The Public Domain is Much Smaller Than You Think
Copyright Alice Neff Lucan 2011
Here’s the disclaimer. The following is offered for your information to help you decide whether you need advice from a copyright lawyer. So read and heed. But if a non-lawyer tries to apply this as legal advice, there is a huge risk that the information will not be applied correctly. One fact omitted or added can change the legal outcome.
If someone publishes something without a copyright notice, the work is NOT in the public domain. And, removing a name or other information from the work can lead to trouble.
There are only three ways a copyrighted work can move into the public domain - that is, lose its copyright protection. (1) if it was published before 1923, then its U.S. copyright has expired. (2) if it was published at a time when copyright terms had to be renewed, and the copyright owner did not renew, then the work lost its copyright protection. And (3) finally, no work owned by the federal government can be protected by copyright.
The first category of public domain works is simple, but if you are interested in publishing older material, this site is very useful: http://copyright.cornell.edu/resources/publicdomain.cfm
For new works, the term is life of the author plus 70 years. However, for older works, duration of the copyright term depends on when the work was first published and whether the copyright was renewed during the years when renewal was required. To determine whether the copyright for any particular work still exists, research must be done at copyright.gov, search “copyright records,” “registrations and documents.” This isn't easy work and should be done by someone who understands the permutations of copyright terms.
The third set of public domain work is created by federal employees. When the photograph has a link under it that says “U.S. Government Work” that means there is no copyright protection. Those words are a link to an explanation:
A United States government work is prepared by an officer or employee of the United States government as part of that person's official duties.
However, if a federal agency farms out the work and has not required the independent contractor-creator to give up his/her copyright, then you are not free to use the material. And beware, state-owned works usually do have copyright protection. And furthermore, under U.S. trademark law, you can’t use a government logo or trademark unless you have permission.
The U.S. Copyright Law contains a fairly new provision making it a crime to knowingly and intentionally take “Copyright Management Information” off of an image or text “for purposes of commercial advantage or private financial gain.” Under 17 U.S.C. §506, Criminal Offenses, the fines may be up to $2500 for each offense. It looks as though the courts are going to read this broadly to mean almost information that tends to identify who created the original work. In other words, this prohibition does not simply mean you cannot remove the formal copyright notice. It means that any words or insignia showing who is the artist must not be removed or changed.
Public Domain