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Free vs Free: The Public Domain and the Creative Commons by Jacqueline Lipton

Many authors are confused by the difference between the public domain and the creative commons. This is not surprising because both the public domain and creative commons licenses allow you to use other people’s work (music, video, text, photographs etc.) for free. However, being free of charge is not the same as being free of any legal restrictions. Public domain material is free in all senses: you don’t have to pay for it and you can do anything you like with it without asking for anyone’s permission. Creative commons material, on the other hand, typically requires you to follow some rules when you use it. They’re not generally very onerous rules, and the intention behind them is to create free and open access, but sometimes they might affect your use of a work, particularly if you want to commercially profit from it.

This blog post explains the difference between the public domain and the creative commons in basic terms for authors. It’s worth understanding the difference because occasionally a creative commons license term will impact the kind of use you are allowed to make of someone else’s work.

I’m going to add in my usual disclaimer here that this post is intended for general informational purposes and is not formal legal advice, so please seek legal help (if you need it) in dealing with any specific situation.

The public domain contains all ideas and information (including pictures, movies, photographs, text, music, discoveries, facts, ideas etc.) that are not protected by intellectual property laws, like copyright, patent, and trademark law. Authors are usually most concerned with the copyright side of this equation. Copyright protects books, songs, movies, images, photographs etc. for a particular term of years. In the United States, for most copyright works, that term is the author’s life plus 70 years. If a work’s copyright term has expired, the work falls into the public domain and, after that, it’s free for anyone to use however they want.

It’s often difficult to figure out when a given work has fallen, or will fall, into the public domain. This is because copyright terms have changed over time in the United States, starting out as a 14 year renewable term and ending up as today’s “author’s life plus 70 years” term. (For anyone interested, a project has been underway for some years, headed by Professor Elizabeth Townsend Gard to make it easier to identify works in the public domain through use of an innovative software program called The Durationator.)

Another wrinkle with identifying works in the public domain is that sometimes where a work has been adapted into another form, the original work may have fallen into the public domain, but the newer adaptation may still be protected by copyright. For example, Frank L. Baum’s original Wizard of Oz books are in the public domain, but the iconic movie starring Judy Garland is still copyrighted. This means you’re free to draw on the original work for quotes, or to retell the story, but you can’t copy aspects of the movie version without permission: for example, details of the costumes, makeup, or sets used in the movie, or specific lines of dialogue from the movie script.

In the case of a series of books or movies, the earlier works in the series will fall into the public domain before the later works. This doesn’t often cause practical problems, but it can: for example, the Estate of Sir Arthur Conan Doyle still asserts copyright over the characters of Sherlock Holmes and Dr. Watson even though most of the novels have fallen into the public domain. The Estate’s claims are based on a series of short stories Conan Doyle wrote later in his life featuring the characters which will not fall into the public domain until the late 2020s.

Many works are in the public domain because they predate copyright law altogether: for example, the Greek classics and the works of William Shakespeare. If you want to quote from these works, or retell these stories in a new way, have at it! You don’t need permission from anyone.

As long as the material you want to use is in the public domain, it’s free to use in all senses of the word, although sometimes it’s tricky to figure out what’s in the public domain and what isn’t.

Creative commons works, on the other hand, appear to be free, and in most situations and most senses they are free for you to use in the same way as public domain material. The difference is that these works are not actually in the public domain. They’re works that are still copyrighted, but the owners of the copyrights want to give the public access to use or improve them. Creative commons licensing is very popular in computer software development because software code is typically written most effectively with many minds focusing on it, testing for bugs, developing new applications for it etc. Software engineers often release their code under a creative commons license to boost their reputations, to engage with the coding community, or simply to create something for the public benefit.

Creators of copyrighted books, music, video, photographs, images etc., may also employ creative commons licenses for similar reasons: to enhance their reputations as artists, to disseminate important information, to engage with others etc. The terms of a creative commons license in the case of artistic works will tend to vary. For example, photographers often release lower resolution images of their work under a creative commons license but may seek payment for higher resolution versions or for other works. Or they may allow free use of their work, provided they are credited as the source. Some creative commons licenses will require any new uses of the work to also be made freely available to the public (which could be a problem if you want to commercially publish a book including creative commons material.)

The bottom line is that, unlike material in the public domain, creative commons work is not free of copyright. The copyright holder is simply releasing the work under a license which includes contractual terms about what you can do with the work. Those terms usually allow you relatively free and unfettered use, but often will require attribution or may prohibit you from making a commercial profit from your use of the work. That’s why it’s important to actually read the terms of a creative commons license before you use the material in question. Creative commons license terms are typically available alongside the work itself: in the digital age, they’re usually attached to the work itself or made available on the same website.

While sensible copyright holders will make the terms of use conspicuous and hopefully easy to understand, if they fail to do this it won’t automatically mean that the work is freely available for you to use. In other words, just because you find something on the Internet, doesn’t necessarily mean it’s subject to a creative commons license, or even that it’s in the public domain. It’s often a good idea to try to contact the creator of the work and ask whether it’s alright to use it for the purposes you have in mind, and perhaps also ask if they would like to be credited for the work.

Of course, if you’re making a fair use of the work, you won’t have to seek permission, but fair use is also a difficult concept in American law that’s hard to get a handle on. It’s often difficult to know upfront if what you’re doing is a fair use or not. (Fair use is the subject of a whole ʼnother blog post. Watch this space!)

In any event, most creative commons work is intended to be relatively freely available but “free” in this sense isn’t always quite as free as material in the public domain, so it’s useful to understand the difference.

Jacqueline will be presenting a webinar, Legal Issues for Authors on October 25.

[box] BIO:

Jacqueline Lipton

Jacqueline Lipton, a law professor and fiction author with expertise in intellectual property law and digital information law. She holds a Ph.D. in intellectual property law from Cambridge University as well as an M.F.A. in Fiction Writing from Vermont College of Fine Arts.

Jacqui Lipton (writing fiction as K.C. Maguire), Authography LL.C. – the Art of Authorship. Author of INSIDE THE PALISADE (winner of the 2016 Purple Dragonfly Award for Sci-fi and Fantasy); RETHINKING CYBERLAW (2015)

Author page: jdlipton.com

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[box] RELEASE:

Inside the PalisadeINSIDE THE PALISADE

Omega has grown up surrounded by women – literally. Inside the palisade, women fall in love, marry and raise daughters, relying on an artificial insemination process known as the Procedure. But something goes horribly wrong. One day, Omega comes face to face with a mythical monster – a man – within the society’s walls. Men had been eradicated long ago to protect women from the threat of violence. But this boy is not what Omega has been led to believe. And he needs her help. She soon finds herself embroiled in a manhunt headed by a vigilante Protector, Commander Theta. When she falls into Theta’s clutches, Omega realizes that there’s more to the banishment of men, and to her own past, than she’s ever known. Ultimately, she is forced to make a choice between betraying the lost boy and betraying her society, a decision complicated by the realization that she has more in common with him than she cares to admit, and the fact that she is developing feelings for him.

Available at Amazon.comLodestone Books, and Foyles.

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Jacqui has published flash pieces and short stories both under her own name and under the pen-name K C Maguire. Her debut novel, Inside the Palisade, a young adult sci-fi story was published by Lodestone (U.K.) in 2015 and won the Purple Dragonfly Award for science-fiction and fantasy in 2016, as well as placing in the Houston Writer’s Guild fiction writing contest the previous year. Jacqui holds an M.F.A. in Fiction Writing from Vermont College of Fine Arts as well as fiction writing certificates from UCLA Extension and Stanford Online. She is a popular speaker on legal issues for authors and illustrators, and her new book Law & Authors: A Legal Handbook for Writers will be published in 2019 by University of California Press. Jacqui can be found online at authography.org

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