A startup needs to protect its intellectual property. At the same time, it needs to shield itself from claims of infringement from others for use of works they don’t own. A common situation with the latter is using a work thought to be in the public domain that is in fact protected by copyright.
A work in the public domain is a creative work that’s not protected by copyright and that can be used freely by anyone. For these works, there’s no one’s permission to obtain, but you can never own it. They’re owned by the public—not any individual author or artist. Reasons why a work isn’t protected can include:
- the term (duration) of copyright for the work has expired;
- the author failed to meet the legal requirements to perfect the copyright;
- the work is a work of the U.S. Government;
- the copyright owner deliberately places it in the public domain (“dedication”); or
- copyright law doesn’t protect this kind of work.
A work in the public domain isn’t protected by federal copyright, trademark, or patent laws.
The Test for Public Domain Works
Trying to determine if a particular work is in the public domain can be an exhausting task for a startup. That’s because it depends upon a variety of factors, such as whether the work was published, when it was published, whether the copyright registration was obtained, if it was renewed, and whether a copyright notice was issued.
In fact, some companies have designed flowcharts to attempt to figure out if a work is in the public domain. As an owner of a startup, surely you don’t have time for that.
Typically, a work published before 1923 will be in the public domain. After that date, a safe assumption is that it’s still protected by copyright. An even safer route is to consult with an experienced intellectual property attorney who has the skills and tools to make a solid determination about whether a specific work is in the public domain or is still protected by copyright.
Remember, making a work public—like posting a blog—doesn’t mean that it’s in the public domain. Simple, right? Not exactly. That’s why you should consult a knowledgeable intellectual property attorney.
Your startup needs to be aware of the importance of protecting intellectual property and guard against the infringement of others. Discuss your IP issues with an experienced intellectual property legal professional.
Attorney Michael Ahmadshahi focuses on patents, intellectual property, copyright, and trade secrets in Irvine, California. The Ahmadshahi Law Offices are also located in Beverly Hills and Sherman Oaks. Call us toll free at (800) 747-6081 or direct at (949) 260-4997 or email [email protected]aw.com and let us help you with your IP questions and the strategy for your startup.