What is the Public Domain?
When people refer to the “public domain”, they are referring to an area of intellectual property, or abstract properties, that do not fall into the ownership of any individual person or company. These materials are considered public property, and are available for any individual or company to use for any purpose they choose.
In every country with copyright laws, public domain is a different area. For example, the work of The Beatles is probably going to wind up falling into the public domain in Europe well before it falls into public domain in the United States. Whenever discussing public domain properties, it is important to specify which country’s public domain is being discussed.
Public domain then, is in contrast to works restricted by copyright. In most countries, a copyright protected film or song cannot be used without permission of the copyright holder. A property which falls into the public domain can, again, be used by anyone for any reason.
For example, many early 20th Century American songs in the blues, ragtime and folk music genres are public domain, and many older songs from around the world fall into the public domain across the globe, as well. For example, ‘Whiskey in the Jar’ was originally an old Irish drinking song from the 19th century. The song was made famous in the 1970’s by the rock band Molly Hatchet, and then made famous once more in the 1990’s by the heavy metal band Metallica. While the song actually belongs to neither Molly Hatchet or Metallica, neither band ever had to pay royalties or ask for permission before performing the song and marketing it on albums, because there is no owner for a public domain work.
However, the water can get a little cloudy now and then. For example, many might assume that, since the song ‘Whiskey in the Jar’ is in the public domain, that you could use the Metallica version of the song in a movie or TV series at your discretion. However, individual performances of a given song do not fall into the public domain, regardless of whether a performer owns a song or not, unless the artist opts to release their work directly into the public domain.
Oftentimes, works thought to be in the public domain actually are not. For example, the bluesman Robert Johnson released a number of songs in the early 20th century, and while many recordings that have reached that age are in the public domain, thanks to expired copyrights, or simply the fact that many artists never owned copyrights in the first place, Robert Johnson’s music actually belongs to his estate. Johnson is, of course, something of a unique example. No other bluesman of that era had quite the same degree of impact on American culture, and so, it became more imperative to protect his music against plagiarism and misuse by renewing the copyrights.
Yes there is an expiration date on a copyright, and this is where a lot of our public domain property comes from. It’s different in each country, and is a little too complex to get into here. For one simple rule, though, anything created after the year 1977 is protected by copyright for the artist’s lifetime, plus seventy years.
Classical music is all in the public domain, at least authentic, “old” classical music from the 18th century or earlier. However, there have been a number of legal battles that have occurred thanks to a misunderstanding of what we mentioned above, which is that individual performances of public domain compositions can, in fact, be copyright protected. One such lawsuit occurred when independent filmmaker Lloyd Kaufmann (the brilliant schlock maestro behind The Toxic Avenger) used classical music to score a film, believing it to be in the public domain. As it turned out, the actual recording he had used was owned by the company that had record it. Unable to buy the rights to the recording, Kaufmann wound up simply replacing the music with public domain recordings of the same compositions. Today, whenever Kaufmann discusses filmmaking with aspiring directors, he emphasizes the importance of, as he puts it “Covering your ass” by making one hundred percent sure that what you are using either belongs to you or your company, has been legally licensed or loaned to you, or is in the public domain. Even if you believe something is in the public domain, you can never be too careful.
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