BY CRAIG MANSON
A Monthly - Weekend With Shades - Column
Almost every photograph that I use here at Appealing Subjects and on my main blog, GeneaBlogie, is in the public domain. That means, simply put, that the photograph is not protected by copyright. A photograph can enter the public domain in a variety of ways. First, works of the United States Government are in the public domain. Second, a photograph's copyright may expire. Third, the photographer may have failed to observe certain formalities required by law at the time the work was published. I like finding and using public domain photographs to illustrate historical narratives.
But dealing with public domain works can be tricky. For one thing, there is the matter of determining whether a photograph is in the public domain or not. We've discussed a number of times before the limitations on copyright under the 1909 Act, the 1976 Act, and subsequent laws. Knowing, for example, that works created and published before 1923 generally are in the public domain is important; but as for the newer limitations, how is one to know what period actually constitutes "the life of the author plus 70 years"?
One way to determine if a photograph is in the public domain is to do a copyright investigation. However, as to works recorded before 1978, these investigations are inconvenient for most people to do. For a fee, the Copyright Office will perform a search. As to matters recorded after 1978, these records are searchable at http://www.copyright.gov/records/.
Even if you discover that a particular photograph is in the public domain, you (or the photograph) may not yet be home free. That's because the version of the apparently public domain work may have been modified in some way that makes that version copyrightable.
Now here's another twist: Suppose the work was first published or protected in a foreign country. Prior to 1978, the U.S. copyright scheme was far different than that of many countries in the world. Many such nations subscribed to the Berne Convention, an international agreement. In the 1990s, Congress approved two laws that have an effect on copyright terms. The first was the Sonny Bono Copyright Term Extension Act and the other was a trade agreement known as the Uruguay Round Agreements Act. Briefly, these laws extended copyright terms of works that otherwise would be within the public domain. The URAA in particular, restored copyright protection to foreign works that had lost their copyright protection under U.S. law. This restoration was part of U.S. implementation of the Berne Convention,
The result of the URAA was that a number if works that had been understood to be in the public domain, suddenly were not. An example of this is the famous music to "Peter and the Wolf," which once again requires royalties to perform. You can understand the confusion that would ensue if you had used a photograph with the understanding that it was in the public domain, but then it wasn't.
Fortunately, relief may be on the way. Earlier this month, the United States District Court in Denver issued a landmark ruling that the restoration of copyright protection to such foreign-registered works is unconstitutional, in that it violates the free speech rights of potential users. The court's free speech rationale was based on the notion that derivative works of creativity are discouraged by the restoration or extension of lapsed copyright protection. The case is Golan v. Holder (U.S. Dist. Ct., D.Colo., 3 Apr 2009).
This ruling certainly will be appealed to the United States Court of Appeals and perhaps to the Supreme Court before the matter is finally settled.
So it seems there are complications in the public domain. If you're not certain that a work is in the public domain and you're not prepared to undertake an investigation, use something else!