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What is the difference between fair use and public domain?

If you produce art or entertainment in the United States, your copyrighted work is protected from entering the public domain for a certain number of years. In 2019, the largest amount of previously copyrighted work will enter the public domain where anyone will be able to use the material for free.

The public domain can be a confusing area of copyright law. Some entities publish material that is still under active copyright as “free use.” If this is the case, how do you know if your work is protected?

What work falls under “Fair Use?”

A portion of your work could be reproduced, displayed or performed without your consent under “fair use” and would be protected under law. Determining fair use is a legally gray area and is often granted on a case-by-case basis. Portions of almost any type of work could be used or quoted for the following:

  • Criticism
  • News reporting
  • Educational or research purposes

Courts will consider at least four factors in these cases. First, this includes the purpose and intent of the use. If the user of the original work is expanding on the original idea and focuses on that new idea, the use is likely to be protected. Second, the status and nature of the copyright on the original work. Third, the size and scope of the original work being used. Finally, the effect the new work could have on the potential value of the original work.

What use is protected under public domain?

As of 2019, most works in the United States are protected for the author’s lifetime plus 70 years. After that, the work enters the public domain. After that, anyone may use it. It also includes the following:

  • Work published before 1923
  • Work published 1923-1963 whose copyright was not renewed during its 28th year
  • Works published by the federal government
  • Unpublished work of an author after the author dies plus seventy years

The legal use of copyrighted work can be confusing. If you publish a commentary on a copyrighted work, or someone uses your work for commentary, be sure that it is protected to avoid a costly copyright infringement charge.

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