Introduction to the Public Domain
B.
Dealing With Public Domain Gray Areas
Following the step-by-step procedures in
this book will help you determine whether
a particular work you want to use is in the
public domain. But often the answer will
not be clear; the law can often be foggy.
There may be questions about a particular
work that are unanswerable. The law
may not be clear or definitive on whether
copyright or some other legal protection
covers a particular work. Or someone may
simply think that they own a copyright in
a work when they really don’t. Throughout
this book we highlight these uncertainties
with an icon that looks like this: 
These foggy areas are far more common
than you might think. For example,
problems may arise when someone makes a
copy of a public domain work and changes
it in some way. It can be hard to determine
for certain whether or not the changes merit
new copyright protection. If you apply
the rules outlined in later chapters, you
might decide that the work should not be
protected. But the person who created
the original work may not agree.
In another example, creators of digital
copies of public domain photos might claim
that the copies are protected by copyright
(see Chapter 6). It’s likely such claims are
not legally valid, but we don’t know for
sure because there have been no definitive
court rulings on the issue. If you use digital
copies without permission, the company
that made them may complain and perhaps
even sue you for copyright infringement.
When faced with foggy areas, how should
you proceed? If you think it’s likely the
work is in the public domain should you
go ahead and use it, even if there is no
definitive answer? Or should you treat the
work as copyrighted and ask permission to
use it? Should you consult a lawyer?
No book can tell you what to do in every
real-world situation. However, we can show
you when it is more or less likely someone
will complain or even sue you if you treat a
work as in the public domain.
Whenever you see a fog icon in the
text, you should first answer the following
threshold question: Are you going to use
the material to directly compete with some
one’s business? If so, you should consult an
attorney, because these types of uses invite
lawsuits. Here is one recent example of this
problem:
At great expense, a company called the
Bridgeman Art Library Ltd. obtained from
several art museums the exclusive right to
make and sell photographs of hundreds of
public domain art masterpieces. Bridgeman
licensed to the public both regular art
photos and digital photos on CD-ROMS
and through its website. A company called
Corel Corp. obtained more than 150
images from the Bridgeman collection
and published them without obtaining
Bridgeman’s permission. The images were
included on clip-art CD-ROMs and placed
on the Corel website where they could be
downloaded for a few dollars each, far less
than Bridgeman charged. Corel was directly
competing with Bridgeman and costing
it licensing fees. Bridgeman sued Corel,
claiming the photos were copyrighted,
even though the paintings they portrayed
were in the public domain. Bridgeman
ultimately lost its suit, but whether photos
of public domain paintings are themselves
in the public domain remains a gray area.
Bridgeman Art Library Ltd. v. Corel Corp.,
25 F.Supp.2d 421 (S.D. N.Y. 1999); see
Chapter 5.
People and companies often get so
upset about competitive uses that they file
lawsuits even where the material involved
is not especially valuable. For example,
a company that published cookbooks
and cooking magazines filed a copyright
infringement lawsuit when a competitor
copied and republished several yogurt
recipes contained in a cookbook called
Discover Dannon—50 Fabulous Recipes
With Yogurt. The suit was ultimately lost.
Publications Int’l Ltd. v. Meredith Corp., 88
F.3d 473 (7th Cir. 1996).
If you do not intend to use the work to
compete with someone’s business, it might
be relatively safe for you to treat it as being
in the public domain. However, you should
carefully consider the following two factors
before deciding on what to do:
- the likelihood your use will be
discovered, and
- the economic value of the material.
The smaller the chance of discovery, the
more willing you should be to use materials
whose public domain status is uncertain.
Likewise, the lower the economic value of
the materials, the safer it is for you to treat
them as being in the public domain.
What Is the Likelihood of Discovery?
No one can complain about your using a
work unless they know about it. People get
in trouble using works they believe are in
the public domain when they publish the
work or otherwise make it available to the
general public—for example, by placing it
on the Internet. Here is a recent example:
Example: Texas resident Peter Veeck
placed a copy of the Denison, Tex.,
municipal code on his Web page. Veeck
assumed the code was in the public
domain because it was a government
statute. However, it turned out that a
private company called the Southern
Building Code Congress International
(SBCCI) had written the code. The
company creates and sells model
codes to local governments. SBCCI
claimed that it owned the copyright
in the code and demanded that Veeck
remove it from his website. When he
refused, SBCCI sued him for copyright
infringement. Whether the private
companies that create and sell these
private codes can claim copyright
in them is a public domain gray area
(Veeck ultimately prevailed; see
Chapter 3). However, it’s likely that
SBCCI would never have discovered
that Veeck copied the code had he
not placed it on the Internet, which is,
of course, accessible to anyone with
computer access.
The chances of discovery are virtually
nil if you use a work for your personal use
or make it available only to a restricted
group of people. In the example above,
SBCCI would never have discovered that
Peter Veeck copied its code if he only used
it for himself or a small group of friends.
Similarly, there is little risk of discovery if a
piano teacher photocopies an arrangement
of a musical work that may not be in the
public domain; or if a choir director makes
copies of a choral work for a local church
chorus; or a teacher makes a few copies of
a chapter from a book for a class.
Of course, people who use public
domain materials do frequently want to
publish them, place them on the Internet,
or make them as widely available as
possible. This doesn’t necessarily mean
that you can’t use the material.
But, if there are questions over the public domain
status of a work, you should consider the
economic value of the work.
How Valuable Is the Material?
If an individual or a company feels that
you have cheated them out of a substantial
permission or licensing fee, there is a good
chance you’ll receive a complaint or be
sued if your use is discovered.
Examples of materials that were deemed
valuable enough for someone to sue
include:
- the famous children’s novel Bambi: A
Life in the Woods
- a published collection of about 150
works of classical music by such
famous composers as Beethoven,
Bach, Bartok, and Brahms
- a collection of thousands of copies of
legal decisions by U.S. courts
- a database containing over 90 million
residential and business phone
numbers that cost millions of dollars
to compile
- a published book listing used car
prices
- 150 photographs of public domain
paintings by such masters as Rembrandt
and DaVinci
- Martin Luther King’s "I Have a Dream"
speech, and
- a New Yorker Magazine cartoon by
Saul Steinberg.
On the other hand, complaints or lawsuits
are far less likely where the work you want
to use has little economic value. Many—
probably most—public domain works fall
into this category. It’s often not worth the
time and trouble to complain about works
that are not worth much. And it certainly
makes no financial sense to hire a lawyer
and file a lawsuit over such a work. The
damages that can be obtained if such a
lawsuit is successful are just not large
enough to justify the expense involved.
[Photograph] omitted for online sample chapter
Even if someone does complain in
these cases, you can probably resolve the
complaint if you stop using the work or
pay a nominal permission fee. Examples
of public domain works that often have
little economic value include old postcards,
articles and books by obscure authors,
artwork by unknown artists, and sheet
music for long-forgotten popular songs.
One way to tell if a gray-area work is
valuable is to determine whether anyone is
selling either the original or copies to the
public. If not, the materials probably have
little or no value.
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