Lesson 4: Details on the Public Domain

Lesson 4: Details on Public Domain
By Terri Hopkin, Cathy Poage & Melissa Olivero

Part One

This lesson is designed to give you the basics information on what Public Domain means in regards to images. It is not exhaustive and as always there may be exceptions to the rules, we would suggest that this is a good starting point as an introduction to the world of Public Domain. As always we are concentrating on Public Domain and how it affects the graphics community only.

In the eyes of the law, the term Public Domain means images that are available for copying and using by anyone. So how does an image become Public Domain and who decides what images are public domain and what images are not.

The laws have changed several times over the years and for ease of learning we have divided this lesson into three separate sections:-

1 All images published before 1923

2 Images Published between 1923 – 1978

3 Public Domain Images published after 1978 and Creative Common Licenses.( Which we will not be covering until a later date)

Part One - Pre 1923

The first thing to remember is that the internet is a global community, and when Public Domain was first introduced the very idea that we would all be sitting in our homes, with a little box, hooked to a connection, accessing images from across the globe – well, it was just science fiction.

The second, and perhaps the most important point, directly relevant to you, is the history of modern technology. Let us be clear about this, and let us all understand this before we move on.

Since the days of the caveman, human beings have been expressing themselves through art. The fabulous paintings that are in the world’s museums and galleries are the only window we have into “how we used to live”. In the 1820’s the world was introduced to photography but it took till during the Second World War for colour film to be truly developed. If you look back at your own, old family photographs I am sure you will find that it wasn’t until the very early 1960’s that colour photography first appeared. However for us to have the ability to transfer these photographs into the images you see on your computer screen took a while longer. The world had to wait on the inventors to introduce high powered scanners and digital photography before it was possible.

It is imperative that you remember these simple facts and keep at the forefront of your mind that if you are looking at a painting on your computer screen, from the 1700’s, the 1800’s, even the 1960’s you are not looking at the actual image but a digital copy of the painting.

The Law

Copyright Laws were introduced to different countries, at different times. Today, most of the world (with the exceptions of Japan, Columbia, Guatemala, Mexico, Samoa there may be a few others) all agree that any image published before January 1^st 1923 is now in the Public Domain, and that the image is free for others to use.

Two key facts to remember here, first, published - meaning it had to have been made public before 1923. Secondly, remember if you are looking at the image on your computer screen, you cannot be looking at an original – the technology did not exist back in 1923.

So how can you find Public Domain Images, and how can you use them?

A great source of true public domain images that are available to you are old books and postcards. Look inside the book at the publishing details, if the date of publishing is before 1923, you can legally scan or photograph these images and use at your leisure. The same applies to old photographs and postcards, if the original pre-dates 1923; you can use the image for your purposes without permission or payment.

It is not impossible to get originals of some old art; it just takes time and perseverance. Some places to look other than the internet are

1 Your local library, just check to make sure they will allow photocopies or will allow film pictures to be taken of the images. If they allow film pictures please use these guidelines. Fast film speed, have the picture in the brightest area that the library will allow and try not to use a flash.

2 antique shops, they sometimes have old books fairly cheap,

3 flea markets, yard and estate sales,

4 thrift stores,

5 old book stores, I recently found an old Pennsylvania Dutch article dated 1888.

6 eBay - remember you are looking at eBay to BUY the postcards, not to right click the image you see online. I have bought a lot of old postcards and prints thru eBay and some old publications as well.

Trademarks

If you think back to our trademark lesson, it is worth reminding you here that when you look at old Public Domain images, you must also remember the laws pertaining to trademarks. If the image you wish to uses display advertisements – for example Singer Sewing Machines, Coats & Clarke, Pears Soap, trademark laws may prevent you from using the image even thought the actual image is now in the public domain. If you find old advertising art such as this that you wish to use, it is advisable to contact the company to verify the usability and status of the image first.

Part Two 1923 – 1978

Let’s leave aside the images pre 1923 now and move on in time and concentrate in the era between 1923 and 1978. Once again we need to remember that the internet is a global community and the images we see may not originate in the country that we live in. This is very important. Internationally the laws concerning Public Domain changed in different countries at different times frequently during the period 1923-1978.

Stop for a minute and think back to the history of the developed world in the 20^th Century – we had World War II, the Vietnam War, the Cold War (to name but a few) so is it at all surprising that there was no global agreement on copyrights and trademarks?

This time zone is fraught with questions and dilemmas and if you really want to use an image from this era, it is very seldom easily researched, and we would always advise contacting a copyright lawyer if you would like to use works from this period.

But to help you on your way here are a few pointers, the four facts you need to know before you begin your research are:-

? the date first published;

? the date of creation for unpublished work

? the country of origin

? the year of death of the artist.

If you live in the United States and the work was first published in the United States then the University of California provide an excellent online resource here. http://www.unc.edu/~unclng/public-d.htm This simple to use flow chart lets you clearly decide when the image will fall into the public domain.

However if the image was first published outside the U.S., then Cornell Education provide the best resources that to date we have found here. http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm

Because the above websites are so clear, we do not want to re-design the wheel (so to speak). *smiles*

However let us look at two examples.

Example 1

I have a limited edition print of Joe Bloggs the artist. It was first published in the US in December 1989, sadly the artist died in January 2000, when will the painting be classed as being in the Public Domain so that I can legally reproduce it.

As we know the artist’s work published in the US we only need to go to this website - http://www.unc.edu/~unclng/public-d.htm the very first entry applies to us as the work was originally published in December 1989. The artist died in the year 2000, and the copyright will expire 70 years after the artist’s death. So the answer is that the painting will fall into the public domain in the year 2070.

Example 2

I have a fabulous postcard dating back to 1930. It was first published in England in compliance with US formalities in June 1930. It was still in copyright in England on 1st January 1996. When will the postcard be classed as being in the Public Domain so that I can legally use it in my creating?

This time we know the image was published outside the US, so we need to go to this website http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm. About half way down the page under the section Works Published Abroad Before 1978 in Compliance with US Formalities to get our answer. This time the correct answer is Date of publication plus 90 years, so it will be in the Public Domain in 1930 + 95 = 2025.

Once again, we would urge caution and thorough research for public domain images published between the years 1923 – 1978.