As a business owner, it may not always be easy to secure original content for your branding and marketing, or know if you’re infringing on a copyright. 

In our digital age, content online is rapidly changing and growing. Businesses must be consistently providing new and original content to match their competitors. For small businesses, this can be a challenge, as resources can quickly become scarce. 

In order to enhance and broaden the pool of branding and marketing, it may be necessary for your business to turn to public domain content to fill the gaps and keep your content schedule moving.

What is copyright law?

Copyrights serve as a form of creative asset for original works of authorship that is fixed in a tangible medium of expression. 

The owner of a work protected by copyright is given a bundle of exclusive rights including:

  • Reproduction rights – The right to make copies;
  • Distribution rights – The right to sell or otherwise distribute copies to the public;
  • Derivative works – The right to create adaptations based on protected works; and
  • Performance and display rights – The right to perform a protected work in public

When a work is protected by copyright, the owner can sue to obtain compensation for any losses. 

However, these protections do not last forever. Once these protections end, the work enters the public domain. 

What is the public domain?

The “public domain” refers to creative works that are not protected by copyright law. When the work enters the public domain, the applicable copyright rights no longer apply. This means these works can be freely copied, distributed, adapted, or performed in public without asking for permission or paying a fee. As a result, these public domain items belong to the public as a whole and there are billions of creative works that can be used freely by the average business. 

Can I use the public domain to enhance my marketing and branding?

The only limitations to your use of public domain materials is your own imagination. 

Public domain images are perfect for commercial use because no one owns these works. In this way, you can combine numerous writings, literary works, and audiovisual materials to create something unique and special for your marketing and branding purposes. 

Unlike paying for a commercial license for original work, you do not have a limit on the use of your creative output regarding the public domain works. This is particularly helpful with stock photography collections, which can allow you to fill empty ad and blog space to better reflect the diverse and intriguing aspects of your business that you may not otherwise be able to capture on film! 

Are there any obstacles to using items in the public domain?

Even if an item is not protected by copyright and seemingly in the public domain, there are other forms of intellectual property that can impact the use of public domain items. For example, the work may include a name or logo subject to varying trademark or unfair competition laws, or a photo of a person may be subject to the individual’s right to privacy or publicity. These type of issues are particularly important when seeking to utilize film or audiovisual materials. 

For these reasons, it is important to ensure that the particular work you want to use is actually in the public domain and not protected by a separate copyright. Not only that but you also need to ensure that the work is not protected by a foreign copyright law that could expose you to liability overseas! 

With these obstacles, am I stuck creating original content?

While original content is always better for the purposes of identifying and solidifying your branding, there are always ways to utilize the benefits of the public domain! 

The most helpful approach is to note that all works published in the U.S. before 1927 are in the public domain within the U.S. There are also a number of other works that have fallen into the public domain for either failing to applicable copyright protectors or failure to affix a proper copyright notice. For example, all works first published or released before January 1, 1927 have lost their copyright protection for failure to publish an applicable copyright notice. 

Numerous resources exist to assist in this process. For starters, the U.S. Copyright Office provides a Public Catalog that allows anyone to freely search whether an item has entered the public domain. With this easy search tool, you can quickly identify well-known items that have fallen into the public domain. You could also refer to one of the many public domain databases that archive and collect materials to better assist individuals and businesses in the pursuit and use of public domain materials. 

Where do I start?

The best strategy is one that utilizes a combination of original content and public domain assets. That way, you can avoid the pitfalls of falling into generic or unassuming marketing and branding. However, not every business has the resources to create truly custom graphics and materials – especially at the offset! 

A licensed attorney can assist you with the legalities of utilizing public domain assets on your materials. An attorney can account for the variables associated with overlapping intellectual property rights, licenses, and assignments of materials. Remember: the use of items that are not in the public domain can subject you to varying liabilities for copyright infringement or other civil matters!

Reach out to us if you are interested in learning more about developing the use of your original works or public domains. Our attorneys are here to assist you with developing a proactive and preventative business strategy now. 

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