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How to Know if a Work is in the Public Domain

When a book, film, music or any other media is in the public domain, it may be used freely without any kind of restriction. But how does one know if the desired work is, in fact, in the public domain?

If a work is in the public domain, there is no requirement to ask permission or pay any royalty for its use. It is available to anyone to use any way they desire. But since U.S. copyright law can be very confusing and convoluted, it often takes some serious investigation to determine if certain works are truly in the public domain.

The basic rule starts with determining the work’s publication date. If the work is writing, that date is usually next to the name of the publisher. Call the publisher and ask to make sure of the work’s public domain status. If the publication date is not available, check out the work’s copyright registration in the Catalog of Copyright Entries.

The point of this is to determine whether the desired work is eligible for public domain status. If it was published before 1926, it automatically went into the public domain on Jan. 1, 2022.

According to the Duke University Law School, at the beginning of 2022 books such as A. A. Milne’s Winnie-the-Pooh, Felix Salten’s Bambi, Ernest Hemingway’s The Sun Also Rises, Langston Hughes’ The Weary Blues and Dorothy Parker’s Enough Rope went into the public domain.

Scores of silent films — including titles featuring Harold Lloyd, Buster Keaton and Greta Garbo, famous Broadway songs and well-known jazz standards also became free for public use. And an estimated 400,000 sound recordings are now in the public domain.

One reason for copyright law is to promote creativity, and the public domain plays a central role in that process. It ensures that legal protection rights last for only a limited time. When that time expires, future authors can reimagine previous works, building on them with new works.

Shakespeare’s writings have given us everything from 10 Things I Hate About You and Kiss Me Kate (from The Taming of the Shrew) to West Side Story (from Romeo and Juliet). As with Shakespeare, the ability to freely reimagine new works spurs creativity from the serious to the whimsical. This process is designed to extend the original artists’ legacies.

A work published between 1926 and 1966 may be part of the public domain, depending on whether the author renewed the copyright. An unpublished work created before 1978 may be part of the public domain, depending on the author’s date of death. This task can be a bit complex in some cases.

When trying to determine whether an unpublished work is in the public domain, find the date of the death of the author. This can be found searching the free Social Security Death Index. An unpublished work created before 1978 enters the public domain 70 years after the author’s death or in 2002, whichever is later.

If the copyright of a work published between 1923 and 1963 was not renewed in the 28th year after publication, the work is in the public domain. If the work is a collection, such as a magazine, be aware that the copyrights of individual articles by an author may have been renewed even if the work as a whole is not under copyright. Each article must be researched individually.

Many poems are in the public domain. The legal status of poems may be determined by searching collections at Bartleby.com. This site includes anthologies and volumes of poetry that are free to use. This includes work by Emily Dickinson, Walt Whitman, William Butler Yeats and Robert Frost.

Sometimes when something is in the public domain, its use can still come back to bite you. This happened to me on a restoration project of Orson Welles’s old radio shows. A thorough check had determined that the radio show, The Shadow, in which Welles acted, was in the public domain.

However, soon after the collection was publicly released, a major motion picture studio decided they would re-copyright the work to use in a feature film. Though we had the legal right to use the work, the studio threatened to take us to court. The cost of defending our public domain usage would have cost more than the whole issue was worth.

We ended up paying the studio $2,000 to drop the issue. That was far cheaper than going to court to defend ourselves, though we clearly would have won. That’s an issue where the big guy won, regardless of the law.

In all matters involving public domain, the key rule is to do the necessary homework to ensure that free use of the work is allowed. Even when you are certain it is, major players can still oppose the use. But most of the time you will enjoy public domain work free of all restrictions.

Writer at Broadcast Beat
Frank Beacham is a New York-based writer, director and producer who works in print, radio, television, film and theatre.

Beacham has served as a staff reporter and editor for United Press International, the Miami Herald, Gannett Newspapers and Post-Newsweek. His articles have appeared in the Los Angeles Times, Washington Post, the Village Voice and The Oxford American.

Beacham’s books, Whitewash: A Southern Journey through Music, Mayhem & Murder and The Whole World Was Watching; My Life Under the Media
Microscope are currently in publication. Two of his stories are currently being developed for television.

In 1985, Beacham teamed with Orson Welles over a six month period to develop a one-man television special. Orson Welles Solo was canceled after Mr. Welles died on the day principal photography was to begin.

In 1999, Frank Beacham was executive producer of Tim Robbins’ Touchstone feature film, Cradle Will Rock. His play, Maverick, about video with Orson Welles, was staged off-Broadway in New York City in 2019.
Frank Beacham
Broadcast Beat - Production Industry Resource