What's in the Public Domain?

All rights reserved. Some rights reserved. No rights reserved. Royalty-free. Rights managed. Public domain. Navigating the territory of intellectual property can be tricky – and the consequences for making a wrong turn could mean legal disaster for your company. With insights from Emily Danchuk, a copyright and trademark attorney at The Webb Law Firm, here are some tips to help you and your company understand the law – and how to comply with it.

Contrary to what many people believe, U.S. copyright law protects most photos, videos, musical works and written works for at least 75 to 120 years after their creation. Emily explains, "The public domain consists of works that are, voluntarily or after a certain time, given to the public." Any works created before January of 1923 have fallen into the public domain, Emily explains, meaning that anyone can use or reproduce them without permission. But in the case of more recent works, unless a copyright has expired or express permission has been granted, you can probably assume it is not in the public domain.

However, if an image, musical composition or other work is protected by copyright law, that doesn't mean you can't request permission or purchase a license to use it. In fact, there are a number of Web sites that specialize in licensing stock photography and music for use in graphic and multimedia productions. But keep in mind, Emily says, that when you shop at these sites, you typically only buy the rights to use a particular creative work; you are not granted exclusive rights, nor do you own the work. "You're competing with your competitors," she says. "If they use the same photo, there's nothing you can do to prevent such competitors' use."

Still, these sites are a helpful, affordable resource for media. It's important to understand just what you're paying for when you shop at these sites. Some Web sites license their media "royalty free," meaning that once you pay a flat fee (or one-time fee) to use the work, you may use it again in other contexts without securing additional permission. "Rights managed" licenses, on the other hand, are granted for a specific, one-time use; if, for instance, you purchase a license to use an image for one publication and later wish to use it again for a different publication, you would need to acquire a second license for that use.

Media that your company generates, of course, belong to your organization. But what about photos or videos taken in a public setting? Can your organization get in trouble for posting videos of a public event on its Web site? Or printing a crowd photo in its newsletter? "It depends on the context of the use and on the contents of the photograph," Emily says. "Just because you're not going to be held liable in a lawsuit doesn't mean you won't get sued in the first place." Privacy laws vary from state to state, so whenever possible it's best to get individuals' permission before using photos taken in a public setting.

Even more important, perhaps, is your purpose or intent in using others' works. The U.S. Copyright Act sets forth the right – called "fair use" – to draw from copyrighted materials for certain purposes such as news reporting and education. However, "fair use" typically excludes commercial purposes. So if you're planning to quote or reprint text from another publication or use any visual or audio materials from any other source in a marketing context, Emily recommends that you speak with an attorney or have him or her draft a quick letter before moving forward. "I always advise clients to err on the side of caution," she says. "When you're using things for a commercial purpose, your intent does trigger certain concerns."

In this day and age of mass collaboration, some authors and artists are now opting to protect their work with alternative licenses (such as those outlined by Creative Commons) that allow greater freedom of use than traditional copyright law provides. Still others decline to restrict use of their work at all, declaring it public domain from the start. But even works labeled "some rights reserved" typically require commercial users to request permission before they can be reproduced.

So in the end, not many materials are actually within the public domain – and especially not for companies hoping to use them for commercial purposes. Keeping your company in good legal standing doesn't always require professional counsel, especially if you have a good understanding of licensing. But when in doubt, consult an attorney – the benefit will far outweigh the cost of a legal battle.