public domain

In terms of complexity, copyright law ranks near the “top of the heap,” both domestically and internationally. That complexity is deepened by members of the public who often assume that they understand the meaning of certain core copyright terms, when in fact, they does not. Take the term “public domain.” Everyone knows what that means, right?

Test yourself; how many of the following five misconceptions about the public domain do you share?

Misconception #1: If content is on the Internet, it has been “released” to the world and is in the public domain.

One would think that the American public would be disabused of this misconception, since the World Wide Web is now more than 25 years old, but many people incorrectly believe that if they “find it on the Web,” they can copy and use the content as they see fit. Nothing could be more untrue. An “author” (the term used broadly by the Copyright Act) loses no rights at all by publishing content broadly on the Internet.

Misconception #2: If the work has no copyright notice on it, the work is in the public domain.

Another dangerous misconception is that a work is not protected by copyright unless some claim of copyright is indicated on the face of the work, such as the word “copyright,” or the “©” mark. As to any U.S. work created after March 1, 1989, a copyright notice is optional. As soon as the work is “fixed in a tangible medium of expression,” it is protected. The notice adds nothing.

Misconception #3: A book that is “out of print” is in the public domain.

First of all, because of the current popularity of “on demand” printing, the term “out of print” itself may soon be an anachronism. Generally speaking, whether a book is “out of print” may make a difference to an author, vis-à-vis his or her publisher, but it is irrelevant to the issue of public domain. A work is protected by copyright whether or not it is “in print.” It need not be commercially available to be protected.

Misconception #4: All works created or published by the U.S. government are in the public domain.

As our grandmothers taught us, “all” is a big word. That’s the key to this misconception. While it is true that works created by U.S. employees as part of their official duties are in the public domain, other government works may not so qualify. For example, a host of documents are created for the government by non-profit organizations or by government subcontractors. If the “author” is not a government employee, it could still be a protected work.

Misconception #5: Art works located on federal property are in the public domain.

Many confuse ownership of a work with ownership of the copyright in the work. It may seem like splitting hairs, but the two are not the same. If, therefore, the federal government commissions an artist to create a work of art for a memorial or other public area, the government would likely own the work of art, but not the copyright to the work. If a member of the public were to sell reproductions of that work of art, that activity would violate the copyright in the work itself.

Milwaukee Business and Intellectual Property Attorneys

Are you or your business involved in a dispute regarding copyright? Do you have concerns that your intellectual property rights are being violated? The Milwaukee business litigation firm of Kerkman Wagner & Dunn has more than 50 years of combined legal experience representing business owners in Wisconsin. Our firm has big firm talent, and provides small firm attention. Call us at 414-278-7000 or complete our online contact form.

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