Fair Use or Public Domain?

The legal standards and rules for determining fair use or public domain content may seem confusing. These charts should help give you a better idea of the likelihood of whether your use of someone's work will run afoul of copyright law.

Does Your Use of the Work Constitute Fair Use?

The closer your answer is Yes to the following questions, the more likely your use is fair use. The right column illustrates examples of factors that make a finding of fair use more likely vs. copyright infringement.

Factors

Examples

Are you creating something new?

Including excerpts in a commentary piece about the book vs. copying a book word-for-word

Is the copyrighted work factual?

Biography vs. work of fiction

Is the portion of the work used small in amount and significance in relation to the entire work?

Two sentences from a novel vs. a chapter of the book that goes to the heart of the story

Does your use have little or no market impact on the copyrighted work?

Excerpting from a travel book on Rome for a book review vs. copying an entire section for a new travel book on Rome

Is the Work in the Public Domain?

Publication Date

Public Domain?

Works published in the U.S. before 1923

Yes.

Works published in the U.S. in 1923 through 1963

Yes, if the copyright was not renewed during the 28th year after the work was first published.

Works published in the U.S. in 1964 through 1977

No. Automatic copyright renewal protects the work for 95 years.

Works published in 1978 or later

No. Work is protected by copyright for the life of the author plus 70 years. (a longer copyright term may apply)

Works published by the U.S. Federal Government

Yes, regardless of publication date.

Public Domain: Additional Factors and Copyright Renewal

Although the above chart provides helpful guidance in determining whether a work is in the public domain, there are a few additional steps that will help you in this analysis for published works.

• Works Published in the U.S. from 1923 through 1963: Likely in the public domain. Even though authors could extend protection of their works by filing a copyright renewal during the 28th year after the work was first published, many authors failed to file the renewal on time. Always check the U.S. Copyright Office database to make sure that there is no renewal on file for the 28th year of the published work. For those works published during this time and renewed on time, copyright protection endures for an additional term of 47 years, following the 28-year initial term. A 1998 law changed the additional term from 47 to 67 years; however, works that were already in the public domain in 1998 (e.g. work published in 1932 or earlier, with copyright renewal) remain in the public domain.
• Works Published in the U.S. from 1964 through 1977: Copyright renewal is automatic and is protected for 95 years from the date of publication. Since the new law making copyright renewals automatic was changed in 1992, any works that were already in the public domain before 1992 remain in the public domain.
• Works Published in the U.S. after 1977: Enjoy copyright protection for the life of the author plus 70 years after the date of his or her death. In the case of "work made for hire" and anonymous and pseudonymous works have protection for 95 years from the publication date or 120 years from creation, whichever expires first.

Unpublished Works

The protection of life of the author plus 70 years also applies to unpublished works. You should note, however, that if an unpublished work is created before 1978, and subsequently published between 1978 and 2003, the copyright lasts through 2047, no matter when the author died.

Getting Legal Help with Copyrights

Determining whether a piece of work is in the public domain can be tricky. Let an experienced business and commercial law attorney sort through the details. Let a legal expert help save you valuable time, effort, and potentially thousands of dollars on costly litigation should you inadvertently engage in copyright infringement.