Given the popularity of street art, video mash-ups, remixes, or pop art, it’s important to know whether the works being used in an artist’s’ new creation is protected by copyright. Even though fair use is a defense when using other people’s work when creating something new and unique, fair use is still only a defense. It doesn’t mean that a copyright holder won’t come after you, especially if they see big dollar signs. So, it would be great to know if an image, audio track, or video is out of copyright and therefore in the Public Domain, free and clear of any potential hassles.
You might think that in this day and age, the Copyright Office would have a beautiful website where you can upload a URL of a web image to see if it has been registered for copyright. Unfortunately, not only does the Copyright Office not have that awesome system, it doesn’t actually show images, audio, or video at all in their searchable database, only titles, author’s name, and descriptions. If you don’t know anything about the work, you are out of luck — yes, your government dollars hard at work using technology from 1979.
That doesn’t help with unregistered works anyway, so what can we do? Unfortunately, it is not an easy problem to solve, but there are a few rules and tricks that can help. First, let’s look at the U.S. Federal rules for copyright duration. (We only are looking at U.S. published works because works available to most users on the web, in books or magazines, are published. Unpublished works have slightly different rules)
For any work published after Jan 1. 1978, the duration is from creation to 70 years after the author’s death. For corporate-owned works, (works made for hire) and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication. Also, any work published after Jan 1, 1978, is automatically copyrighted. That does not mean it is a registered copyright, it just means you don’t have to register to prove it is yours. However, you do have to register the work to benefit from statutory awards or to file a lawsuit.
For works published before Jan 1, 1978, copyright protection required registration with the Copyright Office and a notice of copyright © on the works. The terms for copyright varies because the law changed over the years, but generally, copyright terms were much shorter and required the registration to be renewed. Here are some general guidelines.
- Any work published before January 1, 1923, is in the public domain.
- Any work published between 1923 and 1977 that doesn’t have a copyright notice, is in the public domain
- Any work created between 1923 and 1963 with a notice but copyright wasn’t renewed, is in the public domain.
- Any work created between 1923 and 1963 with a notice and was renewed or from 1963 until 1977 is copyrighted for 95 years from the first date of publication, which means as of 2013, are all under copyright protection.
One caveat you should be aware of is that given the digital age, not having a © notice does not mean it wasn’t originally placed on the work and someone along the way cropped it out, so be careful
As a rule, iconic works are probably copyrighted, particularly photographs. The photographer probably wouldn’t have given up the rights to those types of images, and would likely have renewed the work. Also, works that are registered regularly as part of a business model, such as movie posters from MGM films, are probably regularly renewed, at least for the major works.
Surprisingly, many of the movie star images from the 1950s and 60s are in the Public Domain. Still shots from movies are not automatically copyrighted when the movie itself is registered. The studio was required to register stills separately, and this wasn’t done very often. And with digital movies, it is easy to grab a still now. Also, publicity photos, like star head-shots, have traditionally not been registered. Since they were disseminated to the public, they were generally considered public domain.
Ok, so how do we know what is registered, for sure? There is no foolproof way but there are a few tips that can help in your research. First, for images, try searching for other versions scattered throughout the web using an image search tool. If there are relatively few available, they are not on professional sites such as the New York Times and using the context of the image (like a movie theater in the background showing Star Wars), pegs the date of publication as before 1977, the odds are it is in the Public domain, but not necessarily overwhelming odds.
For any work published after Jan 1. 1978, the duration of copyright is from creation to 70 years after the author’s death.
For iconic images, movie posters, books, music, and other “titled” works, they can be found on the Copyright Office database. If the works are from before 1977 and required registration, then they should be in the database. The Copyright Office eCo system has various parameters that can be searched, like title, author, or date. Just search on one of those parameters or enter a description of the Work. Enter Attack of the 50ft Woman, Eleanor Rigby, Warhol Campbell’s Soup, or William Faulkner and you’ll have a good chance of finding the copyright information.
Even though works published after 1977 are all automatically copyrighted, that doesn’t mean that the copyright holder won’t let you use it, or charge a small license fee for its use. To discover the copyright holder, try looking at the metadata. (for more on metadata, see this article) The metadata may include vital pieces of information such as the author’s name and phone number, copyright registration, and license terms.
These are just a few ways to help figure out whether an image is in the Public Domain. Do you have any other tips or suggestions? If so, please add them to using the comments form below.
As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art, law, and business. He is currently serving as the Chief Product Officer at Artrepreneur. You can find his photography at artrepreneur.com or through Fremin Gallery in NYC.