Frequently Asked Questions

Promoting public domain work can be a frustrating process. This is by design, the drafters of intellectual rights legislation and customs directly profit from a state of confusion that keeps the general public in the dark and constantly questioning what is and is not allowed, and who does or does not own what.

Over the years I encounter the same questions over and over and over and over again. In attempt to add a little more clarity to the issue I'm sketching out some of the more common questions I've come across.

Disclaimer: This is not legal advice, please consult a relevant legal authority if you are involved in any kind of dispute.

Additional note, there is no universal standard for copyright, there is a policy that has been adopted by the majority of the nations of the world but not all, and even amongst these, there are nuances to how it is applied in each territory. I am most familiar with the copyright system in the UK and USA, if you or the work in question does not originate within these two territories you will have to look elsewhere for specific advice for your country of origin.

1. What's the difference between Trademark (TM) and copyright (C)?
   While these two often get confused a lot separates them. In brief, copyright is the right of ownership, while trade mark applies to branding. Of the two TM is far weaker than copyright, and while copyright is automatic a trade mark has to be continually enforced. A key misconception is that copyright also requires constant enforcement, it doesn't. The only way to lose copyright is for the term to expire or for the owner to give it up. Not actively protecting copyright, or only selectively protecting copyright is at the discretion of the owner.
2. How can X use Y when Y is still trademarked?
   This one shot up in popularity this year (2022) after Disney's copyright on Whinnie the Pooh expired. Since Disney is still trademarking the character and many products with the character and his friends in the first book, the news of various knock-offs and in particular the announcement of a horror movie starring the bear and piglet has sparked a lot of confusion. The key to a Trademark is that it is weaker than copyright. Specifically, an active Trademark doesn't mean no one else can use the trademarked property if the copyright is invalid, to be considered a trademark violation the claimant has to demonstrate that the alleged violators product could be confused with a product or service currently trademarked by the claimant. I don't think there are many people who would confuse a live action horror flick for a Disney product. An animated kids movie with Jim Cummings doing the voices would be a different matter. Another example in the European Union, the mobile game Candy Crush, successfully trademarked Candy Crush. You still use those words, though calling a mobile game that would be potentially vulnerable. 
3. [Questioner is American] If things made in 19__ are public domain how come [product made by a non American who died decades after the 19__s] isn't public domain?
   Because there is no universal standard for copyright. The 95 years after creation term applies solely to content created in the USA. If the work was created in another country that country's copyright law is what matters, this is called country of origin, most copyright systems account for it. The United States didn't until the 1990s when it retroactively added a vast sum of art that had been public domain in the United States back into copyright. The UK has country of origin, so if a work is public domain in its country of origin, then that is true for the UK, but if it is not but the life of the author and 70 years has passed than it is also public domain in the UK.
4. If works in the USA are public domain after 95 years how is this tv show from 1973 public domain? 
   Because the USA has one of the most convoluted histories with copyright. The 95 year term is modern development, throughout the 18th, 19th and most of the 20th century America used a registration system, and to make it more confusing they kept passing laws that changed requirements for registration, renewal and terms of protection. As a result, their are a lot of books, movies etc, made well into 1960s and later that are public domain, either because they failed to register correctly, Romero's Night of the Living Dead, is the most famous example of this, or because no one bothered to renew them when their terms were up.
5. X must still be copyrighted, so why is it shared so freely and included in loads of public domain lists?
   Well, back to confusion again. Looking at many lists of public domain material you're bound to find something that must still be in copyright. But as property has developed its increasingly difficult to say for sure without access to sensitive and confidential legal documents. In theory copyright is very clear, its the right of the creator to their work. But copyright can be bought, sold, and given away. This is why most copyright disputes aren't between two people, but between corporate entities. So, this complicates matters extraordinarily. So this may mean that the work in question is public domain after all because the entity that bought it didn't register or renew correctly, or more likely, no one knows who owns it so it has fallen into a limbo called orphan work.
6. What's an orphan work?
   An orphan work is a work without an owner. Works published anonymously fall under this category and most copyright legislation accounts for it in some manner. They aren't public domain, but there isn't anyone to defend the copyright. You can't initiate a claim on behalf of someone else, that's another form intellectual property theft called copyfraud. However, increasingly orphaned works are works published by one or multiple private entities and they are orphaned because it just isn't clear who amongst them actual owns what and in what capacity they can use the work in question. Video games have a term called Abandonware, where games and their associated intellectual property just stop being active, largely because of this issue. Many video games are created through the input (or meddling) of multiple corporate partners, and all of them whether in development or in publishing will have a stake of some kind within it. Add in how common it is for video game and software companies to be bought out, merged, split off etc, and there are now multiple properties that can't be touched unless a dozen entities come onboard. 
7. I want to use something that is still partially copyrighted, will X be okay?
   This is a unique feature of America's copyright system. In the UK and much of the rest of the world its a none or all situation. X years after death of creator all works are free to use. In America currently its a year of creation of individual works. So there are estates that are powerless in the rest of the world that still have teeth in the USA. The estate of Arthur Conan Doyle is a particularly infamous example with its actions to strong arm Sherlock Holmes adaptations since the last few short stories are still copyrighted there. These questions can only be answered by the estate holders themselves, its pointless to ask a third party, we don't know how other people will act.
8. Is Creative Commons like Public Domain?
   No. Creative Commons is a licensing agreement, to know if and how you are allowed to use a work licensed under a Creative Commons license you will have to check what license it is and the requirements. To learn more about Creative Commons and the specific licenses go here.
9. This has a copyright notice, how is it public domain?
   Well, in most of the world the ubiquitous small c in a circle is superfluous. Copyright is automatic so it doesn't really do anything. For example, me writing these words and then clicking publish is enough to ensure my copyright over this blogpost. Yes that's right, you own your posts, including on social media like facebook, twitter, and reddit and so on. In the UK the copyright notice on film and television programs serve only to inform us when the show was produced and to help us practice our Roman numerals. In the United States, one of the few territories where the circle c was necessary, it formed only part of the registration process. If you didn't include a visible copyright notice or an incorrect copyright notice your copyright was void. However, a correct copyright mark on its own was not sufficient to register the work for protection. The US copyright office is supposed to include and entry for all works that were copyrighted. This is partially searchable though it is a major pain to do so. In short, if there isn't a copyright record or renewal record if one was needed than the circle c means nothing.
10. This is copyrighted in my country, why are you saying its public domain?
    I don't live in your country, and that's the status of my territory and the laws I'm supposed to follow. I'm not responsible for your conscience or actions.

I'll leave it here for now. There are a few more questions, but they aren't as frequent, for now anyway. If that changes I'll write up a follow up. Hopefully this is informative and helps pierce the fog of confusion just a little.