Copyright: Can I Use This or Not?

Article 4 min
Before you can determine if the work you'd like to use is in the public domain, you need to understand the copyright protections that are in place.

Public domain

The public domain consists of all works that never had copyright protection and works that no longer have copyright protection. This includes most works created by the United States government and all works published in the United States prior to 1923. Many people confuse items in the public domain with those that are publicly available. Just because something is on the internet does not mean it is in the public domain. However, if it is in the public domain, it is free for the public to use.

There are four common ways that works arrive in the public domain.

  1. The copyright has expired.
  2. The copyright owner failed to follow copyright renewal rules.
  3. The copyright owner deliberately places it in the public domain, known as “dedication.”
  4. Copyright law does not protect the type of work.

Copyright

Copyright is an exclusive legal right given to an originator or an assignee, to print, publish, perform, film or record literary, artistic or musical material, perform a work publicly via a digital audio transmission (if a sound recording) and to authorize others to do the same.

Copyright is the protection of an idea that is fixed in any tangible medium of expression, such as a:

  • Manuscript
  • Photograph
  • Painting
  • Videotape
  • Video game
  • Computer code
  • Musical score
  • Choreographed performance

How long before copyrighted material goes to Public Domain?

  • If the author is known, copyright lasts for the life of the author + 70 years.
  • If the author is unknown or considered work for hire, copyright lasts the shortest of either first publication + 95 years or creation + 120 years.

These examples of copyright-protected work show you when it is in the public domain. Any creative work published before the Copyright Act of 1924 is in the public domain; otherwise, copyright protection depends on the date of the publication and the life of the author. Sound recordings fall under the Music Modernization Act. Works published after 1924 will be in the public domain 100 years after publication. Photo by DINFOS PAVILION Team
Examples of when copyright-protected creative work is in the public domain. Edgar Allan Poe's work was published before the Copyright Act of 1924 and is in the public domain. James Michener published after 1924, and died in 1997. His work will not be public domain until 2067 (life of the author +70). Glenn Miller recorded At Last in 1942; His work will not go into the public domain until 2042 (Publication date +100)
These examples of copyright-protected work show you when it is in the public domain. Any creative work published before the Copyright Act of 1924 is in the public domain; otherwise, copyright protection depends on the date of the publication and the life of the author. Sound recordings fall under the Music Modernization Act. Works published after 1924 will be in the public domain 100 years after publication.
Photo by: DINFOS PAVILION Team
VIRIN: 210111-D-PA656-0001

Copyrights for sound recordings

While a number of recordings are in the public domain because the copyright already expired, a large number were covered in a patchwork of state laws that made it hard to determine if the music was usable or not. Thanks to the Music Modernization Act, a number of copyright restrictions for those recordings have been resolved.

  • For recordings first published before 1923, the copyright restrictions end on December 31, 2021.
  • For recordings first published between 1923-1946, the copyright restrictions period is 100 years from the first publication.
  • For recordings first published between 1947-1956, the copyright restrictions period is 110 years after the first publication.
  • For all remaining recordings first fixed prior to February 15, 1972, the additional transition period shall end on February 15, 2067.

An arrangement license is necessary for the creation of an arrangement or derivative work from a copyrighted piece of music. Individuals who desire to produce band arrangements of copyrighted music are required by law to contact the copyright owner (usually the publisher) and request written permission to use the copyrighted material.

  • Arrangement: In music, an arrangement is a musical reconceptualization of a previously composed work. It may differ from the original work by means of reharmonization, melodic paraphrasing, orchestration or development of the formal structure.
  • Derivative Work: A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments and condensations of preexisting works.

Transfer of copyright

Because copyright is personal property, the copyright holder:

  • owns the work.
  • controls its use.
  • may transfer rights (e.g., will, contract, donation).

Copyright is subject to various state laws and regulations that govern the ownership, inheritance or transfer of personal property, as well as terms of contracts or conduct of business.

Any or all of the copyright owner's exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.

A copyright may also be conveyed by operation of law and may be bequeathed by will or passed as personal property by the applicable laws of interstate succession.

Specific to government

  • Work produced by government employees while on duty is not copyright protected.
  • Federal documents/publications are in the public domain.
  • Government documents can be copied and distributed without payment or fee.
  • Work produced by government employees while off duty and on their own equipment may be copyrighted.

Government employees can be sued for copyright infringement. Check with your local Staff Judge Advocate's Office for official guidance.

Fair Use: The exception

Fair use is a principle allowing some limited reproduction and use of copyrighted materials without permission and payment of a fee. To be considered fair use, the use of the material must:

  • create some social, cultural or political benefit.
  • outweigh any harm suffered by the copyright owner.

Permissible uses include:

  • Criticism
  • Comment
  • News reporting
  • Teaching (one time, for one iteration of the class)
  • Scholarship – material for programs
  • Research

You may record a television program to take into work and show it once as a training aid. If you plan on keeping it in your training program, you must obtain permission.

PA and VI personnel use a variety of file types - imagery, excerpted books/articles, audio, video, music - in various media products that get released to both internal and external customers. These products find their way to the internet. You are personally responsible and liable for any violations. When in doubt, ask and get permission!

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