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A Public Domain Primer for Graduate Students

Some guidelines for using materials in the public domain.

October 9, 2017
 
 

Heather VanMouwerik is a Ph.D. candidate in Russian History at the University of California, Riverside. Follow her on Twitter or check out her website.

 

For lovers of Sherlock Holmes, the character created by Sir Arthur Conan Doyle in 1887, this is a great time to be alive! There are the adventurous Robert Downey, Jr./Jude Law films, the more cerebral and moody British Sherlock series (for which I have a love-hate relationship), and the American crime procedural, Elementary, with the best Watson to date. This doesn’t even begin to touch upon the more subtle variations on the character, to which a murder-mystery aficionado is exposed on a daily basis. Although Holmes’s brand of drug-addled genius is clearly engaging to the pop-culture zeitgeist, his current popularity has as much to do with a 2014 court case and the concept of the public domain as it does his modern appeal.

 

I am not a lawyer and this article does not constitute legal advice; however, as in my previous articles on fair use and the Creative Commons, I believe it is important for graduate students to be aware of copyright law and how it affects our work. Public domain deals with materials that, though they were at one point covered by a copyright, are now available for the public to use in whatever capacity they wish (as long as they cite, of course). No need to seek approval; no need to notify anyone. This designation can arise in a variety of ways. Usually the copyright just expires, either when the owner has long passed away or has failed to renew it, but it can also occur when the owner dedicates the item to the public (surrendering his or her claims to its use) or the item was created before copyright laws were even invented (1787).

 

Identifying whether or not an item is in the public domain is surprisingly difficult. Although there have been several attempts to create a more streamlined international legal code, the terms of copyright still vary wildly. A common refrain in the United States is that anything before 1923 is in the public domain; however, that is only applicable to published works. Manuscripts, for example, and other unpublished works have their own copyright laws with completely different legal restrictions. Some places adhere to a 50-year rule, which states that items enter into the public domain 50 years after the death of the author. In the United States, it is 70 years after the death of the author, but there are so many exemptions to this guideline that it cannot be relied upon.

 

Returning to the case of Sherlock Holmes, in 2014 Sir Arthur’s estate sued a publisher of Sherlock Holmes anthologies, claiming that, although many of the Holmes novels were clearly in the public domain, the character of Holmes was not since several of his novels were published after 1920. The court found that the character was in the public domain, but the characteristics revealed in the later novels were not. This opened up a floodgate of Sherlock Holmes-related TV, films, and other adaptations, because, as long as characteristics and backstories from those final books were avoided, he was part of the public domain and free to use.

 

I really wanted to share the saga of Sir Arthur’s popular character for two reasons, beyond the fact that I am a huge Holmes fan. First, it illustrates the potential pitfalls that might face a graduate student conducting research on materials seemingly in the public domain. Second, it demonstrates the potential research value and creative output in something freely available.

 

When considering using materials in the public domain in your dissertation, here are a few things to take into consideration:

 

Do IT! Did you know J. M. Barrie’s Peter Pan is still under copyright protection in the UK, but much of Jane Austen's oeuvre is in the public domain? Or that it is a pain to get permission to publish a single quote from a Charles Dickens novel? That government documents are largely part of the public domain regardless of when they are published? Since time and money are usually at a premium in graduate school, it might be worth doing a little research into which items are in the public domain and which are not.

 

Location, Location, Location. Technically speaking, nothing is part of the public domain unless it is copyright-free everywhere in the world. Nevertheless, the term tends to be used in a local context, too. Every year in the United States, National Public Domain Day (January 1) marks the inclusion of new materials into this local public domain, and it is fun to see what items become available each year. As a graduate student, you need to take into account the geographic reach of your dissertation. Where is it being published? Where will it be available? Answer these questions, and you will have a good idea what sort of copyrights you will need to address.

 

Know the Law Before You Begin Your Research. Although most of your research qualifies under fair use laws, it is worth considering materials in the public domain. Not only does the public domain carry far fewer restrictions, it allows you to be flexible in the future uses of your dissertation, like a book project. Most universities have a lot of resources available on the topic of copyright law, and many Graduate Divisions offer seminars or one-on-one consultations throughout the year. Although these tools are geared toward late-career graduate students, I recommend seeking them out as early as possible. To be honest, I wish more schools required students to research the legal status of their materials as a part of their dissertation proposal process. The earlier you know what will be required of your specific research, the better prepared you will be to get the permissions at the end of it.

 

Make a “Best Effort.” As the case with Sherlock Holmes demonstrates, the public domain is not always straightforward. Unless you are in law school to become a copyright lawyer, you are not equipped to be an expert in it. Thankfully, no one expects you to be. To stay on the right side of the law, you need to put your best effort into identifying a potential copyright holder, consult professionals at your university, and address any copyright infringements as soon as you are made aware of them. There are resources to help you make this effort, like Stanford’s excellent examination and the U.S. government’s website.

 

Ask, Ask, and Ask Again. In the end, it is always important to consult with your school’s graduate division on the copyright status of the materials you cite in your dissertation. They are familiar with the laws and trained to help you navigate copyright law. Follow their directions, contact them, and do your best. A little research in advance could save you a lot of stress and time in the end.

 

Have you found creative ways to use the public domain in your research? Let us know about it in the comments!


[Image by Flickr user Bill Smith and used under Creative Commons licensing.]

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