Legalities of using quotations from published works that are in the public domain
Oh, you really want to use that cute quote to accompany one of your photographs?
Or you’re looking to create a product for your studio or your e-commerce store?
But can you just use any quote you like?
Is it okay if you make sure you attribute the quote to the person who said it or wrote it? can you use it then?
Anything old is in the public domain isn’t it?
Let’s talk about definitions to make sure we are on the same page, then we can talk about how to make sure you are using material in the public domain, and once you know it is in the public domain some things you might want to consider in using quotations in the public domain as part of your photography business.
What is the public domain?
The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission.
What this means for you is that you can use a quotation if it is in the public domain.
So how do you figure out if a work is in the public domain?
There are four common ways that works arrive in the public domain:
- the copyright has expired
- the copyright owner failed to follow copyright renewal rules
- the copyright owner deliberately places it in the public domain, known as dedication; or
- copyright law does not protect this type of work.
Has the Copyright Expired?
Once the copyright expires, a work falls into the public domain and you may quote it without permission. Determining the public domain status of a work gets tricky. As a consequence of numerous copyright law changes, different copyright durations apply depending upon the specific work’s date of publication or date of creation. To determine whether a work is in the public domain and available for use without the author’s permission, you first have to find out when it was published. Once you know when it was published apply the following rules to see if the copyright has expired:
|Works published in the U.S. before 1923||Works are in the public domain|
|Works published in the U.S. after 1922 but before the end of 1963||Works are protected for an initial term of 28 years. If not renewed during the 28th year, the work falls into the public domain. If renewed, then they are protected for 95 years from publication.|
|Works published in the US after 1963 and before 1978||The CTEA amended the Copyright Act by automatically extending the term of protection for works currently in their renewal term from 75 years to 95 years. Under the new law, any work published in 1923 (which would have otherwise fallen into the public domain on January 1, 1999), will now be protected until January 1, 2019.|
|Works published in the U.S. after 1922 but before March 1, 1989||Generally, if a work was published without copyright notice under the authorization of the copyright owner and the law does not provide an exception for the omission, the work is in the public domain.|
|Works published after 1977||The copyright lasts for the life of the author plus 70 years. Copyright in works created by two or more authors, now expires 70 years after the death of the last surviving author. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the duration of copyright protection is the shorter of 95 years from first publication, or 120 years from the date of creation.|
There are some exceptions to the above:
There is currently a moratorium on new works entering the public domain in the US. Under the Sony Bono Copyright Term Extension Act (CTEA) – which added 20 years to most copyright terms – no new works will enter the public domain until 2019. Enacted to ensure adequate protection for U.S. works abroad, the CTEA restricts access to works published after 1922.
Different rules may apply to works that were also published in foreign countries. You will need to research public domain status in each country where you plan to publish your work. Note: Before 1978, most countries had different periods of copyright protection than the United States.
The presence or absence of a copyright notice or copyright symbol © is not the last word on whether a work is in the public domain. A copyright notice is not required for works published after March 1, 1989. For works published before 1989, the absence of a copyright notice may not affect copyright if, for example, the author attempted to correct the situation. Under copyright laws that were in effect before 1978, if the work did not include the word “Copyright” or a © and the name of the copyright owner, the work would enter the public domain. If you’re using text from a journal, anthology, newsletter, or magazine published before March 1, 1989, check if there is a copyright notice either for the individual article or for the whole publication. Either type of notice will prevent the work from falling into the public domain.
Renewal of Copyright
For works published between 1923 and 1963, you will need to research if the copyright was renewed. The renewal records for works published from 1950 – present are available at the Copyright Office website. The renewal records for works published before 1950 are available in the 660 volume Catalog of Copyright Entries, which have been digitized and are available on the Internet Archive.
Did the Copyright Owner Donate It to the Public?
The copyright owner can choose to give up all rights in the work. Online this is often indicated using a Creative Commons CC0 license. However, using a CC0 license is not required. A copyright owner’s use of any words unequivocally dedicating a work to the public domain can suffice, for example, words like “this work is dedicated to the public domain.” However, unless there is express authorization placing the work in the public domain, do not assume that the work is free to use.
Copyright Does Not Protect Certain Works
There are some things that copyright law does not protect. Copyright law does not protect the titles of books or movies, nor does it protect short phrases such as, “Make my day” or “it’s a beautiful day”. Copyright also doesn’t protect ideas or theories.
Practical Advice for using quotations from the public domain
Do your research. Know where the quotation is from, especially if you are planning on using the quotations in a commercial manner (this includes on a business social media page). Be aware that just because the first publication of an author’s work is now in the public domain, this does not include all editions or printings. Specifically, it is important to ensure the particular version you want to use is actually in the public domain. Later versions or adaptations (e.g., translations, revisions, annotated and illustrated editions) of Public Domain works may be protected by a separate copyright.
The US Supreme Court has held that there is no legal requirement to provide attribution when public domain works are copied and placed into new works: Dastar Corp. v. 20th Century Fox Film Corp., 123 S.Ct. 2041 (2003). However, just because there is no legal requirement to give credit to creators of public domain works, that doesn’t mean you shouldn’t. When copying works from the public domain, be careful to avoid plagiarism. While you cannot be sued for plagiarizing a work in the public domain, there can still be negative consequences including damage to your professional and company reputation.
Be careful using quotations from collected works. While each work in the public domain belongs to the public, collections of public domain works may be protected by copyright. For example, collections of public domain material will be protected if the person who created it has used creativity in the choices and organization of the public domain material.
Finally, know that with care and research you can make use of public domain quotations in your photography business.