WPCLipart.com
Public Domain FAQ
Just my way of trying to cut down on confusion; a bit about the Public Domain for those new to the concept, along with a reasonably concise Q/A about what can and cannot be done with the clip art. Links are provided below with related information and sites of Public Domain advocacy.





What is Public Domain?
Quoting from the US Copyright Office site at:
http://www.copyright.gov/help/faq/faq-definitions.html
Where is the public domain?
The public domain is not a place. A work of authorship is in the "public domain" if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

One point I feel I need to clarify is whether or not a user can later claim the image as their own, or make a company logo out of a Public Domain image. I'll cover the first part of that question here in detail:

Once an image is truly public domain, it cannot be taken out of the public domain. For instance, you cannot release something PD, then change your mind and later claim otherwise. You cannot take a PD image, slap a "C" with a circle around it on the image, then and say it is yours...

You cannot claim that images are public domain, then go on state that permission is needed to reuse them. If an image is public domain, you cannot restrict it's usage.

If, however, you were to start with a PD image and make substantial changes/modifications to a work (ie: original, creative) , then that new work IS copyrightable (it is considered a "derivative work".) This is especially pertinant to those seeking to make company logos out of PD materials. (There is a Q/A in the FAQ covering that.) Also the packaging, display, organization and formatting regarding GROUPS of PD images (collections) can be considered a derivative work.



Trademarks -- can they still be in the Public Domain?


Yes, but that means you cannot use the Public Domain (yet trademarked) image to promote sales or services. For other uses it is ok....

Here's the difference between trademark and copyright:

Trademark is not meant to protect original expression -- its purpose is to help consumers identify the source of goods and services.

The most well-known example of a public domain but trademarked logo are the 5-color Olympic Rings. You can use them freely as public domain clipart, but DO NOT use them to promote your business or service. And unlike copyright, trademark do not expire. An excellent explanation of tademarks can be found on:
http://www.publicdomainsherpa.com/trademark.html



Can someone copyright a work once in the Public Domain?


No

They can copyright new work BASED on the PD work if they make original, creative changes.
See the highlighted section of the US Copyright Ofice circular 14:
Derivative Copyright Information


On a site using public domain works such as WPClipart: I cannot take what is already in the public domain, then claim to have scanned, cleaned-up, tweaked lightness/contrast, etc and then claim I now have copyright on that work. Although the "sweat of the brow" copyright arguement may hold some merit logically (the work put into the aquiring, scanning, etc. should earn the worker something...), it holds no weight legally.

Copyright was meant to advance creation, allowing things to be created and profited from yet be built upon... to hoard something already deemed public domain goes against this principle. Project Gutenberg has a good article on this at:
http://www.gutenberg.org/wiki/Gutenberg:No_Sweat_of_the_Brow_Copyright



Can someone trademark a work once in the Public Domain?
Suprisingly -- yes, they can.

And they do not even have to make any creative changes to the artwork to register it with the US Patent and Trademark Office. While this struck me as a very bad development, you have to take into account that a trademark is much more limited than a copyright. While the person who trademarks an image has exclusive rights to the image as used on a particular product -- they cannot hold any copyrights nor prevent someone from using that same image for other uses.

Anecdote (03/25/2013):
I have had several folks tell me to take down images they had trademarked in the last couple years and I thought I had no choice but to comply. However, when I was recently told to remove an image from the site, it was obvious to me the image on WPClipart predated the first trademarked use by several years. I reached out to many organizations to try to find help and after much searching and many inquiries I finally got a response from the folks at http://newmediarights.org/.

After giving newmediarights the details, how from snapshots on the Internet Archive (Wayback Machine) I could show the image was at WPClipart 3 years before the registered trademarks listed first use, and what PD site I had gotten the image from, which pre-dated WPClipart's use by another few years... yet the owner of the trademark demanded I take the image off of WPClipart as it was "No longer abvailable for public use."

Shaun at New Media Rights enlightened me that someone COULD trademark a public domain image, but also clarified that the trademark was only exclusive for product branding. The trademarking party held no copyrights -- the image was still public domain, and they could not keep me from using the image for any purpose other than as a particular product "logo." To that end, New Media Rights represented me pro-bono and corresponded with the demanding party. (So far they have sent three letters, without any response.)

But New Media Rights has clarified trademark policy for me, given me some peace of mind, and are helping to keep the public domain accessible. When no one else would help me. Bravo!



What is a collection? (And why should I care?)
As this relates to WPClipart, the individual images are Public Domain, but the collection is a derivative work and as such it is copyrightable. Hence restrictions can be made concerning the use of the COLLECTION, but not the individual images.

I don't intend to frighten anyone away from using the images for whatever they want -- but if you copy the collection to repost online (basically mirroring my site) it is possible for me to do something about it. But regardless of possible reprecussions, I think the practice of copying a site's content to grab ad revenue is simply rude and greedy.



Are all the images on WPClipart Public Domain?
Yes

At one time I also included a limited number of images on WPClipart which are used under the umbrella of "fair use." These included any image with a company logo/trademark (ex. company name on a credit card image), or a recognizable product (ex. a specific model of cell phone.)

Fair use items are usually small examples of copyrighted works or images that are meant to be used (but not distorted or misrepresented) when referencing the original work and/or product.

To avoid confusion, however, fair use items are no longer available on WPClipart.




So are there any restrictions on the use of the images in the WPClipart collection?
For individual images the answer is no.

Use them for whatever you wish and you don't have to bother asking for permission or attributing or linking back to WPClipart. (Although a link IS appreciated.)

Use them in your reports or web pages, even use them on materials you sell commercially.

My only request is in regards to the COLLECTION: that I don't want others to repost, mirroring large portions of my site online as an image repository, therefore competing with my site. I spend a LOT of time finding, researching legal status and retouching images, etc. as well as the hundreds of images I create myself and donate to the public domain...

While this does not and should not give me any special rights over the images, I think civility and decency dictate that you refrain from "running me off the 'Net" with my own content.



Can I make my company logo out of the clip art?
Yes, but keep in mind the differences between something copyrighted and something trademarked...

(See trademark sections above.) For use in commerce you would want to trademark the image, otherwise someone else could come along and trademark what you are using.

UNLESS what you are using is already copyrighted. And that means if you have created a sufficiently original (derivative) work, then it is copyrighted from the moment of creation. As mentioned above, if a work is Public Domain then you are free to modify that image to your liking. In doing so you have created a derivative work and can then safely use the new work as a company logo.

See the highlighted section of the US Copyright Ofice circular 14:
Derivative Copyright Information


To explain in detail:
  1. If you start with a public domain image, the original image remains PD. trademarked or not.
  2. Incorporating a clearly visible name/mark onto the image can be a good way to make that image considered derivative. (So this much is not necessarily a big hurdle.) You are also free, of course, to modify the image in any other way you wish and any real modification would also help the image to be considered a derivative work.
  3. The safest way to make a logo/trademark from PD art is to ensure that you have made original, creative changes to the original. If you do make the image somehow original, then others could not use the image without your permission, nor could they legally trademark it later if you did not go to the trouble. The waiting period for registering a tradmark can be quite long, taking at the very least about four months.

I want to publish, can you give me written legal indemnification against any claim of copyright infringement?
No

It is simply beyond my ability:
  • People and sites have misrepresented the PD status of images (posted them as PD, especially on user-generated sites...) I often catch these because the images are something clearly not PD (cartoon characters, famous images, etc.) But sometimes something will temporarily* slip past.

  • Defense against even false claims is something I cannot legally afford -- such is the present nature of our legal system with regards to copyrights.

I research the sources of images the best I can, including images posted at OpenClipart and other PD sites. I edit, organize, post online and *challenge anyone and everyone to prove the status of these images to be anything but PD. So personal approval (as I do here online) and "good faith" is the best I can offer you... I believe this is the best anyone can offer regarding PD images. The biggest advantage to using WPClipart is the amount of time and effort I put into vetting images before I post them.

And I think of all the PD art sites online, WPClipart has the best filtered content available.

If you need written indemnification, then purchasing images from someone who claims copyright on the images is legally safer. Be advised, however, that nothing presently seems to constitute an ironclad copyright infringement defense. And plenty of people are willing to sell you PD (and copyrighted) images to which they have absolutely no legal rights.




Related Information:
Public Domain Definition
from the Linux Information Project

Public Domain: Public ownership of Creative Works
Wikipedia

Copyright Term and the Public Domain in the United States
Copyright expiration chart by Peter B. Hirtle
Published by Cornell University

WHEN U.S. WORKS PASS INTO THE PUBLIC DOMAIN
By Lolly Gasaway
University of North Carolina

How to Determine Whether a Work is in the Public Domain
Dennis S. Karjala
Professor of Law
Arizona State University



Public Domain Advocacy:
New Media Rights
New Media Rights is a non-profit program that provides legal services, education, and advocacy for Internet users and creators.

Ibiblio
The public's library and digital archive
Home to one of the largest "collections of collections" on the Internet,
...and host to the packages produced by WPClipart since 2005

The Mouse that Ate the Public Domain
By CHRIS SPRIGMAN

http://public.resource.org/
Promotes, displays and links to Public Domain works,
focuses on U.S. Govornment resources. Also works to debunk what it
feels are false copyright claims.

Public Knowledge
Public Knowledge is a Washington DC based public interest group
working to defend your rights in the emerging digital culture.

Electronic Frontier Foundation
EFF is the leading civil liberties group defending your rights in the digital world.

Reconstructing the Public Domain
by Robert A. Baron
"This paper advocates the development of a strong public domain as a remedy to the copyright industry's success in convincing Congress to increase the length and scope of copyright."

Carl Malamud
Distinguished Lecture Series
(Re-)Defining the Public Domain

Open Invention Network
(Related -- Software patent defense)
"...is an intellectual property company that was formed to promote the Linux system by using patents to create a collaborative ecosystem."




WHEN U.S. WORKS PASS INTO THE PUBLIC DOMAIN
By Lolly Gasaway

Also see my addendum concerning International Treaties

DATE OF WORK PROTECTED FROM TERM
Created 1-1-78 or after When work is fixed in tangible medium of expression Life + 70 years1(or if work of corporate authorship, the shorter of 95 years from publication, or 120 years from creation2
Published before 1923 In public domain  None
Published from 1923 - 63 When published with notice3 28 years + could be renewed for 47 years, now extended by 20 years for a total renewal of 67 years. If not so renewed, now in public domain
Published from 1964 - 77 When published with notice 28 years for first term; now automatic extension of 67 years for second term
Created before 1-1-78 but not published 1-1-78, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2002, whichever is greater
Created before
1-1-78 but published between then and 12-31-2002		 1-1-78, the effective date of the 1976 Act which eliminated common law copyright Life + 70 years or 12-31-2047 whichever is greater


A note about US Postage Stamps:

Prior to 1978, the artwork on postage stamps was Public Domain, (which was sort of in-line with the idea that any artwork by or commissioned for U.S Govt. is public domain.) Post-1978, however:
Copyrighted by the United States Postal Service after January 1st, 1978 (the date on which the Copyright Act of 1976 went into effect). After that date, written permission is required.

For international postal artwork information:
Postal Artwork copyright status



Disclaimer: The above material is presented for reference purposes only, and it is not intended as nor does it constitute legal advice. Neither I (author/maintainer of WPClipart) nor any of my content providers shall be liable for any errors or omissions in the content or for any actions taken in reliance thereon. I am not an attorney and make absolutely no claim to have any knowledge about legal matters beyond that of an informed layman. Any questions should be directed to a licensed attorney specializing in copyrights and intellectual property law. Proper legal advice can only be provided by a licensed attorney with reference to the specific facts of a particular situation and to the laws of the relevant jurisdiction.