Baltimore Oriole & the Public Domain
Last week, I mentioned I’m working on a guide on Birds.
I’m still working on it. It’s taking longer than I had initially planned, but I’m working on really packing a lot of information into it.
Anyway, the photo above was a public domain image. I say “was” because I have used it to create a derivative work. In other words, I am incorporating the public domain image and making it into something new.
Thus, what I have created becomes eligible for copyright protection, which means I can slap my copyright line on it as I’ve done.
What the copyright covers, though, is just the derivative work. The original remains public domain. In other words, you can’t take my derivative work and use it, but you can take the original image and create your own work out of it, and claim your own copyright on it.
Make sense?
Let me explain further. Let’s say you have something that is public domain. It could be public domain for a number of reasons, some of which include the copyright expiring, the author placing the work in the public domain or that the work was not copyrightable to begin with. In this case, the copyright on the original has expired, because it was first published in the United States before 1923.
That image remains in the public domain. You can’t just take the image, put your copyright on it, and try to stop anyone else from using it.
But, what you can do is create a derivative work.
Normally, creating a derivative work is something that is reserved to the original author, who can create, for example, a sequel to a novel or a screenplay for his or her novel. So, you can’t, for example, write your own sequel to Harry Potter and try to sell it. That would be a derivative work, and that is reserved for the original author, or to whoever the author has assigned his or her rights to.
However, in the case of a public domain work, you can create a derivative work from it. But, the catch here is that so can anyone else. So, in this example, while I can create my own derivative work from the public domain Baltimore Oriole image and I can claim a copyright on that derivative work and stop you from using my derivative work, I cannot stop you from taking the original Baltimore Oriole image and using it to create your own derivative work and claiming a copyright on what you have created.
And, of course, you could use the original as-is, but then so can anyone else.
However, I can use your image in an article about derivative works that includes a section on “Dan’s creation of a derivative work.” That would be a “fair use exception” to copyright law which is very vague and open to interpretation.
Stopping someone from using a copyrighted work can be a difficult and expensive endeavor.
True, but if you try to sell the image itself, I’ll have a better case against you. Or, if your use negatively impacts the commercial viability of the work, I may have a case there too, even if you’re not selling it.
“Fair use” is a vague portion, as you’ve said.
I would also have far greater protection if I registered the work, which would let me collect all my legal expenses from you too, if I were to win the case, of course.
And, it’s also harder to claim a copyright on a modified public domain work. There has to be substantive change or editing made to it in order to claim a copyright on it. If I recall correctly, just scanning in an image and claiming a copyright on your scan is not sufficient to claim a copyright, as there is little to no creative addition in just scanning the work.
And, in a written public domain work, just changing a word here and there generally is not considered sufficiently creative to merit copyright protection either.
But, I’m not a lawyer, so no one should be taking this as any kind of legal advice.
Am I going to jail for stealing your jail picture, or can I put you in jail for using my likeness?? If we end up in jail together … will we be able to blog from the library??
I want to copywrite my “name”. Can I do that???? (my real name is Barney Eldorado)
You’re a public figure in Hollydale, so that makes the use of your image as parody okay.
You could trademark your name, Barney.
I am a lawyer
Well, maybe not a very good lawyer if you got yourself stuck in jail!
I was out in 3 minutes!
my middle name is “Matlock”
I understand the whole thing about derivative use and public domain now but I do get freaked out about some things. Like if I put my image on my blog, my blog says that the things I publish on it are under my copyright. I hope that makes it illegal for someone else to take my image and do anything with it. That stuff freaks me out.
No, they can’t create a derivative work from your copyrighted image without your permission.
Of course, the tricky part may be if bloggers are considered public figures or not and whether parody would be protected, which would be more the case if bloggers are public figures.
Like the stuff you and your minions, and others, have done to my avatar.
Or when I put Speedy in jail. 
That’s why I typically avoid doing anything with people’s images. I think Speedy is the only one (except for John Chow, which was done for Michael Kwan’s contest), and I figured he’d be okay with it, since he does worse things to himself and it’s not the first time someone has put his head in different images.
But, I would promptly remove it at his request. Generally, I just don’t do those things at all.
Lots of things on the Internet are examples of copyright infringement. But, a lot of times, the copyright holder doesn’t pursue things. A lot of stuff could probably be taken down with a simple request or a cease and desist letter. But, some times people would go after infringing works for various reasons. One might be that the infringement promotes the work more than it hurts it. You’ll see this sometimes with fan sites, like for TV shows and stuff. Often, the rights holder doesn’t have a specific public policy about such things; they’ll typically go after anyone trying to make money with an infringing work. But, sometimes they might actually have a public policy about the use of their works that spell out how you can and cannot use their images. Generally, they realize that fan sites help promote the work pretty much for free, so they don’t want to stomp that out. So, they either look the other way on copyright infringement or they only go after the ones trying to make money off of it.
Some people think that, if they do infringe on a work, first they’d get a cease and desist letter asking them to stop. I don’t think that’s necessarily the case. The rights holder can sue, but is likely to start with a lawsuit (instead of a cease and desist letter) if the infringement is causing harm, typically financial though it could be something that is harmful to their public image. But, in most cases, like where you stick an image on your blog or something and aren’t trying to sell it, you’re likely to first get a cease and desist letter asking you to remove the image. (Or, if the blogger is your friend, you could just ask nicely first.) And, a lot of times, it’s not worth the expense of a lawyer when a simple request would have sufficed.
Of course, none of that should be taken as an encouragement to infringe upon copyright. It’s really best not to get into the mindset of “this is for their own good” thinking you’re helping to promote someone or something. That can often lead to no good at all, for you! Just because everyone else is doing it shouldn’t be used as any kind of justification.
Though I will say that Michelle started it…
Most of the time, regular folks don’t realize that their copyright has been infringed and most of the time there is no financial impact one way or another.
From what I’ve seen, participating in copyright related forums and mailing lists, most people online don’t have a clue about copyright and many of those who think they do have got it wrong.
And, teeni, it is illegal for someone to take your image and do something with it, other than what is considered “fair use.” The problem is catching them if they do infringe on your copyright. That’s generally up to the copyright author (the originator of the work). which would be you.
A lot of people don’t even realize they have a copyright on things they create.
I think there are still people out there that think that anything on the Internet is “public domain,” which is, of course, wrong.