A lot of creative work is inspired by other creative work, and there is nothing wrong with that. In fact, the whole point of copyright law is twofold: to protect an individual’s unique creation and to eventually provide a springboard for other creative people to build on that unique creation to generate their own new creative work.
That’s why copyright only lasts for a limited time, and it’s why the “public domain” exists. For crafters and other creators, the public domain is a goldmine of opportunity for inspiration and material for their creative work. There are, however, a lot of misconceptions about what “public domain” means. The challenge is knowing what’s in the public domain, and what you can use it for.
A Couple of Tough Truths
The first thing you need to know is this: Just because something’s on the Internet, publicly free to look at or download or screenshot from your phone does not mean that it’s “public domain” and free for you to use in your own work. The same goes for anything that’s published in a book or newspaper or magazine, or even painted on a wall: just because it’s free for you to see doesn’t mean it’s free for you to use or copy.
Regardless of what you may have heard, there is no written or unwritten “ten percent rule” that allows you to change more than 10% (or any other percent) of a copyrighted work and then use it as your own.
You can’t just flip it upside down, or switch it from black and white to color, or change the Little Mermaid’s hair color, or make any other simple modification to something that belongs to someone else and suddenly call it yours. That would be like stealing someone’s car, changing the hubcaps, and then claiming that it was no longer the original stolen car.
What is Public Domain?
“Public domain” literally means creative materials that are not protected by intellectual property laws. These works are not owned by an author or artist. If something is in the public domain, anyone can use it without obtaining anyone else’s permission. Of course, that also means that no one can ever own a public domain work exclusively. What you do with that public domain material, though, is definitely yours: you own it and you can copyright it. You just can’t own the original public domain thing you used.
Some works become public domain due to age, and some—like works published by the government—are public domain from the beginning (that’s because in the US government documents are “paid for” by taxpayers, so we own them automatically).
Since VanGogh’s Starry Night (left/top) is in the public domain, artwork based upon the famous painting are fairy common, like “Berlin Starry Night” in tape (right/bottom).
When Does Public Domain Happen?
Copyright is in the US Constitution. So free speech, the right to vote, freedom of religion, and copyright are all equally important under the law.
Relevant to our public domain discussion, though, the copyright clause in the Constitution literally states that the collection of rights held by a creator is protected “for a limited period of time.”
What a “limited period of time” means has varied over the centuries, but today copyright generally lasts for the life of the creator plus 70 years. That means the standard copyright period is more or less 150 years. It’s important to note that the copyright period is measured by the creator’s life, not the date when the work was published. (In copyright law, the creation of anything that can be copyrighted is referred to as “publication,” even if it’s not a book—paintings, movies, music, sculpture, needlework, woodwork are all published.) The date of publication has nothing to do with the calculation of how long copyright will last.
Right now, for works published between 1923 and 1977, copyright is in force for 95 years from the year of first publication. Works published before 1923 are generally in the public domain today. Be careful, though: specific versions of works may remain protected. For instance, A. A. Milne’s book, Winnie-the-Pooh, and its illustrations, became public domain in 2022, but the Disney version of Pooh, created in 1961, is still protected.
The bottom line is that works in the public domain are free for you to do whatever you want with. And while not everything that’s public is in the public domain, eventually everything will be, including stuff you create.
Example: Quite Quilty
Here’s a real-life example. My friend makes beautiful textile collages, cloth decoupage, and artfully dyed fabric panels. Recently she wanted to interpret paintings as fabric collages. Unless the inspiring artist’s work is in the public domain (either because it was created by the government or due to the passage of time), my friend’s “interpretations” are in violation of the artist who painted the original painting’s copyright.
Copyright is like a bundle of sticks, with each stick being a different right that only the creator of the work is entitled to do. Those rights include the right to publish, adapt or change, perform, display, and reproduce it.
Just because Paul Klee never made a fabric collage version of “To the Neighbor’s House” (pictured below) doesn’t mean he doesn’t still have the right to do it (in this case, Klee’s estate holds copyright until 70 years after the date of his death, so it would be their decision to make). There’s a happy ending to this story, though: because Paul Klee died in 1940, the copyright on his work expired in the US 70 years later, in 2010. So my friend is in luck!
But remember: her fabric version of the Klee painting, while copyrighted by her, will eventually become free for other people to copy. And also remember: just because my friend made a quilt version of the Klee painting doesn’t mean that no one else can make their own unique version, too: the painting is in the public domain.
Paul Klee’s “To the Neighbor’s House” is in the public domain, so someone else can publish, adapt or change, perform, display, and reproduce it.
What Else Is In The Public Domain?
There are some other things in the public domain that you’re also free to use as you like. These include what the Copyright Office calls “useful items,” common symbols or phrases, and colors.
As a general rule, useful items are not copyrightable. “Useful items” include clothing, blankets, bedspreads, curtains, rugs, doorknobs, furniture—anything with a utilitarian use, regardless of how original or artistic it is. Creative works made out of cloth are a mixed bag in terms of copyright. The fabrics used to make the clothing may be copyrighted if they display sufficient uniqueness and creativity: that’s why you see a lot of designer clothing made from fabric that’s mostly the designer’s logo.
Common Symbols, Shapes, and Designs
Symbols, shapes, and designs that you see every day are generally not protected by the Copyright Act. However, a work that includes familiar symbols or designs may be copyrightable if the familiar symbol or design is used “in a creative manner” and the whole work is eligible for copyright. “In a creative manner” is a pretty vague standard, but figuring out what phrases like that mean is what keeps intellectual property lawyers in business.
For example, an artist draws an original portrait of Marie Antoinette against a backdrop of multiple fleur de lys designs. The Copyright Office will probably approve copyright for this image, because the original, artistic portrait is the focus, and the familiar French fleur de lys designs are merely decorative background elements. The fact that the painting is copyrighted will only prevent others from making identical portraits of Marie Antoinette. It does not remove the background symbols from the public domain.
Other symbols that can’t be copyrighted and are public domain include polka-dot patterns, letters of the alphabet, geometric shapes, or religious symbols, as well as things like arithmetic signs: +, -, =, x, etc. But if any of those things are made in a creative, unique way, or associated with an original, copyrightable work (like the way they’re displayed as titles on Ed Sheerhan’s album covers), that unique use can become protected. For instance, the yin-yang symbol is public domain, but when you paint a picture of it or embroider it into a tapestry or tie-dye it into a t-shirt, it’s absolutely yours to protect.
We’re all lucky that words can’t be copyrighted (unless they’re strung together in a unique order as a poem or novel). And if names could be copyrighted, you would have to get permission from somebody else before you decided what to call your baby. Some people have tried to get around copyright by trademarking words, and that only works sometimes: usually if the word is made up or spelled in a unique (i.e. wrong) way. And while character names in a book, for instance, aren’t individually copyrightable, they can be trademarked on their own—”Harry Potter”, for example, is trademarked. Still, it’s safe to say that in general 99.9% of all words out there are in the public domain.
As a rule, colors cannot be copyrighted, and are freely available in the public domain for you to use. It doesn’t matter what media you use (paint, computer, or whatever), or whether or not the color or combination of colors is aesthetically pleasing; colors aren’t copyrightable.
You should note that, once again, while colors may not be under copyright, there may be a trademark involved: the distinct red shade of the soles of Louboutin shoes, for example, are trademark protected (as is Pepto Bismol pink and Post-It Note yellow, for that matter). But while paint and other color media manufacturers may have trademarked their tints, that does not mean you can’t use them to create your own art—it just means you can’t create a Burnt Sienna-colored crayon and call it your own.
To Thine Own Creative Self Be True
In the end, it is always best to be your own unique creative self. Inspiration is fine, but be careful not to be inspired to copy other peoples’ protected work.
There’s a whole world of stuff out there that is not protected by copyright, trademark, or patent, that creative people like you can freely access and use as inspirational springboards for your own work. One good place to look online is Wikimedia Commons, which is a searchable database of images, designs, and patterns that are in the public domain either through age, operation of law, or because their creators wanted them to be, and surrendered their copyright protections so that other people could use their work in new and interesting ways. (In fact, the Klee image above was obtained from Wikimedia Commons.)
Wherever you find it, or whatever you do with it, public domain content is a goldmine for creative people.
Evan Butterfield is the author of Copyright for Creatives: A Comprehensive Guide to Copyright Law for Creative People Who Make Stuff. This unique book covers more than fifty specific creative activities as well as broader legal concepts important to creatives, and is available on Amazon. For over 30 years, Evan has been a lawyer, a publishing professional, and an educator, with an admittedly strange life-long fascination with copyright law. He lives in Las Vegas, Nevada with his husband and cat, and in addition to being an author and college instructor is a creative photographer and prop-maker. To learn more about Copyright for Creatives (and copyright generally), please visit www.copyrightforcreatives.com.