Copyright & Patents/Public Domain - Derivative Works
The book '52 Sunday Dinners' was published in 1913 (http://www.gutenberg.org/files/31534/31534-h/31534-h.htm
). However, the volunteers at gutenberg.org have seemed to have republished it on Amazon (http://www.amazon.com/Fifty-Two-Sunday-Dinners-Recipes-ebook/dp/B004TP5G0G/ref=s
) making it re-published in 2011.
My questions are:
1. Since it was in the public domain (published prior to 1923), does that mean that I can copy the entire thing, change the title and re-sell it? Or does the 2011 re-copyright void my ability to do so?
2. If I am able to copy and re-sell it, do I have to credit the author or does public domain material not require to be referenced?
Thank you for your time.
It is unclear where you live and where you are interested in the copy right law. I am a U.S. intellectual property attorney and the law on this subject is in a state of flux in the U.S.
The U.S. Supreme Court in January 2012 upheld a federal law that restored copyright protection to works that had entered the public domain.
By a 6-to-2 vote, the justices rejected arguments based on the First Amendment and the Constitution’s copyright clause, saying that the public domain was not “a category of constitutional significance” and that copyright protections might be expanded even if they did not create incentives for new works to be created.
The case, Golan v. Holder, No. 10-545, considered a 1994 law enacted to carry out an international convention. The law applied mainly to works first published abroad from 1923 to 1989 that had earlier not been eligible for copyright protection under American law, including films by Alfred Hitchcock, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso.
The precise number of affected works is unknown but “probably number in the millions,” Marybeth Peters, the United States register of copyrights, said in 1996.
The law was challenged by orchestra conductors, teachers and film archivists who said they had relied for years on the free availability of such works.
Justice Ruth Bader Ginsburg, writing for the majority, said the law had merely put “foreign works on an equal footing with their U.S. counterparts.”
“Assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously,” she wrote.
She gave examples. “Prokofiev’s ‘Peter and the Wolf’ could once be performed free of charge,” while now, she said: “The right to perform it must be obtained in the marketplace. This is the same marketplace, of course, that exists for the music of Prokofiev’s U.S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U.S. concertgoers.”
Works in the public domain are those whose intellectual property rights have expired, been forfeited, or are inapplicable. Examples include the works of Shakespeare and Beethoven, The King James Bible, most of the early silent films, the formulae of Newtonian physics, and the patents on powered flight. The term is not normally applied to situations when the creator of a work retains residual rights, in which case use of the work is referred to as "under license" or with permission.
In informal usage, the public domain consists of works that are publicly available; while according to the formal definition it consists of works that are unavailable for private ownership or are available for public use. As rights are country-based and vary, a work may be subject to rights in one country and not in another. Some rights depend on registrations with a country-by-country basis, and the absence of registration in a particular country, if required, implies public domain status in that country.
The expiration of a copyright is more complex than that of a patent. Historically the U.S. has specified terms of a number of years following creation or publication; this number has been increased several times. In the U.S., it usually depends on the U.S. state of where it was produced and where it will be used. Most other countries specify terms of a number of years following the death of the last surviving creator; this number varies from one country to another (50 years and 70 years are the most common), and has also been increased in many of them. See List of countries' copyright length. Legal traditions differ on whether a work in the public domain can have its copyright restored. Term extensions by the U.S. and Australia generally have not removed works from the public domain, but rather delayed the addition of works to it. By contrast, a European Union directive harmonizing the term of copyright protection was applied retroactively, restoring and extending the terms of copyright on material previously in the public domain.
Tyler, what you are proposing is taking someone else's work and passing it off as your own. To do so, would be committing a fraud, for which there may be legal remedies.
I suggest that you do additional research on the matter based upon the information provided here, but that you consult legal counsel before proceeding.
Tyler, I hope this helps.
--Gerald R. Black
Attorney and Counselor