Copying From the Public Domain

By: Joshua Kaufman, Esq. © 2003

Wayne Morris died in 1896. He left behind a body of artwork. A present day artist desires to use Mr. Morris’ artwork as the background in her creations. She noticed that in the marketplace Mr. Morris’ images are found on wallpaper and fabric. On the designs she finds a trademark, "Morris and Company". Can she use Morris’ designs in her artwork or not?

The question of incorporating another artist’s art in ones own without consent is a frequent question and often depends on the application of the concept of "Public Domain. If an underlying artwork is in the Public Domain anyone can reproduce it or incorporate it into another work. If a work is not in the Public Domain, by and large, one may not use it without permission. When and how does a work fall into the Public Domain? The answer is a bit complicated and there are different answers for the United States and for other countries. In the United States it is safe to assume that a work would be in the Public Domain if it was published before 1923. "Published" in the copyright sense means that a work has been reproduced and the reproductions were available to the general public. Publication would occur with the distribution of prints, posters, greeting cards, calendars, the art in books and/or magazines.

For works published after 1923 there is no simple across the board answer. It will depend on many factors; whether or not the work was registered with the Copyright Office and whether or not the Copyright Registration was timely renewed. Also, whether or not a work which was published before 1989 contained a Copyright Notice. Publication of a work before March 1, 1989 without a proper notice would cause the work to fall into the Public Domain. Before 1978 the copyright lasted for 28 years and had to be renewed for another 28 years. So in order to ascertain if a post 1923 work is in the Public Domain one has to undertake some detective work and find out when it was published, was it registered, where copyright notices affixed to the copies being distributed, etc. Sometimes that can be a very difficult and daunting task, but there are no short or pat answers in the analysis. For works created after 1978 the copyright will last for the life of the artist plus 70 years and if it was done in the scope of the artist’s employment the copyright held by the employer will last for 95 years from the date it was published, or 120 years from the creation.

One other important issue needs to be examined. If a Public Domain work has been modified can one then still use the modified work? There is a strong likelihood you will not be able to simple reproduce the newer work without violating the copyright of the person who modified the underlying Public Domain work. However, the copyright in the modifier’s work will only go to those parts which they have added, not to the underlying Public Domain work. Therefore, if a print is made of a Public Domain work and it is a slavish reproduction exactly duplicating the underlying work in all likelihood no copyright protection will vest in the secondary work. However, if it was modified, restored, parts added or subtracted even though the underlying work is in the public domain the additions and modifications in the new work might be protected. Therefore, one needs to be careful that when they are reproducing a Public Domain work that they are copying the original version and not a modified protected version.