a soft drink vending common situations where you might violate ­machine company. You would need to someone’s trademark rights when you use ­obtain Coca-Cola’s permission for these public domain materials: types of uses. But, other uses that are • If you use public domain photos or purely informational in nature wouldn’t other materials containing trademarks ­involve Coca-Cola’s trademark rights. in advertising or on merchandise • If you copy all or part of an existing Creating Product Names or Packaging trademark in a product’s name or packaging, or Individual words, names, short phrases, • If you use a trademarked character in ­slogans, colors, simple geometric designs, advertising or on merchandise. distinctive lettering, standard symbols such as an arrow or a five-pointed star, and Trademarks in Public Domain ­standard ornamentation such as chevron Photos and Other Materials stripes are not protected by copyright—they are all in the public domain. You can copy A public domain photo, film, magazine, or items such as these freely without ­violating newspaper advertisement may contain a anyone’s copyright rights. trademark such as a product name, logo, However, state and federal trademark or slogan—for example, a public domain laws can protect all of these things if they ­photograph may contain a Coca-Cola sign. are used to identify a product or service. If Since the photo is in the public domain— they do, and you use them in a commercial that is, is not protected by copyright— context without permission from the ­anyone may copy it or republish it without trademark owner, you could find yourself violating the photographer’s copyright rights. on the receiving end of a trademark infringement lawsuit. chapter 20: Traps for the Unwary 375

For example, the words “Ivory Soap” are Wodehouse novels has become ­associated not protected by copyright. But they are with an Internet search engine. a trademarked brand name. You may not Or a character—Dracula, for example— use these words as the name for a new may be used to sell a variety of merchandise. soap product or any other related product Trademark permission is not required to ­without violating Ivory’s trademark rights. ­reproduce a graphic character such as Again, however, these words may be used Woody Woodpecker for informational for purely informational purposes—for ­purposes such as in a magazine article ­example, in an article on the history of the or TV documentary about the history of soap industry, or in a novel or play. ­cartoons. Likewise, using a photograph of an actor portraying Tarzan for an For a detailed discussion of the informational use such as in a news story trademark issues involved in does not require trademark permission. choosing product names, logos, slogans, Permission is required for the commercial symbols, and packaging, see Trademark: use of a trademarked character in an Legal Care for Your Business & Product ­advertisement or on merchandise. So long Name, by Richard Stim (Nolo). as a character has continuously been used as a trademark, it remains protected even Using Characters if its original literary source is in the public ­domain. This is the case, for example, with Trademark law protects characters that are the Tarzan character. Many of the Tarzan used to sell products or services or used on novels are in the public domain, but the merchandise. Trademark can protect such a name and appearance of Tarzan have been character’s name, appearance, and costume. registered as trademarks and are used to sell Trademarked characters can be: a variety of merchandise. Companies such • graphic cartoon characters such as as PepsiCo, Toyota, and KFC have used the Mickey Mouse Tarzan character to advertise their products. • literary characters, such as Dracula or If you use Tarzan for a commercial purpose Tarzan of the Apes, or without permission, you can ­expect to hear • characters portrayed by human actors from his lawyers. in movies, plays, and television Note that if you use a photo or other shows, often based on literary ­representation of an actor portraying a characters such as Dracula or Tarzan. character in an advertisement or for other Trademarked characters may be associated commercial purposes, you need to obtain with a specific product or ­service—for permission from the actor or you’ll violate ­example, Jeeves the butler from the P.G. his or her right of publicity. 376 The Public Domain

For detailed information about video market. It purchased eight copies licensing trademarked materials for of the original 1949 series and copied and use on merchandise and sample license edited them into a new series of its own. agreements, see Getting Permission: How Dastar’s documentary was half as long as to License & Clear Copyrighted Materials Fox’s and contained a new narration. Dastar Online & Off, by Richard Stim (Nolo). sold the documentary as its “Campaigns” series. Neither the documentary itself, nor its packaging, made any mention of the Limits on Trademark Rights original 1949 series or Twentieth Century Fox or Time, Inc. There are significant limitations on trade­ Fox sued Dastar for violating the federal mark protection. Using trademarks for trademark laws. It claimed that Dastar’s ­informational or editorial purposes is failure to provide attribution for the copied ­always permitted. Moreover, the rights of material in its documentary amounted to trademark owners to control the trademark “reverse passing off”—that is, Dastar was usually don’t last forever—they end when posing as the originator of the material in a trademark is abandoned. Finally, there the documentary, when it really wasn’t. are some words or symbols that can’t be The Supreme Court held that this trademark trademarks because they are considered to law doctrine does not apply to works of be generic. authorship that have passed into the public domain. Once a work becomes public No Attribution Required domain, anyone may copy it without In a case involving documentary film providing credit to the original author. foot­­age, the United States Supreme Court Dastar Corp. v. Twentieth Century Fox Film ruled that people who use public domain Corp., 124 S.Ct. 371 (2003). materials don’t violate trademark laws by The Dastar decision is a major victory failing to provide credit to the creator of the for proponents of the public domain. As materials. the court noted in its opinion, requiring In 1949, Twentieth Century Fox hired people who use public domain materials Time, Inc., to produce a 26-episode to give credit to their originators would television documentary about General have caused enormous practical problems. Dwight Eisenhower’s role in World War In many cases, it would be difficult to II. However, Fox failed to file a copyright figure out who should be credited as the renewal for the series in 1977, so it entered originator of a public domain work. For the public domain. In 1995, Dastar, a example, Fox’s original 1949 documentary company that manufactured and sold was actually created by Time, Inc., and then music CDs, decided to enter the home sold to Fox; but much of the war footage in chapter 20: Traps for the Unwary 377

the series was taken by unknown military mercial context—that is, where a trademark cameramen, not by Time or Fox. So would is used in ­advertising or on a product or Dastar have to give credit to Fox, Time, merchandise. and the military cameramen? Fortunately, Informational or “editorial” uses of trade­ this attribution mess was avoided by the marks are always permitted—especially Supreme Court’s decision. where they are the only way to refer to or ­discuss a particular product or service. Uses No Permission Required such as these inform, educate, or express for Informational Uses opinions or ideas protected under the First Amendment of the United States Constitution, Trademark infringement can occur only which protects freedom of speech and of when someone’s trademark is used with­ the press. For example, permission is not out permission as a trademark to help required to use the Chevrolet logo in an consumers identify the source of goods ­article describing Chevrolet trucks, even or services. This can occur only in a com­ if the article is critical of the company. ­Similarly, permission is not needed if a Coca-Cola sign appears in a news report or documentary film. However, it’s not clear whether the use of trademarks in commercial motion ­pictures is informational and, as a matter of course, film studios and attorneys recommend clearance of all trademarks that ­appear in commercial TV and film. This is especially true if the trademark figures into the plot or title.

Trademark Abandonment

The fact that a trademark has an ® or TM or SM symbol next to it doesn’t always mean it’s a valid trademark. Many trademarks are no longer legally enforceable because they have been abandoned. Trademark rights are created only when the mark is used in commerce—that is, to Green Giant Company. Designed by Lippincott & sell a product or service. Unlike copyright Margulies, Inc. protection, which expires after a specified 378 The Public Domain

number of years, trademark protection lasts Clarke (manufacturer of Kleenex) and Dow for as long as a business continuously uses Chemical (manufacturer of Styrofoam) a trademark to help sell goods or services. aggressively oppose this loss of trademark Many trademarks have been protected for rights (known as “genericide”) by educating over a century—for example, the Coca- the public. For example, a journalist who Cola name and logo. However, trademark mistakenly writes “styrofoam cup” will ­protection is lost if a company stops using receive a letter from Dow indicating that a mark to identify products or services sold its trademarked Styrofoam product is not to the public. Any trademark is presumed used in cups (it’s used primarily in boat and to be abandoned if it hasn’t been used to house insulation). sell a product or service for more than three Moreover, certain words and symbols years. are deemed to be inherently generic. Many public domain photos probably These are words or symbols commonly contain images of abandoned trademarks. used to describe an entire category or The older the work, the more likely it is class of products or services, rather than that the product or service for which the to ­distinguish one product or service from trademark was used is no longer being sold ­another. For example, the words “bread” to the public. and ­“computer” are generic. Generic words One way to tell if a trademark has been are in the ­public domain and cannot be abandoned is to call or write the company ­registered or enforced under the trademark and ask if it is still being used. Another way laws. is to conduct a trademark search. (For infor­ mation on conducting trademark searches, refer to Trademark: Legal Care for Your Using Trademark Symbols: Business & Product Name, by Richard Stim ®, TM, and SM (Nolo), available online at www.nolo.com.) Typically, the symbols ®, TM, or SM are used along with trademarks—for example, Generic Words and Symbols GROK®. The symbol ® indicates that a On rare occasions, trademark rights end trademark has been registered at the U.S. if the public believes that the trademark Patent and Trademark Office (PTO). The is a generic term. For example, aspirin “TM” symbol is not an official designation—it and ­escalator were trademarks that lost means that the company believes it has protection once the public used the trademark rights. The “SM” symbol is the names for all versions of these products, same as the “TM” symbol except it is used not for just one manu­facturer’s version. for service marks. The TM and SM have no Nowadays, companies such as Kimberly- legal significance other than the fact that chapter 20: Traps for the Unwary 379

the owner is claiming trademark rights. When using a trademark in a text format There is no legal requirement that the ® for informational purposes, it is not be used, but the failure to use it may limit necessary to include the ®, TM, or SM the amount of damages that the trademark symbols. However, it is good trademark owner can recover in an infringement etiquette to distinguish a trademark from lawsuit. other text—for example, “The house was constructed with Styrofoam insulation.” or “He always bathed with Ivory Soap.” ■

Chapter 21

Researching Copyright Office Records

Researching Copyright Renewal Records for Works Published 1923-1963...... 382 What Are Copyright Renewals?...... 382 How to Determine If a Work Was Renewed...... 385 Hiring Someone to Do a Search for You...... 386 Researching Copyright Renewals Yourself...... 389 Online Searches for Works Published 1950-1963...... 393 Renewal Searches for Works Published 1923-1949...... 394

Researching Copyright Registration Records...... 399 Online Registration Records...... 400 CCE Registration Listings...... 400 Obtaining a Copy of the Registration Certificate...... 401 382 The Public Domain

illions of works first published in If the work you’re interested in was the United States during the years never published or was not pub­ M 1923 through 1963 are in the lished during 1923-1963 it cannot be in public domain because their copyrights the public domain for failure to renew its were never renewed in the 28th year ­copyright and there is no reason to read this after they were first published. But to section. Skip to the next section. determine that a particular work is in the public domain ordinarily requires a search of records in the U.S. Copyright Office. This What Are Copyright Renewals? chapter shows you how to do just that. We also show you how to research other The U.S. copyright law in effect from 1909 Copyright Office records that often contain to 1978 had a unique feature: there were valuable information for the public domain two copyright terms instead of one. Any researcher. work published in the United States with a valid copyright notice automatically ­received copyright protection for an initial period of 28 years. In the 28th year a ­renewal notice had to be filed with the Copyright Office for copyright protection to be extended for an additional 28 years, which was called the renewal term. If no renewal was filed, the work entered the

864 Humorous Cuts from the Twenties and Thirties, public domain. Dover Publications The renewal term was later extended from 28 to 47 years and then again to 67 years. Here we are only concerned with works that were never renewed and entered Researching Copyright the public domain in the 29th year after Renewal Records for Works publication. Published 1923-1963 Example: Richard published a song This section shows you how to determine if in the United States in 1960, but failed the copyright for a work initially published to file a renewal application with the in the United States during the period 1923- Copyright Office in 1988. As a result, 1963 was renewed. If it wasn’t, the work the work entered the public domain in is now in the public domain in the United 1989 and can be used freely by anyone. States and many foreign countries as well. Had Richard or his heirs renewed the chapter 21: Researching Copyright Office Records 383

work, it would have been protected for that only about 15% of all such works were a total of 95 years—the 28-year initial­ ever renewed. The renewal percentage term plus the 67-year renewal term—or ­varies for the type of work involved. Most until the end of the year 2055. movies and many musical works were ­renewed, but most books and other written works were not. Only Works Published The following chart shows the results of 1923-1963 Are Affected a survey conducted by the Copyright Office in 1960 to see how many works originally You only need to be concerned with copy­ published and registered with the Copyright right renewals for works that were first Office in 1931-32 were renewed ­during published in the United States during the 1958-59. years 1923-1963. Works published before 1923 are in the public domain whether or not they were renewed. If such works were Copyright Renewal Rates (1958-59) renewed, their copyrights expired by 1998 at the latest. If they were not renewed, they Type of Work Renewal entered the public domain in 1951 at the Percentage latest. Books 7% There is also no need to research renewals for any works published after 1963. A 1992 Periodicals 11 amendment to the copyright law made Lectures, Speeches, 0.4 ­renewals automatic for all works published Sermons, and Other Works during 1964-1977. All these works receive for Oral Delivery a 95-year copyright term. Works published in 1978 and later never had to be renewed. Drama 11 The copyright in such works usually lasts Music 35 for the life of the author plus 70 years after Maps 48 his death. (See Chapter 18 for a detailed discussion of copyright terms.) Works of Art 4

Technical Drawings 0.4 How Many Works Published 1923-1963 Were Not Renewed? Art Prints 4 Movies 74 How many works publishing during 1923- 1963 are in the public domain because they were not renewed on time? No one knows With the exception of maps, music, for sure, but the Copyright Office estimates and movies, the vast majority of works ­published during 1931-32 were never 384 The Public Domain

­renewed and are in the public domain. Most Foreign Works Published This includes an incredible 93% of all books. 1923-1963 Don’t Need to Be Renewed And, in fact, the numbers on the chart Renewal rules for works first published may be skewed upward because they outside the United States are different than only count renewals for works that were for works first published in the United registered with the Copyright Office. Many States. Before 1996, works published ­published works were never registered and, in foreign countries with a copyright thus, never ­renewed. These works are not notice had to be renewed just like works ­reflected in the chart, but are in the public published in the United States. Many such domain. works were in the public domain because Renewal rates may have increased some­ they were not renewed. However, the law what in the years after 1960 as the value of was changed so that on January 1, 1996 older works (particularly movies) became most foreign works that had not been more apparent to copyright owners, but renewed had their copyright protection most works were still never renewed. restored. Why were so few works renewed? Any work first published outside the Some­times it was due to ignorance of the United States during 1923-1963 with a renewal requirement or by mistake. Very copyright notice has 95 years of copyright often a work was not renewed because it from its publication date, even if it was not was viewed as having no economic value renewed, as long as: 28 years after it was first published. But the • the work was still under copyright on fact that a work may have been viewed as Jan. 1, 1996 in the country where it worthless 20, 30, or 40 years ago doesn’t was first published, and necessarily mean it’s valueless today. There • at least one author is a citizen or are doubtless thousands of hidden jewels ­resident of a country with which the among the huge number of works that were United States has copyright relations, not renewed. which includes almost all countries in However, most well-known works pub­ the world. For a list of countries not lished during 1923-1963 were renewed. included, see Chapter 15. This includes, for example, the novels of Hemingway and Fitzgerald, the music of Example: Sammy, a citizen of Ireland, Irving Berlin and George Gershwin, and published a poem in Ireland with a most classic movies such as Gone With the copyright notice in 1960. The poem Wind and Citizen Kane. But such famous was never renewed and therefore works represent only a tiny fraction of all ­entered the public domain in the United the works published during 1923-1963. States on January 1, 1989. However, chapter 21: Researching Copyright Office Records 385

the U.S. copyright in the poem was Nonrenewed Works Are in the Public automatically restored on Jan. 1, 1996 Domain in Many Foreign Countries and will last until December 31, 2055 Works that are in the public domain in (1960 plus 95 years equals 2055). the United States because they were not However, there are some foreign works ­renewed are also in the public domain that don’t qualify for copyright restoration. in most foreign countries, including most These are works that are no longer under of Western Europe and Australia (but not copyright in their home countries because the United Kingdom or Canada). This is the copyright has expired. In almost all because these countries use something ­foreign countries, copyrights last for 50 or 70 called the “rule of the shorter term” in years after an author dies (Western Europe­ calculating how long the copyright for a uses the life-plus-70-year term). Thus, if work first published in the United States the author of the foreign work died long lasts in their own countries. Applying this ago, the work may not have qualified for rule, if the work is in the public domain copyright restoration in the United States. in the United States because it was not renewed, it will be in the public domain in Example: Ken published a song with the ­foreign country as well. (See Chapter 16 a copyright notice in Canada in 1940. for a detailed discussion.) The song was never renewed and so entered the public domain on January How to Determine If 1, 1969. Ken died in 1942, so the song a Work Was Renewed entered the public domain in Canada on January 1, 1993 (copyrights last Most of the time the Copyright Office’s for the life of the author plus 50 more ­renewal records must be checked to years in Canada). Because the song determine whether or not a work was was in the public domain in Canada renewed. There are several ways you can on January 1, 1996 it didn’t qualify for do this: copyright restoration. It remains in the • you can have the Copyright Office public domain in the United States. conduct a search for you • you can hire a private search firm to You need to know the copyright term of do a search, or the foreign author’s country and when the • you can conduct the search yourself. author died to know if this exception applies. You’ll save money if you do it yourself. See Chapter 16 for a detailed discussion of It will require some time and effort, but it foreign copyright laws. is not necessary to have special training to 386 The Public Domain

perform a renewal search and many of the Copyright © 1952 by Shelby Foote records can be searched online. Copyright renewed 1980 by Shelby Foote

Preliminary Information for Search This tells you that the work was originally published in 1952 and was renewed in Before you do a renewal search yourself or 1980, 28 years after publication. This means hire someone else to do one, you should there is no need to check the Copyright obtain the following information about the Office renewal records. The work is not in work: the public domain. • the title However, there is no legal requirement • the author that a renewed work’s copyright notice state • the year the work was published, and that the work was renewed. For this reason, • the country in which the work was you can’t rely on the fact that a ­republished first published. work does not state it has been renewed. If the work was published as part of a magazine, newspaper, periodical, anthology, or collection, you will also need to know Hiring Someone to the name, volume or issue number, and any Do a Search for You other available identifying information for the magazine or other publication in which If you have access to a computer connected the work appeared. to the Internet, it is relatively easy to research renewals for works published Avoiding Searches for ­during 1950-1963, because the records are Republished Works available online. But researching works published during 1923-1949 can be much If the work has been republished more harder, ­because you may have to manually than 28 years after its original publication search through the U.S. Copyright Office (in other words, after it should have been Catalog of Copyright Entries (CCE) in a renewed) you may be able to avoid having library that has a copy or at the Copyright to do a renewal search. If you have access Office in Washington, DC. to a copy of the republished work, take a You may wish to hire someone to do good look at the copyright notice. Usually, such searches for you if you just don’t the copyright notice for a republished work want to take the trouble to do it yourself or will indicate that the work was renewed. ­especially if you are unable to locate a copy For example, the copyright notice for a of the CCE you can use to research works ­recent paperback edition of the 1952 novel published 1923-1950. Shiloh by Shelby Foote says: chapter 21: Researching Copyright Office Records 387

Hiring the Copyright Office Send the letter and your check payable to the Register of Copyrights in the amount of You can have the Copyright Office search the search estimate to: its records for you. They charge $150 an hour for this service, and most searches Reference & Bibliography Section, LM-451 take one hour. Unfortunately, it takes the Copyright Office Copyright Office six to eight weeks to Library of Congress conduct a search and report back to you. Washington, DC 20559. You can obtain much faster service by using In about six to eight weeks the Copyright a private search firm as described below. Office will send you a written report The Copyright Office will conduct an indicating whether the work was renewed. expedited search that takes just five An example of such a report is reprinted business days, but this costs a minimum of below. This report shows that the book $400. Again, you can obtain faster service Plagiarism and Originality, by Alexander by using a private search firm. Lindey, published­ in 1951, was renewed There is no advantage to using the in 1980. Copyright Office, except that it may—in some cases—save you a few dollars. But Hiring a Private Search Firm if you decide to use it, you should call Prices vary and private search firms may the Reference & Bibliography Section at charge a little more than the Copyright 202-707-6850 and ask for an ­estimate of Office, but they usually report back in how long they think your search will take. two to ten working days. In some cases, Then, send a letter to the Copyright Office they may even charge less—for example, Reference & Bibliography ­Section with the Thomson & Thomson, the best known of following information: these firms, charges $105 for a renewal • the title of the work search and will report back in six business • the author’s name days. This is a much better deal than paying • the copyright owner’s name (usually $150 to the Copyright Office and having to listed in the copyright notice) wait up to two months for the results. • the year of publication Following is a list of copyright search • the type of work involved—for firms. Thomson & Thomson is by far the ­example, a book, play, or photograph largest, oldest, and best known of these and, firms, but we are not endorsing any • the name, volume or issue number, particular firm. Call several to see which and other identifying information offers the best deal and/or service. for the periodical, if the work was ­published as part of a periodical or collection. 388 The Public Domain

Sample Search Report chapter 21: Researching Copyright Office Records 389

Copyright Resources chapter. But first, we’ll discuss some basic 616 South Carolina Ave. SE, Suite No. 1, guidelines for copyright renewal searches Washington, DC 20003 and discuss some special ­problems. 202-544-6235 Your goal in conducting a copyright www.copyright-resources.com ­renewal search is to determine if Copyright Government Liaison Services, Inc. Office records show that a work published 3030 Clarendon Blvd., Suite 209 from 1923 through 1963 was renewed 28 Arlington, VA 22201 years after publication. If you can’t find any 800-642-6564 or 703-524-8200 record of a renewal, you may usually ­assume www.trademarkinfo.com that the work has not been renewed and is therefore in the public domain. There are Thomson & Thomson no records made of works that were not Copyright Research Group ­renewed, only records of works that were 500 E St. SW, Suite 970 renewed. Washington, DC 20024 However, researching renewals can be 800-356-8630 tricky, and if you’re not careful you may www.thomson-thomson.com overlook a renewal record for a work. Here Public Domain Research Corp. are some special problems to be aware of: P.O. Box 3102 Margate, NJ 08402 Works Created as Part of Larger Works 800-827-9401. Many works were created and published as part of larger works—for example: Researching Copyright • articles or stories published in newspapers, magazines, and Renewals Yourself periodicals Paying $75 or more to do a renewal search • photographs or drawings published in can really add up if you need to search books, newspapers, magazines, and several titles. You can avoid paying these other works, and fees by doing the search yourself. This • musical compositions published as is relatively easy to do if the work was part of a Broadway show, opera, ­published during 1950-1963, because the ­revue, or other larger work. search can be done through the Internet. Generally, there are no separate copyright But renewal searches for works published renewal records for such works. Instead, from 1923 through 1950 can be much more you must look to see if the larger work difficult to do yourself. The mechanics of was ­renewed. For example, if you want to doing a search are covered later in this know if an article that appeared in The New Yorker Magazine was renewed, you’d need 390 The Public Domain

to check if that issue of the magazine was Works Incorporating Other Works ­renewed. You’d look under the name The What if you want to use an entire work that New Yorker for the year and date involved. contains many separate works of authorship? If it was renewed, you should assume that For example, you want to post a book on article was renewed as well. the Internet that contains photographs, On the other hand, if the larger work drawings, or other separate works of was not renewed, don’t assume that the ­authorship. In this event, you should check portion of it you’re interested in is in the to see if each work of authorship has been public ­domain. Instead, try to see if it was renewed. Use the approach described in the separately renewed. For example, if you’re preceding section. ­interested in a photograph contained in If, for example, you discover no renewal a book ­published in 1950 and find no record for the text of a book you want ­renewal record for the book, check the to use—but there is a renewal on file for Copyright Office records to see if the photo ­photographs included in the book—you’ll was ­separately renewed. Look under the either have to get permission to use the name of the photographer, if you can find photographs or simply not use them. it. Examine the book and photo carefully. See if the photo has its own copyright notice in the photographer’s or other copyright Derivative Works owner’s name. Check to see if there is an Derivative works are works that are based “acknowledgment” section in the book upon or adapted from previously existing ­giving copyright information for the works. Examples of derivative works photograph. ­include: Articles and other contributions to maga­ • movies adapted from novels or plays zines and other periodicals were especially • new editions or versions, of previously likely to be separately renewed, particularly published works if they contained their own copyright ­notices. • translations from one language to The Copyright Office Catalog of Copyright ­another Entries has a separate section called • works adapted into a new medium— “Contributions to Periodicals” that lists for example, a photograph of a renewals for articles. painting, and Only if you find no renewal information • new arrangements of musical for both the larger work and the portion compositions. you want to use, may you conclude it is in A derivative work is a separate work the public domain. for copyright purposes, even though it is based on the original work. Each work must have been renewed separately. Renewing a chapter 21: Researching Copyright Office Records 391

derivative work did not automatically renew Example: Assume that Arthur’s novel the original work and vice versa. In other was not renewed, but Eugene’s play words, when a derivative work was renewed, was. Both the original novel and all the the renewal only covered the new material elements copied by Eugene to create added to create the derivative work. When his derivative play are in the public an original work was renewed, the renewal ­domain. But the new material Eugene only covered the original version of the added to create the play is still under work, not any derivative works created copyright. from it. If you’re dealing with a derivative work Example: Arthur writes a novel in 1940 initially published in the United States that Eugene adapts into a Broadway ­during 1923-1963 based on an original play in 1950. The novel is timely work initially published in the United States renewed in 1968 and the play in 1978. during 1923-1963, you must determine if This means that neither is in the public both the derivative work and the original domain. work were renewed.

If the derivative work is not renewed but derivative works present a particular the original work is, you can’t use those problem when you wish to determine portions of the original work contained in the copyright status of many movies. See the derivative work. Chapter 7 for a detailed discussion of these and other special issues that arise when Example: Assume that Arthur’s novel researching copyright renewals for movies. is renewed, but Eugene’s derivative play is not. All the material in the play Changing Titles ­copied from the novel is still under copyright. Only the new material ­Eugene Some works were originally published added to adapt the novel into a play ­under one title, and then renewed 28 is in the public domain—for example, years later under another title. This was new dialogue and the way he cut and particularly common for movie and tele­ ­restructured the novel to function as a vision ­cartoons whose names were often three-act play. changed for marketing purposes. The book Of Mice and Magic, a History of If the derivative work is renewed, but the American Animated Cartoons, by Leonard original work is not, you can’t use any of Maltin, lists many alternative cartoon titles. the new material in the derivative work. Movies also sometimes had different titles. Alternate titles for most films can be found 392 The Public Domain

through a search of the Internet Movie Office online records contain the renewal re- Database (www.imdb.com). The book The cord for The Scarlet Letter shown in Figure­ 1. Film Buff’s Bible of Motion Pictures, by The “Basis of Claim” line makes clear that Richard Baer, has an index of alternative the renewal only applies to the foreword titles. written by Leo Marx and added to an edition of the novel originally published by New Matter Added to Penguin in 1959 and renewed in 1987. The Public Domain Works text of the novel itself remains in the public domain. Often when public domain works are ­republished, new material is added to Collections of Public Domain Material them. For example, a new edition of Shakespeare’s plays may contain new Sometimes, a number of public domain annotations, drawings, or photographs. works are republished together in a new Such new material is entitled to copyright collection. For example: protection, even though the public domain • Twelve well-known ghost stories material is not. The author­ or publisher of originally published during the 19th the new material is entitled to renew the century were collected and published copyright in it, but this does not mean the by Oxford University Press under the original public domain­ material has been title 12 Victorian Ghost Stories. renewed. It ­remains in the public domain. • The original sheet music for dozens When you search the Copyright Office of public domain songs originally records (particularly the online records) published during 1901-1911 was you may find a record for a registration collected and published together or renewal of such new matter added to under the title Alexander’s Ragtime a public domain work. This can confuse Band by Dover Publications. you into believing that the original work • Fourteen public domain short stories is ­under copyright, when in fact it is in the were culled from over 60 stories public domain. Normally, the online records ­author Frank Norris published during contain a listing of what new material was his lifetime and published together added to a work in the public domain. The by Ironweed Press under the title The registration or renewal only covers this new Best Short Stories of Frank Norris. matter. • 132 public domain postcards were Here’s an example: Nathaniel Haw- collected and reproduced in a book thorne’s novel The Scarlet Letter was origi- called Delivering Views: Distant nally published­ in 1850 and is therefore in ­Cultures in Early Postcards, published the public domain because the copyright by the Smithsonian Institution Press. ­expired in 1879. However, the Copyright chapter 21: Researching Copyright Office Records 393

Figure 1: Renewal Record for The Scarlet Letter

When public domain works are repub­ Copyright Office has placed all its renewal lished in this way their copyright is not records for these years online and they ­revived, but the compiler of the collection can be accessed from the Copyright Office is entitled to a copyright in the selection website. The records may be searched by and arrangement of the public domain title, name, keyword, and registration or works (see Chapter 12). Such a copyright in document number. Moreover, through a a collection published from 1923 through command keyword search, elements of any 1963 could be renewed. But such a renewal or all fields can be combined to search the only extended to the ­selection and arrange­ records. Users can also search by type of ment of the collection, not to the original work, such as sound recordings, dramas, works themselves, which remain in the motion pictures, or visual materials. The public domain. Copyright Office contains an online tutorial explaining how to use the system. Below is the detailed online renewal Online Searches for record for the 1954 motion picture On the Works Published 1950-1963 Waterfront (Figure 2).

If you have access to the Internet, research­ ing copyright renewals for works published during 1950-1963 is relatively easy. The 394 The Public Domain

Figure 2: Renewal record for On the Waterfront

Here’s how to decipher this entry: series of catalogues called the Catalog of This record informs the world that a Copyright Entries (CCE). The CCE ­contains motion picture named On the Waterfront the registration and renewal records for all was originally published on July 29, 1954 works published during these years. and the registration renewed on January 25, 1982. Since the renewal took place during Are the CCE Records You Need Online? the 28th year after publication, the work has been timely renewed and is not in the Until 1978, all copyright renewals were public domain. Its United States copyright processed and recorded on paper. Lists of will last until January 1, 2050 (the copyright renewed works were published annually in any work published in the United States or semiannually in the CCE, a series of from 1923 through 1963 that was timely hardcover books. Despite many requests renewed lasts for 95 years after publication). to do so, the Copyright Office has never digitized these records, meaning that they may not be searched at its website. Renewal Searches for Works As a result, in the past, it was always Published 1923-1949 necessary to find a library that had a copy of the CCE and manually search it or go to the Conducting a renewal search for a work Copyright Office and manually search their published during 1923-1949 can be more records. However, this is changing because difficult than for works published 1950-1963 a number of organizations have made many because you may have to manually search of the renewal records available online the renewal records contained in a massive independently of the Copyright Office. chapter 21: Researching Copyright Office Records 395

For example, in 2007 the Stanford Univer­ Where to Find the CCE sity Library created a searchable online If the CCE records you need are not online database of all the copyright renewals for or you don’t have Internet access, you must books published during the period 1923 find a physical copy you can manually through 1963. The URL is: http://collections. search. This can be difficult. If you happen stanford.edu/copyrightrenewals/bin/ to live in or around Washington, DC, you page?forward=home. These records may can do your search at the Copyright Office. be searched by title, author, registration It’s located at: date, and renewal date. It’s unclear how accurate searches using this database are. If Room LM 401 no renewal is found, it may be desirable to James Madison Building have the Copyright Office or private search Library of Congress firm do a search to double-check the result. 101 Independence Ave., SE In addition, the Universal Library Project, Washington DC 20559. supported by Carnegie-Mellon University, has scanned many of the CCE renewal The Copyright Office Card Catalogue records and placed digital copies of each page online at a website called the On-Line If you go to the Copyright Office to do a Books Page at http://onlinebooks.library. renewal search, instead of using the CCE, upenn.edu/cce. These renewal records have you may use a huge card catalogue the been transcribed and converted into an Copyright Office has created listing all e-book that may be downloaded from the copyright renewals. The CCE is basically On-Line Books Page. The e-book is highly this same card catalogue in book form. useful because it can be used to conduct Experience has shown, however, that computerized keyword searches. However, using the card catalogue is no better than the On-Line Books Page advises that its using the CCE: they both contain the transcription of the CCE may not be perfect same records. In fact, the CCE seems to and advises the researcher to double-check be easier to use. So don’t feel you need against the page images in case there was a to go to the Copyright Office to conduct transcription error. a renewal search. You can do a perfectly Unfortunately, not all the CCE is online. good search anywhere you can find a As of late 2007, all the CCE renewal records copy of the CCE. for books, periodicals, and contributions to periodicals had been placed online. However, the renewal records for most If you don’t live near Washington, you’ll other types of works had not yet been need to find the CCE somewhere else. Many digitized. major metropolitan libraries such as the Los Angeles, New York, and Boston public 396 The Public Domain

libraries have the CCE. It may also be found to search the 29th year after publication in research libraries at many ­universities, as well. This is because due to processing such as the University of ­California at problems timely filed renewals may not Berkeley, the University of Chicago, and have been entered in the CCE until after the Cornell University. However, university 28th year. The following chart shows which libraries are not always open to the public. years to search. You should check before making the trip. A list of most libraries that have the CCE Conducting a Search can be found by conducting a search for The CCE is available in printed form the “Catalog of Copyright Entries” at the through 1979, after which it was issued WorldCat database of library collections, in microfiche form until 1982. It was www.worldcat.org. discontinued after 1982 because the renewal Government depository libraries may also records were placed online. The CCE is have a copy of the CCE. You can find a list ­divided into parts according to the type of of these libraries at the following website: work. Depending on the year you search, www.gpoaccess.gov/libraries.html, or check there may be separate volumes for books, with your local ­library for a list. periodicals, music, dramas, maps, prints and labels, art, and motion pictures. What Years to Search Each volume of the CCE contains entries CCE catalogues were issued each year. for registrations made during a particular Normally, you’ll have to search the CCEs year, with the entries for renewals in a for several years to make sure no renewal separate section, usually in the back. For was filed. This is because works published most years, renewal data was compiled ­during 1923-1949 could be renewed any twice a year, so there are two separate time during the 28th year after publication. ­renewal listings: one for the first six months This one-year period was measured from of the year and one for the last six months. the actual date of publication. For example, You need to check both listings. a work published on June 1, 1930 could For most years, renewals are listed by be renewed anytime during June 1, 1957 the name of the author or copyright owner. through June 1, 1958. The renewal record If you don’t know the name of the author for such a work could be found in the or copyright owner, you can look in the CCE for 1957 or 1958. For this reason, it title index for each CCE volume. If a title is will always be necessary to search at least ­followed by an (R) it means the work has two years’ worth of CCEs to make sure no been renewed. renewal was filed—those covering the 27th But note carefully: if the work was and 28th years after publication. In addition, originally published as part of a larger just to be on the safe side, it’s advisable work—for example, an article published chapter 21: Researching Copyright Office Records 397

Year of 27th Year Publication After Publication 28th Year 29th Year

1923 1950 1951 1952 1924 1951 1952 1953 1925 1952 1953 1954 1926 1953 1954 1955 1927 1954 1955 1956 1928 1955 1956 1957 1929 1956 1957 1958 1930 1957 1958 1959 1931 1958 1959 1960 1932 1959 1960 1961 1933 1960 1961 1962 1934 1961 1962 1963 1935 1962 1963 1964 1936 1963 1964 1965 1937 1964 1965 1966 1938 1965 1966 1967 1939 1966 1967 1968 1940 1967 1968 1969 1941 1968 1969 1970 1942 1969 1970 1971 1943 1970 1971 1972 1944 1971 1972 1973 1945 1972 1973 1974 1946 1973 1974 1975 1947 1974 1975 1976 1948 1975 1976 1977 1949 1976 1977 1978 398 The Public Domain

in a magazine—you need to look to see Let’s decipher this entry line by line: if the larger work was renewed. You • The first line lists the author of the also must check to see if the individual work (the famed novelist F. Scott article was renewed. If either the larger Fitzgerald). work or individual contribution has been • The second line shows the title of the renewed, the work is not in the ­public work. The © symbol followed by the domain. The CCE has a separate ­section date 10Apr25 means The Great Gatsby called Contributions to Periodicals that lists was first published on April 10, 1925. renewals for individual articles. The entry A855444 is the original In addition, be aware that there is no Copyright Office registration number standardization of alphabetizing or name for the work. usage in the CCE. For example, names • The third line begins with the entry ­beginning with “Mc” and “Mac” are R109367, which is the renewal alphabetized in various ways. A name like registration number for the novel. The “Tschaikowski” may be spelled “Chaikovskii.” date 23Mar53 means the work was Non-English names such as “de Mille” and ­renewed on March 23, 1953. “von Franz” may appear under both the • The entry “Frances Scott Fitzgerald prefix and the surname. A corporate entity Lanahan” on the third and fourth lines such as “Walt Disney Productions” may is the name of the copyright owner of ­appear under that form or under “Disney the novel following the renewal. The (Walt) Productions.” (C) following her name means that Following is the renewal record for the she is the child of the deceased author. 1925 novel The Great Gatsby by F. Scott This entry tells you that The Great Gatsby Fitzgerald. It was found in the renewal was timely renewed during the 28th year ­section of the Books volume of the after its initial publication and therefore 1953 CCE. ­receives a 95-year copyright term. Its FITZGERALD, FRANCIS SCOTT copyright will not expire until Jan. 1, 2021. The Great Gatsby © 10Apr25, A855444. R109367, 23Mar53, Frances Scott Fitzgerald Lanahan (C) chapter 21: Researching Copyright Office Records 399

Researching Copyright Abbreviations Used in the CCE Registration Records Following is a list of the main abbreviations used in the CCE: When a work is registered with the Copy­ (A) author right Office, the copyright claimant must a.k.a. also known as file an application form that contains some (C) child or children of the deceased basic information about the work, such as who wrote it, if it was published, when © copyright claimed by and where it was published, and the nature © (followed by date) year of of the authorship involved. When the publication as stated in copyright work is registered, the Copyright Office notice stamps a registration number and seal on ca. circa the application and it serves as the work’s comp. compiler, compiled by certificate of registration. d.b.a. doing business as The registration certificate contains a good (E) executor(s) of the author deal of information about the work that ed. edited by, editor, edition may be very useful to determining whether (NK) next of kin of the author who is it’s in the public domain, including: not living, there being no will • the title, and whether it had any p. page, pages ­previous titles (P) proprietor of a commercial print or • in the case of writings, whether the ­label work was published as a contribution (PCB) proprietor of a work copyrighted to a magazine, newspaper, or other by a corporate body otherwise than serial publication as assignee or licensee of the author • the name of the author(s) (PCW) proprietor of a composite work • where and when the work was (PPW) proprietor of a posthumous published (if it was) work • the author’s nationality or where he or she lives pseud. pseudonym • the name of the copyright owner (PWH) proprietor of copyright in a • whether the work is a derivative work made for hire work or compilation and, if so, what rev. revised by, reviser, revision new material was added to create the t.a. trading as ­derivative work or compilation (see tr. translator, translated by Chapter 3 for a detailed discussion of v., vol. volume, volumes derivative works and Chapter 12 for a (W) widow of the author discussion of compilations). (Wr) widower of the author 400 The Public Domain

Online Registration Records which parts of the work are and are not copyrighted. However, it’s often too general Since 1978, some, but not all, of the infor­ to be of much help. So, to really determine mation contained in copyright certificates what new material is contained, you must has been placed in an online Copyright actually examine a copy of the republished ­Office database. This is the same database work. that contains the online renewal records discussed above and is accessed and searched in the exact same way. CCE Registration Listings Below is an example of the online There are no online registration records, registra­tion record for a book by the late other than renewals, for works published English author Eric Ambler (Figure 3). before 1978. There aren’t even online Among other things, this record tells ­renewal listings for works published before when and where the book was published— 1950. However, the Catalog of Copyright in London in 1985. Information such as this Entries (CCE) contains summaries of the enables you to determine­ how long the registration records for works published copyright in a work lasts. ­before 1978. As with the online records, When a public domain work is republished these may be helpful to determine when with new material, the registration record and where a work was published, who the will ordinarily contain a brief statement owner is, and what new matter was added of what the new matter consists of. This to a republished public domain work. statement may be helpful to determine

Figure 3: Registration Record for a Book by Eric Ambler chapter 21: Researching Copyright Office Records 401

Obtaining a Copy of Finding the work’s registration number the Registration Certificate may be a problem. If the work was published and registered after 1978, you can If you want to see all the information on a check the Copyright Office online records. work’s registration certificate, you can have If the work was published before 1978, you the U.S. Copyright Office send you a copy. may have to check the Catalog of Copyright To do this, you must send a letter with the Entries (CCE). The procedure to check for following information: a registration number is largely the same, • the title of the work except that you’re looking for the work’s • the registration number original registration record, not a ­renewal. • the year of publication or registration, If you can’t find the registration number, and you can request the Copyright Office to do • any other information needed to a search, but this will cost a minimum of $65. identify the work. For more information on obtaining The letter must be accompanied by a access to Copyright Office records, see check for $30 payable to the Register of the Copyright Office publication called Copyrights. The letter and check should be Circular 6, Obtaining Access to and Copies sent to: of Copyright Office Records and Deposits. Library of Congress You can down­load a copy from the Copy­ Copyright Office right Office website (www.copyright.gov). Certifications and Documents Section, You can also have the Copyright Office LM-402 send you a copy by postal mail by calling 101 Independence Ave., SE the Copyright Office’s forms hotline at Washington, DC 20559-6000 202-707-9100. ■ 202-707-6787. You may also inspect these records in person at the Copyright Office at the ­address listed above.

Chapter 22

What If a Work Is Not in the Public Domain?

Find Another Public Domain Work...... 404

Obtain Permission to Use the Work...... 404 Step 1: Find Out Who Owns the Work...... 405 Step 2: Identify the Rights You Need...... 406 Step 3: Negotiate Whether Payment Is Required...... 406 Step 4: Get It in Writing...... 406

Use the Work Without Permission on the Grounds of Fair Use...... 407 What Is the Fair Use Privilege?...... 407 When Is a Use a Fair Use?...... 408 Parody...... 415 404 The Public Domain

f you determine that a particular work do so if you obtain permission from the you want to copy, adapt, or otherwise copyright owner for the use. Unfortunately, I use is not in the public domain, you obtaining permission to use a copyrighted have three alternatives: work can be a difficult and time consuming • find something else that is in the process and it’s usually not free. ­public domain • obtain permission to use the work, or For a detailed explanation of how to • use the work without permission, go about getting permission and ­relying on the fair use privilege which all the forms you may need, refer to allows copyrighted material to be used Getting Permission: How to License & Clear for free in limited situations. Copyrighted Materials Online & Off, by We discuss each option below. Richard Stim (Nolo). Expect permissions to take anywhere from one to three months to negotiate Find Another Public and obtain. The first step is to learn how Domain Work much a particular work would cost to use. Depending on your budget for obtaining As this book makes clear, millions and ­permissions, the cost might make your ­millions of works are in the public domain. ­decision for you, if it is beyond your means. If you find that a particular work is not Often copyright owners have a sliding scale public domain, you can simply forget about of fees for different uses. Commercial uses using it and continue searching for a work are usually more costly than nonprofit uses. that is in the public domain. The next It is best to obtain written permission ­public ­domain work you find may be just ­before you begin using the copyrighted what you’re looking for. The drawback to work. But you should absolutely obtain it this approach, of course, is that it can be before your project is completed. It is some­ time consuming and there is no guarantee times more difficult and more expensive you’ll ever find a public domain work that to obtain permission after a book, film, or meets your needs. ­recording is completed. If the copyright owner becomes aware that you have a vested interest in obtaining permission Obtain Permission (for example, your book is already in production), the price may rise. In addition, to Use the Work if you can’t obtain permission, you’ll have to ­­­­­­redo the work, which is expensive and If you are dead set on using a particular time consuming. The best policy is to start copyrighted work, you can go ahead and chapter 22: What if a work is not in the public domain? 405

­seeking all required permissions as soon as possible. Orphan Works Obtaining permission involves these One problem that constantly bedevils steps: people who want to obtain permission to use copyrighted works is that the Step 1: Find Out Who copyright owner cannot be identified Owns the Work or located. This is particularly common for older works with little economic The first step is to find out who owns the value. Such works are often called copyright in the work you want to use. “orphan works.” The Copyright Office Sometimes, this task is simple. Often, you conducted a detailed study of orphan may be able to locate the rights owner works and issued a report in 2006 just by looking at the copyright notice on recommending that legislation be the work. For example, if the notice reads passed barring owners of orphan works “Copyright 1998, Jones Publishing,” you from obtaining monetary damages in would start by finding the Jones Publishing a copyright infringement suit against company. Sometimes, more detailed those who use their works without ­research is required. Copyright ownership permission provided that: (1) a good may have passed through several hands faith, reasonably diligent search was since your copy of the work was published. made to locate the owner of the orphan In addition, some kinds of works, such work, and (2) attribution was provided as film and recorded music, can involve to the author and copyright owner of ­multiple owners or rights holders, each the work, if possible and as appropriate with separate rights to different parts of under the circumstances. If the orphan the work. For example, in order to use a work was used for commercial purposes, music recording, you would have to obtain a reasonable fee would have to be paid ­permission from the record company, the to the copyright owner; but, if the work music publisher (the owner of the song), was not used for any direct or indirect and in some cases from the performers. commercial advantage, no fee need be The method of identifying owners differs paid if the user stops using the work from industry to industry. For example, upon receiving notice from the copyright photographic reproduction rights are often owner. It remains to be seen whether this owned by stock photo organizations, while legislation will be enacted. The Copyright collectives known as performing rights Office’s Report on Orphan Works can be ­societies own music performance rights. obtained from the Office’s website (www .copyright.gov). 406 The Public Domain

Step 2: Identify the Rights You Need advertisements, cost more than nonprofit or educational uses. The fees for website uses The next step in getting permission is to may depend upon on the number of visitors identify the rights you need. Each copyright to the site. owner controls a bundle of rights related to If you can’t afford the permission fee, the work, including the right to reproduce, you’ll have to find another work to use distribute, and modify the work. Because so ­unless you decide to use it without paying many rights are associated with copyrighted on the grounds of fair use. This is why it’s works, you need to specify the rights you so important to find out what the fee will need. This can be as simple as stating your be as soon as possible. intended use—for example, you want to ­reproduce a photograph in your book.

Step 3: Negotiate Whether Payment Is Required

Next, you need to determine whether ­payment is required for the permission. In most cases there are no standard fees for using a work. Sometimes, the owner of the work will not require payment if the amount of the work being used is quite small or the owner wishes to contribute to an educational or nonprofit effort. Humorous Office Spot Illustrations, Dover However, some types of permission ­almost Publications always require payment. For example,­ using­ a photo owned by a stock photo agency usually requires a payment of $100 or Step 4: Get It in Writing more. Using a song in a commercial usually Finally, get your permission agreement ­requires a payment of several ­thousand in writing. Relying on an oral or implied dollars. As a general rule, expect to pay agreement is almost always a mistake. at least $50 or more for each copyright You and the rights owner may have permission. misunderstood each other or remembered Generally, fees are linked to the popular­ the terms of your agreement differently. ity of your work. Commercial uses, such as This can lead to disputes. If you have chapter 22: What if a work is not in the public domain? 407

to go to court to enforce your unwritten No Fair Use Outside the United States. agreement, you’ll have difficulty proving this discussion only covers using exactly what the terms are. copyrighted material within the United States. The fair use provisions contained in American copyright law are unique. No Use the Work Without other country in the world gives the public Permission on the Grounds of such broad latitude to use copyrighted works without permission. Some countries Fair Use do allow limited unauthorized copying, but only for the purposes of private study The final—and riskiest—option is to use the or research, not for publication. In the work without obtaining permission on the United Kingdom, Canada, Australia, and grounds of fair use. The law allows the use New Zealand this limited copying privilege of copyrighted material for free in ­limited is called “fair dealing”; no country other circumstances when the use is considered a than the United States uses the term “fair fair use. However, determining when a use use.” If you want to use a work outside the is a fair use requires a delicate balancing United States without permission, you need of several rather vaguely defined factors to ­refer to the law of the country involved. discussed below. (See Chapter 16 for a detailed discussion of This is the problem with the fair use foreign copyright laws.) privilege—it’s an amorphous area of the law and it’s hard to be sure whether a use is or is not a fair use. Moreover, always What Is the Fair Use Privilege? keep in mind that claiming fair use will not keep you from being sued. It is simply a The purpose of the copyright laws is to defense you can raise if a copyright owner, ­advance the progress of knowledge by ­giving claiming you infringed their ownership authors an economic incentive to create rights, sues you. You’ll win such a suit if new works. Authors and their heirs are the judge or jury concludes that your use automatically granted the exclusive right to is a fair use, but the expense and trauma reproduce, adapt, perform, and ­display their ­involved could be enormous. works for many years; they are in effect, granted a monopoly over the use of their For a detailed analysis of how to work. weigh the risks involved in using a However, there are situations where strict work without permission, see Chapter 1. enforcement of an author’s monopoly would hinder, rather than promote, the growth of knowledge. An obvious example 408 The Public Domain

is that of a researcher or scholar whose own courts do not apply them in a mechanical work depends on the ability to refer to and or numerical way. For example, a use is quote from prior works. No author could not always fair if three of the four factors create a new work if she were first required above are met. Moreover, not all factors to repeat the research of every ­author who are equally important in every case and it’s had gone before her. up to the courts to decide what weight to Of course, scholars and researchers could give them. This makes determining whether be required to bargain with each copyright a use is a fair use a highly subjective and owner for permission to quote from or ­refer ­unpredictable exercise. to prior works. But this would likely prove so onerous that many scholars would hunt Can Fair Use Apply Where for another line of work, and the progress Permission Is Denied? of knowledge would be greatly impeded. To avoid this result, the fair use privilege If you ask a copyright owner for was created. Under the fair use rule, an permission to use her work and she ­author is permitted to make limited use refuses, can you then use it without of another author’s work without asking permission on the grounds of fair use? ­permission. All authors and other copyright The Supreme Court has said yes: “If the owners are deemed by U.S. law to give use is otherwise fair, no permission need their automatic consent to the fair use of be sought or granted. Thus, being denied their work by others. The fair use privilege permission to use a work does not weigh is the most significant limitation on a against a finding of fair use.” Campbell copyright owner’s exclusive rights. v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994). When Is a Use a Fair Use? This means that even though you’re ­certain that your intended use is fair, The following four factors must be con­ you can go ahead and seek permission sidered to determine whether an intended for the use from the copyright owner use of a copyrighted work is a fair use: because you want to avoid the possibility • the purpose and character of the use of expensive litigation. If the copyright • the type of work involved owner proves to be unreasonable and • the amount and importance of the withholds permission, you can then go material used, and ahead and use the material on the basis • the effect of the use upon the market of fair use. But, of course, the copyright for the copyrighted work. owner could still sue you. If the use These factors are intended to be a highly really is fair, you would win the suit even flexible set of general guidelines. The though you had unsuccessfully sought permission. chapter 22: What if a work is not in the public domain? 409

The Purpose and Character of the Use Following are very typical examples of transformative uses where copyrighted First, the purpose and character of your ­material is used to help create new and ­intended use must be considered. The test ­different works. These types of uses are here is to see whether your own work most likely to be fair uses: merely serves as a substitute for the original • Criticism and comment—for example, or ­“instead adds something new, with quoting or excerpting a work in a a ­further purpose or different character, ­review or criticism for purposes of ­altering the first with new expression, ­illustration or comment. meaning, or message.” Campbell v. Acuff- • News reporting—for example, Rose Music, Inc., 114 S.Ct. 1164 (1994). ­summarizing an address or article, The Supreme Court calls such a use with quotations, in a news report. “transformative.” • Research and scholarship—for ­example, This is a very significant factor. The more quoting a passage in a scholarly, transformative a work is, the less important ­scientific, or technical work for are the other fair use factors that may weigh illustration or clarification of the against a finding of fair use. Why should author’s observations. this be? It is because the goal of copyright Parodies are also transformative uses that to promote human knowledge is furthered often qualify as fair uses. by the creation of transformative works. Although not really transformative, ­photo­ “Such works thus lie at the heart of the copying by teachers for classroom use fair use doctrine’s guarantee of a breathing may also be a fair use since teaching also space within the confines of copyright.” furthers the knowledge-enriching goals of Campbell v. Acuff-Rose Music, Inc. the copyright laws.

1001 Cartoon-Style Illustrations, Dover Publications 410 The Public Domain

Note that the uses listed above, with the ­private commercial gain than for a nonprofit possible exception of news reporting, are or scholarly work. However, the fact that primarily for nonprofit educational purposes. your primary motive is commercial does Although some money may be earned from not ­always mean you can’t exercise the fair writing a review or scholarly work, financial use privilege. If the other fair use factors are gain is not usually the primary motivation— in your favor, the use may be considered disseminating information or otherwise a fair use. This is particularly likely where ­advancing human knowledge is. the use benefits the public by furthering the If permission were required for these fundamental purpose of the copyright laws socially helpful uses (presumably for —the advancement of human knowledge. a fee), it is likely that few reviews or scholarly works would be written; neither Example: The authors of an unauthor­ the authors nor publishers of works that ized “popular” biography of Howard earn such modest sums could afford Hughes quoted from two Look Magazine to pay for the necessary permissions. articles about Hughes. All four fair (Newspapers probably could afford to pay use rules were satisfied. Only a small for permissions, but requiring them to do ­number of words were quoted and the so in all cases would inevitably impede the authors had provided proper attribution free flow of information, and might also for the quotes. In addition, the copy­ violate the free press guarantees of the First right owner of the articles (who turned Amendment of the U.S. Constitution.) out to be Hughes himself) had no In contrast, an author and/or publisher ­intention of using the articles in a of a work created primarily for commercial book, so the use was not a competitive gain usually can afford to pay for permis­ use. A court held that the quotations sion to use other’s protected expression. It qualified as a fair use. Although the also seems inherently fair to require him to ­biography had been published primarily do so. In the words of one court, fair use to earn a profit, it also benefited the “distinguishes between a true scholar and a public. The court stated that “while chiseler who infringes a work for personal the Hughes biography may not be a profit.” Wainwright Securities, Inc. v. Wall ­profound work, it may well provide a Street Transcript Corp., 448 F.2d 91 (2d Cir. valuable source of material for future 1977). biographers (if any) of Hughes or for For these reasons, a judge or jury in historians or social scientists.” Rosemont a copyright infringement case would be Enters. v. Random House, Inc., 336 F.2d less likely to find a valid fair use claim for 303 (2d Cir. 1966). a work that was published primarily for chapter 22: What if a work is not in the public domain? 411

The Type of Work Involved Attribution Does Not Make a Use Fair, But Should Always Be To preserve the free flow of information, Provided less copyright protection is given to factual works (scholarly, technical, scientific works, Some people have the mistaken idea etc.) than to works of fancy (novels, poems, that they can use any amount of material plays, etc.). Thus, authors have more so long as they give the author credit. leeway in using material from factual works This is simply not true. Providing credit than from fanciful ones, especially where for a ­quotation or other form of copying it’s necessary to use extensive quotations will not, in and of itself, make the use of to ensure the accuracy of the factual the quote a fair use. For example, if you information conveyed. quote an entire chapter from another In addition, you will have a stronger case author’s book without permission, your use of fair use if the material copied is from a wouldn’t be considered fair even if you published work than from an unpublished give that ­author credit. work. The scope of fair use is narrower Although the Copyright Act does not for unpublished works because an author ­explicitly require authors to provide ­ordinarily has the right to control the first attribution for quoted or paraphrased public appearance of his expression. material, it is a factor that courts consider. It is likely that a judge or jury Example: A well-known literary bio­ would look with disfavor on an author grapher named Ian Hamilton attempted who attempts to pass off the work of to write an unauthorized biography others as his own and then has the of the notoriously reclusive novelist nerve to cry “Fair use!” if he’s sued for J.D. Salinger. During his research, he copyright infringement. They might be found 44 unpublished letters written by ­inclined not only to find that the use is Salinger in university libraries. When not a fair use, but to impose particularly Salinger learned that Hamilton intended heavy damages in an infringement suit. to include extensive quotations from If you copy someone else’s work, always these letters in his biography, he filed give that person credit. Copying with suit for copyright infringement and attribution is a very good hedge against won. The court held that the quotations getting sued, or losing big if you are sued. did not constitute a fair use, in large part because Salinger, not Hamilton, had the right to decide if and when to first publish his private letters. Salinger v. Random House, Inc., 811 F.2d 90 (1987). 412 The Public Domain

However, the fact that a work is unpub­ 500,000 words might be fair. It all depends lished does not mean it can never be the on the circumstances—for example, it may subject of fair use. If all the other factors are be permissible to quote extensively from in favor of fair use, they may outweigh this one scientific work to ensure the accuracy factor. of another scientific work. On the other hand, the drafters of the The quality of the material you want copyright law and the Supreme Court to use must be considered as well as the have suggested that a user may have quantity. The more important it is to the more ­justification for reproducing a work original work, the less likely is your use a without permission­ if it is out of print fair use. and unavailable for purchase through normal channels. Harper & Row v. Nation Example: The Nation magazine obtained Enterprises, 471 U.S. 539 (1985). Thus, a copy of Gerald Ford’s memoirs prior most courts give users more leeway when to their publication. The magazine ­pub­ they quote from or photocopy out-of-print lished an article about the memoirs works. But this does not mean that any in which only 300 words from Ford’s amount of material from out-of-print works 200,000-word manuscript were quoted may be used without permission. verbatim. The Supreme Court held that this was not a fair use because The Amount and Importance the ­material quoted—dealing with the of the Material Used presidential pardon of former President Richard M. Nixon—was the “heart of The more material you take the more likely the book … the most interesting and it is that your work will serve as a substitute moving parts of the entire manuscript.” for the original and adversely affect the Harper & Row Publishers, Inc. v. Nation value of the copyright owner’s work, making­ Enterprises, 471 U.S. 539 (1985). it less likely that the use can be a fair use. However, contrary to what many people believe, there is no preestablished limit for Example: In the late 1970s a television fair use. For example, it is not ­always okay advertising campaign was conducted to to take one paragraph or less than 200 promote New York City. A song called words from a written work or less than two “I Love New York” accompanied the bars from a song. commercials. The song consisted in Copying 12 words from a 14-word haiku part of the phrase, “I Love New York” poem wouldn’t be fair use. Nor would repeated again and again, accompanied copying 200 words from a work of 300 by the four notes, D C D E. The words likely qualify as a fair use. However, ­television show Saturday Night Live copying 2,000 words from a work of created and performed a comic sketch chapter 22: What if a work is not in the public domain? 413

in which it copied the four notes and can be difficult. The more transformative changed the lyric to “I love Sodom.” the subsequent work—the more it differs The court held that the use was not a from the original and is aimed at a different fair use even though SNL only copied market—the less likely will it be deemed to four notes and the words “I love” from a adversely affect the potential market for the song that contained a 45-word lyric and original. 100 measures. The court reasoned that But you’ll have a very hard time proving the copying was not a fair use because that there is no harm to the potential market these four notes were “the heart of the for the original work if your own work composition.” Elsmere Music, Inc. v. is similar to the original and aimed at the NBC, 482 F.Supp. 741 (1980). same market. This makes it much harder for a court to view your use as a fair use.

The Effect of the Use Doing Your Own Fair Use Analysis on Potential Market To determine whether an intended use is a The fourth fair use factor is the effect of fair use, you need to pretend you’re a judge the use upon the potential market for, or and carefully weigh each of the four factors value of, the copyrighted work. You must discussed above. List each factor in turn on consider not only the harm caused by your a piece of paper or your computer and see act of copying, but whether similar copying whether it favors or disfavors a finding of by others would have a substantial adverse fair use. To help you, here are two well- ­impact on the potential market for the known examples of how judges conducted original work. fair use analyses: For example, in the case involving J.D. Salinger’s unpublished letters mentioned Example 1: In 1980, a professional above, Salinger’s literary agent testified at photographer named Art Rogers made trial that Salinger could earn as much as a photograph of a man and his wife $500,000 if he published his letters. Thus, holding eight puppies. Rogers owned the if biographers were permitted to publish copyright in the photo and ­exhibited ­portions of his most interesting letters first, it and licensed it many times. Well-known could have cost Salinger substantial royalties. artist and sculptor Jeff Koons obtained The court ruled this was not a fair use. a copy of the photo and decided to Since fair use is simply a defense to a ­recreate it as a sculpture. He gave the copyright infringement lawsuit, it is up to photo to artisans in his ­employ who the defendant—the copier—in an infringe­ proceeded to make four astonishingly ment case to show there is no harm to the faithful three-dimensional copies out potential market for the original work. This of wood. Koons sold three of the 414 The Public Domain

sculptures for $367,000. Rogers filed suit Example 2: In 1988 Dr. Margaret claiming that Koons had ­infringed on Walker wrote a biography of the late his copyright in his photo by creating author Richard Wright, best known for the sculptures without his permission. his novel Native Son. Walker included Koons claimed the sculptures were a fair in the biography ten brief quotations use. The court disagreed,­ concluding and five short paraphrases from un­ that all four fair use factors discussed published letters Wright had written above went against a finding of fair use. to Walker, and 14 short passages from Purpose and character of the use: The Wright’s unpublished journal. Wright’s court concluded that the main reason widow sued Walker and her publisher Koons had the sculptures created was for copyright infringement for using the to sell them and make a lot of money. material without permission. The court This militated against a finding of fair held the use was a fair use. Here’s how use. the court analyzed the four fair use Type of work involved: The photo was ­factors: a creative and imaginative work, not a Purpose and character of the use: This factual work like a biography. This also factor clearly favored Walker because weighed against fair use. her work was a scholarly biography. Amount and importance of material Walker’s use was transformative because used: Koons copied virtually the entire her “biography furthers the goals of the photo. This also weighed against fair copyright laws by adding value to prior use. intellectual labor.” The effect of the use on the market Type of work involved: Since the ­mate­ value of the original: Although Koons’s rial used by Walker was unpublished, sculpture was in a different medium this factor weighed against a finding of than Rogers’s photo, the court held fair use. that it did have a detrimental impact Amount and importance of the material on the potential market for the photo. used: This factor favored a finding of The court reasoned that the existence fair use because Walker used no more of Koons’s sculpture made it less likely than 1% of the letters or journal entries that any other artist would be willing Wright had written. Moreover, although to pay Rogers for permission to make the material Walker used enhanced the ­another sculpture based on the photo. biography, it was not of earthshaking Moreover, Koons could take and sell importance and certainly did not form photographs of the sculpture, which the heart of the biography. No one would reduce the market for Roger’s would buy the biography in order to original photo. Rogers v. Koons, 960 read these passages. F.2d 301 (2d Cir. 1992). chapter 22: What if a work is not in the public domain? 415

Effect on the market: Finally, the The U.S. Supreme Court, in a case court held that the biography did not involving a parody of the song “Pretty pose a threat to the potential market Woman” by the rap group 2 Live Crew for Wright’s letters or journals. Since so (Campbell v. Acuff-Rose Music, Inc., 114 little material was copied, the biography S.Ct. 1164 (1994)), has provided specific could in no way supplant the letters or guidance on how the fair use factors journals. Wright v. Warner Books, Inc., discussed above should be evaluated in a 953 F.2d 733 (2d Cir. 1991). parody case.

Purpose and Character of the Use Parody The Supreme Court stated that the heart A parody is a work of fancy that ridicules of a claim of fair use for a parody is that another, usually well-known, work by an author’s preexisting work needed to be ­imitating it in a comic way. Peruse the copied in order to create a new work that, ­humor section of your local bookstore at least in part, comments on or criticizes and you’ll find many examples, such as the prior author’s work. However, a self- parody versions of well-known magazines proclaimed parodist who copies a prior like ­Cosmopolitan (called Catmopolitan). work merely to get attention or to avoid the Someone has even published a parody drudgery in working up something fresh of the SAT exam called the “NSAT” (No- has a weak claim to fair use. Sweat ­Aptitude Test) and a book of parody Does it matter that a parody might be ­sequels to famous literary works, including seen to be in bad taste? The Supreme Court titles such as A Clockwork Tomato, 2000: A said no. All that matters is that the work Space Iliad, and Satanic Reverses. can reasonably be perceived to contain To parody a work, it is usually necessary a parodic element—in other words, it to copy some of the work’s material so comments on or criticizes the original that readers will be able to recognize work in some way. Whether a parody is in what’s ­being parodied. However, it is good or bad taste does not matter to fair rarely possible to get permission to parody use. However, as a practical matter, the or satirize someone else’s work. Thus, copyright owner of a work being parodied parodies can exist only because of the is probably more likely to complain if fair use privilege. Recognizing this, courts the parody is in bad taste. The fact that a have historically held that parody and parody is commercially motivated weighs satire deserve substantial freedom, both against a finding of fair use, but is not a as entertainment and a form of social and deciding factor in and of itself. literary criticism. 416 The Public Domain

Type of Work Involved However, the Supreme Court stated that a parody generally does not affect the market As a general rule, a use is more likely for the original work because a parody and to be a fair use when the work involved the original usually serve different market is a ­utilitarian factual work like a news­ ­functions. A parody is particularly unlikely paper ­account or scientific work rather to affect the market for the original where than a work of fancy like a novel or play. the copying is slight in relation to the parody How­ever, this isn’t ­usually the case with as a whole. parodies. People rarely bother to parody But what if a parody is so scathing or boring utili­tarian factual works that no one critical of the original work that it harms has ever heard of. Instead, they parody the market for it? Does this weigh against highly creative well-known works. This is fair use? The Supreme Court answered so whether they are nonfiction or fiction. this question with a resounding no. Biting For this reason, the U.S. Supreme Court has ­criticism is not copyright infringement, stated that the type-of-work factor is not even if it effectively destroys a work both helpful in determining whether a parody is ­artistically and commercially. a fair use. Applying the Fair Use Factors The Amount and Importance of the Material Used Applying these fair use factors is a highly subjective exercise. One judge’s fair use To be effective, a parody must take enough might be another’s infringement. A parody material from the prior work to be able will probably be deemed a fair use so long to conjure it up in the reader’s or hearer’s as: mind. To make sure the intended audience • the parody has neither the intent nor will understand the parody, the parodist the effect of fulfilling the demand for usually has to copy at least some of the the original most distinctive or memorable features of • the parodist does not take more of the original work. But a parody composed the original work than is necessary to primarily of an original work with little new ­accomplish the parody’s purpose (the material added is not likely to be considered more recognizable the original work, a fair use. the less needs to be taken to parody it), and Effect of the Use on the Market • the original work is at least in part an for the Prior Work object of the parody (otherwise there A finding that a parody has a detrimental would be no need to use it). effect on the market for, or value of, the original work weighs against fair use. chapter 22: What if a work is not in the public domain? 417

Example: Disc jockey Rick Dees ­created • The amount and substantiality of and recorded a parody version of the the portion used: Finally, the court song “When Sunny Gets Blue.” Dees’s held that the parody copied no version was called “When Sonny Sniffs more of the original song than Glue” and copied the first six of the was necessary to conjure it up in song’s 38 bars. Dees changed the song’s listeners’ minds. The court noted opening lyrics—“When Sunny gets that “a song is difficult to parody blue, her eyes get gray and cloudy, effectively without exact or near- then the rain begins to fall” to “When exact copying.” Fisher v. Dees, 794 Sonny sniffs glue, her eyes get red and F.2d 432 (9th Cir. 1986). bulgy, then her hair begins to fall.” The • Effect of the use on the market for composers of “When Sunny Gets Blue” the prior work: The court held sued Dees for copyright ­infringement that the parody would not have and lost because the court held that a substantial effect on the market the parody was a fair use. Here’s how for “When Sunny Gets Blue” the court analyzed the three fair use ­because it could not fulfill the factors that the Supreme Court says are ­demand for it. The court noted important in parody cases: that “When Sunny Gets Blue” was • Purpose and character of use: The a romantic nostalgic ballad, while court noted that Dees’s song was the parody was a song about a intended to poke fun at “When woman who sniffs glue. It was not Sunny Gets Blue,” something a likely that consumers who wanted parody must do to be a fair use. to hear a romantic ballad would While the parody was created as purchase the parody ­instead of part of a recording sold for a profit, the original song. ■ the court held it was “more in the nature of an editorial or social commentary than … an attempt to capitalize on the plaintiff’s original work.”

Index

A Amount and importance criteria for fair use Abandonment of a trademark, 377–378 privilege, 412–413, 414, 416, 417 Abridgements, 71, 98 Annotations, 71, 73, 78, 392 ACLU (American Civil Liberties Union), 47 Anonymous authors, 299, 300, 331, 336 Adaptations vs. arrangements, 99–100. Anticounterfeiting rules, 50 See also Derivative works; Musical Antipiracy laws, 119 arrangements Applied art, 135–136 Adapting sheet music, 89–90 Architecture, 195–206 Adventures of Huckleberry Finn, The (Mark architectural plans, 197–202 Twain Foundation), 74, 334 date of construction, 202–205 Advertising photographs of, 160 copyright notice requirements, 356 in public domain, 196–197 films for, 178 trademark or patent protection, 205–206 television programs for, 182 Argentina, 292 works used for, 140–141, 150, 157 Arrangement of material, 227–228, 319. See See also Commercial uses also Derivative works; Minimal creativity AFI Catalog of Feature Films (American aspect of copyright protection Film Institute), 167 Arrangements vs. adaptations, musical, AGRICOLA Database, 231 99–100. See also Musical arrangements; Agricultural fairs with of copyrighted music, Musical derivative works 87 Art, 123–150 “Alexander’s Ragtime Band” (Berlin), 9 on buildings, 203 Allied Powers Japanese copyright copyright status determinations, 126–131, extension, 300–301 143–148 Alvin, Dave, 88 overview, 123 Amazon.com, 224 signs, symbols, and colors on maps, 212 American Civil Liberties Union (ACLU), 47 See also Art reproductions; Copyright American Film Institute catalogues, 174 protection for art American Gothic (Wood), 125 Art, original works of, 124–142 American Medical Association, 54 artistic ideas, styles, and techniques, 132–133 420 The Public Domain

copyright expiration, 131 for threshold questions, 11–12 copyright status of reproductions, 142, on using unfixed choreography, 217 143 before utilizing distinctive characters, 267 created by U.S. government employees, See also Gray areas 138–139 Attribution dedicated to the public domain, 139–140 and fair use privilege, 411 determining if in public domain, 126–131 plagiarism vs., 35, 257, 414–415 digital reproductions of public domain and trademarks, 376–377 art, 148–149 for works dedicated to the public fabric designs and cloth, 136–137 domain, 314 jewelry and other applied art, 135–136 Audiovisual works, using sheet music for, photographs of copyrighted art, 159–161 89 photographs of public domain art, Australia, 292, 295, 305, 385, 407 146–148 Authors, death of, 333–335 sources of, 142 Authors Guild, 66 trademark protection for, 140–141 Authorship. See Copyright owners typeface designs, 137–138 useful articles, 133–135 using public domain art, 124–126 B Belgium, 292, 294. See also Europe and See also Copyright protection for art European Union Artistic commons concept, 6, 7 Biographers Artistic freedom, 7 conversations with biographees, 272 Art museums, 130 and copyright permission, 34–35, 257, Art reproductions, 142–150 411, 413 for advertising or on merchandise, 150 embellishments of, 273 dedicated to the public domain, 149 and facts, 261, 262–263 elements of reproduction in public Biographical dictionaries, 66, 93, 278, 335 domain, 150 Biographies about famous people, 43, lacking originality, 144–149 93–94, 256, 263–264 original work in public domain, 143 Biographies as information sources overview, 142 and fair use laws, 410 publication of reproduction, 143 on musical composers, 93–94, 96 reproduction copyright expiration, 143 on photographers, 155 sources of, 150 for publication dates, 354 See also Digital copies or reproductions; utilizing public domain works, 368 Photographs for written works, 66, 279 Attorneys Blank forms, 55–57, 76, 311 for copyright status of artistic features on Book of World-Famous Music, The (Fuld), a useful article, 135 94 for public domain claim challenges, 14–15 Books in Print, 65 for software protections, 193 Books Out of Print, 65 Index 421

Brand names as trademarks, 372 Charitable shows of copyrighted music, 87 Brazil, 292, 304, 322 Chilling Effects Clearinghouse, 14 Breach of contract laws, 26–28, 52, 243, 258 China, 291, 292, 299–300, 304 Bridgeman Art Library Ltd., 12, 146–148 Choreography, 215–219 British Film Catalog 1895–1970 (Giford), Claims. See Copyright claims 168 Classified government documents, 47, 190, Buildings, definition of, 203 231–232 Burnett, Frances Hodgson, 8 Click-wrap license agreements, 26, 27, 319 Collage Discovery Workshop (Hellmuth), 123 Collective works, 238–243 C copyright notice requirements for Calendar year basis for copyrights, 326 contributions to, 355–356 Canada public domain works, 223, 238–243, 271 anonymous authors and posthumous of sheet music, 100, 103, 110–112 works, 299 websites as, 317–319 copyright for government publications, writings, 80 48, 231, 298–299 See also Derivative works copyright terms, 119, 281, 291, 297–299, Commerce Department, 49 304 Commercial uses fair dealing privileges, 407 art on merchandise, 140–141, 150 and moral rights concept, 292 combining with editorial imagery, public domain rule for non-U.S. sound 368–369 recordings, 295 cost of, 404, 406 and rule of shorter term, 303 noncommercial purposes vs., 161 source for public domain works, 305 right of publicity vs., 367–369 standard work on copyright law, 304 titles on merchandise, 252–253 U.S. works published simultaneously in, titles used for, 252–253 281 trademark issues, 366 Canadian Copyright Law (Harris), 304 using choreography for, 218 Capitol Records, 116 using films for, 178 Carmichael, Ralph, 190 using television programs for, 182 Catalog of Copyright Entries (CCE) See also Advertising; Right of publicity; abbreviations used in, 399 U.S. Patent and Trademark Office manual vs. online searches of, 386 Common property information, 57, 114, 311 registration listings, interpreting, 400 Competition determination for copyright and registration number of a work, 401 infringement, 12 renewal searches, 394–396, 398 Compilations, 80, 322. See also Collective Certificate of registration, 399, 401 works; Databases Character and purpose of fair use, 408, Composers, 93–94, 96 409–411, 414, 415, 417 Computer languages, 192 Characters as trademarks, 375 Computer software, 185–194 Characters in fictional works, 266, 267 422 The Public Domain

China’s copyright terms, 299–300 Copinger and Skone James on Copyright copyrighted and in the public domain, (Garnett, James, and Davie), 304 187, 189–190 Copyleft software, 189 copyright expiration, 191 Copyright copyright notice or lack of, 192 calendar year basis for, 326 created by U.S. government, 190–191 creation and protection of, 22–23 dedicated to the public domain, 186–188 definition of, 20 font software programs, 137, 311 Copyright Act of 1976 (effective in 1978), 18 free software not in the public domain, See also Post-1977 publication; Pre-1978 188–189 publication protection other than copyright, 193 Copyright claims publication of, 191 determining viability of, 102–108 in public domain, 186–188 for digital copies of public domain sources of freeware and shareware, 194 photographs, 158 Conan Doyle, Arthur, 266 in digital copies or reproductions, Conceptually separable features of useful 316–317 objects, 134–135 on It’s a Wonderful Life, 173 Concrete ideas, 258 on musical arrangements, 99, 100, Condensations, 71 101–102 Confidentiality obligations, 237, 259–260 of music publishers, 100 Constructed buildings, 202–206 in new editions of public domain works, Contracts restricting public domain, 26–28. 73, 74, 77, 80–82 See also Licensing agreements overview, 14–15 Copies of copyrighted works in photos of public domain art, 147, 148 art, 127, 128–129 spurious, 25, 80–82, 99, 158 collective musical works, 111–112 of U.S. government in foreign countries, photographic, 157–158 42, 43, 231 sheet music, 88, 90–91 Copyrighted works TV programs, 179 noncommercial use of, 87, 88 writings, 63 photographs of, 159–161 See also Art reproductions; Digital copies of state governments, 52, 116, 210, 310 or reproductions See also Copies of copyrighted works; Copies of public domain works Copyright owners; Copyright status art reproductions, 145 determinations; U.S. government and Bridgeman decision, 12, 146–148 copyrighted works; entries beginning choreography, 219 with “copyright notice” films, 176–177 Copyright expiration photographs, 158 of art, 131, 143 sheet music, 100, 109, 113 for choreography, 217–218 from websites, 318 of collections of public domain works, writings, 36, 41–42 242 Index 423

for databases, 232–233 on orphan works (prospective), 405 films, 168–175 overview, 4–5, 18 maps, 209 on quasi-official legal documents, 54 “out of print” vs., 329 reason for, 6 overview, 24, 38 on spurious copyright claims, 25 of photographs, 156 See also Copyright expiration; Copyright and rule of the shorter term, 302–304 infringement; Fair use privilege; entries of TV programs, 179–180 beginning with “copyright protection”; of written works, 67 entries beginning with “Post-” or “Pre-” See also Country of publication; Date of Copyright Laws and Treaties of the World publication (UNESCO), 304 Copyright extensions Copyright notices to Allied Powers from Japanese, 300–301 on art reproductions, 143–144 Sonny Bono Copyright Term Extension for choreography, 218 Act (1998), 329, 342–343 for computer software, 192 in wartime, 294, 296, 300–301 copyright protection vs., 104 “Copyright free,” 58, 149 for creative commons licensed material, Copyright infringement 314–315 copying sound recordings as, 118 determining publication date from, 331 defenses for charges of, 132, 188, 335, for films, 167, 175 407, 413 on government works, 42 lawsuits for, 12, 13–14, 34, 53, 57, 112, for Internet materials, 308 145–146, 205 on maps, 209 licensing agreements in lieu of, 26–27, 52 misuse of, 25, 80–82 likelihood of discovery, 12–13 overview, 23, 67–68 for photocopying architectural plans, on photographs, 154, 156–157 201 on private sector works with U.S. of photographs, 159 government writings, 43 photography of well-hidden buildings as, and public domain, 346–347 205 removed without owner’s permission, 360 of restored works, 282 for sheet music, 93 Copyright laws, 17–29 as sign of publication, 63 anticounterfeiting rules, 50 and sound recordings, 117 books and other resources, 304–305 for TV programs, 181 complexity of, 326 on works copyrighted between Congressional reduction of public 1802–1909, 351 domain, 28 on works first published outside the U.S., derivative work traps, 68–69, 80 337–339 history of, 18, 20 See also Copyright notice requirements; and license restrictions, 27 Post-1989 copyright notice laws; list of items protected by, 20 Pre-1989 copyright notice laws 424 The Public Domain

Copyright notice, lack of copyright notice requirements, 350–351 on art, original works of, 131 finding, 405 on art reproductions, 143–144 of foreign works, 278–279 on choreography, 218 lack of copyright notice on a few of on collections of public domain works, multiple copies, 360–361 242 licensing agreements with publishers, on computer software, 192 357–359 consequences of omission, 357–362 of material added to a database, 229 and copyright status determinations, of original art, 159 357–362 overview, 7 on databases, 233–234 publication without permission of, 329 on derivative works, 356 response to parodies, 415 on films, 175–177 of restored works, 282 licensee fails to include copyright notice, selling rights, 359–360 357–358, 363 See also Copyright permissions; Exclusive on maps, 209–210 rights; Licensing agreements; Works overview, 347–352 dedicated to the public domain on photographs, 156–157 Copyright permission fees, 8, 9, 24, 86, 109, proving use of copyrighted works was an 406 honest mistake, 361, 362–363 Copyright permissions on sheet music, 97 biographers and, 34–35, 257, 411, 413 on television programs, 181 fair use as alternative if permission is on writings, 67–68 denied, 408 Copyright notice requirements, 345–363 for museum-owned art, 126 for advertising, 356 obtaining, 404–407 for art, 360 publication without, 329 consequences of omission, 357–362 public domain items with fees, 10–11 for contributions to collective works, public domain items without fees, 9 355–356 for sheet music, 86, 98 for copyright owners, 350–351 for sheet music arrangements of public for derivative works, 350, 356 domain works, 109 overview, 352–353 Copyright protection, 325–343 for sound recordings, 348, 349, 355 for aesthetic design elements of buildings, unpublished works, 353 203–204 for works between 1802-1909, 351 for architecture, 196, 200–202 works published outside the U.S., for choreography, 219 337–339, 354–355 copyright notice vs., 104 See also Copyright notice, lack of for databases, 80, 225–226 Copyright Office. See U.S. Copyright for derivative works, 69, 71–72, 78–80, Office 98–99, 102–108 Copyright owners and digital copies of copyright-protected of architectural plans, 200–201 works, 75 Index 425

for fictional elements in nonfiction works, information that is common property, 57 273 laws and court decisions, 50–54 for fictional or humorous maps, 212 overview, 41 for films, 175–178 Copyright renewals, 381–401 limitations on, 23–24 automation of, 330 limited (thin) protection, 57–58, 110–111, documenting results of search, 16 225, 239–241 failure to file, 277, 376 for maps, 211 notice of, 331 originality aspect of, 21–22, 75, 108, post-1923 through 1963 publication, 144–149, 157–158 382–384 overview, 326–327 registration with Copyright Office, 191, for private publishers, 50–54 329–330, 399–401 requirements for, 21–22 of works published 1923–1963 in the See also Copyright terms; Minimal U.S., 329–330 creativity aspect of copyright protection; of works published 1964–1977 in the Restored copyrights; entries beginning U.S., 330 with “Post-” or “Pre-” of works published after 1977 in the U.S., Copyright protection for art 332 art for advertising or on merchandise, See also Restored copyrights 140–141, 150 Copyright renewal searches artistic ideas, styles, and techniques, in Copyright Office records, 170, 174–175, 132–133 180, 330 choreography, 215–219 hiring an expert, 386–389 copyright notice requirements, 360 overview, 389–393 created by U.S. government employees, and republished works, 386 138–139 for works published 1923–1963, 382–384 design patents and, 141–142 for works published 1950–1963, 393–394 fabric designs and cloth, 136–137 See also Catalog of Copyright Entries fictional or humorous maps, 212 Copyright Resources, 389 font designs, 137, 138, 291, 311 Copyrights restored from the public font software, 137, 311 domain. See Restored copyrights jewelry and other applied art, 135–136 Copyright status determinations lacking minimal creativity, 132, 136 for art, 126–131, 143 registration with Copyright Office, 130 for art reproductions, 143–146 useful articles, 133–135 cheat sheet for, 327 visual art, 177–178, 181–182 for choreography, 216–219 works lacking human authorship, 133 for collected materials, 238–242 Copyright protection for written works for computer software, 189–190 blank forms, 55–57 for databases, 227–234 cookbook selection and layout, 57–58, 59 documenting your research, 15–16 copies of public domain works, 41–42 for films, 166–175, 168–172, 174–177 maps, 209–213 426 The Public Domain

and omission of copyright notice, of restored copyright works, 277, 357–362 278–279 for photographs, 152–162 of written works, 67 for photographs of public domain art, See also Copyright status determinations; 146–148 entries beginning with “Foreign” sheet music, 91–96 Court decisions, 48, 50–54, 310 for TV programs, 179–182 Crash Test Dummies of U.S. government, written works, 38–41, 62, 66–68 139 See also Copyright notices; Country of Creation of copyright, 22–23 publication; Date of publication; Internet Creative Commons, 60, 314–315 research; Public domain elements in Creativity copyrighted writings; Published works of art reproductions, 144–149 Copyright symbol, 348 creative commons, 60, 314–315 Copyright Term Extension Act (1998), 329, of databases, 227–229 342–343 of derivative works, 68–71 Copyright terms ideas for creating works, 256 Canada, 119, 281, 291, 297–299, 304 originality aspect of copyright protection, chart for works first published in the U.S., 21–22 328 in presentation of data, 56 China’s, 299–300 uses of public domain works, 6–8, 9 in country of publication, 281 See also Minimal creativity aspect of in Europe and the European Union, 171, copyright protection 281, 291, 293–297, 323, 385 Credit for quotations. See Attribution foreign public domains, 290–291 Czech Republic, 292, 304. See also Europe Japan’s, 300 and European Union for unpublished works, 327, 332–337 for works first published in the U.S., 328–332 D Da Capo Catalog of Classical Music for works first published outside the U.S., Compositions, The (Chwialkowski), 94 337–341 Databases, 221–237 Corbis, 317 collection of Web hyperlinks, 322 Corel Corp., 12, 146–148 copyright expiration, 232–233 Corporation for Public Broadcasting, 49 copyright notice or lack of, 233–234 Country of publication copyright protection for, 80, 225–226 architectural plans, 199 creativity of, 227–229 of art, 129–130 encryption of, 237 copyright terms in, 281 licensing agreements, 234–235 of films, 166, 167–168 overview, 223–225 of music, 96 Standard Reference Data Program, 49 overview, 62 as trade secrets, 236–237 of photographs, 154, 155–156 on websites, 310 Index 427

Date of publication as public domain when original is not, architectural plans, 199–199 77–78 of art, 129–130 types of, 69–71 of films, 166, 167–168 of works dedicated to the public domain, overview, 62, 331, 348–349 314 of photographs, 154–155 See also Collective works; Musical of sheet music, 92, 93–96 derivative works; Written derivative of writings, 62, 66–67 works See also Copyright status determinations; Design patents entries beginning with “Post-” or “Pre-” for architecture, 206 Dead people’s right of publicity, 371 for art, 141–142 Dedications. See Works dedicated to the overview, 19 public domain for typefaces, 138 Defenses to charges of copyright Digital copies or reproductions infringement, 132, 188, 335, 407, 413 of art, 148–149 Definitive (scholarly) editions, 73–74, 408, copyright claims in, 316–317 410 copyright protection of original work, 75 De minimis compilations, 229, 241–242 of court decisions, 51–52 Derivative works Google’s plans for, 66 abridgements, 71, 98 of photographs, 158 annotations, 71, 73, 78, 392 of public domain writings, 74–76, 311–312 art reproductions, 145, 150 of sound recordings, 118 attribution in, 35, 257, 314, 376–377, 411, of written works, 36 414–415 Digital photographs, 149 avoiding problems, 78–80, 100, 109 Digital works, using sheet music for, 89 collections of public domain works, Dilution of trademarks, 248–249 238–243 Directory of Public Domain Music copyright notice requirements, 350, 356 (Katzmarek Publishing), 95 copyright protection for, 69, 71–72, Discovery, likelihood of, 12–13 78–80, 98–99, 102–108 Distinctive characters in fictional works, 267 creativity of, 68–71 Documenting research, 15–16 digital copies of public domain writings, Dover Publications, 26 74–76 D’Oyly Carte Operation Co., 7 fiction writings, 264–266, 268 Dramatic works or plays, 36–37, 61, 70, made from restored copyright works, 283 77–78, 173 maps, 211–213 Duty of confidentiality, 237, 259–260 overview, 38, 68–69 Dynamic marking of public domain musical photographs as, 159 works, 107 public domain titles on, 251 428 The Public Domain

E Exclusive rights Economic effect of fair use, 413, 414, 415, Bridgeman lawsuit over, 12, 146 416, 417 fair use privilege vs., 407–408 Economic incentive as monopoly on use of copyrighted from copyright laws, 6, 407–408 works, 69, 98, 124, 159, 200–201, 216 for spurious copyright claims, 25, 100 overview, 4, 20 Economic value of works, 12, 13–14, 24–25, restored works and, 282, 287 384, 405. See also Copyright permission Experts fees for copyright renewal searches, 386–389 Editorial revisions and elaborations, 70, on originality of musical arrangement, 73–74, 78, 105. See also Derivative works 108 Editorial use See also Attorneys of personal identities, 161, 368 Expiration. See Copyright expiration of titles, 248 of trademarks, 161, 253, 376–377, 377 F Educational use Fabric designs and cloth, 136–137 of copyrighted music, 87, 88 Facts of trademarks, 366, 375, 377 biographers and, 261, 262–263 Effect of fair use on the market, 413, 414, geographic or topographic features as, 415, 416, 417 213 Eldred, Eric, 15, 312, 342 in hot news, 262 Eldritch Press, 312 no copyright protection for, 24, 56, 58, Elements. See entries beginning with “Public 225–226 domain elements” nonfiction writings, 268–272, 273–274 Emblems of the U.S. government, 139, 159 opinions vs., 226 Encryption of databases, 237 plagiarism of, 35 Encyclopaedia Britannica, 335 as public domain elements in copyright Enigma coding machine, 237 writings, 261–264 Entertainment-based use of an individual’s as unprotected elements in works of personal identity, 368 facts, 268–274 Europe and European Union See also Databases copyright terms, 171, 281, 293–297, 323, Fair dealing privileges, 407 385 Fair use privilege, 407–417 databases, 291 analyzing your use, 413–415, 416 film copyrights, 171, 172 factors to consider, 408–413, 416 and moral rights, 291–292 limited or no privileges outside the U.S., overview, 293, 296–297 407 and rule of the shorter term, 291 and news organizations, 270 and sound recording copyrights, 116, overview, 24, 34–35, 407–408 119, 295 parody aspect of, 415–417 See also specific countries sound recordings on the Internet vs., 118 Index 429

Federal government. See U.S. government Food and drink recipes, 57–58, 59, 311 Fictional characters as trademarks, 373 Footage: The Worldwide Moving Image Fictional elements in nonfiction writings, Sourcebook (Kadish), 182 273 Foreign and/or U.S. copyrights Fictional “facts,” 261–262 architecture, 196 Fictionalizations, 70 art, 123, 129 Fictional maps, 212 and British film titles, 168 Fiction writings, 257, 264–268 choreography, 216 Filmed Books and Plays (Enser), 174 for databases or collections, 223, 231 Film preservation, 169 films and TV programs, 165, 171–172, Films, 163–178 175, 180 for advertising or other commercial Internet-based issues, 322–324 purposes, 178 sheet music, 85, 95 based on preexisting works, 172, 174 sound recordings, 116, 117–119 Canada’s copyright terms, 298 U.S. government materials in foreign China’s copyright terms, 299 countries, 42, 43, 231 copyright expiration, 168–175 See also Restored copyrights copyright notice or lack of, 175 Foreign copyright durations copyright protection, 175–178 in Australia, 292, 295, 305, 385, 407 copyright protection for fictional “facts,” in Canada, 295, 297–299 261–262 in China, 299–300 copyright status determination, 168–172, in European Union, 293–297 174–177 for films, 171, 172 copyright status of music, 174–175 in Japan, 171, 292, 300–301, 322 Japan’s copyright terms, 300 in New Zealand, 295, 407 original work in public domain while film overview, 337–341, 384–385 is not, 77–78 in Russia, 301 publication of, 166–168 Foreign films, 171–172 in public domain, 166, 169–170, 171, 183 Foreign government works, 48 and right of publicity, 370, 375 Foreign public domains title registration, 250 copyright duration in foreign countries, trademarks in, 374 293–301 Film Superlist (Minus and Hale), 169, 170 copyright laws, 291 Fingering suggestions for public domain copyright terms, 290–291 works, 106–107 moral rights, 291–292 First Amendment of the Constitution, 253, overview, 290 366, 368, 377 public domain in U.S. but copyright Fixation aspect of copyright protection, 21 abroad, 292–293 Fixed choreography, 216–217 researching foreign copyright laws, Font software programs, 137, 311 304–305 Fonts (typefaces), 137, 138, 291, 311 rule of the shorter term, 302–304 430 The Public Domain

Forms, blank, 55–57, 76, 311 GPL (General Public License), 189 Founders’ Copyright, 60, 314 Graphic works, architectural plans as, France, 292, 296. See also Europe and 200–201 European Union Grassroots protection movement, 29 Fraternal events with of copyrighted music, Gray areas 87 blank forms, 57 Fraternity events with of copyrighted music, copyright for changes to public domain 87 works, 72 Freedom of Information Act, 47 copyright protection for musical Free ideas. See Sources of public domain arrangements, 99, 103 works digital copies of public domain Free shows of copyrighted music, 87 photographs, 158 Freeware, 189, 194 downloading digital copies of written works, 76 fair use privilege, 407 G lack of copyright notice, 347 Genealogies, 229 legal protection for quotations, 272 General public, published works distributed license restrictions, 52 to, 60–61, 127–129, 166–167. See also and maps, 211 Published works made available to the merger doctrine issues, 264 general public municipal code, 12–13 General Public License (GPL), 189 music in public domain films, 175 Generic words and symbols, 54–55, 374, overview, 11–12 378 photograph copyright issues, 148 Geographic features on maps, 213 Great Britain. See United Kingdom Germany, 292, 296–297, 303, 340. See also Great Song Thesaurus, The (Lax and Smith), Europe and European Union 94 Gilbert and Sullivan operettas, 7 Greece, 292. See also Europe and European Google, 66 Union Government Liaison Services, Inc., 389 Guggenheim Museum of Modern Art Governments (Bilbao, Spain), 204 Canadian copyright for government publications, 48, 231, 298–299 foreign government works, 48 H local, 48, 53–54, 210, 232, 310 Halliwell’s Film and Video Guide quasi-governmental organizations’ works, (HarperReference), 167 48–49, 139, 159 Hamilton, Ian, 34, 411, 413 United Kingdom copyright for Harmony additions to public domain government publications, 48, 231 works, 106 See also Foreign and/or U.S. copyrights; Hellmuth, Claudine, 123 State governments; entries beginning Hong Kong, 292 with “U.S. government” HTML coding on websites, 75, 309 Index 431

Human authorship criteria for copyright, International standard book number (ISBN), 133 64 Humorous maps, 212 International standard serial number (ISSN), Hungary, 292, 304. See also Europe and 64 European Union International trade agreement (GATT), 276. Hypertext links, 321–322 See also Restored copyrights Internet click-wrap license agreements, 26, 27, 319 I composers who have borrowed from Ideas preexisting works, 90 artistic, 132–133 Creative Commons, 60, 314–315 copyright protection for expression of, domain names, 322 113, 256, 265 downloading material from, 75, 118, 309, no copyright protection for, 24, 56, 58 320 plagiarism of, 35 See also Internet research; Licensing as public domain elements in copyright agreements writings, 256, 258 Internet and the public domain, 307–324 Identification of titles, 246–247, 250–251 avoiding problems, 308–309, 316–321 Independent contractors of the U.S. and global nature of Internet, 322–324 government, 45–46, 48, 53–54, 176, 190 and hyperlinks, 321–322 India, 292 licensing agreements on websites, Indiana University School of Music, 89–90 319–321 Individual’s rights. See Right of publicity no copyright protection, 310–311 Industrial films, 165 overview, 308–309, 309–310 Ineligible works works dedicated to the public domain, of art, 132–133 312–316 overview, 24, 41 works in the public domain before photographs, 157–159 Internet, 311–312 pre- or post-1923 sheet music, 101, See also Sources of public domain works 117–118 Internet domain names, 322 See also Copyright notice, lack of Internet research Informational use for architectural plans, 198 of personal identities, 161, 366, 368–369 for art, 130 of trademarks, 161, 253, 366, 375, for composers, 96 376–377 Eldritch Press, 312 Information Architects (Wurman), 227 of foreign copyright laws, 304–305 Infringement. See Copyright infringement Internet Movie Database, 167, 174, 279 Insignias of the U.S. government, 139, 159 Internet Public Library, 279 Intellectual commons concept, 6–7 for photographers, 155 International Copyright Protection (Geller), for publication information on foreign 304 works, 279 432 The Public Domain

of silent films, 168 Legislative shrinking of the public domain, U.S. government web portal, 230 28 for writings, 67 Libraries Interpretations, no copyright protection for, for CCE research, 395–396 269 Internet Public Library, 279 ISBN (international standard book number), music libraries, 115 64 National Library of Medicine, 231 Israel, 292, 304 Patent and Trademark Depository ISSN (international standard serial number), Libraries, 373 64 Stanford University Library, 395 Italy, 291, 292, 294, 296, 304. See also Universal Library Project, 395 Europe and European Union Library of Congress (LOC) It’s a Wonderful Life (film), 173 catalog numbers, 63–64 and copyrighted works between 1802 and 1909, 351 J as source of public domain films and Japan, 171, 292, 300–301, 322 sound recordings, 183 Jewelry and other applied art, 135–136 as source of public domain maps, 213 Jurisline.com, Matthew Bender v., 27–28, as source of public domain photographs, 52, 243 162 as source of public domain sheet music, K 115 Keyboard reductions of public domain See also U.S. Copyright Office works, 105–106 Library of Congress card catalogue (online Kuntz, Tom, 78–79 or in person) Kurt Weill Foundation, 7 for architectural plan publication information, 198 for art publication information, 130 L for country where work was first Lack of copyright notice. See Copyright published, 278 notice, lack of for photograph publication information, Language translations, 71, 81, 98 155 Laws for sheet music publication information, anticounterfeiting rules, 50 92, 96 in public domain, 48, 50, 310 as source of public domain writings, 82 See also Copyright laws; Protection other unique number for each work, 63–64 than copyright for writings publication information, 62, Lawyers. See Attorneys 64–65, 278 Legal enforceability of licenses, 27–28, 52, Licenses of the U.S. government, 46 147, 234–235 Licensing agreements Legal publishers, 51–52 and breach of contract laws, 26–28, 52, Legislative shrinking of public domain, 28 243, 258 Index 433

for collections, 243 derivative works, 211–213 for computer software, 188–189, 193 overview, 208 for continued use of restored works, 283 in public domain, 208, 213 of copyright owners, with publishers, Market value of works, 12, 13–14, 24–25, 357–359 384, 405. See also Copyright protection for databases, 232, 234–235 Mark Twain Foundation, 334 dedicated to the public domain vs., 58, Matthew Bender v. Jurisline.com, 27–28, 52, 149, 313 243 legal enforceability of, 27–28, 52, 147, Mechanical activities 234–235 alphabetizing lists, 227 for museum-owned art usage, 126, 147 for art reproductions, 145 nonexclusive licenses, 313, 316 compilations as, 111 open source licenses, 189 photocopying photographs, 158 overview, 51–52, 321 transposing music, 105 restrictive licenses, 26–28, 320–321 See also Copies of copyrighted works; synchronization or videogram licenses, 89 Copies of public domain works; Digital for typefaces, 138 copies or reproductions on websites, 319–321 Mechanical aspects of applied art works, Limited copyright protection, 57–58, 59, 136 110–111, 225, 239–241. See also Derivative Mechanical royalties, 86, 88 works Medium of expression for choreography, Limited copyright protection for databases, 216–217 225–226 Medium translations, 70, 145. See also Limited distribution, 61–62, 129, 166 Derivative works Literary devices in fictional works, 268 Melodies, short and simple, 113–114 Lithographs of original art, 144–146 Membership lists, 228 LOC. See Library of Congress Merchandise, 140–141, 150, 252–253 Local governments, 48, 53–54, 210, 232, 310 Merger doctrine, 56–57, 261, 262–264 Logos as trademarks, 372 Methods of operation Logos of the U.S. government, 139, 159 no copyright protection for, 145, 256, 258 Longfellow, Henry Wadsworth, 264 patent protection for, 260 Looting of the public domain, 24–25 trade secret protection for, 259 Mezzotint engravings of original art, 144–146 M Microfilms of public domain writings, 76–77 Mailing lists, 228 “Midnight Ride of Paul Revere, The” Maps, 207–213 (Longfellow), 264 copyrighted works, 208 Mini-Encyclopedia of Public Domain Songs, copyright expiration, 209 The (Zimmerman), 95 copyright notice or lack of, 209–210 Minimal creativity aspect of copyright copyright protection for, 211 protection created by U.S. government, 210 for artwork, 132, 136 434 The Public Domain

for collections, 110–111, 238, 241 avoiding problems, 109 for databases, 227–229 copyrightability of, 103–109 digital copy vs., 75 copyright claimed on, 101–102 for films, 176–177 copyright protection for, 98–99 for hypertext link lists, 322 determining changes to original public for maps, 211 domain work, 102–103 opinion aspect of minimal creativity, 111, getting paid for, 109 228, 241, 318–319 in public domain, 101 overview, 22 public domain works, 101 and public domain elements in writings, Musical derivative works 263 adaptations vs. arrangements, 99–100 for sheet music, 103–108 adapting sheet music, 89–90 for websites, 318–319 avoiding problems, 100, 109 See also Originality aspect of copyright changes not entitled to copyright protection protection, 103–108 Mistake, use of copyrighted works as a, collective works, 100, 103, 110–112 361, 362–363 copyright protection for, 98–99 Model codes, 12–13, 53–54 elements of public domain works in, 98, Money saving examples, 9 112–114 Motion Picture Association of America overview, 97–98 (MPAA), 250 preexisting work in the public domain, Movies. See Films 98 Music as sheet music, 83–119 See also Musical arrangements adapting sheet music, 89–90 Music in the Public Domain (Hazen), 94 compositions vs. recordings of Music libraries, 115 performances, 116 Music publishers, 100 copyright expiration of, 96–97 Music reference works, 92, 93–96 copyright status of music in films, Music-related biographies, 93–94 174–175 in digital works, 89 forms and structures, 114 N Names, trademark protection for, 55 not published by pre-1978 recordings, 91 Napster, 118 public domain sheet music, 86–90 NASA public domain software, 190 publicly performing sheet music, 86 National Archives and Records published sheet music, 90–96 Administration (NARA), 153, 182, 200 recording sheet music, 86 National Endowment for the Humanities, reproducing sheet music, 88 312 sound recordings vs., 85 National Gallery of Art, 139, 159 See also Musical derivative works; Sound National Library of Medicine (NLM), 231 recordings National Security Agency, 47 Musical arrangements National Technical Information Service adaptations vs., 99–100 (NTIS), 231 Index 435

National Technology Transfer Center, 191 O National Weather Service, 190 On-Line Books Page, 321, 395 Nature photographs, 159 Open Content Alliance (OCA), 66 Netherlands, 292, 302. See also Europe and Open content licenses, 314 European Union Open source software, 189 New arrangements of public domain songs, Opinion aspect of minimal creativity, 111, 110 228, 241, 318–319 New editions of public domain works, Opinions vs. facts, 226 73–74, 77, 105, 350 O’Reilly & Associates, 60 Newsreels, 168, 176 Organization of material in nonfiction New works. See Derivative works; Public writings, 273–274 domain elements in new works Originality aspect of copyright protection, New York Times, 224 21–22, 75, 108, 144–149, 157–158. See New Zealand, 295, 407 also Minimal creativity aspect of copyright NIE (Notice of Intent to Enforce a protection Copyright), 282–285, 286–287 Original works Ninth Judicial Circuit rules for works access to, 125–126 published outside the U.S., 339–341 adding something new to claim Nitrate Won’t Wait (Slide), 169 copyright, 25 NLM (National Library of Medicine), 231 architectural plans, 200 Noncommercial uses copyright laws for fostering, 6 commercial uses vs., 161, 178, 182 films based on preexisting works, 172, and federal trademark dilution law, 173, 174 248–249 photographs as, 157 of trademarks, 161, 178, 182, 248–249 See also Copyright owners of works dedicated to the public domain, Orphan works, 405 314, 315 “Out of print” vs. copyright expiration, 329, of works with right of publicity, 161, 178, 412 182 Owner of physical substance of public Nondisclosure agreements, 237, 260 domain work, 10–11, 125–126 Nonexclusive licensing agreements, 313, Owners. See Copyright owners; Protection 316 other than copyright Nonfiction writings, 268–272, 273–274 Oxford Anthology of English Literature, The Nonprofit performances of copyrighted (Oxford University Press), 81 music, 87 Oxford Companion to Popular Music Notice of Intent to Enforce a Copyright (Gammond), 94 (NIE) Restored Under the Uruguay Round Agreements Act (URAA), 282–285, 286–287 Novel ideas, 258 P NTIS (National Technical Information Parade’s Gone By, The (Brownlow), 168 Service), 231 Parodies, 415–417 Parts lists, 228 436 The Public Domain

Patent and Trademark Depository Libraries, Place names, 212 373 Plagiarism, 35, 257, 414–415. See also Patent notices, 141 Attribution Patent research, 142 Plath, Sylvia, 34 Patents (federal laws) Plays or dramatic works, 36–37, 61, 70, for computer software, 193 77–78, 173 design patents, 19, 138, 141–142, 206 Plots of fictional works, 265 overview, 260 Poland, 292, 304. See also Europe and for recipes, 59 European Union for useful articles, 135 Popular Music, 1900–1919 (Cohen- See also U.S. Patent and Trademark Office Stratyner), 95 Penfield Press, 34 Popular Music (Adrian Press), 96 Performance royalties, 86 Post-1802 through 1909 copyright notices, Performing public domain writings in 351 public, 36–37 Post-1909 through 1978 multiple copyright Permission agreements, 406–407 terms, 382–383 Permission fees, 8, 9, 24, 86, 109, 406. See Post-1923 through 1950 copyright renewals, also Copyright permissions 386, 394–398 “Personal use” of Internet content, 320 Post-1923 through 1963 publication Phone books, 227, 228 art, 129 Photoengravings of original art, 144–146 copyright renewals, 329–330, 382–384 Photographs, 151–162 films, 169–172, 174 of buildings, 160, 204–205 foreign sound recordings, 117 Canada’s copyright terms, 297–298 maps, 209 China’s copyright terms, 299 overview, 327, 329–330, 331, 347 of copyrighted works, 159–161 photographs, 148 Japan’s copyright terms, 300 and rule of the shorter term, 302 lawsuits on use of, 12, 76 TV programs, 179 microfilms of public domain writings, works published outside the U.S., 338 76–77 See also Restored copyrights of original works of art, 148 Post-1950 through 1963 copyright renewals, in public domain, 152, 162 332–333, 393–394 of public domain art, 146–148 Post-1963 publication as published works, 152, 154–156 architectural plans, 199 and right of publicity, 370, 375 art, 130 trademarks in, 374 photographs, 156 of useful articles, 134 TV programs, 179 on websites, 316 Post-1963 through 1977 publication, 330, Physically separable features of useful 338 objects, 134 Post-1972 (Feb. 15) through 1978 Pictorial works, architectural plans as, publication of sound recordings, 117, 200–201 355 Index 437

Post-1977 publication Pre-1963 publication of photographs, 156 and art on display with copying allowed, Pre-1964 publication of computer software, 129 191 and art reproductions, 144 Pre-1972 (Feb. 15) publication of sound copyright creation and protection, 23 recordings, 116, 355 copyright notice requirements, 349, Pre-1978 publication 358–359 and art on display with copying allowed, copyright protection for, 331–332 128 in foreign countries, 341 and art reproductions, 144 and postage stamps, 138–139 copyright creation and protection, 22–23 on publication of musical works, 91 copyright notice requirements, 349, 352 sound recordings, 117 and films, 174 Post-1977 through 1989 publication with lack of copyright notice due to human lack of copyright notice due to human error, 360–361 error, 361–362 on publication of musical works, 91 Post-1977 through 2003 publication of two-tier copyright system in U.S., 20 previously unpublished works, 332–333 and unpublished works, 332–333, 337 Post-1989 (March 1) copyright notice laws and works published outside the U.S., for art reproductions, 144 337–339 for films, 175 Pre-1989 (March 1) copyright notice laws overview, 23, 353–354 for art, 360 for sheet music, 97 for choreography, 218 for sound recordings, 117 for collections, 242 for writings, 67 for computer software, 192 Post-1990 (Dec. 1) copyright protection for overview, 23, 346–347 buildings, 201, 203–205 for photographs, 148 Post-1996 copyright protection for foreign for sheet music, 97 works. See Restored copyrights for TV programs, 181 Post-2002 copyright expiration for Pre-1990 (Dec. 1) publication of unpublished works, 327, 333–335 architectural plans, 196, 202–203 Postage stamps, 138–139 Private copyright search firms, 387, 389 Posthumous works, 299 Privity limitation of database licenses, 235 Pre-1922 publication, 331 ProCD v. Zeidenberg, 27 Pre-1923 publication and copyright status Processes (techniques) for art, 129 for art production, 132–133 for films published in the U.S., 168–169 no copyright protection for, 145, 256, 258 for foreign works, 119, 327 trade secret protection for, 259 overview, 327, 328–329 Product configuration trademarks, 373 for published sheet music, 101, 117 Product names or packaging as trademarks, and rule of the shorter term, 302 374–375 works published outside the U.S., 338 Protection of copyright. See Copyright protection 438 The Public Domain

Protection other than copyright quotations, 57, 270–272 for characters in writings or cartoons, 266 on websites, 308–309 computer software, 193 See also Facts; Ideas; Minimal creativity for databases, 243 aspect of copyright protection trade secrecy laws, 19, 193, 236–237, Public domain elements in new works 259–260, 261 art reproductions, 150 unfair competition laws, 246, 247, claiming copyright, 25 251–253, 262, 371 and copyright notice, 74, 81 for works of authorship, 19 functionally-required parts of buildings, See also Licensing agreements; Patents; 203 Right of publicity; Trademarks maps, 211–213 Pseudonymous authors, 299, 300, 331, 336 overview, 38, 80–82 PTO. See U.S. Patent and Trademark Office See also Derivative works Public access vs. public domain, 47 Public Domain Music Bible, Vols. 1 & 2 Public confusion, 247–248, 252 (Johnson, ed.), 95 Public domain Public Domain Music Song List, 94 copyright expiration cheat sheet, 327 Public Domain Research Corp, 389 and Copyright Term Extension Act (1998), Publicity releases, 371–372 329, 342–343 Public performances definition of, 4, 5 of plays or dramatic works, 36–37, 61, 70, grassroots protection movement, 29 77–78, 173 public access vs., 47 of sheet music, 86, 91 reasons for, 6 of writings, 36–37 See also Sources of public domain works Published works Public Domain (Alvin), 88 architectural plans, 197–199 Public domain claims. See Copyright claims art, original works of, 126–130 Public domain dedications. See Works art reproductions, 143 dedicated to the public domain choreography, 217 Public domain elements in copyrighted collections, 242 writings, 255–274 computer software, 191 facts as, 261–264, 268–274 databases, 233 fictional elements in nonfiction writings, films, 166–168 273 foreign titles with restored copyrights, fiction writings, 264–268 278–279 hot news, 262 licensee fails to include copyright notice, ideas as, 256, 258 357–358, 363 and merger doctrine, 56–57, 261, 262–264 maps, 209 music, 112–114 overview, 326 musical derivative works, 98, 112–114 photographs, 152, 154–156 nonfiction writings, 268–272, 273–274 republishing public domain works, overview, 256 33–34, 250–251, 386 Index 439

sheet music, 90–96, 101 Q sound recordings, 116–119, 355 Quasi-governmental organizations’ works, television programs, 179–180 48–49, 139, 159 writings, 58, 60–67 Quasi-official legal documents, 54 See also Copyright status determinations; Quotations, 57, 270–272. See also Published works made available to the Attribution general public; U.S. Copyright Office Quoting from copyrighted works registration; entries beginning with facts vs. opinions, 226 “Post-” or “Pre-” plagiarism, 35, 257, 414–415 Published works, criteria for by private publishers, 43, 410, 411 distributed to the general public, 60–61, scientific works, 412 127–129, 166–167 See also Attribution; Fair use privilege laws and court decisions published Quoting from out-of-print works, 412 privately, 50–51 Quoting from public domain works overview, 58, 60, 63–65 in musical arrangements, 89–90 See also Country of publication; Date of overview, 7, 34–35 publication plagiarism, 35, 257, 414–415 Published works distributed to the general See also Attribution public, 60–61, 127–129, 166–167 Published works made available to the general public R architectural plans, 197–198 RasMol molecular graphics software, 187, art, 127–129 188 art reproductions, 143 Recipes for food or drinks, 57–58, 59, 311 choreography, 217 Recleffing public domain musical works, computer software, 189, 191 105 databases, 233 Recording sheet music, 86. See also Sound films, 166 recordings maps, 209 Red Book, 54 open source software, 189 Reference & Bibliography section of U.S. photographs, 154 Copyright Office, 387, 388 sheet music, 90–91 Reference materials TV programs, 179, 181 for architectural plans, 198 writings, 61–62 for art, 130 Publishers biographical dictionaries, 66, 93, 278, 335 licensing or selling rights to, 357–360 biographies about famous people, 43, as source of copyright information, 67, 93–94, 256, 263–264 96, 155, 199, 279, 360 on foreign copyright laws, 304–305 Purpose and character of fair use, 408, for music, 92, 93–96 409–411, 414, 415, 417 for photographs, 155 440 The Public Domain

for publication information on foreign requirements for restoration, 277–280 works, 278 for sheet music, 95 for written works, 63–65, 66 for sound recordings, 117, 119 See also Libraries; Sources of public works not restored, 280–282 domain works See also Foreign and/or U.S. copyrights Registration Restrictive licenses, 26–28, 320–321. See also of movie titles, 250 Licensing agreements of trademarks, 140, 249, 252, 373, Rhythms, copyrightability of, 107 378–379 Right of publicity (state laws) See also U.S. Copyright Office registration for dancers and choreography, 218 Registration certificates, 399, 401 for dead people, 371 Regnery Publishing, Inc., 81 and editorial use of a personal identity, Reliance parties, 282–285 161, 368 Religious performances of copyrighted and films, 175, 178 music, 87 incidental use exception, 369 Renewals. See Copyright renewals informational use of a personal identity, Report on Orphan Works (U.S. Copyright 161, 366, 368–369 Office), 405 insignificant or fleeting use exception, Reproducing sheet music, 88. See also 370 entries beginning with “Copies of” limitations on, 367–370 Republishing public domain works, 33–34, noncommercial use of works with, 161, 250–251, 386 178, 182 Research obtaining publicity releases, 371–372 for author’s date of death, 335 overview, 19, 366–367 no copyright protection for, 269 and photographs, 161 for patents, 142 and sound recordings, 119 See also Copyright renewal searches; Robert C. Byrd National Technology Copyright status determinations; Transfer Center, 191 Reference materials; Sources of public Royalties, 86, 89, 109, 413 domain works Rule of the shorter term, 302–304 Restatement (Third) of Unfair Competition, Russia, 95, 276, 280, 301 371 Restored copyrights, 275–287 copyright infringement, 282–287 S Sales or offerings to a restricted group of country of publication, 277, 278–279 potential buyers, 127, 129 and exclusive rights, 282, 287 Salinger, J.D., 34, 411, 413 for films, 171, 175 Satires, 415–417 GATT Agreement, 276, 284–287 Sayle, Roger A., 187 overview, 276, 330 SBCCI (Southern Building Code Congress ownership of, 282 International, Inc.), 53–54 reliance parties, 282–285 Scène à faires, 266, 268 Index 441

Scholarly editions as derivative works, China’s copyright terms, 299 73–74, 408, 410 copyright notices for, 117 Screenplays, 173 copyright notice requirements, 348, 349, Screenwriters, free ideas for, 39–40 355 Sculpture, reproductions of, 144–146 European Union’s copyright terms, 116, Seals of the U.S. government, 139, 159 119, 295 Secondary meaning of titles, 246–247, Japan’s copyright terms, 300 250–251 overview, 115–119 Secret Garden, The (Burnett), 8 pre-1978 distribution of, 91 Selection of material, 228, 319. See also as published works, 116–119, 355 Derivative works; Minimal creativity aspect restored copyrights for foreign works, of copyright protection 117, 119 Semifree software, 189 sheet music vs., 85 Series titles, 249 source of public domain works, 183 Service marks (SM), 140, 373, 377, 378–379 U.S. government works, 119 Settings in fictional works, 265 Sources of public domain works Shareware, 189, 194 architecture plans, 202 Sheet music art reproductions, 150 in audiovisual works, 89 choreography, 219 collective works, 100, 103, 110–112 films and television programs, 182–183 in public domain, 86–90 maps, 213 published works, 90–96 On-Line Books Page, 321, 395 sources of, 114–115 original art, 142 Signs, symbols, and colors on maps, 212 overview, 9, 10 Silent films, 165, 168–169 photographs, 162 Simple melodies, 113–114 plays, 37 Simplified versions of public domain for screenwriters, 39–40 musical works, 108 sheet music, 114–115 Six Miniatures (Bartok), 112 writings, 82 Slogans and other short phrases, 54–55, 372 See also Reference materials Smithsonian Institution, 49, 139, 159 Southern Building Code Congress Smokey Bear emblem of U.S. government, International, Inc. (SBCCI), 53–54 139, 159 Soviet Union, 95, 276, 280, 301 SM (service marks), 140, 373, 377, 378–379 Spain, 204, 292, 304. See also Europe and Software. See Computer software European Union Song lists, 94 Spurious copyright claims, 25 Song titles, 114 Standard Reference Data Program of the Sonny Bono Copyright Term Extension Act Commerce Department, 49, 232 (1998), 329, 342–343 Standard situations in fictional works, 266, Sound recordings 268 Canada’s copyright terms, 295, 298 Stanford University Library, 395 442 The Public Domain

State governments overview, 163–164 antipiracy laws, 119 in public domain, 178–179 breach of contract laws, 26–28, 52, 243, series titles, 249 258 sources of public domain works, 182–183 common law copyright, 20 syndication of, 179–180 copyright claims of, 52, 116, 210, 310 Terms. See Copyright terms copyright laws, 20 Terms and Conditions links on websites, databases created by, 232 320 employees’ works, 48 Themes in fictional works, 264–265 protection for unfixed choreography, 217 Thin copyright protection, 110–111, 225, trade secrecy laws, 19, 193, 236–237, 239–241 259–260, 261 Thirty-Six Dramatic Situations, The (Polti), See also Right of publicity; Trademarks 265 Status determinations. See Copyright status Thomson & Thomson Copyright Research determinations Group, 387, 389 Steinberg, Saul, 212 Through the Eyes of Innocents (Werner), Stock characters in fictional works, 266 153 Street address directories, 227, 228 Time limit on copyrights. See Copyright Styles, artistic, 132–133 expiration Subscriber lists, 228 Titanic Disaster Hearings, The (Kuntz), Supreme Court. See U.S. Supreme Court 78–79 rulings Title availability searches, 247 Sweden, 292. See also Europe and Titles, 245–253 European Union avoiding problems, 250 Switzerland, 292, 303 copyrighted works, 246–250 Synchronization licenses, 89 disclaimers for reused titles, 252, 324 Syndication of television programs, 179–180 and First Amendment of the Constitution, 253 for merchandise and other products, T 252–253 Teaching from the public domain, 88 patent registration of series titles, 249 Technical data of the U.S. government, 49 public domain works, 250–251 Techniques. See Processes as trademarks, 372 Television programs, 178–183 TM. See Trademarks (federal and state laws) China’s copyright terms, 299 Topographic features on maps, 213 for commercial purposes, 182 Trade dress trademarks, 372–373 copyright expiration, 179–180 Trademark dilution, 248–249 copyright notice or lack of, 181 Trademark infringement, 377 copyright protection for fictional “facts,” Trademark notices, 140, 161, 378–379 261–262 Trademark research, 373–374, 378 copyright status determination, 179–182 Trademarks (federal and state laws) Japan’s copyright terms, 300 abandonment of, 377–378 Index 443

for brand names and logos, 137 Typefaces (fonts), 137, 138, 291, 311 for buildings serving as trademarks, 160, Typographic arrangement of books or 205–206 periodicals, 300 characters as, 375 for computer software, 193 for domain names, 322 U Unfair competition laws editorial use of, 161, 253, 376–377 and hot news, 262 educational use of, 366, 375, 377 Restatement (Third) of Unfair for font names, 138 Competition, 371 generic words or symbols as, 378 and titles, 246, 247, 251, 252, 253 informational use of, 161, 253, 366, 375, Unfixed choreography, 217 376–377 United Kingdom limits on protection with, 376–378 British Film Catalog 1895–1970 (Giford), noncommercial use of, 161, 178, 182, 168 248–249 copyright for government publications, overview, 19, 55, 140–141, 372–373, 376 48, 231 for photographs of trademarks, 161 copyright protection to topography, 291 product names or packaging as, 374–375 copyright terms, 291 and public domain works, 140–141, copyright website, 305 374–376 fair dealing privileges, 407 registration of, 140, 249, 252, 373, films from, 168 378–379 and moral rights, 292 and service marks, 140, 373, 377, 378–379 and rule of the shorter term, 303 for titles, 246–250 standard work on copyright law, 304 on trademarks shown in films, 177–178 U.S. works published simultaneously in, for useful articles, 135 281 words, names, slogans, and other short and U.S. antipiracy laws, 119 phrases, 54–55, 374 See also Europe and European Union Trade secrets protection (state laws) United Nations works, 48, 304 for facts, 261 United States rules for works published for ideas, 259 outside the U.S., 339–341 overview, 19, 236–237, 259–260 Universal Library Project, 395 for software, 193 Unpublished works trade secret laws, state, 236 copyright notice requirements, 353 Transformation to digital, 74–76. See also copyright term for, 327, 332–337 Digital copies or reproductions limited distribution, 61–62, 129, 166 Translations into a new language, 71, 81, 98 performed or displayed, but not Translations into a new medium, 70, 145. distributed, 61, 154 See also Derivative works registration of, 23, 64, 332, 337 Transposing public domain musical works, Uruguay Round Agreements Act (URAA), 105 286–287 444 The Public Domain

U.S. Army Signal Corps., 153, 158 See also Copyright renewal searches U.S. Copyright Office U.S. Department of Commerce National on blank form copyrightability, 55 Technical Information Service (NTIS), 231 card catalogue of, 395 U.S. Department of Commerce Standard on computer languages, 192 Reference Data Program, 232 on creativity of art, 132 U.S. Geological Survey, 190, 191, 208, 210 on databases that lack creativity, 228–229 U.S. government on de minimus collections, 229, 241–242 and copyright protection outside the U.S., on digitization of copyrightable works, 75 231 hiring personnel of, for searches, 387 independent contractors of, 45–46, 48, lists of restored copyright works, 280 53–54, 176, 190 and NIEs filed for restored copyright organization of, 44 privileges, 285 privacy and security restrictions, 47, 190, overview, 18, 20, 23 231–232 and public domain status of works, 10 quotations by employees, 271–272 Reference & Bibliography section, 387, web portal of, 230 388 U.S. government copyrighted works Report on Orphan Works, 405 art, 138–139 on unpublished works, 335, 337 computer software, 190–191 See also Catalog of Copyright Entries; currency, 139 Copyright renewals; Library of Congress databases, 230, 231 U.S. Copyright Office registration model codes, 53–54 of architectural plans, 198 overview, 43 of art, 130 postage stamps, 138–139 and CCE, 400, 401 seals, insignias, logos and emblems, 139, and copyright notice requirements, 363 159 of copyright renewals, 191, 329–330, Standard Reference Data Program, 49 399–401 U.S. government works in the public for country of first publication, 278 domain of films, 167–168, 174, 177 architectural plans, 200 of licensing agreements, 358 classified documents, 47, 310 for licensing information, 360 collections, 242 of musical arrangements, 102, 109 computer software, 190–191 overview, 23 created outside of official duties, 43, 45 of photographs, 155 databases, 229–230 registration certificates, 399, 401 editorial revision and elaboration of, research of, 392, 393, 399–401 78–79 of sheet music, 92, 96 films, 176, 177 of unpublished works, 23, 64, 332, 337 level of government and, 44 of U.S. government contractor’s works, 46 maps, 210 of writings, 62, 64, 74, 82 overview, 42–43 Index 445

photographs, 153, 158 V quasi-official legal documents, 54 Variety Music Cavalcade, 1620–1969 sound recordings, 119 (Mattfeld), 96 technical data, 49 Veeck, Peter, 53–54 television programs, 181 Veterans events with of copyrighted music, on websites, 310 87 U.S. music libraries, 115 Videogram licenses, 89 U.S. National Archives, 119 Videos and right of publicity, 370, 375 U.S. National Library of Medicine (NLM), Visual art, 177–178, 181–182 231 U.S. Patent and Trademark Office (USPTO) design patents for works of art, 141–142 W overview, 260 Wartime copyright extensions, 294, 296, for patent searches, 142 300–301 patent search for recipes, 59 Websites, HTML coding on, 75, 309. See registration and series titles, 249 also entries beginning with “Internet” registration of trademarks, 140, 249, 252, Werner, Emmy, 153 373, 378–379 Western United States rules for works See also Patents; Trademarks published outside the U.S., 339–341 U.S. Supreme Court rulings Who Wrote That Song? (Jacobs and Jacobs), on copying from public domain writings, 94 35 Woodsy Owl of U.S. government, 139 on copyright protection for forms, 56 Words, trademark protection for, 54–55, 374 on Copyright Term Extension Act, 342 Work involved criteria for fair use privilege, on databases, 225 411–412, 414, 416 on exhibitions and copyright status, 128 Work-made-for-hire agreements, 45, 331, on fair use, 408 332, 336 on lack of creativity in phone books, 227 Works dedicated to the public domain on parodies and fair use, 415 art, 139–140 on trademark rights in public domain art reproductions, 149 works, 376 attribution of, 314 on words as common property, 55 computer software, 186–188 Useful articles, copyright protection for, Creative Commons, 60, 314–315 133–135, 349 derivative works from, 314 USPTO. See U.S. Patent and Trademark documentation of, 16 Office font software programs, 137 Utilitarian aspects of applied art works, 136 and Internet, 312–316 Utilizing the public domain. See Sources of licensing agreements vs., 58, 149, 313 public domain works noncommercial uses of, 314, 315 overview, 58 public domain vs., 316 on websites, 312–316 446 The Public Domain

written works, 58, 60 copying, 36 Works not in the public domain copyright status determinations, 38–41, finding a different work, 404 62, 66–68 obtaining permission to use the work, creating new works from, 38, 80–82 404–407 dedicated to the public domain, 58, 60 utilizing fair use laws, 407–417 digital copies of, 74–76 See also Copyright owners; Copyright microfilms of, 76–77 protection overview, 33 Works published outside the U.S., 337–341, parodies and satires, 415–417 354–355 performing, 36–37 World Wide Web. See entries beginning publication status, 58, 60–62, 63–67 with “Internet” as public domain when original is not, Written derivative works, 68–80 77–78 avoiding problems, 78–80 quoting from, 34–35, 257, 414–415 changes not entitled to copyright registration of, 62, 64, 74, 82 protection, 72 republishing, 33–34, 250–251, 386 copyright protection for, 41–42, 71–72, series titles, 249 78–80 sources of, 82 digital copies of public domain works, trademarks in, 374 74–76 See also Copyright protection for written overview, 38, 68–69 works; Public domain elements in as public domain when original is not, copyrighted writings 77–78 Wurman, Richard Saul, 227 scholarly editions, 73–74, 408, 410 types of, 69–71 Written works, 31–82 Z Zeidenberg, ProCD v., 27 n blank forms, 55–57, 76, 311 C A T A L O G ...more from Nolo

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8 0 0 - 7 2 8 - 3 5 5 5 o r w w w . n o l o . c o m About the Author Stephen Fishman received his law degree from the University of Southern California in 1979. After stints in government and private practice, he ­became a full-time legal writer in 1983. He has helped write and edit over a dozen reference books for attorneys. He is also the author of Copyright Your Software; Legal Guide to Web & Software Development; Working for Yourself; and Hiring Independent Contractors: The Employer’s Legal Guide; all ­published by Nolo. He can be ­contacted at [email protected].