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Lesson 1: Copyright & the Public Domain

Copyright & Fair Use

1.1 Copyright Overview

What is copyright?

Copyright is a form of legal protection automatically provided to creative works such as books, music, or art.

Copyright law is intended to encourage people to create new works. By limiting how others can use a newly-created work for some period of time, copyright law gives creators more control over the use of their works and increases their potential for compensation.

According to the law, only the person who controls the copyright (originally the creator) is allowed to:

  • reproduce the work,
  • distribute copies of the work to the public,
  • perform or display the work publicly, and
  • create derivative works; in other words, create new works based closely on the original (such as a translation of a book from one language into another, or making a book into a movie)

The creator of a copyrighted work can give others permission to do these things with the work and can completely transfer these rights to someone else in a way that gives up these rights for themselves. For example, a book author will often transfer their copyrights to a publisher in exchange for money related to the sales of the book. After that transfer, authors can no longer give permission to anyone else to do these things and need permission from the publisher to do these things themselves.

The creator, or the person the creator transfers their rights to, is said to “control copyright” in the work and sometimes described as the copyright owner.

When someone other than the copyright owner uses the work in one of these protected ways without permission (or other justification under copyright law), it is called copyright infringement.

What can be copyrighted?

Copyright law protects creative works “fixed in any tangible medium of expression,” such as books, movies, musical scores or recordings, paintings, photographs, websites, video games, performances, architecture, and software.

The complete description of what is protected by copyright is provided in Section 102 of the Copyright Law.

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. U.S. Code, Title 17, Chapter 1

What can not be copyrighted?

Copyright law does not protect facts or ideas, just the creative choices involved in communicating them. In other words, copyright protects the expression of ideas, but not the ideas themselves. For example, Einstein’s Theory of Relativity could not be copyrighted, but the article he published to explain the theory could be.

The following do not qualify for copyright protection:

Facts are not protected under copyright law because copyright only applies to “original works of authorship.” Although the level of creativity required to be “original” is extremely low, facts do not have the requisite level of creativity. For example, baseball scores, telephone numbers, dates of birth, and the number of people at a protest are facts and not protected by copyright.

At the same time, there may be situations in which a compilation of facts may be protected if the creator selected, coordinated, or arranged the facts in an original way. For example, a cookbook may arrange ingredients in a creative and original way as part of its recipe. In this case, the creator of the work would have a copyright in the creative arrangement of the recipe, but not the recipe itself.

Copyright protection only applies to “original works of authorship” that are “fixed in a tangible medium of expression.” Consequently, an improvisational speech that has not been notated or recorded is not protected by copyright, though a plan for the speech could be copyrightable.

Copyright does not cover ideas, concepts, and principles themselves, only the form in which they are expressed. For instance, merely coming up with an idea does not make you the copyright owner because you haven’t actually expressed anything. You become the copyright owner only when you put that idea into “expression” through words (e.g., a blog post or article) or other tangible form (e.g., in a video, a photograph, or a podcast).

In general, copyright does not protect individual words, short phrases, and slogans; familiar symbols or designs; or mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.

While copyright protection may not apply, be aware that trademark law protects certain words, short phrases, slogans, symbols, and designs. For example, trademark law protects the word “Apple,” the slogan “Got Milk?” and the Nike symbol of the “swoosh.”

See this Digital Media Law Project resource on using a trademark protected word, phrase, symbol for more information.

Plagiarism is not the same as copyright infringement

Plagiarism and copyright each address the legitimacy of copying, but in very different ways.

Plagiarism is concerned with the protection of ideas (not just the particular expression of an idea). Plagiarism is the act of misrepresenting the origin of an idea. In other words, it involves passing off someone else’s ideas as your own. Plagiarism is dishonest and can lead to serious, negative consequences in an academic or professional setting, but it is not directly connected with copyright law.

Plagiarism can be avoided by properly citing sources. Copyright infringement cannot be avoided simply by citing sources.

1.2 Public Domain

Some works that might qualify for copyright protection are instead part of the public domain. The public has the full rights to use these works without obtaining permission and no one can come to control those rights in the future.

There are three common ways that works enter the public domain:

  1. The copyright has expired.
    Probably the most common category of public domain works is those for which copyright has expired. Identifying these works is complicated by the fact that the term of copyright has varied over time and for different types of work. One useful fact is that any works published in the U.S. enter the public domain on January 1 after the 95th anniversary of their creation. So, today, works published in 1928 or before are part of the public domain.
  2. The owner of the copyright did not follow a formal requirement to give the work copyright protection.
    Before March 1, 1989, creators had to take proactive steps to arrange for their works to be protected by copyright. If they did not take those steps, the work entered the public domain. Many works created from 1928 to 1989 are in the public domain, but more information than the publication date is needed in order to make that determination.
  3. The copyright owner deliberately places it in the public domain (this includes U.S. government works).
    Some copyright owners decide to place their work in the public domain. For example, any works created by the United States Government including: federal judicial decisions, federal statutes, speeches of federal government officials given in the course of their employment, federal government press releases, and federal government reports (such as census reports) are placed in the public domain and their use is not limited by copyrights. The practices of state and local governments vary widely and can change over time, so they must be investigated on a case-by-case basis.

Check Your Understanding

True or False: Maps created in 2011 by the U.S. Department of Agriculture are protected by copyright.

Correct! They are not protected by copyright because the U.S. government places all the work it creates in the public domain.
Incorrect. They are not protected by copyright because the U.S. government places all the work it creates in the public domain.

True or False: The novel The Adventures of Tom Sawyer, published in 1876 in the United States, is protected by copyright.

Correct! It is not protected by copyright because currently copyright protection expires on anything published in the U.S. more than 95 years ago.
Incorrect. It is not protected by copyright because currently copyright protection expires on anything published in the U.S. more than 95 years ago.

1.3 Activity: Is It Protected by Copyright?

The Copyright Status Tool is a step-by-step guide to help you determine if a work is protected by copyright or in the public domain. In this activity, you will use the tool to evaluate whether the following four works below are protected by copyright or in the public domain. Once you have gone through the tool for each work, check to see if your answer is correct. You can use the tool in the space above or open the tool in a new tab or window. If you have problems accessing this, contact alex.stark@wisc.edu.

Four works to consider:

This photo of an irrigation ditch from the U.S. Geological Survey taken in 2000.

This photo is in the public domain. All works created by the U.S. Government are placed in the public domain.

This image from the book The Secret of the Wooden Lady by Carolyn Keene. The title page and copyright page are also included in order to help make a decision.

This image is copyrighted for 95 years after the original date of publication, which would be 2045. These are the steps you would take in the Copyright Status Tool: Yes, it is copyrightable. No, it has not been dedicated to the public domain. Yes, it has been published. It was first published between 1923-1963. Yes, it was published with a copyright notice. Yes copyright was renewed according to the Stanford Copyright Renewal Database.

This publicly posted photo on Flickr taken in 2017 of the Badlands National Park.

This image is copyrighted until 70 years after the author’s death. These are the steps you would take in the Copyright Status Tool: Yes, it is copyrightable. No, it has not been dedicated to the public domain. Yes, it has been published. It was first published after 2002 by an individual.

The five steps for cooking perfect rice.

This is not copyrightable because facts or ideas cannot be copyrighted.