Legislation Covering PDI Images

Images like photos, drawings and cliparts are in the public domain if they are not covered by intellectual property laws or that their protection under these laws has expired, not renewed, forfeited or have never been claimed.  Content in the public domain becomes a property of the public as a whole.. Excellent examples includes old drawings of Leonardo da Vinci and those WWI and WWII photos,  Another are the architectural and engineering blueprints of government buildings and bridges.  Government works are public property and are excluded from copyrighted laws. In addition, copyrighted  photos and creative works can be explicitly dedicated by its copyright owners in the public domain.  A simple note accompanying the photos such as “Dedicating the above photo to the public domain” or words to that effect is needed. 

In short, a creative work goes into public domain for any of the following:

  • The copyright protection period has expired;
  • The copyright owner fails to observe renewal procedure;
  • The work is not eligible for copyright protection; and
  • The copyright owner deliberately “dedicates” the work in the public domain.

Expiration of copyright

IP law pundits opine that the US copyright expiration is more complicated that on a patent.  Chapter 3 of the US Copyright Act of 1976 has specified the number of years following the publication or creation of a work during which the copyright protection applies.  But this has been increased over the years.  In 1998, the Copyright Term Extension Act (CTEA), was enacted and extended the duration of copyright terms by 20 years.

Originally, under section 302 of Chapter 3 of the Copyright Act of 1976, for works created on or after January 1 1978, copyright protection lasted for the life of the author plus 50 years, or 75 years for corporate-authored works.  This term was divided into two terms. The first protection lasted for 28 years with the option to renew for another 47 years, hence totaling 75 years for corporate works.

The 1998 CTEA extended the copyright duration to life of the author plus 70 years or 95 years after publication and for corporate works to 120 years after creation, whichever ended earlier. In addition, copyright duration for works published before January 1, 1978, was upped by 20 years to total 95 years from the work’s publication date.

The law also provides that the duration of the copyright on its final year will run through to the end of the calendar year when they will expire.  That means that if your copyright started on March 15 of year 0 and will end on year XX, it will not end on March 15 but on Dec 31 of year XX.

All works copyrighted in the US before January 1, 1923 are now in the public domain.  Those copyrighted on New Year’s day of 1923 entered the public domain 75 years later, in 1998.  Thanks to the extension under the 1998 CTEA, no new works will enter the PD until 2019.  Those copyrighted after January 1, 1923 and before January 1, 1978 will not enter the public domain until 2019 at the earliest, or 95 years later.  Works copyrighted in 1964, the starting point of the revised law, can only enter the public domain in 2059, while works copyrighted in 1978 would enter PD in January 2074.

The Renewal Trap

Numerous works copyrighted prior to 1964 and after 1922 fell into public domain after their owners failed to renew their copyrights during the 28th year of the first term of the copyright. New renewal meant the loss of the copyright.  This prompted the June 1992 amendment to the Copyright Act  to automatically renew copyright of  works that already had protection from, January 1 1964 and December 31 1977.  So from an optional renewal of the first 28-year protection term, the renewal became automatic. And with the 1998 CTEA, the automatic renewal would be for another 67 years (28-year first term prior to January 1, 1978 subtracted from the total 95 years). 

Government work

Some works that cannot or are ineligible to be copyrighted include works of the US Government.  The pertinent provisions of the US Copyright Act of 1976 stipulating this is contained in Section 105 of Chapter 1 which states:

Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise.

Under section 101 of the US Copyright Act of 1976, a work of the US government is defined as "a work prepared by an officer or employee of the U.S. government as part of that person's official duties."   The definition applies to work performed by federal employees and officers to include governments of "non-organized territorial areas" that fall under the jurisdiction of the U.S Government.  The definition, however, does not apply to local and state  governments.

The implication is that US government works are in the public domain.  Any material that would have been copyrighted in the private sector would not enjoy protection when done in the US government federal offices. 

Dedicated Works

Users may encounter an image that has the words: “This work is dedicated to the public domain.” That’s a clear indication that the image is free for use and its copyright owner has waived his rights to the work. This kind of dedication is rare and unless so indicated, do not assume that an image is in the public domain, even if there were no copyright notification which is no longer required these days. In addition, only the copyright owner can make a dedication to the public domain. A creator is not necessarily the copyright owner, especially if his work is subsumed to a corporation which has the copyright authority to make a dedication.

Exception to Public Domain Ownership

While images in a public domain become a property of the public as a whole and no single person can own a public domain image he uses, there’s a wrinkle to the general rule. A collection of public domain images may be copyrighted in a single work. For instance, if a writer collects online PD images he uses for an ebook or website design, the total work can be copyrighted.  Someone making an artistic collage from PD images can also copyright his or her work.  An anthology collection of pop art over the years using PD images is also copyrightable. 

If you come across these works, there is no prohibition using the individual images used since using them won’t change the complexion that they are in the public domain. But the collective totality of images in the work is copyrighted, you can’t copy, distribute or use the work without permission from the creator.