Public domain works are not covered by copyright. They are owned by the public, and are available to be used and remixed into new works. However, you need to be careful about making completely sure that the material is in the public domain before using it. Also be cautious about works with multiple associated copyrights and about rights of publicity.
Disney has used more than 50 story ideas from the public domain for their movies, from Mulan (a Chinese folk tale called “The Ballad of Mulan” from the fifth or sixth century CE) to Frozen (Hans Christian Andersen’s The Ice Queen from 1845) to The Lion King (Shakespeare’s Hamlet from 1603). Of course, this doesn’t mean that you can use Disney’s works for your project. Works that are created in dependence on a public domain work are called “derivative works” and have their own copyright on the additions to or differences from the original public domain work.
There are four reasons why a work may be in the public domain:
- The copyright has expired (as of January 1st, 2025, this is generally true for works published in the U.S. in or before 1929 – although there are some exceptions)
- The copyright was not renewed when it needed to be according to law, or a mistake was made in the copyright renewal
- The author has dedicated it to the public domain (works may be designated as CC0 – Creative Commons 0)
- It is not a type of work that is covered by copyright (for example, works created by a government agency such as NASA)
If a work is fully in the public domain, you can use it and rework it for your own use, even commercial use, without asking for permission.
However, if a work is listed on any given site as being in the public domain, you should still do your own research to make sure it is definitely not covered by copyright. Also, even sites like Pixabay or NASA Galleries, which should be full of public domain material, have terms of use that should be read carefully. Also, sometimes material on government sites such as NASA Galleries was created by contractors, and so in that case the copyright would be owned by that person.
You can search on Wikipedia for a particular work, or just do an internet search it to see if you can find the date that it was created. A substantial revision or addition may mean a later copyright date, so sometimes you have to look at the history of a work. Occasionally you will have to do more footwork to find out the exact copyright status. See Copyright Duration Tools and Databases for more information and exceptions.
However, if you can’t find a copyright owner for a work, it doesn’t mean that that work is in the public domain. It’s completely possible for a work to not have a registered copyright in any database and still have a copyright holder. In this case, the work is referred to as an “orphan work”. Using a work whose copyright status is unknown may be a quick way to find out who the copyright holder is, but if you’ve already used it in your work, you may be opening yourself up to a lawsuit. See “Deconstructing Orphan Works” from the Center for Art Law for more information.
If you have determined that the work that you want to use is fully in the public domain, you still need to worry about whether it may be covered by trademark law and whether there may be multiple layers of copyright that apply to it. For instance, the movie It’s a Wonderful Life fell into the public domain because there was a clerical error on the copyright renewal. However, the story that it was based on is still under copyright (The Greatest Gift by Philip Van Doren Stern), and the music is still under copyright. Both the story and the music are owned by Paramount. Also, there are rights of publicity that would be connected to the film, and some rights of publicity continue after the death of the performers. For an overview of rights of publicity with regards to public domain material, please see “The rights of publicity and privacy” from Public Domain Sherpa.
Even though public domain material is generally free to use and does not require attribution, it would be good form to record any material that you did not create in your credits. Attorney Rich Stim gives further analysis and other caveats in the article “Public Domain Trouble Spots”. For example, even though there is no explicit legal requirement to give attribution to public domain works, it is still possible to commit plagiarism if you claim the contents as your own work. So, this could lead to very real consequences, such as expulsion from a school, termination from a job, or public humiliation.
Also, if you intend to have international distribution for your film, sometimes the laws governing public domain material vary from country to country. Please read “Answers to Common IP Questions for the Independent Documentary Filmmaker” from the Center for Media and Social Impact for more specifics.
And finally a note to say that I am not a lawyer, and should not be relied upon for legal advice. I’m putting this information out, according to my own understanding of the issues, as a resource to start you on your way to finding out how to use material in your films and how to protect your own rights. Please don’t take the fact that any given work is listed as public domain on a site listed here as gospel. I’ll repeat here that copyright, trademark, and right of publicity issues frequently converge for any given work that you may want to use. Please do your own research or consult with an attorney (or both) before you use any given work. You should double-check the license agreement or terms of use for any site, or in cases of films, literature, or music, double-check the actual copyright holder(s).
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