What is the Public Domain?

When you’re trying to sort through your intellectual property and their protections, have you ever wondered what happens when IP protections expire? They join a status shared amongst many other IPs called the public domain.

Intellectual property protections are not forever. While some types, such as trade secrets and trademarks, will last as long as you maintain them, eventually, someone will release them to the public or forget about them forever. Knowing this, countries around the world accept that some things cannot be protected and owned, so anyone can use them.

It’s important to understand what the public domain is because it offers individuals and businesses access to many other IPs. It also shows what can happen to your IP if you don’t have intellectual property attorneys to help you. The attorneys at Emerson Thomson Bennett explain.

What is the Public Domain?

The public domain is all the creative works in history that no one has exclusive intellectual property rights to. These are IPs whose rights have expired, been forfeited by their owner, waived by their owner, or considered inapplicable. IPs that are considered public domain can be used by anyone for any creative purpose. 

You can reuse and resell public domain IPs as they originally were, or you can change them from their widely known incarnation to create something new. This would be considered an adaptation, which does not automatically become public domain. This means if you create a story with a public domain IP like King Arthur, you have IP rights to that story and the versions of those characters, and no one can copy it or make a version of King Arthur just like yours.

Examples of IPs in the Public Domain?

Widely known examples of IPs in the public domain are mythologies from hundreds of years ago. Anyone can write a story or create a brand around the Norse God Thor. Marvel Comics has been famously doing that for years, and don’t have to pay or license Thor from anyone. 

How Do Public Domain IPs Interact?

In turn, though, Marvel Comics cannot keep other people from using the Norse God Thor. They can keep others from making a version of Thor that closely resembles theirs, but this can be difficult to prove in some cases.

Marvel Comics’ version of Thor cannot stop other creators from using their own versions of Thor in their books, movies, brands, and other forms of IP. If someone described Thor but gave their version the same blonde-haired, blue-eyed, red-caped appearance we see in Marvel Comics, then Marvel Comics could file a lawsuit against them.

What IPs Are Public Domain?

Since it was originally difficult to establish when and where copyrights begin and end, the United States legislation established a cut-off point. All works published before January 1st, 1923, are in the public domain and free to use. After that, everyone follows their appointed IP protection. 

For example, copyrighted works enter the public domain 70 years after the original author’s death or after the last surviving author dies if there were multiple creators. Works created by a contract for companies expire 120 years after creation or 95 years from publication. 

This means if your business has copyrights, they will expire within 120 years and be open for anyone to use.

Issues with Public Domain IPs

A big issue with public domain IPs is that many need more than one type of protection. Consider for a moment that your business owns a character you use to advertise your brand. This character, their story, music, and associated materials are copyrighted but are also trademarked as a symbol of your brand.

Copyrights expire within a time limit, but trademarks won’t expire until you let them run out. This means that your trademark can join the public domain before the copyright does, or vice versa. When this happens, is it still public domain? Technically yes, but that doesn’t mean anyone can use it. 

The IP Problem with Winnie the Pooh

For a public example, Winnie the Pooh and the other associated characters are owned by Disney. Their original stories were created in 1926, over 95 years ago, so they are in the public domain. Disney still owns the rights to their trademarks, so how can someone use them? 

First, they can’t use associated symbols because they fall under trademarks. So if someone wanted to adapt Winnie the Pooh, they couldn’t use the logos that Disney owns and uses. 

Also, since art is derivative and adaptations have their own copyrights, only the original stories from 1926 are in the public domain. While other companies can’t create adaptations of a copyrighted work without permission, the IP owner can, and those stories have their own copyright. Only the original Winnie the Pooh works from 1926 are in the public domain. This means if someone wants to use the public domain, they can’t reference events, characters, or character development established in stories that weren’t in the public domain.

We use Winnie the Pooh as an example because recently there was a horror movie made as an adaption of what was available in the public domain. This is an excellent example of what can happen to your IP once it enters the public domain. It’s inevitable, but you can make sure that it takes as long as possible to enter the public domain with the help of an intellectual property attorney.

Don’t Use Public Domain IP Without an Attorney

Public domain is free for everyone to use, but you have to make it known to the different federal IP protection agencies that you are using public domain. If you are caught trying to claim ownership of a public domain property, rather than an adaptation of a public domain property, your ownership can be denied. This can severely affect your ability to protect your IP, and it was likely only an honest mistake. Make sure you have help from an IP attorney before filing for IP protection while using IP from the public domain.

Contact the Intellectual Property Attorneys for Help Protecting Your IPs

Intellectual property can be used for a lot of different purposes, many of which help your business and your brand. If you have been around a long time, or plan to, those IPs will enter the public domain, and then someone else can use them to hurt your brand. There are ways we can help to keep this from happening, to minimize the damage, and overall, protect your IP and the revenue they bring. For more information, contact our attorneys today.