Public Domain

How To Safely Use A Public Domain Work

Every January 1st of each year, a collection of copyrighted work loses its copyrighted status and enters into the Public Domain. This is marked with the celebration of Public Domain Day. We were joyful when in 2022 literary works like Hemingway’s The Sun Also Rises, and “As Time Goes By” from the film Casablanca landed in the Public Domain. It is also worth mentioning “To the Lighthouse” by Virginia Woolf and “The Lodger”, a film by Alfred Hitchcock.

Now in 2023, many works are entering the public domain for the first time. In the United States, books published in 1927 and films released in 1927 enter the public domain in 2023. Some sound recordings published in 1923 also enter the public domain.

What does it mean? And how is it good news for so many people?

A. Definition of public domain works 

Public domain works are creative works that are no longer protected by copyright and can be used by anyone without permission or payment. Examples include books, music, films, and artworks that were created before a certain date or that have had their copyright expire. 

In Indonesia, the term “public domain” is not found in Law No. 28/2014 on Copyrights (hereinafter, UUHC-28/2014). We can only know its “existence” when we refer to the provisions regarding the period of protection of copyrights in Indonesia.

A work enters the public domain for different reasons, for example, when the copyright protection period on the work expires, or when the copyright owner deliberately places the work in the public domain repository institutions such as Wikimedia and other GLAM Institutions (Gallery, Library, Archive, Museum). In Indonesia, there are Wikimedia Indonesia and GLAM Indonesia that deal with the matter. Each country should have similar GLAM institutions that serve as the repository for public domain works.

Once a work is in the public domain, it can be used, reused, repurposed and built upon by anyone without needing permission or paying royalties. The public domain works, i.e. your favourite novels, historical archives (if opened by the government) or letters, songs, artworks, etc., become free and available for anyone. 

B. The Economic potential of re-using public domain works

While public domain works can be used for free, there are still ways to make money from them. For example, you can repurpose them into new forms, such as films or e-books, or use them in advertising or marketing. Additionally, artistic works such as paintings, illustrations, and other graphic works can be used (or printed) in different media like t-shirts, posters, mugs, wall decorations, and other graphic or design works etc. This is a great opportunity for small businesses and individuals who have creative ideas in mind to “re-package” the public domain works in a more contextual form and sell them to today’s consumers.

Notwithstanding the above, the re-use or repurposed of a public domain must be conducted with caution because although the copyright of the work itself might have expired (then becomes the public domain), there is a possibility that the work itself relates to other people’s rights (i.e. the performer’s rights, publisher’s rights, or even trademark rights) which have not expired.

C. Steps Before Using A Public Domain Work

We suggest the following steps to consider before deciding to use or repurpose a public-domain work.

Copyright protection lasts for a certain period of time, and when that time is up, the work enters the public domain. The length of copyright protection can vary depending on the country and the type of work. In Indonesia, for example, the period of copyright protection for works in the form of literary, musical, visual and architectural arts, maps created according to UUHC-28/2014 is the life of the author plus 70 years; for works in the form of photography, videography, cinematography, paperwork layouts, translations, computer programmes, database, compilations of data and applied artworks, the period of protection is 50 years from the date of announcement or publication. On the 1st of January of the following year, the work becomes the public domain. You may check this information in accordance with the copyright laws in the relevant countries.

It’s important to always check the copyright status of a work before using it, to ensure that it is actually in the public domain and that you’re not infringing on someone’s copyright. 

2nd Step: Using online resources to find and verify public domain works

There are several online resources available to help you find public domain works. As mentioned above, in Indonesia you can browse around the Wikimedia Indonesia website (similar Wikimedia services are also available in many countries). 

Similar GLAM institutions can be found in many countries in the world (Wikimedia, National Gallery of Art, Smithsonian Institute, US Library of Congress’s Copyright Office, New York Public Library, Rijksmuseum, etc).

US Library of Congress’s Copyright Office has a website where you can search for copyright information. Additionally, Project Gutenberg is a digital library that has thousands of public domain books that can be downloaded for free. The list of public domain repository services goes on when you search online.

If you use Google Image Search, for example, you can search public domain images which have a Creative Common License attributed to them.

3rd Step: Make sure to use the latest version of the work

Some versions of a public domain work may be under copyright. This can happen if the work has been edited or translated, for example. To be safe, make sure to use the latest version of the work that is in the public domain.

4th Step: Use proper citation or attribution

If you use a public domain work in your own work, you should give proper citations. This means providing the title, author, and source of the work in your bibliography.

In some countries, some public-domain works may have had their copyright renewed or revived, which means they are no longer in the public domain and cannot be used without permission. In the United States, this can happen if the copyright owner files for renewal within 28 years after the original copyright was granted. It’s important to check for any potential renewals or revivals before using a public domain work to ensure you’re not infringing on someone’s copyright.

6th Step: Be aware of trademark laws

Even if a work is in the public domain, certain elements within the work may be protected under trademark laws. Be aware of this and consider seeking legal advice or conducting trademark searches if in doubt. For example, a comic book or a novel from the 1920s may have already become the public domain, but there is a possibility that the characters in the comic book or novel, or certain names may have been trademarked and are still protected to this day. That’s why it is very important to always conduct trademark searches in relation to a supposedly public domain work along with its creative elements (characters, illustrations, book layout, etc).

D. Repurposing Public Domain Works 

Depending on their original forms, there are ways for repurposing public domain works. Some of the most common projects are:

Adapting literature works into film or stage productions

Public domain literature can be adapted into film or stage productions without having to pay for the rights. This can be a way to make money by creating a new work based on an existing one. 

Creating derivative works such as new translations or illustrated editions

Creating new translations or illustrated editions of public domain works is another way to make money. These derivative works can be sold as separate products, and you would not have to pay royalties to the original copyright holder. 

Digitising and distributing public domain works in e-book or audio format:

Digitizing and distributing public domain works in e-book or audio format can also be a way to make money. These digital formats can be sold online, and you would not have to pay royalties to the original copyright holder.

Putting Artworks into Other Mediums

These days you could easily find reproductions of public-domain artworks, paintings, and even architectural concept arts put into other mediums of expression. For example, the Mona Lisa painting of 1505 by Leonardo da Vinci (with or without any creative modifications) can be now printed on t-shirts, mugs, or even canvas or frames to be used as wall art. 

Using public domain works in advertising or marketing

Public domain works can also be used in advertising or marketing without having to pay for the rights. For example, using a public-domain painting in an ad campaign or using a public-domain song in a commercial. 

E. The limitations of using public domain works

Even though a work is in the public domain, there may be certain limitations on how you can use it. These limitations include:

Attribution

You may need to give attribution to the original creator of the work. This means providing the title, author, date of creation and source of the work in your bibliography.

Non-commercial use

Some public domain works may be used only for non-commercial purposes. This means that you cannot use the work to make money, such as by selling it or using it in advertising.

Derivative works

You may not be able to create derivative works based on the public domain work without permission. A derivative work is a new work that is based on an existing work, such as a translation or adaptation.

Moral rights

Some countries have moral rights laws, which give the creator of a work the right to be recognised as the author of the work and to object to any distortion, mutilation or other modification of the work.

F. Showing Good Faith When Using Public Domain Works

When using a public domain work, it’s important to properly attribute and cite the work to give credit to the original creator as a sign of good faith when repurposing the work.

Showing good faith in using public domain works can be done by mentioning the creator’s name and the title of the work in your citation, mentioning the date of creation (if known), providing a link or reference to the original work in your citation, providing contexts for the work, such as its historical significance or the original creator’s intent, avoiding plagiarism, which is the act of presenting someone else’s work as your own.

G. Defending the Use of Public Domain Works

Even though a work is in the public domain, you may still need to defend your use of it. This might happen due to the following reasons:

First, it’s possible that you may have mistakenly believed a work was in the public domain, when in fact it is still under copyright protection. That’s it is very crucial to always check the copyright status in the best possible way you can.

Secondly, there may be a misunderstanding of the limitations of using a public domain work, such as whether or not you need to give attribution or whether the work can be used for commercial purposes.

Last but not least, even though a work is in the public domain, the rights holder may still object to your use of it for whatever reasons.

It is necessary therefore to prepare yourself to defend the use of a public domain work by you. You might consider doing the following things in support of your defence:

Keep records of your research 

Keep records of your research, including the resources you used to determine that the work is in the public domain.

Be familiar with the copyright laws of your country and be able to explain how you determined that the work is in the public domain and how you plan to use it.

If you are unsure about your use of public domain work, it’s best to consult with a qualified legal professional for advice on specific legal matters.

Takeaways

The public domain offers a wide range of opportunities to make money. From repurposing and creating derivative works to using public domain works in advertising or marketing to licensing public domain works for use in other media, there are many ways to monetise public domain works. 

It’s important to always check the copyright status of a work before using it, to ensure that it is actually in the public domain and that you’re not infringing on someone’s copyright or trademark…

Monetising public domain works requires creativity and thinking outside the box. It’s important to find new and innovative ways to repurpose and use these works, in order to make the most of the opportunities that the public domain offers.

It’s also important to note that copyright laws are complex and defending your use of a public domain work can be challenging. The laws and regulations may vary from country to country and the risks of using a public domain work can be complex. It’s always best to consult with a qualified legal professional for advice on specific legal matters. Properly following these steps can help to ensure that you are using public domain works legally and ethically.

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Featured Image By Alexandre Van Thuan on Unsplash

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