Copyright and the Public Domain

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Stephen Fishman

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The public domain—the body of creative works not entitled to copyright protection—is the world's greatest intellectual resource. Unfortunately, it can be extraordinarily hard to determine whether a work (or part of a work) is in the public domain.

The first book of its kind, Copyright and the Public Domain brings much‐needed clarity to the question of what is protected by copyright and what is not. In plain language, it explains how and why works of authorship enter the public domain. It provides detailed coverage of: copyright requirements; the duration of copyright; copyright forfeiture and abandonment; the “publication” requirement; non-protectible elements within a copyrighted work; restoration of copyrights to foreign works under GATT; conducting copyright renewal searches; non-copyright restrictions that may protect works in the public domain; and many other important issues.

Filled with pragmatic guidance on an often bewildering subject, it will help you determine which statutory regime applies to a work, what the copyright term is, and what common traps you should avoid. This authoritative and accessible new book fills an important gap in the legal literature and is an essential addition to any intellectual property law library.

Book #00694; looseleaf, one volume, 668 pages, published in 2008, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 973-1-58852-151-4.

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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 668
  • ISBN: 978-1-58852-151-4
  • Pub#/SKU#: 694
  • Volume(s): 1

Author Image
  • Stephen Fishman
Stephen Fishman is a graduate of the University of Southern California School of Law and a member of the California bar. He is the author of 20 legal reference works, including four books on copyright law. His publications have won the American Library Associations Choice Award for Outstanding Academic Title and the Publishing Marketing Associations Benjamin Franklin Award.

Introduction to the Public Domain

§ 1.01 Public Domain Defined
[1] What It Means for a Work to Be in the Public Domain
[2] Contours of the Public Domain
[3] Determining Whether a Work Is in the Public Domain
[4] Obtaining Access to Public Domain Works
[5] Why Have a Public Domain
§ 1.02 Assault on the Public Domain
[1] Legislative Shrinking of the Public Domain
[2] Spurious Copyright Claims Over Public Domain Works
[3] Privatization of the Public Domain
[4] Defending the Public Domain

Works Not Entitled to Copyright Protection

§ 2.01 Introduction
§ 2.02 Unfixed Works
[1] Requirements for Fixation
[2] Types of Unfixed Works
[3] State Law Protection for Unfixed Works
§ 2.03 Works Lacking Originality
[1] Independent Creation
[2] Minimal Creativity
[3] Presumption of Originality
§ 2.04 United States Government Works
[1] Works by Government Employees and Officers
[2] Works Created by Independent Contractors
[3] Special Rules
[4] Foreign Copyright Protection for United States Works
[5] Public Domain Notices on Government Works
[6] Private Works Containing United States Government Materials
§ 2.05 Works by State and Local Government Employees
§ 2.06 Foreign Government Works
§ 2.07 Laws and Court Decisions
[1] Federal Laws and Court Decisions
[2] State and Local Laws and Court Decisions
[3] Foreign Laws and Court Decisions
[4] Copyrightable Materials Added to Laws and Decisions
[5] Quasi-Official Legal Documents
[6] Court Documents
§ 2.08 De Minimis Works
§ 2.09 Information That Is Common Property
§ 2.10 Blank Forms
§ 2.11 Useful Articles
[1] What Are Useful Articles
[2] Conceptually Separable Features Protectible
[3] Two Dimensional Representations of Useful Articles
[4] Digital Models of Useful Articles
[5] Patent and Trademark Protection for Useful Articles
§ 2.12 Building Designs
[1] Building Designs Created Before December 1, 1990
[2] Building Designs Created After December 1, 1990
§ 2.13 Clothing and Dress Designs
§ 2.14 Typeface Designs
§ 2.15 Recipes
§ 2.16 Sound Recordings Created Before February 15, 1972
[1] Rights Protected by CPA Act
[2] Term of Protection
[3] Publication of Pre-1972 Sound Recordings
[4] Filing Requirement in Lieu of Registration
[5] Noncommercial Use of Orphan Recordings
[6] Licensing Pre-1972 Recordings
[7] Ownership of Pre-1972 Recordings
[8] Limitations on Owners’ Rights
[9] Preemption of State Law
[10] Foreign Sound Recordings
§ 2.17 Works Lacking Human Authorship
[1] Mechanical Processes or Random Selection
[2] Nature, Animals, or Plants
[3] Computer Generated Works
§ 2.18 Sporting Events
§ 2.19 Non-Expressive Physical Movements
§ 2.20 Non-Freestanding Contributions to Joint Works of Authorship
§ 2.21 Nationally Ineligible Works

Works Whose Copyright Protection Has Expired

§ 3.01 Introduction
§ 3.02 Copyright Term for Works Created 1978 and Later
[1] Basic Term: Life Plus Seventy Years
[2] Works Made for Hire, Pseudonymous and Anonymous Works
§ 3.03 Copyright Term for Works Created Before 1978
[1] Works First Published in the United States
[2] Works First Published Outside the United States Before 1978
[3] Unpublished Works Created Before 1978
[4] Pre-1972 Sound Recordings
[5] Distribution of Published Works by Libraries and Archives During Last Twenty Years of Copyright Term
§ 3.04 Copyright Duration Charts
§ 3.05 Online Copyright Duration Calculators

Copyright Forfeiture

§ 4.01 Introduction
§ 4.02 Works Published Without a Valid Copyright Notice
[1] When Notice Is Required
[2] Invalid Copyright Notices: Works Published Before 1978
[3] Invalid Copyright Notices: Works Published After 1977 and Before March 1, 1989
[4] Excusing or Curing Omission of Notice
§ 4.03 Works Published 1923-1963 and Not Timely Renewed
[1] How Many Works Were Never Renewed
[2] Was the Renewal Legally Valid?
§ 4.04 Works Not Complying with the Manufacturing Clause
[1] What Is the Manufacturing Clause?
[2] Are Works that Violated the Clause in the Public Domain?
§ 4.05 Copyright Forfeiture and Derivative Works


§ 5.01 Overview of “Publication” Under the 1909 and 1976 Copyright Acts
§ 5.02 Publication Before 1978
[1] General Publication
[2] Limited Publication
[3] Public Performance
[4] Public Display
[5] Publication Problem Areas
[6] Registration of Unpublished Works
§ 5.03 Publication 1978 and Later
[1] Limited Publication
[2] Publication on the Internet
[3] Publication of Computer Software
§ 5.04 Publication of Derivative Works
§ 5.05 Publication Without Copyright Owner’s Consent

Copyright Abandonment

§ 6.01 Introduction
[1] Effect of Copyright Abandonment
[2] Copyright Abandonment Versus Forfeiture
§ 6.02 The Nuts and Bolts of Copyright Abandonment
[1] Publication Without Copyright Notice
[2] Failure to Act Not Copyright Abandonment
[3] Limited Abandonment
[4] Terminating Copyright Abandonment
§ 6.03 Computer Software
[1] Free and Open Source Software
[2] Abandonware
§ 6.04 Open Content, Open Access and the Creative Commons
[1] Creative Commons Public Domain Dedication and Waiver of Rights
[2] Creative Commons Licenses

Public Domain Elements in Copyrighted Works

§ 7.01 Introduction
§ 7.02 Ideas
[1] Drawing a Line Between Idea and Expression
[2] General Ideas and Creative Building Blocks
§ 7.03 Facts
[1] Hard Facts
[2] Soft Facts
[3] Fictional “Facts”
§ 7.04 Systems
[1] Materials Used to Implement Systems
[2] Computer Software
[3] Games
§ 7.05 The Merger and Scènes à Faire Doctrines
[1] Merger
[2] Scènes à Faire
§ 7.06 Protectible Compilations of Unprotectible Elements
[1] Compilation Defined
[2] When Compilations Are Protectible
[3] Thin Copyright Protection for Compilations
[4] Extracting Public Domain Material from Compilations

Copyrights Restored from the Public Domain

§ 8.01 Introduction
[1] How Many Works Have Been Restored?
[3] Copyright Restoration Is Constitutional
§ 8.02 Which Works Had Their Copyright Restored
[1] The Work Was an Original Work of Authorship
[2] Author a National or Domicile of an Eligible Country
[3] Work First Published in an Eligible Country
[4] Copyright in Source Country Unexpired
[5] Work in Public Domain for Specified Reasons
[6] Applicable United States Copyright Term Unexpired
[7] Copyright Restoration in the Ninth Circuit
[8] Alien Property Exception to Copyright Restoration
§ 8.03 Effective Date of Copyright Restoration
§ 8.04 Duration of Copyright Restoration
§ 8.05 Copyright Ownership of Restored Works
§ 8.06 Copyright Infringement of Restored Works
[1] Reliance Party Defined
[2] Infringement Suits Against Reliance Parties
[3] Derivative Works Created by Reliance Parties
[4] Does Restricting the Rights of Reliance Parties Violate the First Amendment?
[5] Immunity from Warranty and Related Liability
§ 8.07 Restoration of Canadian and Mexican Films Under NAFTA

New Works Created from Public Domain Works

§ 9.01 Introduction
§ 9.02 Derivative Works Based on Public Domain Works
[1] Derivative Work Defined
[2] Derivative Written Works
[3] Derivative Musical Compositions
[4] Art Reproductions
§ 9.03 Collections of Public Domain Works
[1] Thin Copyright Protection for Collections
[2] Minimal Creativity Required
[3] De Minimis Collections

The Public Domain Outside the United States

§ 10.01 Introduction
[1] International Copyright Treaties
[2] Comparing the United States and Foreign Public Domains
§ 10.02 Copyright Duration Outside the United States
[1] Berne Convention Minimum Requirements
[2] European Union Copyright Terms
[3] National Copyright Terms
§ 10.03 The Rule of the Shorter Term
[1] Exceptions to the Rule of the Shorter Term
[2] The Country of Origin and the Rule of the Shorter Term

Researching Copyright Renewals

§ 11.01 Introduction
§ 11.02 Who Should Conduct the Search
[1] Searches by the Copyright Office
[2] Hiring a Private Search Firm
[3] Do-It-Yourself Copyright Renewal Searches
§ 11.03 Preliminary Information Needed for Search
[1] Works First Published Outside the United States
[2] Avoiding Searches for Republished Works
[3] Renewal Information from Publisher or Copyright Owner
§ 11.04 Renewal Searches for Works Published 1950-1963
§ 11.05 Renewal Searches for Works Published 1923-1949
[1] Online CCE Records
[2] Card Catalog Searches
[3] What Years to Search
[4] Conducting a Search
§ 11.06 Problems and Complications Researching Copyright Renewals
[1] Works First Published Outside the United States
[2] Works Created as Part of Larger Works
[3] Derivative Works
[4] Collections of Public Domain Material
[5] Motion Pictures
§ 11.07 Legal Validity of the Renewal

CHAPTER 12 Non-Copyright Restrictions on Use of Public Domain Materials
§ 12.01 Introduction
§ 12.02 Federal Law
[1] Trademark
[2] Patents
[3] Federal Privacy and Secrecy Laws
[4] Freedom of Information Act
[5] Federal Trade Secrets Law
§ 12.03 State Law
[1] Overview of Federal Copyright Preemption of State Law
[2] Contracts Governing Use of Public Domain Materials
[3] Contracts Regarding Idea Submissions
[4] Right of Publicity
[5] Misappropriation, Conversion and Unjust Enrichment
[6] Trade Secrets