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Picture Imperfect: News on Images in the Public Domain

Published onSep 26, 2012
Picture Imperfect: News on Images in the Public Domain

A folk singer recently used images of a Canadian penny for his album titled, “No More Pennies.” Meant as a tribute to the dated coin, his album created controversy when Canadian officials claimed copyright infringement.

In Canada, the government owns copyrights to its works and requires permission to use reproductions when they are distributed for commercial purposes. Because an album is commercial, the government requested a $1,200 payment for 2,000 albums after waiving its fees for the first 2,000 already produced. In a cute protest, the singer planned to pay this charge with fan-donated pennies. But his efforts became unnecessary when the Canadian Mint got some sense and waived its fee. Officials even offered to review copyright policy.

The folk singer’s saga may worry aspiring idols in the United States. Fear not. The United States is different from Australia, Canada, New Zealand and other countries with Crown copyrights. The United States government’s works remain in the public domain. Coins can even be photographed or filmed; however, rules are stricter with dollar bills due to counterfeit concerns.

Outside of government works, the use of public domain images gets tougher. The Huffington Post recently interviewed a University of Virginia Law School professor about using photos of public domain artworks. According Professor Christopher Sprigman, “unadorned photo[s] of the public domain image . . . can’t be copyrighted.”

Things get trickier for films. A recent article by Variety says it all. The tagline “Adapting a classic? Get a Lawyer?” describes the “legal minefield” studios face when they remake classic stories in the public domain. Let’s just say there’s a reason Happy and his friends were sadly missing from this summer’s Snow White and the Huntsman.

According to Varietymerchandisers face problems, even when “the publicity material a merchandiser used . . . had fallen in the public domain.” For a discussion of these issues, check out Warner Bros. Entertainment, Inc. v. X One X Productions, an Eighth Circuit decision from 2011.

In Warner, X One X used publicity materials from The Wizard of Oz and Gone With the Wind to create movie-themed products, such as t-shirts, lunch boxes and figurines. Warner Brothers sought and received a permanent injunction against all use of these images “except for exact duplication of individual items of publicity material.”

On appeal, the Eighth Circuit held that the public domain images, and any portion of them, can be reprinted on different surfaces as long as the surface remains independent from the film character. (“Dorothy on a ruby slipper” would not work.) Also, pieces of separate public domain images and other public domain works cannot be combined to evoke characters from the films.

What a mouthful. Basically, publicity materials in the public domain may be fine on some surfaces, but not others. And caution should be used when combining materials in the public domain.

Suddenly, I’m beginning to rethink my plan to release a Canadian rap album titled “Mo Rhymes than Yo Mint Got Dimes” under the pen name The Wonderful Wizard.

(For more information on the public domain, check out Duke University’s Center for the Study of the Public Domain. And be sure to come back later for my upcoming post on songs in politics. It’s gonna be a (political) party.)

*Stephen DeGrow is a second-year student at Wake Forest University School of Law and holds a Bachelor of Arts in Economics from Cornell University.

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