CHAPTER 1
Introduction to the Public Domain
§ 1.01 Public Domain Defined
[1] What It Means for a Work to Be in the Public Domain
[2] Contours of the Public Domain
[3] Determining Whether a Work Is in the Public Domain
[4] Obtaining Access to Public Domain Works
[5] Why Have a Public Domain
§ 1.02 Assault on the Public Domain
[1] Legislative Shrinking of the Public Domain
[2] Spurious Copyright Claims over Public Domain Works
[3] Privatization of the Public Domain
[4] Defending the Public Domain
CHAPTER 2
Works Not Entitled to Copyright Protection
§ 2.01 Introduction
§ 2.02 Unfixed Works
[1] Requirements for Fixation
[2] Types of Unfixed Works
[3] State Law Protection for Unfixed Works
§ 2.03 Works Lacking Originality
[1] Independent Creation
[2] Minimal Creativity
[3] Presumption of Originality
§ 2.04 United States Government Works
[1] Works by Government Employees and Officers
[2] Works Created by Independent Contractors
[3] Special Rules
[4] Foreign Copyright Protection for United States Works
[5] Public Domain Notices on Government Works
[6] Private Works Containing United States Government Materials
§ 2.05 Works by State and Local Government Employees
§ 2.06 Foreign Government Works
§ 2.07 Laws and Court Decisions
[1] Federal Laws and Court Decisions
[2] State and Local Laws and Court Decisions
[3] Foreign Laws and Court Decisions
[4] Copyrightable Materials Added to Laws and Decisions
[5] Quasi-Official Legal Documents
[6] Court Documents
§ 2.08
De Minimis Works
§ 2.09 Information that Is Common Property
§ 2.10 Blank Forms
§ 2.11 Useful Articles
[1] What Are Useful Articles
[2] Physically Separable Features Protectible
[3] Conceptually Separable Features Protectible
[4] Two Dimensional Representations of Useful Articles
[5] Digital Models of Useful Articles
[6] Patent and Trademark Protection for Useful Articles
§ 2.12 Building Designs
[1] Building Designs Created Before December 1, 1990
[2] Building Designs Created After December 1, 1990
§ 2.13 Clothing and Dress Designs
§ 2.14 Typeface Designs
§ 2.15 Recipes
§ 2.16 Sound Recordings Made Before February 15, 1972
[1] Recordings Created in the United States
[2] Foreign Sound Recordings
§ 2.17 Works Lacking Human Authorship
[1] Mechanical Processes or Random Selection
[2] Computer Generated Works
§ 2.18 Sporting Events
§ 2.19 Nationally Ineligible Works
CHAPTER 3
Works Whose Copyright Protection Has Expired
§ 3.01 Introduction
§ 3.02 Copyright Term for Works Created 1978 and Later
[1] Basic Term: Life Plus Seventy Years
[2] Works Made for Hire, Pseudonymous and Anonymous Works
§ 3.03 Copyright Term for Works Created Before 1978
[1] Works First Published in the United States
[2] Works First Published Outside the United States Before 1978
[3] Unpublished Works Created Before 1978
§ 3.04 Copyright Duration Charts
CHAPTER 4
Copyright Forfeiture
§ 4.01 Introduction
§ 4.02 Works Published Without a Valid Copyright Notice
[1] When Notice Is Required
[2] Invalid Copyright Notices: Works Published Before 1978
[3] Invalid Copyright Notices: Works Published After 1977 and Before March 1, 1989
[4] Excusing or Curing Omission of Notice
§ 4.03 Works Published 1923-1963 and Not Timely Renewed
[1] How Many Works Were Never Renewed
[2] Was the Renewal Legally Valid?
§ 4.04 Works Not Complying with the Manufacturing Clause
[1] What Is the Manufacturing Clause?
[2] Are Works that Violated the Clause in the Public Domain?
§ 4.05 Copyright Forfeiture and Derivative Works
CHAPTER 5
Publication
§ 5.01 Overview of “Publication” Under the 1909 and 1976 Copyright Acts
§ 5.02 Publication Before 1978
[1] General Publication
[2] Limited Publication
[3] Public Performance
[4] Public Display
[5] Publication Problem Areas
[6] Registration of Unpublished Works
§ 5.03 Publication 1978 and Later
[1] Limited Publication
[2] Publication on the Internet
[3] Publication of Computer Software
§ 5.04 Publication of Derivative Works
§ 5.05 Publication Without Copyright Owner’s Consent
CHAPTER 6
Copyright Abandonment
§ 6.01 Introduction
[1] Effect of Copyright Abandonment
[2] Copyright Abandonment Versus Forfeiture
§ 6.02 The Nuts and Bolts of Copyright Abandonment
[1] Publication Without Copyright Notice
[2] Failure to Act Not Copyright Abandonment
[3] Limited Abandonment
[4] Terminating Copyright Abandonment
§ 6.03 Computer Software
[1] Free and Open Source Software
[2] Abandonware
§ 6.04 Open Content, Open Access and the Creative Commons
[1] Creative Commons Public Domain Dedication and Waiver of Rights
[2] Creative Commons Licenses
CHAPTER 7
Public Domain Elements in Copyrighted Works
§ 7.01 Introduction
§ 7.02 Ideas
[1] Drawing a Line Between Idea and Expression
[2] General Ideas and Creative Building Blocks
§ 7.03 Facts
[1] Hard Facts
[2] Soft Facts
[3] Fictional “Facts”
§ 7.04 Systems
[1] Materials Used to Implement Systems
[2] Computer Software
[3] Games
§ 7.05 The Merger and
Scènes à Faire Doctrines
[1] Merger
[2] Scènes à Faire
§ 7.06 Protectible Compilations of Unprotectible Elements
[1] Compilation Defined
[2] When Compilations Are Protectible
[3] Thin Copyright Protection for Compilations
[4] Extracting Public Domain Material from Compilations
CHAPTER 8
Copyrights Restored from the Public Domain
§ 8.01 Introduction
[1] How Many Works Have Been Restored?
[2] GATT, TRIPS and URAA
[3] Is Copyright Restoration Constitutional?
§ 8.02 Which Works Had Their Copyright Restored
[1] The Work Was an Original Work of Authorship
[2] Author a National or Domicile of an Eligible Country
[3] Work First Published in an Eligible Country
[4] Copyright In Source Country Unexpired
[5] Work In Public Domain for Specified Reasons
[6] Applicable United States Copyright Term Unexpired
[7] Copyright Restoration in the Ninth Circuit
[8] Alien Property Exception to Copyright Restoration
§ 8.03 Effective Date of Copyright Restoration
§ 8.04 Duration of Copyright Restoration
§ 8.05 Copyright Ownership of Restored Works
§ 8.06 Copyright Infringement of Restored Works
[1] Reliance Party Defined
[2] Infringement Suits Against Reliance Parties
[3] Derivative Works Created by Reliance Parties
[4] Does Restricting the Rights of Reliance Parties Violate the First Amendment?
[5] Immunity from Warranty and Related Liability
§ 8.07 Restoration of Canadian and Mexican Films Under NAFTA
CHAPTER 9
New Works Created from Public Domain Works
§ 9.01 Introduction
§ 9.02 Derivative Works Based on Public Domain Works
[1] Derivative Work Defined
[2] Derivative Written Works
[3] Derivative Musical Compositions
[4] Art Reproductions
§ 9.03 Collections of Public Domain Works
[1] Thin Copyright Protection for Collections
[2] Minimal Creativity Required
[3] De Minimis Collections
CHAPTER 10
The Public Domain Outside the United States
§ 10.01 Introduction
[1] International Copyright Treaties
[2] Comparing the United States and Foreign Public Domains
§ 10.02 Copyright Duration Outside the United States
[1] Berne Convention Minimum Requirements
[2] European Union Copyright Terms
[3] National Copyright Terms
§ 10.03 The Rule of the Shorter Term
[1] Exceptions to the Rule of the Shorter Term
[2] The Country of Origin and the Rule of the Shorter Term
CHAPTER 11
Researching Copyright Renewals
§ 11.01 Introduction
§ 11.02 Who Should Conduct the Search
[1] Searches by the Copyright Office
[2] Hiring a Private Search Firm
[3] Do-It-Yourself Copyright Renewal Searches
§ 11.03 Preliminary Information Needed for Search
[1] Works First Published Outside the United States
[2] Avoiding Searches for Republished Works
[3] Renewal Information from Publisher or Copyright Owner
§ 11.04 Renewal Searches for Works Published 1950-1963
§ 11.05 Renewal Searches for Works Published 1923-1949
[1] Online CCE Records
[2] Where to Find the CCE
[3] What Years to Search
[4] Conducting a Search
§ 11.06 Problems and Complications Researching Copyright Renewals
[1] Works First Published Outside the United States
[2] Works Created as Part of Larger Works
[3] Derivative Works
[4] Collections of Public Domain Material
[5] Motion Pictures
§ 11.07 Legal Validity of the Renewal
CHAPTER 12 Non-Copyright Restrictions On Use of Public Domain Materials
§ 12.01 Introduction
§ 12.02 Federal Law
[1] Trademark
[2] Patents
[3] Federal Privacy and Secrecy Laws
[4] Freedom of Information Act
§ 12.03 State Law
[1] Overview of Federal Copyright Preemption of State Law
[2] Contracts Governing Use of Public Domain Materials
[3] Contracts Regarding Idea Submissions
[4] Right of Publicity
[5] Misappropriation, Conversion and Unjust Enrichment
[6] Trade Secrets
INDEX