Using Public Domain Material
How to avoid the potholes that lead to inadvertently infringing someone’s rights
We all build on other people’s creative work, in one way or another. It’s how humankind makes progress. We didn’t get from horsepower to space travel by starting from scratch every time. Indeed, we’d have got further faster if we didn’t keep having wars and made better use of our brains, but that’s another story.
When it comes to using other people’s creative output, we need to acknowledge that people have rights over their own creations and should be allowed to benefit from them. Thus you cannot assume that you have the right to use another creator’s work without permission unless that work is in the public domain.
Why Isn’t Everything in the Public Domain?
Given the importance to human progress of building on the work of others, why isn’t everything in the public domain? Good question, but creativity is time-consuming and creators have to eat. They need to retain control of their creations and be paid, in order to keep on creating. Thus, there is a balance to be struck between allowing creators to survive and allowing others to access their creativity to push forward the boundaries of knowledge.
It’s important to know what you can and can’t do in this context. For example, you may quote (within reason) from another person’s work but you should not attribute the quote to yourself or a third party, and you should acknowledge the creator. But even if you have been given permission to use a piece of work in some way that is outside the bounds of “fair use”, that permission does not extend beyond the specific agreement. Permission to use does not give you the right to do as you like.
There are wider economic reasons to give creative artists the resource and incentives to create. The creative industries are major contributors to the world’s economy. Many countries would seriously struggle without their creators. Statistics from early 2020 showed the creative industries growing faster than the national economy and contributing close to £13 million per hour to the UK economy.
If all creative works went directly into the public domain, creators would not have the resource to carry on creating. Nonetheless, there is a balance and the public domain is of key importance in human development.
The Public Domain
Some works are automatically in the public domain, some are specifically placed in the public domain, and some default to the public domain when certain criteria are met.
Copyright holders can grant permission to use their works with or without remuneration, in private agreements between individuals. Such agreements do NOT put work in the public domain, or waive copyright, and usually extend only to a specific use. For example, if an artist provided a custom illustration, a map of a fictional village, say, to be used in a novel, that would not imply that the illustration was in the public domain, nor would the author or publisher hold the copyright, which would remain with the artist. They would need a separate agreement if they wanted to use that illustration anywhere else e.g. on merchandise.
Work That is Automatically in the Public Domain
Some works are not subject to copyright protection and are automatically in the public domain. For example, you cannot copyright an idea — only the tangible expression of that idea. Thus you might own the copyright to the novel you wrote but not to the idea that sparked it.
Facts, too, are not subject to copyright:
Official documents in many countries are routinely in the public domain, although sometimes subject to confidentiality restrictions. In the USA, for example, there is no copyright on any government work.
Work That is Specifically Placed in the Public Domain
Copyright holders — usually, but not always, the creators of a work; the authors, artists, photographers, etc — can choose to put their works into the public domain. This would be via something like the creative commons CC0 licence by which the copyright holder waives their rights, and makes their work freely available. Examples of creative content specifically placed in the public domain are collections of high-resolution photographs such as Unsplash, Pixabay and Pexels.
Work That Defaults to the Public Domain
When the copyright on a creative work expires, that work will move into the public domain. Copyright terms vary around the world. In many countries, copyright expires 70 years after the death of an author. However, you should not assume that something is in the public domain just because the author died more than 70 years ago. There can be other factors in play.
Author JM Barrie gifted the rights to Peter Pan to London’s Great Ormond Street children's hospital in 1929. Copyright expired in 2007, 70 years after Barrie’s death. However, an exception to the UK’s 1988 Copyright Act made provision for some royalties to continue in perpetuity.
Beware Santa’s 9th Reindeer
It is not always straightforward knowing what you can and can’t use. There are salutary, but also heart-warming, lessons in the story of Rudolf the Red-Nosed Reindeer. Rudolf was born when Montgomery Ward, a Chicago-based department store reviewed its policy of buying books to give to children at Christmas during the Great Depression. Rather than go to the expense of buying the books, they tasked employee, Robert L May, with writing a children’s story. The poem he wrote about Rudolf was produced as a booklet.
The poem and later adaptations — books, films, musicals, branded products — were a great commercial success. Because of the circumstances in which the story was conceived and written, it was May’s employers who owned all the rights. However, in a move that put integrity and fairness above financial gain, they signed these over to May, allowing him to benefit from the work.
The Rudolf story and its later incarnations as books, films, and so on, are still in copyright and cannot be used without permission. Names, however, cannot be copyrighted, but this doesn’t mean open season on Rudolf and other iconic names, because they are often protected by trademark.
One of your fictional characters can refer to seeing Mickey Mouse at Disneyland, for example, but anything beyond that is risky territory. The test is whether or not you have infringed the rightsholder’s intellectual property. And whilst there are arguments to be made over the right of anyone to use a derivative such as Rudolf the Green-Nosed Reindeer, I strongly advise against it as you are likely to have to make your argument in court, which will be expensive in time, money and creative energy whether you win or lose.
In Summary
Check the status: Take the time to check the status of any works you want to use. A simple online search such as “copyright status of …” will often yield the results you need.
If you aren’t sure, ask: If you’re unclear or if the work is within copyright or subject to trademark protection, contact the licence holder and ask. Sometimes, it just takes a simple request to get the permission you want. Author or company websites will often provide contact names.
For example, in the sequel to a children’s book, I was committed to using a number of characters named by children in a covid lockdown creative writing competition. One of the chosen names was Nutella, which is trademarked by Ferrero. I found a contact from the company’s website, got in touch, explained the project, and asked if I could use the name. Permission arrived within a couple of days.
Use public domain databases: These make it easy because there is no doubt about the status of the contents they offer. The downside is that you must choose from what is available, rather than accessing a specific work that you might want.
Beware song lyrics: These are often subject to trademark protection and some rightsholders are notoriously litigious. The ease with which the internet allows you to find information means that it’s as easy for them to find you, and hard for you to plead ignorance (which in any case is no defence). More than that, some large corporations use bots to search online for work that might be infringing their rights. There really is nowhere to hide.
Beware iconic characters: And finally, beware taking an iconic character and dressing it in new clothes to use in your story. Arguments can be made that creative amendments to some iconic character names do not infringe anyone’s rights, but unless you are spoiling for a long, expensive, exhausting court battle, avoid “Rudolf-the-anything-at-all” and stick with “Santa’s 9th Reindeer.”
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