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Public Domain and Creative Commons: A Guide to Works You Can Use Freely: Beware of These Problem Areas

Here is an in-depth guide to using public domain and Creative Commons materials for your theses, dissertations, publications, and other scholarly projects.

Public Domain: Potential Problems

Q: I found this (image, song, text) I'd like to use on the Internet.  It's freely available there, does it mean it's in the public domain?

A: No.  Just because a work is freely available to view, read, or listen to on the web does NOT mean it is in the public domain.  You need to verify the copyright status of the work on the Internet.  If it is under copyright, consider whether or not your use would be a fair use or covered by Section 110 (1) or the TEACH act; if you cannot claim those exceptions, you will need to seek permission of the copyright owner.  

Q: What other kinds of laws or restrictions might there be on my use of a public domain work?

A: Good question!  Yes, there are other laws or restrictions that you need to keep in mind before using a public domain work. 

  • Right of publicity and privacy:  See a definition of Right of publicity laws from Cornell University's Legal Information Institute.  If you plan on using a public domain photo or portrait of someone to sell a product, you will need to make sure that you are not violating that person's publicity rights.  For further information, you can also consult the Public Domain Sherpa's page on this topic as well as Chapter 20 of Stephen Fishman's 2010 publication, The Public Domain: How to Use Copyright-Free Writings, Music Art and More (Berkeley, CA: Nolo [call number 346.730482 F5378p 2010]).
     
  • Trademark law:  If you plan on using a public domain work to sell something, you may want to double-check to see if the work is covered by trademark law.  Public Domain Sherpa and Stanford University's page on Public Domain Trouble Spots both have good descriptions on how trademark law can affect your potential uses as well as Chapter 20 in Fishman. Find out the basics of trademark law from the U.S. Patent and Trademark Office. 
     
  • Patent law: Although it is a rare occurrence to have a public domain item covered by a patent, Fishman describes how a design patent could cover a design on a manufactured public domain object on pages 145-146 in chapter five of his book, The Public Domain. 
     
  • Licensed works: You may have heard of things like "click-wrap" or "shrink-wrap" licenses or you may have needed to sign a license in order to access certain kinds of information.   If you've encountered such things when using public domain content then your use may be restricted by the terms of a license rather than by copyright law.  One related pitfall you might encounter are so-called "copyright-free" or "royalty-free" collections of clip art, sound files, stock footage, etc.  These collections could be covered by a license agreement and you should verify what uses are allowed in the agreement.  For more information consult pages 27-29, chapter 2, in Fishman;  Public Domain Sherpa or Stanford University's Welcome to The Public Domain page under the paragraph "Clip Art Compilations".    

Q: Why might I need to pay in order to access certain public domain materials?

A: Although the content of a public domain work may be free to reproduce, distribute, display, or perform, the physical material is still owned by someone (art museums, individual collectors, libraries, private institutions or individuals). 

Q: Are works created in foreign countries subject to the same copyright durations as those in the U.S.?  What works created outside of the U.S. are in the public domain?

A: Because the U.S. is a signatory to the Berne Convention treaty, in general, the work in question is treated as if it were created in the United States.  International treaties that the U.S. has signed with other countries have a bearing on the duration of copyright for works created in foreign countries.  For further information on international copyright issues, please see the U.S. Copyright Office's International Copyright Relations of the United States, Circular 38.      

Q: Are there any sound recordings in the public domain?

A: Generally, no.  The earliest year that sound recordings will enter the public domain will be in 2067.  Please see the tab, "Is it a Public Domain Work?" for further information. 

Q: Are state government documents in the public domain?

A: This will depend on the laws of the state and/or the respective state government entity which created the document you'd like to use.  You must double check these state laws to be sure.  In Montana, it's best to contact the government entity that created the document to learn more about its usage rights.

 

Disclaimer

Disclaimer: This tutorial on using public domain materials, Creative Commons licensed materials, and copyright law is provided for informational purposes only!  I am not a lawyer and cannot provide legal advice.  None of what you read in this tutorial should be construed as legal advice.  Should you require legal advice, please contact an attorney.   

Creative Commons: Potential Problems

Q: If I use a Creative Commons Licensed work, does that mean that I can use it in any way I want?

A: No.  You need to check the kind of license that is attached to the work to see what uses are allowed. 

Q: I would like to do a project using a Creative Commons licensed image (or other material) and it does not allow derivative works.  What can I do?   

A: If your project will involve changing the work in some way and the CC license forbids it, then you will need to either choose a different work that allows derivative works, or ask the author for permission to create a derivative work.

Q: I'm writing a book for a major publisher and would like to incorporate a Creative Commons licensed image (or other material) which does not allow commercial uses.  What can I do?

A: You will either need to use a different work that allows commercial uses or ask the author for permission to use the work in a commercial manner.


* Michael C. Donaldson further discusses these potential problem areas in his 2008 publication, Clearance and Copyright: Everything You Need to Know for Film and Television (Los Angeles: Silman-James Press [call number: 346.730482 D6767c 2008]).  Although this book is geared towards the film and television industry, his descriptions could apply to uses for many kinds of projects.