Public Domain Works

Mona Lisa -Public Domain!
Leonardo da Vinci [Public domain or Public domain], via Wikimedia Commons
What happens if the rights over a work have expired or have been given up? Do you still need permission before using them?  Not really – they’re Public Domain Works now.

The intellectual property rights over a work are never absolute and perpetual. In other words, the rights over a work can always be transferred, licensed, sold or just forfeited by whoever owns the rights. In nearly all cases, save for a few exceptions, rights over a work do not last forever – sometimes rights over a work can just expire as in the case of copyright, which simply ceases to operate at the end of its duration (author’s life+ 60 years OR 60 years from the date of publication depending on the nature of the work).  In such cases, the work is said to have become a Public Domain work.

So is the Public Domain full of works that nobody finds special anymore?

It’s easy to confuse the Public Domain with some kind of universal intellectual trash bin, that’s full of projects and works that have either become obsolete or useless. Nothing could be further from the truth. The Public Domain is actually FULL of interesting and famous works of visual, audio and cinematic art, and many well known works of art are modifications, adaptations or derivative works based on material found in the Public Domain. For instance, Marcel Duchamp’s L.H.O.O.Q is a derivative work based on Leonardo Da Vinci’s “Mona Lisa”, the latter being an example of a very prominent Public Domain work.

What are the implications of using Public Domain works?

This is universally applicable to artists of all kinds – the best part about creating a derivative work of a Public Domain work is that there is no prior permission required. The cool thing about using Public Domain work is that there is no chasing or consequent chastising for not having obtained permission, before you chose to modify or adapt the work. Also, just because your work is a derivative work that has used a Public Domain work, does not imply that your derivative work is also in the Public Domain. In other words, unless explicitly agreed to otherwise your work can be based on a Public Domain work, and can still be protected under the rights/licensing regime of your desire. The big exception out there relates to the mere technical reproduction of a 2 dimensional piece of work – if the work is simply a reproduction of a 2 dimensional Public Domain work, devoid of any additional creative input, then the reproduction will also be a Public Domain work and cannot be claimed as the author’s work. So taking a full frame photograph of the “Mona Lisa” is considered Public Domain. However, assuming you took the trouble to set the lighting to create some kind of creative perspective, and then took a picture of the “Mona Lisa”, that would entitle you to some kind of intellectual property rights protection over the picture you’ve now taken.

So if the Public Domain is so great, why are some artists freaked out by it?

The idea of owning the rights over a work has always been presented as a concept aimed at empowering artists and creative persons. However rights ownership can also be understood in a limiting way, placing hurdles in the way of artists seeking to express their ideas through innovative creative processes and strategies. For instance, in order to express his or her political opinion, an illustrator may choose to adapt a pre-existing photographic work belonging to a news agency and make an illustrative poster that seemingly opposes the subject of the previous photographic work – like say using an existing photograph of a political icon in a poster aimed at making him the subject of political satire. A situation like this involves several layers of legalese, but at the very base of it, the artist remains unable to express himself or herself because of the restrictions placed on the work they wanted to use as a base. In other words, rights might be empowering, but they can also have a very negative effect on the right to freely express oneself through speech or any other mode. So the upside then, is that you abandon any kind of rights regime entirely, but what if you wanted to protect your work? What if you wanted to make sure that it would never fall into the wrong (creative) hands?

Corporations like the Walt Disney Company have been worrying about expiring copyrights and the Public Domain. They worried so much, that they lobbied the American Government (not once, but twice!) to extend the period for which copyright protection could last – all so that they would not have to see the day when a certain cartoon mouse would not slip out of their exclusive artistic (and hence, economic) control.

There may never be a conclusive end to the free speech versus rights regimes debate, however the interaction of these two perspectives does bring up a very important question – what if an artist just doesn’t want anyone else to lay claim to their work, or worse yet, modify it! There are other protections in place for this kind of thing (Enter, Moral Rights!), but the fear of losing control over your work is often the thing about the Public Domain that freaks artists, and more often corporations.

So, as an artist, what should I really remember about the Public Domain?

If you’re planning on making a derivative work and you happen to be basing your work on a pre-existing work that has entered the Public Domain – no need to fret about permissions. Always remember, that if you do not want your work to slip into the Public Domain, renew registrations where you can (not possible for copyright though, but there are alternatives). Last of all, always remember that the Public Domain is not some kind of trash can of weird – its actually a really good place to look for some classic works of cinematic, photographic, dramatic and musical art.

If you have anymore questions about how the Public Domain works, then go right ahead and leave a comment or get in touch with me with your queries.

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3 Comments

  1. What if I want to use pictures of certain designs (eg; Elie Saab) on my blog? Or actors like Audrey Hepburn, Grace Kelly, etc or even of Disney Characters? I’d have to acknowledge the site where I got the pictures from? That would do, right? I’ve read about this artist who took some pictures off flickr, acknowledged the source but got slapped with a pretty heavy-duty case on grounds of infringement. Scary.

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    1. Hey Kekhroneo – yes things can get pretty scary with using images that have not been authorized for sharing or commercial use. If you’re looking for public domain or CC licensed pictures, then you can always find them on sites such as Wikimedia Commons or Flickr where the images are always accompanied by details of their licensing arrangement. The truth is a lot of blogs tend to use images without keeping these conditions in mind – perhaps it’s safe to assume that as long as your blog is for non-commercial use and so long as you are not defaming or harming a brand or person in any obvious way, using images of any kind might be permitted. As for the unfortunate artist, it’s possible that he/she did not pay heed to the licensing requirements made clear at the bottom of the Flickr images used by them. In other jurisdictions, you also have Publicity Rights which have everything to do with how a celebrity’s image is used and this is also an area that gets invoked if you’re going to be dabbling in using unauthorized images of a celebrity. This is especially true in the case of commercial use – for eg, Rihanna recently sued Top Shop for their line of t-shirts that used her image on them, without actual authorization.

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