The Catholic University of America

What is the Public Domain?

The following categories of works are presently considered to comprise the public domain:

  • works created before the enactment of copyright statutes, such as the works of Shakespeare;

  • works that were once copyrighted, but for which the copyright has now expired, such as Mark Twain's Huckleberry Finn;

  • works that are specifically put into the public domain by their authors or the owner of the copyright, such as freeware;

  • works that cannot be copyrighted due to lack of originality, or because they consist of facts rather than creative expression, such as a telephone book;

  • works published prior to January 1, 1978, that did not meet then existing technical formalities for copyright (i.e., J.R.R. Tolkien's The Lord of the Rings Trilogy, which fell into the public domain due to failure to meet statutory prerequisites);3

  • those works that were once ineligible for U.S. copyright (the 1790 copyright law put all published works by foreign nationals into the public domain; this was changed in 1891);

  • portions of copyrighted works that copyright does not protect, such as the "common stock of literary composition--'cliches'-- to which no one can claim ownership" also known as "scenes a faire";4

  • almost all works of the United States government both published or unpublished, including all case law, all census bureau data, and all legislative history;5

  • state statutes and state supreme court opinions; and

  • ideas, processes, methods and systems described in copyrighted works.

There is no definitive master list of all the works that are in the public domain. Compiling such a list would be an impossible task, not to mention the fact that it would become outdated almost immediately. Not only is the number of the works in the public domain always changing, there is also a subjective element involved in any copyright issue. Finally, laws defining the public domain differ from country to country.

3See The Public Domain, by Jessica Litman, 39 Emory L.J. 965 at n. 68. (1990). This law review article is an excellent summary of the public domain issues and was very helpful in drafting this article.

4Schwartz v. Universal Pictures Co., 85 F. Supp. 270, 278 (S.D. Cal. 1945).

5Government public domain materials are those created by employees of the U.S. government as part of their official duties. This does not apply to material created by a private or semi-private agency of the government or a government contractor. Certain works commissioned as works for hire by the government may be part of the public domain. Check the title page or with the agency if you have questions as to public domain status.

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links updated 6/5/08 rab