Copyright, Creative Commons, and the Public Domain

I know that the topic of copyright has been talked about in several threads, but I thought it might be useful to create a dedicated thread to talk about the nuances (as we understand them).

Just to make sure we’re all on the same page here are some definitions:

  • Copyright is a legal right created by the law of a country that grants the creator of an original work exclusive rights for its use and distribution.
  • A Creative Commons (CC) license is one of several public copyright licenses that enable the free distribution of an otherwise copyrighted work.
  • Works in the public domain are those whose exclusive intellectual property rights have expired, have been forfeited, or are inapplicable.

US Copyright
The founding fathers of US thought copyright was important enough to include it in the Constitution. Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Over the past 250 years, the length of limited time has changed dramatically. Originally it was 14 years , then 28, then 75 or the life of the creator plus 50. Then in 1998 the Sonny Bono Copyright Term Extension Act (also contemptuously known as the Mickey Mouse Protection Act) extended copyright to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.

tl;dr - Stuff made/published/created before 1923 is public domain. But don’t even think about touching Mickey Mouse; he won’t enter the public domain until at least 2023.

Creative Commons
Creative Commons (CC) is an American non-profit that advocates for the expansion of the information in the commons (which is never really defined). They created and curate/update a group of copyright-licenses known as Creative Commons licenses. These licenses allow creators to extend and modify their copyright.

The Creative Commons (CC) licenses are not part of US law. There have been lawsuits in the US and abroad where the legality and enforceability of the licenses have been tested, but to the best of my ability I haven’t found caselaw that actually affirms them.

tl;dr - your work is protected by copyright. CC licenses, while seeming to offer gradations of copyright, may not be legally enforceable.


Thank you for the clarification AuntiMame!


Thx for all that detail - good to know.

In younger days, I worked at the Library of Congress where I learned 2 things wrt copyright which have stuck with me: 1) you can’t copyright an idea, just the expression of an idea (“copyrighting” the idea means you really want to patent it) and 2) you don’t have to do anything special to “get” something copyrighted - you own the copyright as soon as you create the thing. The copyright office at the LOC does like getting copies of the materials so they can potentially be added to the library, but legally, there’s no need to do anything.


Places to find copyright free works

17 U.S.C. § 107
Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
_3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; _
4. and the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.


Even though you may own a copyright without registration (if we’re talking about a work created under the current regime, not older works), getting recompense from people who reproduce it without a license is generally much more difficult if it’s not registered. Once it is registered, there are sweet things such as statutory damages.

Meanwhile (and I’ve been following this fairly closely over the years), CC hasn’t been litigated, but another similar “free” license, the GPL, has iirc been litigated and upheld. (The GPL is mostly for software, and requires anyone who uses a GPL’d work to publish any changes/improvements, with some exceptions.) In practice, of course, litigation is a very blunt, expensive tool for controlling distribution.

The other thing about copyright as “expression” or “implementation” of an idea is that you get weird situations (as discussed in the FLW item) when you’re re-expressing something that’s no longer in copyright. I can’t use a museum’s photo of some ancient artifact or old drawing, even though the object itself is no longer under copyright. But if I could take my own picture (without being encumbered by some agreement implicitly/explicitly made with the museum as a condition of getting in the same room with the object) I might be able to use that. And art students copy famous paintings all the time as a learning experience… All very weird.


Correct - but "You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.” (more here )


can’t make the mouse. can’t copy the mouse. can’t draw the mouse.
Can buy this from Disney though…


In the US that’s not entirely true …

The Bridgeman case I linked to above ruled that exact photographic copies of public domain paintings can’t be copyrighted. So a direct, head-on, no angle or tilt photo of VanGogh’s Irises (for example) which does not include the frame (this is important - the frame may be under copyright!) is perfectly legal to use. It doesn’t matter who took the photo … museum, some random person who uploaded to flicker, anyone. So long as the image becomes an exact photographic copy of the drawing you can use it .

The artifact… that image you can’t use . Because the photo, in itself, is a creative expression that’s covered by copyright. The photographer choose an angle to shoot from and a perspective view of the object.


I didn’t know Bridgeman! That’s cool. I wonder how many museums have started applying highlighting, color correction and other twiddles to make their images not slavish copies…

(I see also that the decision has been extended to 3D meshes of objects whose protection has lapsed. Which might be important for some laser cutting stuff.)

(There’s an interesting story along these lines about a revised edition of Joyce’s Ulysses, which was ostensibly prepared using all kinds of algorithms from the original manuscripts and proofs plus superduper scholarly judgement – some people were concerned that a big aim for the project was to produce a new “standard edition” that would stay in copyright after the original lapsed. I wonder what the situation is for restorations of art works.)


Bookmarked! Thanks so much for your very helpful resources.

I went to visit my sister’s college once. I tried to take a photo in the lunch room and someone told me I wasn’t allowed because of the copyright on the carpet design. I have no idea if I was being punked. It looked like Vegas buffet carpet to me.


Excellent summary of the general situation

If you take a photo of the Eiffel Tower at night you are technically in violation because the lighting design is under copyright (the copyright on the tower itself is expired). Though you’d likely only get cited of the copyright holder was having a bad day.

Pretty sure the fair use doctrine applies to that one.

I like living on the edge…


They don’t exactly have fair use Over There. But the odds of a court doing much…

1 Like

Yeah, I suspect they would only bother with litigation of the use was particularly egregious, like in a commercial magazine. But why take chances? I say just avoid France altogether just to be safe. :grin:

1 Like

They could try sending their army over :smile:

1 Like


Almost all countries have some form of fair use or fair dealing exemptions. The EU’s is covered by the Copyright Directive.

I’m not a lawyer, but it seems that the exemption for “incidental inclusion of a work in other material” covers photos of the Eiffel Tower’s lighting. You can’t take a picture of the tower without the lights - even if the lights aren’t lit.

You can’t reproduce the light pattern on your own tower… but photographing the Eiffel itself is exempt.