Recently in public domain Category
Rights to Deceased Movie Actor Figurine
Securing Rights to Old Technical Manuals
Are Speeches by Foreign Leaders in the Public Domain?
Song Recording in South Africa
Copyright for Patent Drawings?
Dear Rich: I am writing a chapter for a technical book and I want to use drawings from patents. Do I have to get copyright clearance? If so, from who? The publisher needs the clearance before they will accept my work. Aren't patent applications and issued patents in the public domain?
What makes the issue confusing is that (1) copyright office regulations (37 CFR 202.10(a)) do not prohibit registration of patent drawings; and (2) patent examiner regulations (MPEP 1.84 (s)) permit copyright notices and copyright claims regarding authorship in patent text or drawings. Which is why we end up returning to mitigated speech and why some attorneys answer your question by saying, "it depends".
The Dear Rich staff has been reproducing patent drawings freely and our publisher has done the same in its books about patents. We believe that even if not specifically exempted from copyright protection, the reproduction of patent drawings likely qualifies as a fair use since the drawings are used for transformative purposes. Finally, if you do seek to obtain permission, you should start with the person claiming patent rights. That person or entity may not always own rights in the drawings but they can likely direct you to the person who has the rights.
Postscript: Stephen Fishman, author of our favorite public domain treatise, brought our attention to the 2003 case, Rozenblat v. Sandia Corp. 69 USPQ2d 1474 (7th Cir 2003). In that case, the Seventh Circuit, acknowledged the copyrightability of an inventor's patent drawings (although ruling against the inventor as to the issue of infringement).
Public domain sheet music: when is it copyrighted?
Dear Rich: I have a question. I have an online flute consignment shop. I have created a link where I would like to make a piece of sheet music from the public domain available for free download each month. I could go to the local university Fine Arts library and copy music out of old books (which will look like scans of old music), or I could download the same piece of music from a free online source that is already in existence and have it be clean and pretty because someone took the time to typeset it and make it nice to read (I cannot possibly typeset this music myself... for many reasons). But I do not know if this is either legal or ethical. In some cases, there are footnotes that say something akin to, "Not to be used for commercial works." In other cases, there is no such notation. Can I take the music from one of these sites and give it away as a download on mine? I'm so glad you asked. The short answer to your question is that you can legally use public domain music provided that the musical notation you mention is obvious, routine, dictated by musical convention, and does not involve any major changes or new arrangements. In other words, if the notation is simply what's typically required to write the music, it's not protected by copyright. Wait... was that the short answer?
Okay, just in case you need some backup, the musical division of the Dear Rich staff consulted with Stephen Fishman, an expert on the public domain. According to Steve, it doesn't matter if it takes great skill or musical training to create the musical notation of public domain sheet music; nor does it matter if the end result is digitized. The work may only be protected by copyright if the sheet music contains substantial additional music, is an abridgment, or involves making a new arrangement -- for example, creating a suite for several instruments with harmonizations not previously associated with the public domain work.
How then can a music publisher claim copyright in public domain sheet music? According to Fishman, many claims for copyright in public domain music are improper and based on the fact that music publishers have a strong economic incentive to convince the public that its music is copyrighted (even when it is not). Of course, this information won't prevent you from being sued; it just means you're likely to prevail if there is a lawsuit. In addition, it may sometimes be difficult to separate the public domain version from a popular derivative version -- as in the case of the folk song "Tom Dooley". (By the way, the rules described here may not be the same outside the U.S.)
As for your question about whether the copying is ethical, the Dear Rich staff is unable to comment as they are trained only to wrestle with legal issues. However, you may find some advice here.
Got a question for Dear Rich? Send it to dearrichquestion@gmail dot com, and make sure it has the header: "Question."
Old newspapers: how much can you use?
Fair use depends on several factors, including whether your use is transformative (you are copying the work in order to make a point -- for example, criticism or parody), the amount and substantiality of the portion borrowed, the nature of the work -- for example, fiction or nonfiction -- and the effect of the use on the market. Practically, you are better advised to read how the law is applied in cases such as the recent suit permitting the use of John Lennon's "Imagine" in a Ben Stein documentary. You can review case summaries at the Stanford Library Fair Use website.
Orphan Works
Dear Rich: I have a question. I am an illustrator. Is it true that the government is setting up a database of visual arts works? And is it true that any works that you don't place on this register will become "orphan works" that anybody can use without your permission? I'm so glad you asked. The answers to your questions are "maybe," and "not exactly." An orphan work is one that is owned by a hard-to-find copyright owner. For example, in 1975, a child sends a drawing to Elvis Presley. In 2008, a biographer wants to include the drawing in a Presley biography. The problem is that the artist can't be found and the publisher doesn't want to reproduce the image without permission. Two bills have been proposed in Congress that address this issue. The proposed bills would allow the publisher -- after performing a diligent search -- to reproduce the image. If the artist later appears, the publisher would have to pay a reasonable fee for the use. An unlikely crew of special interests favor the House version of the bill, including librarians, free-speech types, copylefties, academics, writers, photographers, and big industry groups like the RIAA (and, of course, Google). Under the House bill, anyone who wants to use a work must (1) document their "good faith" search for the owner, (2) file a "Notice of Use" with the Copyright Office before using the work, (3) provide attribution if they know the name of the creator, and (4) include a special "orphan works" symbol when the work is published.
Illustrators and artists are concerned about the bill because it would establish a registry of visual arts works. They're worried that if a piece of artwork doesn't show up on a registry search, all rights to that artwork may be lost. First, keep in mind that orphan or not, copyright is always preserved in the work. Second, there's nothing in the law that says that a failure to appear in the registry automatically creates an orphan. For example, even if the drawing of Suda (above) did not appear in a registry, I would still have a hard time claiming it was an orphan ... since the artist and his work are easy to locate on the web (Steve, please don't sue).
Can public domain art be protected?
Dear Rich: I have a question. I know that old paintings like the Mona Lisa are not protected anymore, but I've heard that museums can still prevent reproductions of these paintings somehow. Is that true? How can that be? I'm so glad you asked. Yes, as a general rule, paintings that existed before 1923 are in the public domain and can be copied freely. However, museums have argued for years that their photographs of those paintings were protected under copyright, thus enabling them to control everything from postcard sales to artbook licensing. That ended in 1999 when a court ruled that "slavish reproductions" of visual works in the public domain are not copyrightable. (The photos may have required skill; but there was no originality.) In other words, you're free to reproduce replicas of public domain artwork in the U.S. Of course, many museums still limit photographic access to paintings and on that basis, people who want high quality reproductions still have to seek permission -- one reason why few people have seen this rare painting of Mona Lisa's sister, Drea, (or so many of Mona's other relatives).
She kissed him deeply and touched his public domain...
Dear Rich: I have a question. I am a romance novelist and occasionally I borrow material from other books for my historical romances. I read yesterday's question discussing cookbooks and I'm still confused about the difference between plagiarism and infringement. I'm so glad you asked. A plagiarist is a person who poses as the originator of words he did not write, ideas he did not conceive, or facts he did not discover. "Plagiarism" is not a legal term; it's an ethical term. You can plagiarize someone without infringing. For example, if a plagiarist only copies public domain materials, he can't be sued for copyright infringement. And you can infringe without plagiarizing. For example, this whole answer is pretty much lifted from chapter 14 of Stephen Fishman's book, The Public Domain. (See ... I've provided attribution; let's hope he doesn't sue-- :-)). Which is worse? A whiff of plagiarism can damage a romance novelist's reputation, while infringement means dealing with lawyers and hefty judgments.
