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.

Filed Under: copyright, liability, public domain, registration, search

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  1. This comment has been flagged by the community. Click here to show it
    out_of_the_blue, 16 Jul 2013 @ 11:10am

    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).

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