The Public Domain: Now Available For Only $165 An Hour!*

from the and-even-then,-we-don't-promise-anything dept

So you want to use a work you think is in the public domain in your creative project.  Hang on; it might not be as simple as you think.

Works published before 1923 are in the public domain. This means these works are no longer protected by copyright and are free for use by anyone in any way. However, works between 1923 and 1964 fall into a grey area — they may be in the public domain depending on if their copyright was renewed 28 years from the date of the original copyright.

Figuring out if a work is renewed can be a tricky business. The only official records of renewal are held by the Copyright Office in Washington D.C. However, records before January 1, 1978 are not available online. The only way to gain access to these accurate and official records of copyright renewals is to either:

  1. Go to the Copyright office in person, in Washington D.C. , and research their records using paper card catalogs OR;
  2. Pay the copyright office $165 an hour to search the copyright records for the original copyright and the renewal notice.

In 2013, should we have to rely on paper card catalogs to help determine if a work is in the public domain? Moreover, is a work really public domain if it costs $165 an hour to know it’s in the public domain?

Of course, there is a much larger problem. Even a search by the copyright office stating that the work was not renewed isn’t definitive proof that the work you want to use is in the public domain. It’s entirely possible that the work you want to use is actually a derivative work of a public domain work and still under copyright protection. For a great example of how complex this can get check out our video “Is the Wizard of Oz Copyright protected?

The difficulty of assessing which works are in the public domain is a huge problem. Creativity cannot exist in a vacuum. When we can’t easily determine what works we can safely use and draw inspiration from, creativity is stifled and our critical First Amendment right to free speech is chilled. New Media Rights recognizes the complexity of the problem. However, a great first step would be the digitization of all copyright office records to make them accessible to the public without a plane ticket to D.C. or a $165 an hour surcharge.

Teri Karobonik is a staff attorney with New Media Rights. New Media Rights is a nonprofit program that provides legal services and advocacy for internet users and creators. This story is reposted with permission.

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Comments on “The Public Domain: Now Available For Only $165 An Hour!*”

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58 Comments
Anonymous Coward says:

More and more complaints, and again, no initiative or even reasonable proposal to fix the problem aside from a vague demand that somebody else do it for you.

Here’s a business opportunity: set up an office near DC and pay some people $50 an hour to go into the paper card catalog and do research. Charge clients $100 an hour if they’re for-profit and $60 if they’re non-profit. Undercut the librarians. Put your findings on the Net so nobody pays for the same search twice.

Or, if there’s downtime, have your people scan the paper records and digitize them. There are no magic digitization fairies that will do it for you. Alternatively, convince Google that if these records were online they’d be able to slap lots of ads on them, and maybe Google will come in and digitize them for you.

Or, write your congressperson to get an earmark for a taxpayer-funded digitization effort.

Any of the above is likely to be many times more effective than sitting at home whining on the Internet.

That One Guy (profile) says:

Re: Re:

Beat me to it, I was going to suggest something similar, where every record that gets searched for also gets archived, so that the same record never has to get paid for twice, but the idea of turning it into a business opportunity could certainly provide incentive for someone to digitize it as well, even if it would just reduce, not eliminate, the cost to search what should be public information.

Gwiz (profile) says:

Re: Re:

More and more complaints, and again, no initiative or even reasonable proposal to fix the problem aside from a vague demand that somebody else do it for you.

I’ve suggested many times that we move from “automatic” copyright back to “opt-in” copyright with mandatory renewals. We would at the very least have a comprehensive database of copyright status going forward for US works. And it would help with the orphan works problem going forward also.

Anonymous Coward says:

Re: Re: Re:

Suggested to whom? This circle jerk here? Your buddies on the Internet? Which of your buddies have the power, ability, or are willing to put in any effort whatsoever to change the status quo?

If they can’t or won’t and you can’t or won’t, what exactly is the value of your suggestion?

Gwiz (profile) says:

Re: Re: Re: Re:

Suggested to whom?

Suggested it here.

Which of your buddies have the power, ability, or are willing to put in any effort whatsoever to change the status quo?

As a individuals, not many. Derek Khanna lost his job for making those types of suggestions. A large group of constituents writing letters, signing petitions and making phone calls could sway Congress away from the lobbying dollars though.

Gwiz (profile) says:

Re: Re: Re:3 Re:

Good for you! Yesterday, I gave a really eloquent speech to my dog about my thoughts on runoff voting and campaign finance reform.

Seriously, no need to be condescending.

Not really sure what you are expecting. Political change is birthed from like-minded individuals sharing ideas.

Since I lack the political clout, money, notoriety and media platform to initiate large scale political changes this is how I contribute. Sorry if that’s a problem for you.

Anonymous Coward says:

Re: Re: Re:4 Re:

Seriously, no need to be condescending

Wait, are you dismissing my earnest effort to create real political change?

Not really sure what you are expecting.

Action that requires removing both buttcheeks from one’s office chair?

Political change is birthed from like-minded individuals sharing ideas.

Well this site launched 16 years ago and these political changes are still in the birth canal. How much longer do you think we need?

Since I lack the political clout, money, notoriety and media platform to initiate large scale political changes this is how I contribute. Sorry if that’s a problem for you

It’s more of a problem for you. I don’t mind the status quo so much. But if complaining on the Internet and waiting for somebody else to recognize your brilliance and get off their ass to implement your vision is really the most you can possibly do I hope you find it fulfilling.

Gwiz (profile) says:

Re: Re: Re:5 Re:

Wait, are you dismissing my earnest effort to create real political change?

Kind of a loose definition of “earnest” there, my friend.

Action that requires removing both buttcheeks from one’s office chair?

Fair enough. Although, at this point in the game, I’m not sure marching in the streets for copyright reform would actually do anything effective. It’s really not that much of a hot button topic with the general public.

Well this site launched 16 years ago and these political changes are still in the birth canal. How much longer do you think we need?

Well, since this fight is against heavely entrenched players with bottomless lobbying coffiers it’s gonna take plenty of time. Public perception of copyright has been changing gradually over the last 16 years. I’m sure this site has contributed to some of that.

It’s more of a problem for you. I don’t mind the status quo so much. But if complaining on the Internet and waiting for somebody else to recognize your brilliance and get off their ass to implement your vision is really the most you can possibly do I hope you find it fulfilling.

First off, not sure “complaining” is the right phrase. I certainly do voice my disagreement with issues, but I wouldn’t call it complaining, per se.

And I am not waiting for anyone to implement my ideas at all. I am merely waiting for public perception of copyright to catch up. Like I said above, change won’t happen until the power of the masses exceeds the power of the lobbying dollar. To expend my resources now would be futile. I’ll wait until the odds aren’t stacked so much in the house’s favor.

art guerrilla (profile) says:

Re: Re: Re:6 Re:

i will only say this:
our influence as mere citizens is close to zero: THE WHOLE FUCKING WORLD marched in unprecedented PRE-WAR protests, the american public was against it by a large margin (in spite of being propagandized up the ass), BUT WE STILL WENT TO WAR…

IT DOESN’T matter what 99% of us lowly citizens ‘want’, it is what the 1% want: THE ONLY TIME the power elites even pretend to pay attention is when we THREATEN THEM…

it has gotten that far: ONLY revolution -peaceful or armed, i don’t really care anymore- that will FORCE our betters to concede ANYTHING…

The Man ™ doesn’t care, ’cause he doesn’t have to…

art guerrilla
aka ann archy
eof

Tim Griffiths (profile) says:

Re: Re: Re:3 Re:

Do you know how every revolution in history has ever started? It’s started with people talking together. Suggesting ideas, and debating those suggested by others, to help mold an actionable and common set of ideals and goals.

A thousand individuals shouting at government all with a individual set of ideas is nothing but ignorable noise. A thousand individuals shouting with one voice for a common set of ideas? That’s different.

Of course revolution requires a call to action and those who will act but action is meaningless with our direction and direction is unachievable without debate and consensus.

This rhetoric of yours is, if anything, an attempt to produce either inaction or action that is ineffective. There’s a subtle difference between calling for people to act on their views and suggesting that discussing those views with like minded people is meaningless. Which suggests you either know that, or don’t, either making you intentionally subversive or simply dangerously stupid.

Anonymous Coward says:

Re: Re: Re: Re:

Says the fucktard sitting at home whining on the internet.

The proper place to deal with a crying baby on a plane is on the plane. The proper place to deal with a lot of crying babies on a website is on that website. If the baby wants serious modifications to copyright law, it doesn’t matter how loud he cries on the plane. It may make the baby feel better but the actual practical effect is just to annoy the other passengers.

out_of_the_blue says:

So what's your point?

“So you want to use a work you think is in the public domain in your creative project.” — Umm, no. I’m not a grifter, besides as a consumer, just bored with new versions of old crap. I’d like to wring that Shakespeare’s neck, but to be fair, it’s the endless COPIERS of old crap who are the criminals. The tendency of copyright to force actually NEW works is reason enough to support it.

Is your point “creativity is stifled”? — No, can’t be, because “the work you want to use” is NOT creativity, it’s copying.

Then “our critical First Amendment right to free speech is chilled.”? — HOW? First, again, using someone else’s work isn’t “free speech”, it’s copying. And if you’re doing it to get money by using that priorly created value, it’s grifting off the past: while legal, it’s shabby. But second, I’m simple and need a concrete example where “critical First Amendment right to free speech is chilled” by your not being able to use to use what someone else has said. You may be prohibited from publishing the exact prior expression itself, but not from using the idea in “free speech”.

A concrete counter example is this text I’ve written here, almost certainly an entirely new arrangement of words as no one else ever has, yet expressing for about the millionth time here that Techdirt’s focus isn’t “free speech”, but grifting off the past (in this piece), or in other pieces trying to grift off current creators (as when defending Megaupload and The Pirate Bay).

That One Guy (profile) says:

Re: Re: Re: So what's your point?

You want to have some real fun, point out how that makes companies like Disney massive ‘grifters’, given how many of their films are based on public domain stories/myths.

Same with a lot of musicians, given how many songs are remixes/reinterpretations of older tunes.

Likewise writers, given how many stories are inspired, based upon, or re-imagining of older stories.

So basically all the ‘creative’ people that they are defending, are all ‘grifters’ by their definition.

RD says:

Re: So what's your point?

Everybody read through blue’s tirade carefully, and you can see clearly why he/she/it goes off on copyright issues. Blue is a failure at being a creator, and clearly someone has done it better than blue, either using similar ideas to blue’s or getting there first. Sorry blue, maybe you should focus more on, you know, actually DOING something that someone wants, rather than sitting at home in your moms basement railing against the “unfairness” of a world that couldnt care less about you. Also, you are 14 years old πŸ˜›

cpt kangarooski says:

Re: So what's your point?

I’d like to wring that Shakespeare’s neck, but to be fair, it’s the endless COPIERS of old crap who are the criminals.

Well, you can have your wish, I suppose. Shakespeare, generally regarded as the single greatest author in the English language, copied from other works all the time. The man had a gift with words, but only had one original plot.

Then “our critical First Amendment right to free speech is chilled.”? — HOW? First, again, using someone else’s work isn’t “free speech”, it’s copying.

So you’re saying that the government would not be infringing on your free speech rights and would not be violating the first amendment, if they banned you from reading Romeo and Juliet aloud in a public park, merely because you aren’t Shakespeare?

How ludicrous. Of course free speech encompasses the verbatim repetition of others’ speech. How could it not?

Tim Griffiths (profile) says:

Re: So what's your point?

A concrete counter example is this text I’ve written here, almost certainly an entirely new arrangement of words as no one else ever has, yet expressing for about the millionth time here that Techdirt’s focus isn’t “free speech”, but grifting off the past (in this piece), or in other pieces trying to grift off current creators (as when defending Megaupload and The Pirate Bay).

But not new words. You copy those words which are, clearly, the result of other peoples work. Do you pay licensing for the use of the language system you just used to express your self? No?

BUT! I’m sure you will cry, how can we know who invented the words we use? They are a common system of expression that evolved over the years! And this, to an extent is true, but let’s narrow this down to a concrete example shall we?

Shakespeare;
http://www.shakespeare-online.com/biography/wordsinvented.html

There are a raft of words we use everyday that can be traced to Shakespeare and I’m sure entomologists can trace a lot of other words to a single individual who created them.

You no doubt use those words so by your logic your new arrangement of words is not free speech because it may rely on using words that other created to express a meaning to express yours. You are, in matter of fact, very literally remixing the work you copy from others to express your self.

Now of course this is absurd, that’s kinda of the point, but for someone so intent on the idea that free speech can’t involve building, working with, and adapting the work of others you sure are doing exactly that simply by speaking the English language.

Nate (profile) says:

Re: Re: Re:

Why would foreign works need to be included?

In most countries you only need to know when the author died (and sometimes the original date of publication). If the author is alive then it’s safe to assume the work is in copyright.

But if you are asking about works published outside of the US after 1923 and before 1964 but were never renewed in compliance with US law, sorry but I cannot help you. The topic of foreign copyrights and whether they are valid in the US is so complicated that I would direct you to consult an attorney.

I’m not just talking through my hat. I am also a moderator over at MobileRead Forums, and I have had to check the copyright status of ebooks which were uploaded. My rule of thumb is that I can usually determine the copyright in either 5 minutes or 5 hours. I’m not kidding; sometimes determining the copyright of a work is such a complicated question that it can take hours to answer.

Anonymous Coward says:

Re: Re:

Under UK law, copyright is life + 70 years, which could keep a work protected for 150 years or more. (write at 20 live to 100). While due to changes in the law make the situation more complex, this can be a problem for historians. It is probably safe to reprint eye witness accounts from the Crimean war, but their is possible problems with eyewitness accounts of the American Civil war and all latter wars.
Excessive copyright not only puts culture at risk, but also the preserving of history.

Anonymous Coward says:

Even a search by the copyright office stating that the work was not renewed isn’t definitive proof that the work you want to use is in the public domain. It’s entirely possible that the work you want to use is actually a derivative work of a public domain work and still under copyright protection. For a great example of how complex this can get check out our video ?Is the Wizard of Oz Copyright protected??

I’m not sure how the situation described in that link is confusing. If someone is unable to figure out that The Wizard of Oz movie is based on the book The Wonderful Wizard of Oz, I don’t think an online database of copyright renewals is going to help them. They might want to start with Wikipedia and/or figuring out what the hell it is that they actually want to appropriate.

When we can’t easily determine what works we can safely use and draw inspiration from, creativity is stifled and our critical First Amendment right to free speech is chilled.

“Draw inspiration” from? That’s easy. Anything. There’s no legal restriction on inspiration, only appropriation. It seems like New Media Rights is actually trying to confuse people more than they already are.

Gerare Pierce says:

public domain

It could be a simple solution. If some holder claims that they have renewed, or that they have a derivative copyright, let them simply inform the copyright office.

Setting up a database is neither complex nor expensive. I could do it myself in about 8 hours work. The bandwidth might cost a few bucks at the start.

Any holder who does not claim a renewed or derivative copyright within 6 months loses any future ability to claim copyright and the work becomes definitely public domain.

That could clear out all of the orphan copyrights and would be a great benefit to the creators and the public.

Anonymous Coward says:

Sorry for the info dump

– The University of Pennsylvania has scans of the copyright registrations and renewals going back to 1891, found here: http://onlinebooks.library.upenn.edu/cce/ These appear to be PDFs of the registration books, and include indices that list the works that were registered and renewed. It’s an OCR scan, so search is functional, if not perfect.

-As someone else mentioned, Stanford hosts a renewal database here: http://collections.stanford.edu/copyrightrenewals/bin/page?forward=home The database only covers books, however; if a work was first published in a magazine, for example, it will probably not appear in Stanford. It also only covers works published in the US; the copyright registration and renewal requirements mentioned in the article are only with respect to the US.

-Another wrinkle to the “is it PD or not?” question for works published between 1923-1964 is rights restoration. If a work was first published outside of the US during that time, it’s possible that the copyright has been restored, and thus the work is still under copyright in the US. See here: http://www.copyright.gov/gatt.html for a list of restoration notices, but it is not complete.

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