Can You Copyright Works in the Public Domain?

Can You Copyright Works in the Public Domain? Copyright law seems to have been turned on its head in the Internet Age. Of course, I’m not a lawyer and am not offering legal advice, but it is important for Christian writers to be aware of some of the issues and trends related to the topic.

The question about copyrighting something in the Public Domain came to my mind when I read a copy of the Life of John Newton published by Attic Books, a division of New Leaf Publishing Group. It is one of a series of books on the lives of great Christians and this one was originally published by the American Sunday School Union in 1831.  Curiously, Attic Press claims a 2011 copyright for the book. Can they copyright something already in the Public Domain?

I asked New Leaf Publishing Group this question some months ago and did not hear back from them. Subsequently, I checked with an intellectual property attorney and I’ll talk about his response later.

Copyright Defined

To get a little clarity on this issue, it’s important to look at the nature of copyright itself. It is a part of the U.S. Constitution (Article 1) and gives authors economic control of their creations. It places the “right to copy” in the hands of an author, so others cannot profit without the author’s permission.

Copyright SymbolsThe amount of time a copyright is in effect has been changed by Congress over the years, but the basic right is still intact. Right now, copyright expires 70 years after the death of the author. That is actually an oversimplification because the U.S. Congress has caved-in to lobbyist in recent decades, and they have made copyright law a rather confusing mess. Thankfully, Cornell University has done writers a service by creating a chart to help guide us all through the maze and you can view it here. Keep in mind that the Cornell chart is just a guide and conditions apply.

After the copyright term expires, whatever it may be, an author’s work goes into what is called, “The Public Domain.” That means anyone is free to use the created work in any way they wish, including reprinting, and no money changes hands and no permission is required. Right now, anything published in the U.S. in 1923 or before is in the Public Domain, and an enormous amount of material between then and 1989 is also available. All intellectual property created by employees of the U.S. Government, as part of their official duties, is also in the Public Domain.

Why Public Domain is Important

What is the benefit of Public Domain material? It is the reservoir of human creativity and thus should be available to all of humanity. The retelling of stories has always been a part of the human experience. Once the immediate economic benefit has been derived by an author, the intellectual property should belong to the ages. It is said, for example, that the plays of Shakespeare have been transformed into over 400 movies. Because it was available in the Public Domain, Romeo and Juliet, for example, could be transformed into West Side Story.

Amazon.com is able to offer all those classic Kindle books free because they are in the Public Domain. Walt Disney made his fortune by retelling old Public Domain stories like Snow White and Sleeping Beauty in film.

Of course, Disney turned nasty when Mickey Mouse was ready to enter the Public Domain. The company lobbied Congress to extend length of copyright, so don’t expect Mickey to be available as a character in one of your own stories until about 2043. Many people think it tragic that Disney could make hundreds of millions of dollars by reshaping Public Domain stories, but through greed and political influence are keeping you from doing the same thing with Disney characters, which would otherwise normally be available in the Public Domain.

Checks and Balances

Copyright is good because it enables you to control and be paid for your creative work while you are living and to leave a literary and financial legacy for your children or grandchildren. Public domain is good because it allows us all to reshape plots and characters into forms with which contemporary people can identify.

If you own a copyright, you can sue if someone copies you book without permission. Yes, they are allowed by copyright laws to dip into it for short quotes under the “Fair Use” provisions of the law, but they can’t steal you blind without legal repercussions. After your copyright term expires, your work because your gift to humanity.

What about a publishing company reprinting an 1831 book word for word and claiming they own the copyright in 2011? One intellectual property lawyer says, “Once a work falls into the Public Domain it remains there forever.”

In the case of the Life of John Newton, it appears that only the copyright page itself is new, and thus that’s the only thing that can be copyrighted, not “all rights” to the original work as Attic Books seems to claim.  Trying to claim copyright for the content of a work already in the Public Domain is dangerously misleading because it upsets the copyright checks and balances intended by our Founding Fathers.

6 Responses

  1. Alex DeAngelis says:

    Hi Donald. Thank you for your interesting article. It made me wonder – say I create something, like a book. If I don’t expressly state that the book is in the public domain, can someone sweep in and copyright it? Thanks!

    • Donald L. Hughes says:

      If you check with an intellectual property attorney (I’m not an attorney), you’ll find that you have automatic copyright when you create the work. You get extended rights when you register your copyright with the US Copyright Office. So, your work is protected and cannot be be used another without copyright infringement, except in limited ways under the Fair Use provisions of the law. Therefore, under today’s law, no one can legally sweep in and copyright it.

      This used to be simpler under the old law. A copyright mark and year were required and copyright did not exist without it. It gave notice to all. You should still do that, but it is no longer a legal requirement and that is a source of confusion. It keeps lawyers employed.

      Since “copyrighted” is now the default, you must now publically declare that your work is in the public domain. When you do that, you forfeit all your intellectual property rights forever.

  2. John says:

    there is more to it than that. It is possible for a page layout (typesetting) to be copyright, so an old public domain title that is republished can be copyrighted in terms of the page layout even if the text itself is public domain. It would mean that you cannot ‘copy’ the work but you could legitimately type it all out again and do your own page setting. And don’t forget issues of ownership, so people who own things can charge you for the privilege of using them even though they are not copyright – eg use of pictures owned by a gallery

    • Donald L. Hughes says:

      Thank you for your comments on this topic, John. However, I believe some of the things you say may confuse others.

      First, it is not likely that “page layout (typesetting)” can be copyright, particularly in US law. The official Compendium of Copyright Office Practices II (paragraphs 305.6 and 305.7) says, “[Where new material] consists solely of uncopyrightable elements such as change of layout, format, size, spacing or coloring, [copyright] registration is not possible.”

      Also, you mentioned images. Photos of art that are outside copyright are okay to use, even if a museum or others attempt to copyright them. This was settled in a case called Bridgeman Art Library v. Corel Corp. An excellent practical guide, which includes the legalities for the US and some other countries, can be found here: http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag

      You don’t claim to be a lawyer and I am not one either. There is much mythology about copyright law, so if people have questions about a particular issue they should consult an intellectual property attorney.

  3. Wowzers says:

    Actually, NONE of Shakepeare’s works (Romeo & Juliet included) have ever been public domain because Shakespeare died 94 years before the first modern copyright law was passed (and everything pre-1710 is subject to perpetual copyright).

  4. mary says:

    Hi,
    l really enjoyed your detailed explanations on copyright books.
    l’m a believer,and l don’t do anything that cause problem.l what to know why madam Guoyon books are not in public domains?knowing that she had died more 100 years ago.
    good to hear from you soon

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