CINE Articles

The Public Domain: Smaller Than You Think

Chubb

By Andrea Taylor and Christopher Cooper
The Chubb Group of Insurance Companies
November 2008

The opinions expressed in this article are not necessarily those of CINE and do not constitute legal advice.

You may believe that the components of your film - from the footage to the music and storyline - are in the public domain. But what if you're wrong?

The public domain refers to intellectual property that is available for public use. At one time, the property may have been copyrighted, but as a result of copyright expiration or for other reasons, it entered the public domain and is now free to anyone who wants to use it.

What is and what is not in the public domain can be confusing, to say the least. For example:

  • Surprisingly, the popular song "Happy Birthday" is not in the public domain. Any unauthorized performance of this song or use by a filmmaker, musician, or even a restaurant could put you at risk of receiving a cease-and-desist letter from its owners.
  • The novel The Wonderful Wizard of Oz, by L. Frank Baum, is in the public domain. However, the well-known MGM film is not in the public domain. When the film was created, several key modifications were made, including changing the color of Dorothy's silver slippers to ruby. In 1995, when the novel Wicked: The Life and Times of the Wicked Witch of the West was published, the author included only a vague description of his story's magic slippers in order to avoid infringing on the original material created for the film.

It's easy to see how misconceptions about the public domain can lead a filmmaker into trouble.

Public Domain Facts:

  • Very little intellectual property is in the public domain.
  • Almost no works published after 1978 are in the public domain as a result of the Copyright Act of 1976.
  • A work may be decades' old, but it still may not be in the public domain.
  • Even if a work's creator has long ago died, his or her work may not yet be in the public domain.
  • Works may be copyrighted regardless of whether they are formally registered or contain a "©" symbol.
  • A copyright is valid for the life of the author plus 70 years (if the author is an individual); or the shorter of 95 years from publication or 120 years from creation for works written for hire, anonymously or pseudonymously.

When You Violate Copyright Law
If you don't obtain permission to use a work that is not in the public domain, you violate copyright law - even if you mistakenly believed it to be in the public domain. Some possible consequences of violating copyright law may include:

  • Monetary damages (actual damages or profits of the infringer) or, alternatively, statutory damages ($750 to $30,000 for all infringements with respect to any one work; $200 to $150,000 for intentional infringement).
  • Attorney's fees and costs.
  • Your reputation may be damaged.

Tips for Protecting Yourself from Public Domain Fines and Lawsuits
Most importantly, confirm that any work in question is in the public domain before you use it:

  • Look for a symbol indicating that the work is copyrighted, such as a "©."
  • Contact the U.S. Copyright Office (www.copyright.gov).
  • Research who owns the work in question (search the Copyright Office).
  • Contact an experienced clearance or copyright attorney.

Even after taking these steps, it may still be unclear whether a work actually resides in the public domain, or it may be impossible to identify the author. However, you can protect yourself financially in the event of a lawsuit by purchasing errors and omissions (E&O) liability insurance.

E&O insurance will cover monetary and statutory damages, as well as attorney's fees and costs, resulting from infringement of copyright law.

Copyright laws can be complicated and determining whether a work is "safely" in the public domain can be difficult to determine. The best way to protect yourself, your film and your reputation is to play it safe and get expert legal advice.

Andrea Taylor and Christopher Cooper both underwrite E&O liability insurance for The Chubb Group of Insurance Companies

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