Public Domain: What Is It and Who Lives There

By Joe Sergi

Lately, there has been a resurgence of Golden Age heroes. AC Comics is reprinting Golden Age stories in Men of Mystery, and Golden Age Comics have over 1,600 books available to legally download for free. Alan Moore used several literary characters to form his various League of Extraordinary Gentlemen books. Bill Willingham features several famous fairy tale characters in Fables. Most recently, Alex Ross created Project Superpowers, which stars heroes originally published by Fox Comics, Crestwood Publications and Nedor Comics. While the origins of each of these characters vary, they have come from the same place: public domain.

What is Public Domain?

A public domain work is a creative work that may be freely used by anyone without permission. Although this article focuses on copyrighted print media, the same analysis would apply to songs, movies or artwork in public domain, which would not be protected by its respective intellectual property laws (i.e., copyright, trademark or patent law). There are three ways for a work to enter public domain: (1) the material is produced by the United States government; (2) at the request of the author; or (3) at the expiration of the original copyright.

The first method is the simplest. Works created by any agency of the United States government are public domain as soon as they are created. While there are laws that limit the public's access (such as privacy laws), these documents are generally free to use. Perhaps the best example of this concept would be the 9/11 Report, which was circulated by numerous publishers after it was released by Congress. Other examples of governmental public domain documents include Federal Court opinions, legislative history and census information.

The second method for works to enter public domain is also straightforward. Although it is very rare, sometimes creators do not wish to protect their work. In this instance, a creator can voluntarily move his or her creation into public domain by expressly authorizing that the work is public domain.

The final method of entering public domain, lapsed copyright, is what most people visualize when they think of public domain. Most non-governmental works enter public domain because the work was either created prior to 1923 or the original copyright has lapsed. See the inset chart for a summary of how things become public domain.

Published before 1923 Already public domain
Published from 1923 - 63 28 year initial term plus an additional renewal term of 67 years. Works not renewed are already public domain
Published from 1964 - 77 95 years after the publication date
Created before 1-1-78 but not published The greater of the creator's life plus 70 years (if work of corporate authorship, 95 years from publication) or 12-31-2002
Created before 1-1-78 but published between then and 12-31-2002 The greater of the creator's life plus 70 years (if work of corporate authorship, 95 years from publication) or 12-31-2047
Created after 12-31-2002 The creator's life plus 70 years or, if work of corporate authorship, 95 years from publication

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