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Introduction
Are you a screenwriter looking for a novel or story to adapt? A musician who needs a song to record? A filmmaker in need of footage? An author or publisher searching for photos, graphics, or illustrations for your latest project? A website operator in search of this type of content and more? If your answer to any of these questions is "yes," you could be in luck. The content you need may be free for the taking. It may lie in a land of creative riches known as the public domain. You just have to know how to recognize and find it. This book is a type of treasure map that shows you how.
What Is the Public Domain?
As used in this book, the words "public domain" mean creative works that for one reason or another are not protected by copyright law and are ordinarily free for all to use. There are literally billions of creative works -- including books, artwork, photos, songs, movies, and more -- in the public domain. All of these works, no matter what form they take, are called "works of authorship" or, more simply, "works."
Some of the most famous examples of public domain works that you can use in any way you choose are:
* Hamlet, by William Shakespeare
* Moby Dick, by Herman Melville, and
* The 5th Symphony by Ludwig van Beethoven.
1. Copyright and the Public Domain
To safely use public domain works, you must first know a little about copyright law, which is a federal law that protects all kinds of works of authorship including books, magazines, newspapers and other writings, music, art and sculpture, photography, films and videos, choreography, architecture, computer software, and maps.
The owner of a workprotected by copyright is given a bundle of exclusive rights, including:
* reproduction rights -- that is, the right to make copies of a protected work
* distribution rights -- that is, the right to sell or otherwise distribute copies to the public
* the right to create adaptations (also known as "derivative works") -- that is, the right to prepare new works based on the protected work, and
* performance and display rights -- that is, the right to perform a protected work in public, such as a stageplay, or display a work in public.
If someone wrongfully uses material covered by a copyright, the owner can sue to obtain compensation for any losses suffered. In this sense, a copyright is a type of property -- it belongs to its owner and the courts can be asked to punish anyone who uses it without permission.
However, copyright protection does not last forever, and some works are not entitled to any copyright protection at all. When a work enters the public domain for any reason, the rights listed above do not apply. In other words, the work can be freely copied, distributed, adapted, or performed or displayed in public without asking any-one's permission or paying a fee. For example, you don't need to obtain permission to copy and distribute a play by Shakespeare, adapt it into a movie, or perform it in public. That is because Shakespeare's plays were first published so long ago that copyright law does not protect them.
"Public domain" means what it says -- public domain works belong to the public as a whole. Anyone is free to use them any way they wish. No one can ever obtain copyright protection for public domain material. Once a work enters the public domain it usually stays there forever. (See Chapter 2 for a more detailed discussion of copyright law.)
2. What Is in the Public Domain?
A work of authorship may be in the public domain for a variety of reasons. For example:
* the work was published before there was a copyright law
* the work's copyright protection expired
* copyright protection was lost or never acquired for some reason
* the copyright owner dedicated the work to the public domain, or
* the work was never entitled to copyright protection.
A vast treasure trove of creative works are in the public domain for one or more of these reasons. They include many great classics of world art and literature, such as the works of Shakespeare, Dickens, Bach, and Beethoven. But the public domain does not just include dusty old books and other works published hundreds years ago.
All works published in the United States before 1923 are in the public domain. But there are also millions of works published as recently as 1963 that are in the U.S. public domain. Indeed, copyright experts estimate that 85% of all the works of authorship first published in the United States between 1922 and 1963 are in the public domain.
But the public domain does not end there. Even works published today with full copyright protection contain elements that are unprotected and, thus, in the public domain. This includes, for example, the facts and ideas contained in a work of nonfiction. Other newly published works are denied copyright protection completely, including U.S. government works and many blank forms.
3. How Can You Use the Public Domain?
The only limit on how you can use public domain materials is your own imagination. For example:
* Web developers can use the public domain as a free source of content, including writings, photography, artwork, and music
* creative writers can adapt public domain works into new works -- for example, create screenplays based on public domain novels, stories, and plays
* musicians can perform and record public domain music without paying permission fees
* publishers can freely republish public domain works
* artists can freely copy public domain artworks
* filmmakers can freely use public domain footage, and
* librarians can copy public domain works for their collections.
4. Why Have a Public Domain?
At first glance, the concept of the public domain may see unfair to creative people. After all, once a work enters the public domain, the author or his or her heirs can no longer collect royalties from sales of copies or otherwise profit from it. Why should this be?
The reason we have copyright laws is to encourage authors to create new works and thereby promote the progress of human knowledge. The encouragement takes the form of an economic incentive -- authors are given a monopoly over the use of their works. By selling or licensing their rights they can earn a livelihood and create even more works. However, enriching authors is not the primary goal of copyright law. The primary goal is to foster the creation of new works that will one day enter the public domain where they can be freely used to enrich everyone's lives.
a. Our Intellectual Commons
Towns and cities of the 18th and 19th centuries often had a place called a commons: a centrally located unfenced area of grassland that was free for all to use. The public domain is, in essence, our intellectual and artistic commons. This commons benefits us all in a variety of ways:
* New works are created from public domain materials. Just a few famous examples include musicals such as Les Miserables (based on a public domain novel by Victor Hugo) and West Side Story (based on Shakespeare's Romeo and Juliet); the animated films Snow White, Pinocchio, Beauty and the Beast, and The Little Mermaid; and a recent spate of films based on the works of Shakespeare and Jane Austen. If the original works had remained under copyright, the cost of creating new versions of them may have been too high or they may not have been obtainable at any price.
* Low-cost editions of public domain materials are available. When a work enters the public domain, it often becomes available to the public in many low-cost editions. This is possible because copyright owners do not get royalty payments. Also, anyone can publish a public domain work, so competitive pressures keep prices lower. For example, when F. Scott Fitzgerald's first novel, This Side of Paradise, entered the public domain in 1996 nine new editions were published by nine different publishers, some costing just a few dollars.
* The public domain promotes artistic freedom. When a work is protected by copyright, the owner has the legal right to restrict how it is used. Some copyright owners rigidly control new performances and other uses of well-known works. For example, the estate of the Irish playwright Samuel Beckett exercises complete control over the staging of his plays. It banned a production in Edinburgh, Scotland, of Beckett's classic play Waiting for Godot because the tramp characters were played by women. The Kurt Weill Foundation, which holds the copyrights on the late composer's music, prevented famed German cabaret singer Ute Lemper from transposing some Weill songs to a pitch that better suited her voice.
The D'Oyly Carte Opera Company, which controlled the copyrights over the comic operettas of Gilbert and Sullivan, required every new production to be staged exactly the same as the original performance -- not a note of music could be sung differently. However, when Gilbert and Sullivan's work entered the public domain, this control ended. Gilbert and Sullivan operettas, and other great PD works, such as the works of Shakespeare and Beethoven, can be performed in new ways, given new interpretations and new meanings. This prevents classic works from becoming mummified.
* Scholars and others may freely use public domain materials. Scholars, researchers, historians, biographers, and others can freely quote and use public domain materials. This enriches their works and makes some projects possible that might otherwise be blocked by the copyright owners of important materials, often the descendants of famous people.
No one benefits more from the public domain than authors do. This is because new expression is not created from thin air. All authors draw on what has been created before. As one copyright expert has noted, "transformation is the essence of the authorship process. An author transforms her memories, experiences, inspirations, and influences into a new work. That work inevitably echoes expressive elements of prior works." Litman, "The Public Domain," 39 Emory Law Journal 965 (1990). Without the public domain, these echoes could not exist.
