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It is very important to know how works enter the public domain in order to unlock their full use
Many people are under the assumption that works only enter the public domain due to their copyright term expiring. That is definitely one way they enter the public domain. There are other ways, too. One way is of major importance for creators of new content. It involves works that entered the public domain due to the author's failure to renew their copyright. This is covered below in "Group 4."
In very broad terms, we will only cover six of the ways in which works registered or published in the U.S. can enter the public domain and be used for commercial purposes. Keep in mind that each group has exceptions and quirky rules that go along with them. Cornell University Library is host to a fantastic chart that was originally developed by Peter B. Hirtle. The chart illustrates the complexities surrounding what is described below.
Note regarding sound recordings: While the underlying musical compositions to a song (e.g., music and lyrics) might be in the public domain, the actual sound recording itself, if published after December 31, 1922, is NOT in the public domain.
Group 1: Works prepared by U.S. government employees as part of their official duties
As a general rule, works produced by the U.S. government are in the public domain and can be freely used without paying royalties or obtaining permission from the government. This might seem like a trivial category, but at times, it is not. Let's look at two examples.
Migrant Mother
The photograph Migrant Mother depicts a mother and her children during the Great Depression. It is one of the most famous American photographs and it is in the public domain. It became part of the public domain because the photographer who took the image, Dorothea Lange, was employed by the Farm Security Administration when she snapped it.
Kissing the War Goodbye
The photograph above, Kissing the War Goodbye, is in the public domain. It probably looks familiar to you due to its similarities to the iconic photograph titled V-J Day in Times Square, which is under copyright and not in the public domain. Kissing the War Goodbye was taken at the same moment and of the same couple but at a different angle. The above photograph was taken by Victor Jorgensen, a U.S. Navy photojournalist. Since he was a federal government employee on official duty, the image is part of the public domain.
But even this category can become confusing. Research should be done to determine if the person was an actual government employee and whether they were acting in their official capacity. Also, some government agencies you might think of as a department of the government are excluded. For example, the U.S. Postal Service does not fall under this rule. Or if the work is multilayered, you need to make sure that the other works are not copyrighted.
Group 2: Facts or other listings that do not reach the threshold of originality
This category consists of works that fail to meet the requirement of originality and are, therefore, considered to be uncopyrightable.
Feist Publications vs. Rural Telephone Service (1991)
The telephone book case
First, it is important to remember that prior to the Internet, telephone books were an essential part of people's lives.
In short, this case involves a publishing company that simply copied a telephone book of another publishing company and published it as their own. The company that originally created the telephone book sued, claiming copyright infringement. Among other things, they pointed to the thousands of hours that were involved in verifying and creating such a list of names, addresses, and phone numbers. The case eventually made its way to the Supreme Court. The Court ruled that a phone book merely provides telephone numbers of residents based on an alphabetical listing of their names and does not meet the "modicum of creativity" needed by law to convert facts into a copyrightable form.
"There is nothing remotely creative about arranging names alphabetically in a white pages directory," wrote Justice Sandra Day O'Connor for the Court. "Copyright rewards originality, not effort."
Group 3: Works published prior to January 1, 1930
Works in this group have entered the public domain because their term of copyright expired. Keep in mind that "publication" means actually making it available to the public for sale—not that the work was completed prior to January 1, 1930. A good example of this would be Irving Berlin's God Bless America, which was written in 1918 for a show he was doing called Yip Yip Yaphank. However, Berlin decided to shelve it. Then, in 1938, he decided to publish the song and it is still under copyright and will be for a long time to come. Conversely, there are some works that were copyrighted prior to 1930, but then were not published until a later date. This is something that can only be determined by viewing the original copyright.
Recent public domain entries
A small sampling of recent entries to the public domain
Literature: Works by Ernest Hemingway, F. Scott Fitzgerald, William Faulkner, Agatha Christie, D. H. Lawrence, Marcel Proust, Rudyard Kipling, Robert Frost, and Virginia Woolf.
Music: Works by George Gershwin, Irving Berlin, Cole Porter, Hoagy Carmichael, and Richard Rodgers.
Film: Works by Charles Chaplin and Buster Keaton.
The 1st day of January brings a fresh crop of novels, music and films into the public domain each year.
Group 4: Works that were published with a copyright notice between January 1, 1930 and December 31, 1963, but the copyright was not renewed
Unlike the previous group where works entered because their copyright expired, this group's material entered the public domain for failure of the author to comply with a legal formality that does not exist anymore. In short, the author was obligated to file a copyright renewal registration on the 28th year after the work was published or the copyright was registered. If the renewal requirement was not met, the work entered the public domain. Therefore, if you are really interested in knowing whether a work's copyright has expired, some research will have to be done to determine if a renewal notice was filed. Please see our section on Renewal Registrations to find out more about this topic.
Note: Two events have limited (in narrow circumstances) the renewal requirement. One limited the renewal requirement directly and the other indirectly. First, since January 1, 1996, certain foreign works are now exempt from the renewal requirement. Second, is the 1990 U.S. Supreme Court decision in Stewart v. Abend. The decision has been used to suppress the full potential of derivative works that have entered the public domain.
This group is by far the most interesting for content creators because of the number of titles it covers. The material here spans one of, if not the most, prolific periods of artistic creativity in America's history. In terms of literature, it contains some of America's most important authors, for example: Harper Lee, Ernest Hemingway, Katherine Anne Porter, F. Scott Fitzgerald, William Faulkner, Eudora Welty, J. D. Salinger, Allen Ginsberg, and Truman Capote. In terms of music, Tin Pan Alley was at its apex. The music written in these years makes up the Great American Songbook. There were hundreds of great composers and lyricist during this period, for example: Jerome Kern, Cole Porter, Harold Arlen, Irving Berlin, and Richard Rodgers. Forbes Magazine published an article in 2021 noting that, even though the composer wrote most of his songs over 70 years ago, the Richard Rodgers' song catalog is "worth $350 million, ranking it as the world’s third most valuable." It is ranked only behind Lennon/McCartney, and Michael Jackson's catalogs. The reason these songs are still so popular and valuable is because they have memorable melodies and catchy lyrics. It should be noted that some of Richard Rodgers' musical compositions have already entered into the public domain. For these works, the current owners of his catalog receive nothing.
The number of copyrights filed with the United States Copyright Office during this period is staggering—more than 7 million works. According to two separate studies, one by the U.S. Copyright Office and the other by the New York Public Library, only between 15 to 25 percent of the works in this group were renewed. The percentage was even lower with regard to books. That means that over 5 million of those 7 million entries are languishing in the public domain.
Note: Works properly published after December 31, 1963 benefit from automatic copyright renewal and are under copyright protection.
Below are a few examples of films that fell into the public domain for failing to file a copyright renew registration.
It's a wonderful Life (1946)
The Man With the Golden Arm (1955)
One Eyed Jacks (1961)
Till the Clouds Roll By (1946)
Group 5: Works that were published without a copyright notice between January 1, 1930 and December 31, 1977
Works published between January 1, 1930 and December 31, 1977 that failed to carry a copyright notice immediately fell into the public domain. Prior to the 1976 Copyright Act that removed all notice requirements, a work was required to have a copyright notice before it was made available to the public. Far less works entered the public domain under this rule, but two examples are included below.
The 1963 film Charade entered the public domain in the United States the first night it was shown in theaters (i.e. "published"). This happened because Universal Pictures released the film without including the "©" symbol, the word "copyright," or even the abbreviation "Copr." At least one of these was required prior to 1978. Therefore, the film entered into the public domain on its opening night as the closing credits faded into black.
Most modern zombie films have their roots, at least in part, in Night of the Living Dead. This, in part, is due to an error with the copyright. While in the final stages of production, the distributor failed to put the copyright notice on the final print before its release. Therefore, it entered the public domain the first night it was shown to the general public. As a result, the writer and director received little to no monetary gain for the film which went on to gross more than $30 million at the box office.
Group 6: Works published without a copyright notice between January 1, 1978 and March 1, 1989
If a work was published between January 1, 1978 and March 1, 1989 without a copyright notice and a subsequent registration was not filed within 5 years, the work is now in the public domain. This is very similar to "Group 5." It covers different dates and there is a clause that lets the mistake be corrected within 5 years.
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