Public domain in the United States
Encyclopedia
Works are in the public domain if they are not covered by intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...

 rights, such as copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

, at all, or if the intellectual property rights to the works has expired.

Public domain in copyrighted works in the United States

Under the copyright law of the United States, copyright term
Copyright term
Copyright term is the length of time copyright subsists in a work before it passes into the public domain.- Length of copyright:Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work Copyright term is...

s, at most, end 120 years after publication in the United States, but they may end or have already ended sooner in certain situations. Although it is held under Feist v. Rural
Feist Publications v. Rural Telephone Service
Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 , commonly called Feist v. Rural, is an important United States Supreme Court case establishing that information alone without a minimum of original creativity cannot be protected by copyright...

that Congress does not have the power to re-copyright works that have fallen into the public domain, re-copyrighting has happened: "After World War I and after World War II, there were special amendments to the Copyright Act to permit for a limited time and under certain conditions the recapture of works that might have fallen into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...

, principally by aliens of countries with which we had been at war." Works published with notice of copyright or registered in unpublished form in the years 1964 through 1977 automatically had their copyrights renewed for a second term. Works published with notice of copyright or registered in unpublished form on or after January 1, 1923, and prior to January 1, 1964, had to be renewed during the 28th year of their first term of copyright to maintain copyright for a full 95-year term. With the exception of maps, music, and movies, the vast majority of works published in the United States before 1964 were never renewed for a second copyright term.

Works "prepared by an officer or employee of the U.S. government as part of that person's official duties" are automatically in the public domain by law. Examples include military
Military
A military is an organization authorized by its greater society to use lethal force, usually including use of weapons, in defending its country by combating actual or perceived threats. The military may have additional functions of use to its greater society, such as advancing a political agenda e.g...

 journalism
Journalism
Journalism is the practice of investigation and reporting of events, issues and trends to a broad audience in a timely fashion. Though there are many variations of journalism, the ideal is to inform the intended audience. Along with covering organizations and institutions such as government and...

, federal court opinions (but not necessarily state court opinions), congressional committee reports, and census
United States Census
The United States Census is a decennial census mandated by the United States Constitution. The population is enumerated every 10 years and the results are used to allocate Congressional seats , electoral votes, and government program funding. The United States Census Bureau The United States Census...

 data. However, works created by a contractor for the government are still subject to copyright. Even public domain documents may have their availability limited by laws limiting the spread of classified information
Classified information
Classified information is sensitive information to which access is restricted by law or regulation to particular groups of persons. A formal security clearance is required to handle classified documents or access classified data. The clearance process requires a satisfactory background investigation...

.

The claim that "pre-1923 works are in the public domain" is correct only for published works; unpublished works are under federal copyright for at least the life of the author plus 70 years. For a work made for hire, the copyright in a work created before 1978, but not theretofore in the public domain or registered for copyright, subsists from January 1, 1978, and endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first. If the work was created before 1978 but first published 1978–2002, the federal copyright will not expire before 2047.

Until the Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

 Implementation Act of 1988, the lack of a proper copyright notice would place an otherwise copyrightable work into the public domain, although for works published between January 1, 1978 and February 28, 1989, this could be prevented by registering the work with the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

 within five years of publication. After March 1, 1989, an author's copyright in a work begins when it is fixed in a tangible form; neither publication nor registration is required, and a lack of a copyright notice does not place the work into the public domain.

Sound recordings

Very few sound recordings are in the public domain in the United States. Sound recordings fixed in a tangible form before February 15, 1972, have been generally covered by common law or in some cases by anti-piracy statutes enacted in certain states, not by federal copyright law, and the anti-piracy statutes typically have no duration limit. The 1971 Sound Recordings Act, effective 1972, and the 1976 Copyright Act, effective 1978, provide federal copyright for unpublished and published sound recordings fixed on or after February 15, 1972. Recordings fixed before February 15, 1972, are still covered, to varying degrees, by common law or state statutes. Any rights or remedies under state law for sound recordings fixed before February 15, 1972, are not annulled or limited by the 1976 Copyright Act until February 15, 2067. On that date, all sound recordings fixed before February 15, 1972, will go into the public domain in the United States.

For sound recordings fixed on or after February 15, 1972, the earliest year that any will go out of copyright and into the public domain in the U.S. will be 2043, and not in any substantial number until 2048. Sound recordings fixed and published on or after February 15, 1972, and before 1978, which did not carry a proper copyright notice on the recording or its cover entered the public domain on publication. From 1978 to March 1, 1989 the owners of the copyrights had up to five years to remedy this omission without losing the copyright. Since March 1, 1989, no copyright notice has been required.

Examples

In the United States, the images of Frank Capra
Frank Capra
Frank Russell Capra was a Sicilian-born American film director. He emigrated to the U.S. when he was six, and eventually became a creative force behind major award-winning films during the 1930s and 1940s...

's film It's a Wonderful Life
It's a Wonderful Life
It's a Wonderful Life is a 1946 American Christmas drama film produced and directed by Frank Capra and based on the short story "The Greatest Gift" written by Philip Van Doren Stern....

(1946) entered into the public domain in 1974, because the copyright holder failed to file a renewal application with the Copyright Office during the 28th year after the film's release or publication. However in 1993, Republic Pictures utilized the 1990 United States Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

 ruling in Stewart v. Abend
Stewart v. Abend
Stewart v. Abend, 495 U.S. 207 , was an important United States Supreme Court decision which held that a copyright owner has the exclusive right to permit the creation and exploitation of derivative works, regardless of potentially conflicting agreements by prior copyright holders.-Facts:Cornell...

to enforce its claim of copyright because the film was a derivative work
Derivative work
In United States copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work .-Definition:...

 of a short story that was under a separate, existing copyright, to which Republic owned the film adaptation rights, effectively regaining control of the work in its complete form.

Charles Chaplin re-edited and scored his 1925 film The Gold Rush
The Gold Rush
The Gold Rush is a 1925 silent film comedy written, produced, directed by, and starring Charlie Chaplin in his Little Tramp role. The film also stars Georgia Hale, Mack Swain, Tom Murray, Henry Bergman, Malcolm Waite....

for reissue in 1942. Subsequently, the 1925 version fell into the public domain when Chaplin's company failed to renew its copyright in 1953, although the 1942 version is still under US copyright.

The distributor of the cult film Night of the Living Dead
Night of the Living Dead
Night of the Living Dead is a 1968 American independent black-and-white zombie film and cult film directed by George A. Romero, starring Duane Jones, Judith O'Dea and Karl Hardman. It premiered on October 1, 1968, and was completed on a USD$114,000 budget. After decades of cinematic re-releases, it...

, after changing the film's title at the last moment before release in 1968, failed to include a proper copyright notice in the new titles, thereby immediately putting the film into the public domain after its release. This provision of US copyright law was revised with the United States Copyright Act of 1976, which allowed such negligence to be remedied within five years of publication.

A number of TV series in America have lapsed into the public domain, in whole or only in the case of certain episodes, giving rise to wide distribution of some shows on DVD. Series that have only certain episodes in the public domain include Petticoat Junction
Petticoat Junction
Petticoat Junction is an American situation comedy produced by Filmways which originally aired on CBS from 1963 to 1970. The series is one of three interrelated shows about rural characters created by Paul Henning; the others are The Beverly Hillbillies and Green Acres.The setting for the series...

, The Beverly Hillbillies
The Beverly Hillbillies
The Beverly Hillbillies is an American situation comedy originally broadcast for nine seasons on CBS from 1962 to 1971, starring Buddy Ebsen, Irene Ryan, Donna Douglas, and Max Baer, Jr....

, The Dick Van Dyke Show
The Dick Van Dyke Show
The Dick Van Dyke Show is an American television sitcom that initially aired on the Columbia Broadcasting System from October 3, 1961, until June 1, 1966. The show was created by Carl Reiner and starred Dick Van Dyke and Mary Tyler Moore. It was produced by Reiner with Bill Persky and Sam Denoff....

, The Andy Griffith Show
The Andy Griffith Show
The Andy Griffith Show is an American sitcom first televised by CBS between October 3, 1960, and April 1, 1968. Andy Griffith portrays a widowed sheriff in the fictional small community of Mayberry, North Carolina...

, The Lucy Show
The Lucy Show
The Lucy Show is an American situation comedy that aired on CBS from 1962 until 1968. It was Lucille Ball's follow-up to I Love Lucy. A significant change in cast and premise for the 1965-66 season divides the program into two distinct eras; aside from Ball, only Gale Gordon, who joined the program...

, Bonanza
Bonanza
Bonanza is an American western television series that both ran on and was a production of NBC from September 12, 1959 to January 16, 1973. Lasting 14 seasons and 430 episodes, it ranks as the second longest running western series and still continues to air in syndication. It centers on the...

, and Annie Oakley
Annie Oakley (TV series)
Annie Oakley is an American Western television series which fictionalized the life of famous sharpshooter Annie Oakley. It ran from January 1954 to February 1957 in syndication. ABC showed reruns on Saturday and Sunday daytime from 1959–1960 and from 1964-1965...

, while Decoy
Decoy (TV series)
Decoy is a groundbreaking American crime drama television series which was created for syndication and initially broadcast from October 14, 1957 to July 7, 1958, lasting for thirty nine 30-minute black-and-white episodes...

is an example of a series that lies completely within the public domain.

Laws may make some types of works and inventions ineligible for monopoly; such works immediately enter the public domain upon publication. Many kinds of mental creations, such as publicized baseball statistics
Baseball statistics
Statistics play an important role in summarizing baseball performance and evaluating players in the sport.Since the flow of a baseball game has natural breaks to it, and normally players act individually rather than performing in clusters, the sport lends itself to easy record-keeping and statistics...

, are never covered by copyright. However, any special layout of baseball statistics
Baseball statistics
Statistics play an important role in summarizing baseball performance and evaluating players in the sport.Since the flow of a baseball game has natural breaks to it, and normally players act individually rather than performing in clusters, the sport lends itself to easy record-keeping and statistics...

, or the like, would be covered by copyright law. For example, while a phone book
Telephone directory
A telephone directory is a listing of telephone subscribers in a geographical area or subscribers to services provided by the organization that publishes the directory...

 is not covered by copyright law, any special method of laying out the information would be.

Copyright notice

In the past, in some jurisdictions such as the USA
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...

, a work would enter the public domain with respect to copyright if it was released without a copyright notice. This was true prior to March 1, 1989 (according to the USA Copyright office), but is no longer the case. Any work (of certain, enumerated types) receives copyright as soon as it is fixed in a tangible medium.

Computer Software Rental Amendments Act

There are several references to putting copyrighted work into the public domain. The first reference is actually in a statute passed by Congress, in the Computer Software Rental Amendments Act of 1990 (Public Law 101–650, 104 Stat. 5089 (1990)). Although most of the Act was codified into Title 17 of the U.S. Code, there is a very interesting provision relating to "public domain shareware" which was not, and is therefore often overlooked.
Sec. 805. Recordation of Shareware
(a) IN GENERAL— The Register of Copyrights is authorized, upon receipt of any document designated as pertaining to computer shareware and the fee prescribed by section 708 of title 17, United States Code, to record the document and return it with a certificate of recordation.
(b) MAINTENANCE OF RECORDS; PUBLICATION OF INFORMATION— The Register of Copyrights is authorized to maintain current, separate records relating to the recordation of documents under subsection (a), and to compile and publish at periodic intervals information relating to such recordations. Such publications shall be offered for sale to the public at prices based on the cost of reproduction and distribution.
(c) DEPOSIT OF COPIES IN LIBRARY OF CONGRESS— In the case of public domain computer shareware, at the election of the person recording a document under subsection (a), 2 complete copies of the best edition (as defined in section 101 of title 17, United States Code) of the computer shareware as embodied in machine-readable form may be deposited for the benefit of the Machine-Readable Collections Reading Room of the Library of Congress.
(d) REGULATIONS— The Register of Copyrights is authorized to establish regulations not inconsistent with law for the administration of the functions of the Register under this section. All regulations established by the Register are subject to the approval of the Librarian of Congress.


One purpose of this legislation appears to be to allow "public domain shareware" to be filed at the Library of Congress
Library of Congress
The Library of Congress is the research library of the United States Congress, de facto national library of the United States, and the oldest federal cultural institution in the United States. Located in three buildings in Washington, D.C., it is the largest library in the world by shelf space and...

, presumably so that the shareware would be more widely disseminated. Therefore, one way to release computer software into the public domain might be to make the filing and pay the $20 fee. This could have the effect of "certifying" that the author intended to release the software into the public domain. It does not seem that registration is necessary to release the software into the public domain, because the law does not state that public domain status is conferred by registration. Judicial rulings supports this conclusion, see below.

By comparing paragraph (a) and (c), one can see that Congress distinguishes "public domain" shareware as a special kind of shareware. Because this law was passed after the Berne Convention Implementation Act of 1988, Congress was well aware that newly-created computer programs (two years worth, since the Berne Act was passed) would automatically have copyright attached. Therefore, one reasonable inference is that Congress intended that authors of shareware would have the power to release their programs into the public domain. This interpretation is followed by the Copyright Office in 37 C.F.R. § 201.26.

Berne Convention Implementation Act

The Berne Convention Implementation Act of 1988 states in section twelve that the Act "does not provide copyright protection for any work that is in the public domain." The congressional committee report explains that this means simply that the Act does not apply retroactively.

Although the only part of the act that does mention "public domain" does not speak to whether authors have the right to dedicate their work to the public domain, the remainder of the committee report does not say that they intended copyright to be an indestructible form of property. Rather the language speaks about getting rid of formalities in order to comply with Berne (non-compliance had become a severe impediment in trade negotiations) and making registration and marking optional, but encouraged. A fair reading is that the Berne Act did not intend to take away author's right to dedicate works to the public domain, which they had (by default) under the 1976 Act.

Section 203 of the Copyright Act

Although there is support in the statutes for allowing work to be dedicated to the public domain, there cannot be an unlimited right to dedicate work to the public domain because of a quirk of U.S. copyright law which grants the author of a work the right to cancel "the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright" thirty-five years later, unless the work was originally a work for hire
Work for hire
A work made for hire is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work...

.

It is unsettled how this section would mesh with a purported public domain dedication. Any of these interpretations are possible:
  • No effect. Any holder of a copyright can release it to the public domain. This interpretation is probably wrong, because then an author would lose the right to his "termination right," which in practical terms means a royalty. To prevent paying the royalty, a comic book company could release the copyright to the public domain but hold onto the trademark, which would suffice to prevent knock-off comics from being made. Because the Captain America case (Marvel v. Simon) showed that this termination right cannot be alienated before death, this interpretation is almost certainly wrong.
  • Some effect. An author may release his own work into the public domain, and a company holding a work for hire may release his work into the public domain. But a company which has purchased a copyright from an author (as was the case with most of the "Golden Age" comic book writers) cannot. Although the distinction of allowing an author to release his own work is not explicit in the statute, it may not be literally inconsistent (it is not a "transfer" or a "license," and it arguably is not a grant of a right under copyright), and this reading is necessary to comply with the 1990 Act discussed above, as well as the case law discussed below.
  • Strong effect. Only a company holding a work for hire can release the work into the public domain. Because of the references to "shareware" (above) and "programmers" (below), and the fact that many software companies in the 1980s were quite small (and thus did not have employees), this reading seems inconsistent with the intent of Congress.

Case law

Another form of support comes from the seminal case Computer Associates Int'l v. Altai
Computer Associates Int. Inc. v. Altai Inc.
Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 is a decision from the United States Court of Appeals for the Second Circuit that addressed to what extent non-literal elements of software are protected by copyright law. The court used and recommended a three-step process...

, 982 F.2d 693. This case set the standard for determining copyright infringement of computer software and is still followed today. Moreover, it was decided by the Second Circuit appellate court, which is famous for handing down some of the most well-reasoned American copyright decisions. In this case, it discusses the public domain.
(c) Elements Taken from the Public Domain
Closely related to the non-protectability of scenes a faire, is material found in the public domain. Such material is free for the taking and cannot be appropriated by a single author even though it is included in a copyrighted work. ... We see no reason to make an exception to this rule for elements of a computer program that have entered the public domain by virtue of freely accessible program exchanges and the like. See 3 Nimmer Section 13.03 [F] ; see also Brown Bag Software, slip op. at 3732 (affirming the district court’s finding that "[p]laintiffs may not claim copyright protection of an ... expression that is, if not standard, then commonplace in the computer software industry."). Thus, a court must also filter out this material from the allegedly infringed program before it makes the final inquiry in its substantial similarity
Substantial similarity
Substantial similarity is the standard developed and used by United States courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement...

 analysis.


This decision holds that computer software may enter the public domain through "freely accessible program exchanges and the like," or by becoming "commonplace in the computer industry." Relying only on this decision, it is unclear whether an author can dedicate his work to the public domain simply by labeling it as such, or whether dedication to the public domain requires widespread dissemination.

This could make a distinction in a CyberPatrol-like case, where a software program is released, leading to litigation, and as part of a settlement the author assigns his copyright. If the author has the power to release his work into the public domain, there would be no way for the new owner to stop the circulation of the program. A court may look on an attempt to abuse the public domain in this way with disfavor, particularly if the program has not been widely disseminated. Either way, a fair reading is that an author may choose to release a computer program to the public domain if he can arrange for it to become popular and widely disseminated.

Public domain works


See also

  • Berne Convention
    Berne Convention for the Protection of Literary and Artistic Works
    The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

  • Catholic Public Domain Version
  • Copyfraud
    Copyfraud
    Copyfraud is a term used by Jason Mazzone, an Associate Professor of Law at Brooklyn Law School, to describe the use of false claims of copyright to attempt to control works not under one's legal control.-Introduction:Mazzone describes copyfraud as:...

  • Copyleft
    Copyleft
    Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...

  • Copyright status of work by the U.S. government
  • Copyright Term Extension Act
    Copyright Term Extension Act
    The Copyright Term Extension Act of 1998 extended copyright terms in the United States by 20 years. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship...

  • Creative Commons
    Creative Commons
    Creative Commons is a non-profit organization headquartered in Mountain View, California, United States devoted to expanding the range of creative works available for others to build upon legally and to share. The organization has released several copyright-licenses known as Creative Commons...

  • Creativity techniques
    Creativity techniques
    Creativity techniques are methods that encourage creative actions, whether in the arts or sciences. They focus on a variety of aspects of creativity, including techniques for idea generation and divergent thinking, methods of re-framing problems, changes in the affective environment and so on. They...

  • Cultural environmentalism
    Cultural environmentalism
    Cultural environmentalism refers to the movement that seeks to protect the public domain.It was coined by James Boyle, professor at Duke University and contributor to the Financial Times....

  • Eldred v. Ashcroft
    Eldred v. Ashcroft
    Eldred v. Ashcroft, was a court case in the United States challenging the constitutionality of the 1998 Sonny Bono Copyright Term Extension Act...

  • Fair dealing
    Fair dealing
    Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, which is found in many of the common law jurisdictions of the Commonwealth of Nations....

  • Fair use
    Fair use
    Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...

  • Free software
    Free software
    Free software, software libre or libre software is software that can be used, studied, and modified without restriction, and which can be copied and redistributed in modified or unmodified form either without restriction, or with restrictions that only ensure that further recipients can also do...

  • Public Domain Enhancement Act
    Public Domain Enhancement Act
    The Public Domain Enhancement Act , ) was a bill in the United States Congress which, if passed, would have added a tax for copyrighted works to retain their copyright status...

  • Public Domain (film)
    Public Domain (film)
    Public Domain is a 2003 Canadian film about reality TV. It was directed by Kris Lefcoe and stars Nicole de Boer, Mike Beaver, Lindy Booth and Dov Tiefenbach. The film is openly critical of reality TV and portrays the hosts and producers as cruel and heartless people...

  • Rule of the shorter term
    Rule of the shorter term
    The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment, to at most the copyright term granted in the...

  • Street Performer Protocol
    Street Performer Protocol
    The threshold pledge or fund and release system is a way of making a fundraising pledge as a group of individuals, often involving charitable goals or financing the provision of a public good. An amount of money is set as the goal or threshold to reach for the specified purpose and interested...

  • Tales from the Public Domain
    Tales from the Public Domain
    "Tales from the Public Domain" is the fourteenth episode of The Simpsons thirteenth season. It originally aired on the Fox network in the United States on March 17, 2002. It is the third trilogy episode of the series, which had become annual since the twelfth season's "Simpsons Tall Tales",...

  • The Uneasy Case for Copyright
    The Uneasy Case for Copyright
    "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" was an article in the Harvard Law Review by future United States Supreme Court Justice Stephen Breyer in 1970, while he was still a legal academic...

  • Traditional Knowledge Digital Library
    Traditional Knowledge Digital Library
    Traditional Knowledge Digital Library is an Indian digital knowledge repository of the traditional knowledge, especially about medicinal plants and formulations used in Indian systems of medicine. Set up in 2001, as a collaboration between the Council of Scientific and Industrial Research and...

  • Transaction cost
    Transaction cost
    In economics and related disciplines, a transaction cost is a cost incurred in making an economic exchange . For example, most people, when buying or selling a stock, must pay a commission to their broker; that commission is a transaction cost of doing the stock deal...

The source of this article is wikipedia, the free encyclopedia.  The text of this article is licensed under the GFDL.
 
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