- What is Public Domain?
- When do U.S. works pass into the public domain?
- Trademarks -- can they still be Public Domain?
- Can someone copyright a work once in the Public Domain?
- Can someone trademark a work once in the Public Domain?
- What is a collection? (And why should I care?)
- Are all the images on WPClipart Public Domain?
- So are there any restrictions on the use of the images in the WPClipart collection?
- Can I make my company logo out of the clip art?
- I want to publish, can you give me written legal indemnification against any claim of copyright infringement?
- Links to related information
- Sites promoting Public Domain Advocacy.
- What happened to that RSC report on Copyright Reform from Nov. 2012?
What is Public Domain?
Quoting from the US Copyright Office site at:
Where is the public domain?
The public domain is not a place. A work of authorship is in the "public domain" if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.
One point I feel I need to clarify is whether or not a user can later claim the image as their own, or make a company logo out of a Public Domain image. I'll cover the first part of that question here in detail:
Once an image is truly public domain, it cannot be taken out of the public domain. For instance, you cannot release something PD, then change your mind and later claim otherwise. You cannot take a PD image, slap a "C" with a circle around it on the image, then and say it is yours...
You cannot claim that images are public domain, then go on state that permission is needed to reuse them. If an image is public domain, you cannot restrict it's usage.
If, however, you were to start with a PD image and make substantial changes/modifications to a work (ie: original, creative) , then that new work IS copyrightable (it is considered a "derivative work".) This is especially pertinant to those seeking to make company logos out of PD materials. (There is a Q/A in the FAQ covering that.) Also the packaging, display, organization and formatting regarding GROUPS of PD images (collections) can be considered a derivative work.
Trademarks -- can they still be in the Public Domain?
Yes, but that means you cannot use the Public Domain (yet trademarked) image to promote sales or services. For other uses it is ok....
Here's the difference between trademark and copyright:
Trademark is not meant to protect original expression -- its purpose is to help consumers identify the source of goods and services.
The most well-known example of a public domain but trademarked logo are the 5-color Olympic Rings. You can use them freely as public domain clipart, but DO NOT use them to promote your business or service. And unlike copyright, trademark do not expire. An excellent explanation of tademarks can be found on:
Can someone copyright a work once in the Public Domain?
They can copyright new work BASED on the PD work if they make original, creative changes.
See the highlighted section of the US Copyright Ofice circular 14:
Derivative Copyright Information
On a site using public domain works such as WPClipart: I cannot take what is already in the public domain, then claim to have scanned, cleaned-up, tweaked lightness/contrast, etc and then claim I now have copyright on that work. Although the "sweat of the brow" copyright arguement may hold some merit logically (the work put into the aquiring, scanning, etc. should earn the worker something...), it holds no weight legally.
Copyright was meant to advance creation, allowing things to be created and profited from yet be built upon... to hoard something already deemed public domain goes against this principle. Project Gutenberg has a good article on this at:
Can someone trademark a work once in the Public Domain?
Suprisingly -- yes, they can.
And they do not even have to make any creative changes to the artwork to register it with the US Patent and Trademark Office. While this struck me as a very bad development, you have to take into account that a trademark is much more limited than a copyright. While the person who trademarks an image has exclusive rights to the image as used on a particular product -- they cannot hold any copyrights nor prevent someone from using that same image for other uses.
What is a collection? (And why should I care?)
As this relates to WPClipart, the individual images are Public Domain, but the collection is a derivative work and as such it is copyrightable. Hence restrictions can be made concerning the use of the COLLECTION, but not the individual images.
I don't intend to frighten anyone away from using the images for whatever they want -- but if you copy the collection to repost online (basically mirroring my site) it is possible for me to do something about it. But regardless of possible reprecussions, I think the practice of copying a site's content to grab ad revenue is simply rude and greedy.
Are all the images on WPClipart Public Domain?
At one time I also included a limited number of images on WPClipart which are used under the umbrella of "fair use." These included any image with a company logo/trademark (ex. company name on a credit card image), or a recognizable product (ex. a specific model of cell phone.)
Fair use items are usually small examples of copyrighted works or images that are meant to be used (but not distorted or misrepresented) when referencing the original work and/or product.
To avoid confusion, however, fair use items are no longer available on WPClipart.
So are there any restrictions on the use of the images in the WPClipart collection?
For individual images the answer is no.
Use them for whatever you wish and you don't have to bother asking for permission or attributing or linking back to WPClipart. (Although a link IS appreciated.)
Use them in your reports or web pages, even use them on materials you sell commercially.
My only request is in regards to the COLLECTION: that I don't want others to repost, mirroring large portions of my site online as an image repository, therefore competing with my site. I spend a LOT of time finding, researching legal status and retouching images, etc. as well as the hundreds of images I create myself and donate to the public domain...
While this does not and should not give me any special rights over the images, I think civility and decency dictate that you refrain from "running me off the 'Net" with my own content.
Can I make my company logo out of the clip art?
Yes, but keep in mind the differences between something copyrighted and something trademarked...
(See trademark sections above.) For use in commerce you would want to trademark the image, otherwise someone else could come along and trademark what you are using.
UNLESS what you are using is already copyrighted. And that means if you have created a sufficiently original (derivative) work, then it is copyrighted from the moment of creation. As mentioned above, if a work is Public Domain then you are free to modify that image to your liking. In doing so you have created a derivative work and can then safely use the new work as a company logo.
See the highlighted section of the US Copyright Ofice circular 14:
Derivative Copyright Information
To explain in detail:
- If you start with a public domain image, the original image remains PD. trademarked or not.
- Incorporating a clearly visible name/mark onto the image can be a good way to make that image considered derivative. (So this much is not necessarily a big hurdle.) You are also free, of course, to modify the image in any other way you wish and any real modification would also help the image to be considered a derivative work.
- The safest way to make a logo/trademark from PD art is to ensure that you have made original, creative changes to the original. If you do make the image somehow original, then others could not use the image without your permission, nor could they legally trademark it later if you did not go to the trouble. The waiting period for registering a tradmark can be quite long, taking at the very least about four months.
I want to publish, can you give me written legal indemnification against any claim of copyright infringement?
It is simply beyond my ability:
- People and sites have misrepresented the PD status of images (posted them as PD, especially on user-generated sites...) I often catch these because the images are something clearly not PD (cartoon characters, famous images, etc.) But sometimes something will temporarily* slip past.
- Defense against even false claims is something I cannot legally afford -- such is the present nature of our legal system with regards to copyrights.
I research the sources of images the best I can, including images posted at OpenClipart and other PD sites. I edit, organize, post online and *challenge anyone and everyone to prove the status of these images to be anything but PD. So personal approval (as I do here online) and "good faith" is the best I can offer you... I believe this is the best anyone can offer regarding PD images. The biggest advantage to using WPClipart is the amount of time and effort I put into vetting images before I post them.
And I think of all the PD art sites online, WPClipart has the best filtered content available.
If you need written indemnification, then purchasing images from someone who claims copyright on the images is legally safer. Be advised, however, that nothing presently seems to constitute an ironclad copyright infringement defense. And plenty of people are willing to sell you PD (and copyrighted) images to which they have absolutely no legal rights.
Public Domain Definition
from the Linux Information Project
Public Domain: Public ownership of Creative Works
Copyright Term and the Public Domain in the United States
Copyright expiration chart by Peter B. Hirtle
Published by Cornell University
WHEN U.S. WORKS PASS INTO THE PUBLIC DOMAIN
By Lolly Gasaway
University of North Carolina
How to Determine Whether a Work is in the Public Domain
Dennis S. Karjala
Professor of Law
Arizona State University
New Media Rights
New Media Rights is a non-profit program that provides legal services, education, and advocacy for Internet users and creators.
The public's library and digital archive
Home to one of the largest "collections of collections" on the Internet,
...and host to the packages produced by WPClipart since 2005
The Mouse that Ate the Public Domain
By CHRIS SPRIGMAN
Promotes, displays and links to Public Domain works,
focuses on U.S. Govornment resources. Also works to debunk what it
feels are false copyright claims.
Public Knowledge is a Washington DC based public interest group
working to defend your rights in the emerging digital culture.
Electronic Frontier Foundation
EFF is the leading civil liberties group defending your rights in the digital world.
Reconstructing the Public Domain
by Robert A. Baron
"This paper advocates the development of a strong public domain as a remedy to the copyright industry's success in convincing Congress to increase the length and scope of copyright."
Distinguished Lecture Series
(Re-)Defining the Public Domain
Open Invention Network
(Related -- Software patent defense)
"...is an intellectual property company that was formed to promote the Linux system by using patents to create a collaborative ecosystem."
Disclaimer: The above material is presented for reference purposes only, and it is not intended as nor does it constitute legal advice. Neither I (author/maintainer of WPClipart) nor any of my content providers shall be liable for any errors or omissions in the content or for any actions taken in reliance thereon. I am not an attorney and make absolutely no claim to have any knowledge about legal matters beyond that of an informed layman. Any questions should be directed to a licensed attorney specializing in copyrights and intellectual property law. Proper legal advice can only be provided by a licensed attorney with reference to the specific facts of a particular situation and to the laws of the relevant jurisdiction.