Sometimes determining whether a work is in the public domain is difficult, because of questions about authorship, formalities, the scope of the public domain, or questions about the relationship of copyright laws in various countries. Here are a few high-profile cases of litigation about the public domain:
Extending Copyright to Public Domain Works
- Copies of public domain works are not themselves copyrightable. In an influential 1999 case, a U.S. district court held that copies of public domain artworks do not acquire new copyrights. This idea — that close copies of public domain artworks are not copyrightable — has been picked up by courts around the world. Bridgeman v. Corel (S.D.N.Y. 1999)
- Registering public domain works does not create a new copyright. An attempt to register a public domain work did not create a new copyright in the work. Stern v. Sinatra (9th Cir. 2004)
- Trademark cannot be used to extend an expired copyright. In 1993, the US Supreme Court held that a company (Fox) cannot use trademark to create a sort of extended copyright in a work that was in the public domain. Fox v. Dastar (2003)
- Copyright is a statutory right, and is not perpetual. An important historical case, in which the United Kingdom’s House of Lords held that copyright is a creation of statute, and there is no perpetual common law copyright. Donaldson v. Beckett (Eng. 1774).
- Congress can remove categories of works from the public domain. In 2012, the US Supreme Court affirmed the constitutionality of a statute (the Uruguay Round Agreements Act) which retroactively pulled works out of the public domain, placing them under copyright. Golan v. Holder (2012).
- Works not covered by U.S. copyright law may still be under common law copyright. While U.S. copyright law covers many categories of works, if a type of work is not covered by U.S. copyright law, it may still be subject to state copyright law. In 2005, for instance, sound recordings issued prior to 1972 were not covered by U.S. copyright law, but New York state courts held that they were covered by state law. Capitol Records v. Naxos of America, 4 N.Y.3d 540 (N.Y. Ct. App. 2005).
Determining public domain status of particular key works
- “Happy Birthday” – In 2015, a California District Court held that the song “Happy Birthday” was in the public domain. Warner Chappell had claimed ownership of the song, collecting royalties for decades. Warner was unable to prove its ownership, and lost the case to Jennifer Nelson, a documentary filmmaker who brought a class action suit against Warner. Good Morning to You Productions v. Warner/Chappel Music (C.D. Cal. 2015)
- “We Shall Overcome” – Following the success of the “Happy Birthday” litigation, a public interest foundation took aim at the copyright claims over another beloved and important folk song, “We Shall Overcome.” In 2017, a New York District Court deemed the melody and first verse of the song to be in the public domain. We Shall Overcome v. Richmond Organization (S.D.N.Y. 2017)
- Sherlock Holmes – In 2014, the 7th Circuit held that the character of Sherlock Holmes was in the public domain, to the extent that the character’s characteristics were in public domain stories. Klinger v. Conan Doyle (7th Cir. 2014)
- Bambi – In a much-critiqued and confusing case, the 9th Circuit held in 1996 that Bambi, created and published by Siegmund Salzman in 1923, was nevertheless still in copyright in the United States. Because the book was originally published without a US-required copyright notice, most Circuits would have held that it was in the public domain; the decision to find that the book was “unpublished” and therefore still under copyright leaves this area of the law confusing, at least in the 9th Circuit. Twin Books v. Disney (9th Cir. 1996)
Non-Copyrightable Works and Aspects of Works
Copyright applies only to copyrightable works, and most countries (including the US) hold that some kinds of things cannot be copyrighted at all. For instance, in the United States, works by US federal employees do not have a copyright, “the law” is not copyrightable, works are not copyrightable unless they are one of the eight categories in the Copyright Act, and all works include uncopyrightable aspects, such as the ideas underlying the work.
- Software includes non-copyrightable aspects, which have to be carefully separated from the more literal code of the program. Computer Associates v. Altai, 982 F.2d 693 (2d Cir. 1992)