The Catholic University of America
What is the Public Domain?

Questions and Answers

The following is an attempt to highlight some of the legal questions that arise with respect to the public domain, and also an attempt to leave the reader with a better understanding of this complex area of copyright law. This information is intended to be used in conjunction with the CUA Copyright Guidelines , as well as a chart entitled "When Works Pass into the Public Domain."

Q Does the absence of a copyright symbol on a work of intellectual property mean the work is in the public domain and may be freely copied?

A No. Any work created after March 1, 1989, is protected without the notice of copyright. A creative work is protected from the moment the work is fixed in a tangible form of expression.

Q Does the presence of the copyright symbol mean the work is not in the public domain?

A Not always. The copyright term may have expired. Or, the work may not have been entitled to copyright due to lack of originality, e.g., the work may simply be a slightly altered version of a work that is in the public domain. This is a problem often encountered by music librarians and others who seek to determine the public domain status of a piece of sheet music.6

Q If something is out of print, does that mean it is in the public domain?

A No. Whether or not something is in the public domain is determined by the term of copyright. Currently the term of copyright is life of the author plus 70 years. See "When Works Pass into the Public Domain" for further details.

Q My CD of Cecilia Bartoli singing 18th century Italian songs contains two symbols on the case, one is a "P" with a circle around it, and one is the standard "C" with a circle enclosing the letter. What is the difference between these two symbols, and what do they mean? Also, does this mean these 18th century songs are not in the public domain?

A The "P" refers to phonorecord and stands for the copyright ownership of the sound recording embodied in the phonorecord. A sound recording results from the fixation of a series of musical, spoken, or other sounds. The author of a sound recording is the performer whose performance is fixed (in this case Cecilia Bartoli) or the record producer. This is in contrast to the musical composition, which is authored by the composer and the lyricist, if any. Thus, there may be more than one copyright involved. The "c" in this example stands for the printed material that accompanies the recording, such as the liner notes, etc. Note that on the actual CD only the "P" appears. You would look at the date accompanying the "P" to determine when the recording was published, and from that date you may make a calculation as to when the work will enter the public domain. The 18th century songs are presently in the public domain, but Cecilia Bartoli's rendition of these songs, i.e., the sound recording, is not in the public domain.

Q When an author creates a new work out of public domain material, what is copyrighted?

A The entire composition is copyrighted, but the author may only claim copyright protections in the newly added material. For example, when Aaron Copland created Appalachian Spring, he was entitled to a copyright in the musical composition of the work, even though portions of the work borrowed material from a public domain work, Simple Gifts, a Shaker hymn. What this means is that, if you want to publicly perform the melody and words of Simple Gifts, you are free to do so without paying a licensing fee. However, if you want to publicly perform it as it appears in Appalachian Spring, you would have to pay royalties to the owner of the copyright in Appalachian Spring.

Q If something is posted on the Internet, does that mean it is in the public domain?

A No. Copyright rules apply to the Internet, and you cannot assume that copyright does not apply simply because material is posted on the Internet. See Of Counsel August 1998 -Cyberspace. You might consider the law of fair use to determine if fair use would permit copying.

Q If I suspect a piece of sheet music is in the public domain, even though the copyright symbol is attached, may I make a copy of the sheet music?

A An entire law review article has been devoted to this subject.7 The copyright office does not vet the usage of the copyright symbol. It is left up to the publisher to place the symbol on the work. For derivative works, there must be sufficient originality and transformation of the original work for copyright to apply. The law states that a derivative work is only entitled to copyright protection if it consists of "editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship." With respect to musical compositions, a district court in New York noted the following:

In order, therefore, to qualify as a musically 'derivative work,' there must be present more than mere cocktail pianist variations of the piece that are standard fare in the music trade by any competent musician. There must be such things as unusual vocal treatment, additional lyrics of consequence, unusual altered harmonies, novel sequential uses of themes--something of substance added making the piece, to some extent, a new work with the old song embedded in it but from which the new has developed.8

If, by comparing the newer arrangement to the public domain version it can be determined that the changes are mechanical, routine, inevitable, or apply conventional rules of harmony, chances are copyright does not exist in the secondary work. The author of the law review article cited above also offers the following: "At least some opinions suggest that the originality of the new version of an existing musical work turns on whether it sounds sufficiently different than the existing one." (See footnote 5 at p. 268.)

6See This Business of Music, by Shemel and Krasilovsky (rev. and enlarged 6th ed. 1990) at p. 268, "Much of the music material in the public domain is tainted by vague and indefinite claims of copyright in minimal or obscure new versions."

7Reviving the Rhetoric of the Public Interest: Choir Directors, Copy Machines, and New Arrangements of Public Domain Music, by Paul J. Heald, 46 Duke L.J. 241 (Nov. 1996). The author is an Associate Professor of Law at the University of Georgia School of Law, and a baritone with the Saint Gregory the Great Episcopal Church Choir, Athens, Georgia.

8Woods v. Bourne Co., 841 F. Supp. 118, 121 (S.D.N.Y. 1994), aff'd in part and rev'd in part, 60 F.3d 978 (2nd Cir. 1995).

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