Public Domain: When Can You Lift Content? - Free Enterprise
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Public Domain: When Can You Lift Content?

We recently covered Judith Griggs of Cook's Source magazine, who lifted a recipe and blog post from college student Monica Gaudio entitled "A Tale of Two Tarts." In the piece, we noted that Griggs listed Gaudio as the author, but made no effort to contact her or license the content. Griggs believed she was perfectly within her rights because the recipe was "in the public domain."

So what is the public domain, and when can you lift content? First off, it's best to assume that any material you come upon is not in the public domain until you can determine otherwise.

If in doubt, consult an attorney as the following list is not exhaustive but a mere primer. With that out of the way, here are some examples of work that is normally deemed to be in the public domain:

The copyright has expired: copyrights of all works published in the United States before 1923 have expired. If the work was created after 1923 it's a bit more complex, but check out the first link under related resources for more detail.

Work Produced by a U.S. Government Employee: Work created by a U.S. government employee automatically falls into the public domain if the work is created in that person's official capacity. The rule does not, however, apply to state and local government employees.

Work Donated to the Public: Sometimes an author will donate her work to the public. When this occurs they will usually make a specific note to that effect. If you do not see such a note, assume that the work has not been donated to the public.

Things get complicated, however, when you look at the defense of fair use. Fair use is an entirely separate defense to copyright infringement that that could easily have a full post of its own. Generally speaking it is an exception to copyright law that allows limited use of copyrighted material without permission from the copyright holder. Under fair use, the defendant is acknowledging that the work is copyrighted, but is claiming that he or she has a right to use a limited portion of the work because that use meets certain criteria (like criticism, parody, commentary, etc.).

11/10/10 Editors Note: The last paragraph was edited to clarify that the doctrine of fair use is a separate defense from public domain.

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