On January 1, 2022,  a version of the beloved character “Winnie the Pooh” entered the public domain. January 1st is also known annually in the United States as Public Domain Day. But what exactly is the “public domain”?  Does this mean that anyone can use Pooh Bear in their creative works now? 

Before we go further, we should first explore what it means for a work to be in the public domain.  

Creative works that have no protection under intellectual property laws are considered to be in the public domain, and may be freely used by anyone. This means that the works are owned by the public, and generally, a copyright, trademark, or patent may not be obtained. 

Generally speaking, works can enter the public domain in one of four ways: 

a) the original copyright has expired, 

b) the copyright owner intentionally places the work in the public domain, 

c) the copyright renewal process was not followed correctly by the owner, and 

d) the work is not protected by copyright laws. 

As a result, on New Year’s Day 2022 alone, almost 400,000 works including sound recordings, films and books entered the public domain. You can find a complete list of some of these works provided by the Duke Law School Center for the Study of Public Domain here.   

Using Public Domain Works

Public domain works can be used without permission because there is no “owner” or property rights.  A derivative work can be created from the work, and this could be copyrighted. Duke University’s Center for the Study of the Public Domain states, “When a work enters the public domain it means the public can afford to use it freely, to give it new currency….”

It should also be noted that the public domain offers an opportunity to grapple with our cultural past as teachable moments for today and shine a light on creators from our history who may have been mistreated, neglected and forgotten. As Southwestern Law School Professor Kevin J. Greene points out in “Copynorms,” Black Cultural Production, and the Debate over African-American Reparations, due to past unfair treatment and economic exploitation of Black music artists, many of whom were barred from basic copyright protections, their works “[were] so extensively appropriated as to essentially dedicate Black innovation in cultural production into the public domain” without prior fair compensation. Therefore those whose works that are entering the public domain properly is a feat in itself.

Proceed with Caution: Limitations of Using Public Domain

Still there may be scenarios in which works in the public domain have copyright protection. For example, a book of images in the public domain may still be copyrighted as a “collective work.”  The individual images may be in the public domain, but the book may not be copied or distributed as a whole. In addition, a derivative work or adaptation of a work in the public domain may have copyright protection. William Shakespeare’s The Taming of the Shrew is in the public domain, but the film “Ten Things I Hate About You,” an adaptation of the Shakespeare tale, has an active copyright.   

Some components, such as other characters or plotlines, may not have obtained public domain status because they may have been introduced in later, related works.  For example, the original Star Wars movie will enter the public domain in 2072, but characters from the newer movies, such as Rey and Poe, will continue to have protection. 

Trademarks are also in the mix with public domain. While the original Winnie the Pooh story is in the public domain, Disney owns the trademark for the beloved bear in many areas of commerce, including clothing and stuffed animals. Unless one wants to battle Disney’s lawyers, creators cannot produce trademarked-protected items with Pooh’s likeness.

Stanford University has created a great flowchart that helps evaluate whether something is in the public domain.

Can a Creator Bypass Public Domain?

Generally speaking, copyright protection for works created after January 1, 1978, last for the life of the author/creator, plus an additional 70 years. (There are some other rules, which you can review here: https://www.copyright.gov/help/faq/faq-duration.html). Copyrights after 1978 are not subject to renewal. As such, a work generally cannot bypass the public domain. However, there are ways to obtain ownership protections, including trademarking certain aspects of works, such as characters, or creating and copyrighting a derivative work that gives the creator some future control. 

How to Determine Fair Use 

Fair Use has been the subject of many lawsuits because creators often feel too much of their work has been utilized by someone else. It is a “legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright protected works in certain circumstances.” Section 107 of the US Copyright Act states the following four factors that are taken into account when determining fair use: 

  1. The purpose of the use;
  2. The nature of the work used;
  3. The amount and substantiality of the work used; and 
  4. The effect of the use upon the potential market for or value of the work used. 

Public domain works do not require an assessment of these factors; however, if a creator seeks to use something from a copyrighted work, an assessment should be conducted to ensure there is no infringement upon the copyright owner’s rights. Cornell University provides an excellent checklist to assist a creator with addressing any issues.

Disclaimer: Nothing in this article shall be construed as legal advice.

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The Michelson Institute for Intellectual Property, an initiative of the Michelson 20MM Foundation, provides access to empowering IP education for budding inventors and entrepreneurs. Michelson 20MM was founded thanks to the generous support of renowned spinal surgeon Dr. Gary K. Michelson and Alya Michelson. To learn more, visit 20mm.org.