Intellectual property and the creative sector 3/3. The public domain
23 / 07 / 2018
In this post, we will talk about those works that can be used without having to seek the author’s permission, that is, those in the public domain. If a work is in the public domain, it means that this work can be freely used, disseminated and even modified (in the case of some creative commons licenses). If it is not in the public domain, then it is compulsory to request permission and, in some cases, pay to obtain a copyright license.
A work is in the public domain when more than seventy years have passed since the author’s death or when the author himself has placed his work under a Creative Commons license.
It would be advisable here to make a point on works whose author died more than seventy years ago. There are old works in museums (in the Louvre, for instance), in which case the work itself is in the public domain, but the right to reproduce it (that is, high-resolution photography, with the correction of colour, adjusted brightness…) is not. It has been ordered or made by the museum, and if one requests one of these copies (necessary to publish it in any printed format) then it will be necessary to pay the established fee (although there are some institutions and museums that have decided to make these reproductions available to everyone free of charge).
And what is the Creative Commons? They are legal tools in which the author decides how his work can be used and distributed. They range from the freest, in which only the author’s name is requested, but anyone can modify, use, and even distribute with commercial purposes, to the most restrictive ones where no commercial use is allowed.
It should be mentioned that the Creative Commons licenses do not imply a denial of paternity or copyright, they constitute a freer formula to promote creativity and the dissemination of works, so that everyone can benefit from the shared knowledge. This is the principle Wikipedia is based on. A few years ago (not so many), a shared knowledge project like this one was unthinkable. Today it is nearly impossible to let one day go by without looking something up. And there are many other collaborative projects in which the notion of copyright has been fully altered. In this sense, the appropriation of images is the use of other people's works by the author to create his own work. Such outstanding artists as Damien Hirst or Andy Warhol have used this technique; literature, for example, is full of examples. In fact, many people think that, without the influence of other creators, many of the most significant works in the history of art would not exist. However, this practice is not without controversy, since copyright comes into play when someone else's work is used and modified. Jeff Koons, Warhol himself and other artists have all lost lawsuits for copyright infringement. However, in other cases, they have won them by claiming fair use, i.e. it depends a lot on each specific situation.
There are different image banks and institutions that have public domain photographs and images for free or for a very low price: Wikimedia, Europeana, Library of Congress, Creative Commons, the MET, Smithsonian Institution Archives and all images owned by the Government of the United States, among others. Even Flickr has activated the Creative Commons licenses so that you can do a search by filtering by the images that have these licenses.
Wikimedia is the archive where all public domain images are stored. However, this is not always a guarantee that this is indeed the case and is not without controversy. Let us look at this case:
David Slater, a wildlife photographer, did a report on the macaques in the jungle. In a moment of carelessness, he left the camera on the ground and the monkeys picked it up and started taking selfies and photographing each other. Wikipedia incorporated this hilarious series of images into its archive. The naturalist photographer sued because he considered the photographs to be his, because he had facilitated their creation, and therefore had to exercise copyright over them. But he lost the case, and the photos are still in the public domain.
In the case of the other institutions or archives I mentioned earlier, not all the images they show are in the public domain, so always check the credits or copyright notices next to the image in question. In any case, they are very useful tools that help us in our creative work.