Public Domain?

Stephen Yagielowicz

Despite the amount of electronic ink that has been devoted to the subject of so-called "Public Domain" images and their use on Web sites, substantial instances of this common Intellectual Property Rights transgression abound. With the influx of "new blood" into our Industry, perhaps it's time for a reminder:

One of the most flagrant abuses of Intellectual Property Rights on the Adult Internet today is the theft of copyrighted images for profitable re-use - typically on TGP galleries and other "free" sites. We have all seen the disclaimer: "These images were taken from the public domain" or other words to that effect, and while the problem may not be quite as prevalent as it once was, it does still exist.

"The problem" is really simple to understand, and the confusion easily avoided by remembering this simple rule of thumb: if the image in question is in color, or is obviously of "modern" origin, then it is definitely NOT in the public domain. I only reference the issue of "color" since (although it is a bit more complicated than this) widespread color photography is a fairly "recent" innovation, and only the very earliest examples will fall outside of the "75 years old, or older" timeframe, and so possibly rendering them within the public domain.

What Does "Public Domain" Mean?
The term "Public Domain" basically means that no current copyright restrictions exist, and that the material in question can be copied without permission and reused at will. Unfortunately, many inexperienced Webmasters believe that once something is posted on the Internet, it is transferred to the public domain, as if the legitimate copyright holder waived his rights to his creation. This is simply not the case.

Most of the material available on the Internet is protected by copyright, whether the copyright owner is readily identifiable or not, or whether it bears the commonplace © symbol or any other copyright notification or not. Do not assume that just because the original copyright holder is not identified that no copyright exists, and that the content in question is free for you to use. Before January 1, 1978, created works could be copyrighted for 28 years; and then the copyright could be renewed for an additional 28 years.

It also can't be assumed that material found on the Internet has been placed there in compliance with current copyright laws, nor is it acceptable to further reuse copyrighted content just because the site you are stealing them from claims that they were found in the public domain. Remember, two wrongs do not make a right.

So, What Materials Are in the Public Domain?
Material published by the United States Government Printing Office is in the public domain, as are works whose copyright has expired, but without checking with the original copyright holder, it is sometimes difficult to determine if copyright protection has actually expired.

Before January 1, 1978, created works could be copyrighted for 28 years; and then the copyright could be renewed for an additional 28 years. After January 1, 1978, copyright law was changed to extend the term of copyright to the life of the author, plus 50 years (or approximately 75 years). For created works copyrighted before 1978, the 28-year term was followed with an extended term of 47 years, bringing the total to 75 years. In October 1998, the length of protection was further extended an additional 20 years for a total of 95 years. This extension affects not only current and future copyrights, but previous copyrights retroactively.

If the copyrighted work was created 75 to 95 years ago, and the work in question is no longer commercially exploitable, it may be treated as if it were in the public domain, and so copied for educational purposes. The only way to ascertain if the copyrighted work is still commercially exploitable is to contact the original copyright holder.

Given the above, it is quite evident that unless you are presenting extremely vintage porn, that the content you steal from newsgroups, bbs' and other Websites cannot be reused without the permission of the copyright holder. With the abundance of free and low cost content available today, there is simply no reason to have to steal it, just to save expenses. Be safe, and protect yourself by doing the right thing. ~ Stephen