The Public Domain – Top 10 Questions
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Questions 7 – 9
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Question 7 – Can I Use a Work in the Public Domain to Create Another Work?

Yes. Legally, you’re asking if you can create what are known as derivative works – works based off of another work. Because a work in the public domain is free to use by anyone for any legal reason (i.e. within the confines of the law) you can freely make new works based off of works in the public domain. In fact, this is a fairly common practice among many artists, writers, movie directors, and others – and can often be a very valuable way to make something new. For example, Marcel Duchamp created a derivative work of Leonardo Da Vinci's Mona Lisa painting by simply adding a mustache. Duchamp was free to use the painting as he wished and make a profit off of it because the Mona Lisa painting was part of the public domain.

Question 8 – Can a Work in the Public Domain Ever Become Subject Again to Protection Under the Law?

No. Once a work enters the public domain it will remain there forever.

However, when someone makes a derivative work (i.e. variation) of the public domain work the derivative work receives copyright protection just like an original piece of work does. For example, you could take an old painting from the early 1800s, add some different colors, effects, or designs to the painting, and sell it as your own with full copyright protection – in the same way as if you created a new painting from scratch.

Question 9 – How Do I Know a Work is in the Public Domain?

This is where it can get tricky – very tricky sometimes. However, there are essentially 3 broad ways in which a work enters the public domain, including: (1) the United States government created the work; (2) the term of the copyright for the work expired; or (3) the original author of the work failed to renew or satisfy other formal requirements to claim his or her interest in the copyright.

Ok, so what does all this mean? Rule 1 is fairly straightforward: Any work created by the U.S. federal government (i.e. but not necessarily a state government) is automatically part of the public domain and you’re free to use it. For example, you’re free to use the Declaration of Independence, U.S. Constitution, and other U.S. federal documents. However, you cannot use a painting created for the government by an artist unless that painting is owned by the U.S. federal government. How would you find out if the painting is owned by the U.S. federal government? Please refer to Question 10 for some analysis on this question.

Rules 2 and 3 are where stuff can get complicated. The complication arises in how a copyrighted work becomes part of the public domain. Why is this area complicated? For a number of reasons, including the following two main reasons: (i) because copyright laws have changed over the years with different lengths of time based on when the work was created or published and (ii) because it’s often difficult to determine if an author renewed his/her copyrighted work and/or properly satisfied other formal requirements to maintain copyright protections. In short, copyright protections generally survive many years after the death of the author and different people often own the copyrights to deceased authors’ works – and finding out who these people are and whether they satisfied formal copyright protections is…well…a daunting task many times. We’ll take a look at more of how these rules apply in Question 10.

Next, we’ll go over public domain question 10.