Can I use that? What is and isn’t in the public domain

You aren’t the first artist, game designer, songwriter or other creative entrepreneur to wonder whether you can use someone’s name or ideas in your work, and you certainly won’t be the last. The concept of “public domain” can be tricky, but it’s an important one to grasp if you want to stay out of legal trouble down the road.

Public domain work and copyright law

What does it mean for something to be in the public domain? It means that intellectual property laws do not apply to the work, and you can use it without asking for permission. Typically, copyrighted work can fall into the public domain in a few ways:

  • The copyright expires: See this chart by Cornell University to determine whether enough time has elapsed for a work to be in the public domain. The general rule is that, in 2016/2017, material published in the U.S. before 1923 is in the public domain, but, depending on how a work was registered and the type of work, it can enter into the public domain sooner. This is a complicated issue, however, and it is always best to consult an attorney before using a work that you believe to be available in the public domain.
  • The owner dedicated the work to the public domain: The words you are looking for are, “This work is dedicated to the public domain.” If you see those words, you are generally free to use it, but be careful — make sure the copyright owner is the one who dedicated the work. Creative Commons work is also considered public domain work. Again, it’s always a good idea to speak to a copyright attorney to verify that you may use the work without permission or attribution.
  • A copyright never existed for the type of work in question: Short phrases, book titles, movie titles, ideas, theories, laws, works created while in a governmental capacity — these are all examples of things that are not protected by U.S. copyright laws.

While the above points may seem clear-cut, the public domain concept is more tricky than it first seems. Let’s say someone compiles a number of art pieces that are in the public domain into a book. They can copyright their compilation. Similarly, someone can come up with a great board game idea and use it to create a unique game. You can copy the idea, but you cannot copy the way they have organized that idea into a game. Or you may decide you want to write a song similar to Don McLean’s American Pie. You can use the same plane crash as your premise for the song, but be careful how you talk about it — you cannot copy the way McLean expresses the accident.

Using someone’s name or image

In California, the right of publicity protects most people, including popular and political figures, from commercial appropriation of their name, image and likeness. In other words, you need to seek written permission to specifically refer to someone in a commercial venture or advertisement. While this right typically lasts for 70 years after a person’s death, there is an exemption for creators of art (including books, plays, musical compositions and other works).

There are some instances where using a person’s name or image is protected by the First Amendment, including editorial use (such as using a politician’s name in a newspaper), satire (think: SNL) and certain works of art and drama. Yet, you must tread lightly — the last thing you want is to deal with a lawsuit while you try to publish and sell your work.

It’s complicated

The law is nuanced, and much of it has been developed through lawsuits. Simply reading the statute (the written law) does not give the whole story. If you have any questions about using someone else’s work, name or image, it is in your best interests to first check with a lawyer familiar with intellectual property law for creative professionals.

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