Can the legal holder of copyright place a work in the public domain?

[Rysto]

Simple question: If one holds the copyright on a work, can they explicitly place that work in the public domain under current US law?

I know that a lot of people seem to believe that they can, but I also know that there is no provision in copyright law for placing a work in the public domain. People who support the idea resort to what seems to me to be handwaving.

Please note that I am not asking whether it is possible to release a work under a license that is functionally equivalent to placing a work in the public domain, I’m asking whether a work can actually placed in the public domain.

[Garfield226]

@Rysto

Please note that I am not asking whether it is possible to release a work under a license that is functionally equivalent to placing a work in the public domain, I’m asking whether a work can actually placed in the public domain.

Is the only difference in terminology?

[Rysto]

@Garfield226

Is the only difference in terminology?

Well, what it comes down to is whether saying “I place work X in the public domain” has any legal meaning.

[Hostile_Dialect]

Does it matter? You could simply decide not to enforce your copyright. If you declared that you didn’t care about its usage, and that you wouldn’t seek legal action for infringement of your copyright, it would be in the public domain for all intents and purposes, right?

[Walloon]

84 A.L.R.2d 462, Abandonment of Statutory Copyright

§ 2[a] General rules—Abandonment, generally

It is widely recognized that the “proprietor” or owner of a statutory copyright may abandon it. National Comics Publications, Inc. v Fawcett Publications, Inc. (1951, CA2 NY) 191 F2d 594; Hampton v Paramount Pictures Corp. (1960, CA9 Cal) 279 F2d 100, 84 ALR2d 454, cert den 364 US 882, 5 L ed 2d 103, 81 S Ct 170; Harper & Bros. v M. A. Donohue & Co. (1905, CC Ill) 144 F 491, affd without op (CA7) 146 F 1023; West Pub. Co. v Edward Thompson Co. (1909, CC NY) 169 F 833, mod on other grounds (CA2) 176 F 833; Deward & Rich, Inc. v Bristol Sav. & L. Corp. (1940, DC Va) 34 F Supp 345, affd (CA4) 120 F2d 537; Sieff v Continental Auto Supply, Inc. (1941, DC Minn) 39 F Supp 683; Group Publishers, Inc. v Winchell (1949, DC NY) 86 F Supp 573; Wrench v Universal Pictures Co. (1952, DC NY) 104 F Supp 374; Mills Music, Inc. v Cromwell Music, Inc. (1954, DC NY) 126 F Supp 54; Trifari, Krussman & Fishel, Inc. v B. Steinberg-Kaslo Co. (1956, DC NY) 144 F Supp 577. See Holt Howard Associates, Inc. v Goldman (1959, DC NY) 177 F Supp 611, infra, § 3, and Public Affairs Associates, Inc. v Rickover (1960) 109 App DC 128, 284 F2d 262, vacated on other grounds 369 US 111, 7 L ed 2d 604, 82 S Ct 580, infra, § 2**.

However, in order to effect an abandonment, the proprietor must have an intention to surrrender or abandon his right and allow the public to copy. National Comics Publications, Inc. v Fawcett Publications, Inc. (1951, CA2 NY) 191 F2d 594; Hampton v Paramount Pictures Corp. (1960, CA9 Cal) 279 F2d 100, 84 ALR2d 454, cert den 364 US 882, 5 L ed 2d 103, 81 S Ct 170; Harper & Bros. v M. A. Donohue & Co. (1905, CC Ill) 144 F 491, affd without op (CA7) 146 F 1023; Mills Music, Inc. v Cromwell Music, Inc. (1954, DC NY) 126 F Supp 54.

And it is said that an abandonment of a statutory copyright must be “manifested by some overt act” indicative of a purpose to surrender the right and allow the public to copy. National Comics Publications, Inc. v Fawcett Publications, Inc. (1951, CA2 NY) 191 F2d 594; Hampton v Paramount Pictures Corp. (1960, CA9 Cal) 279 F2d 100, 84 ALR2d 454, cert den 364 US 882, 5 L ed 2d 103, 81 S Ct 170; Mills Music, Inc. v Cromwell Music, Inc. (1954, DC NY) 126 F Supp 54.

[kellner]

@Hostile Dialect

Does it matter? You could simply decide not to enforce your copyright. If you declared that you didn’t care about its usage, and that you wouldn’t seek legal action for infringement of your copyright, it would be in the public domain for all intents and purposes, right?

As long as the author is OK with that there might not be any functional difference. However proper public domain protects the user against an author who might change his mind. In a jurisdiction where certain rights can’t be disclaimed or transferred you have to be more careful when you rely on works from the pseudo public domain.

[Acsenray]

(I’m just waiting for someone to step in here and say “Just don’t copywrite it!” )

[Giles]

@kellner

As long as the author is OK with that there might not be any functional difference. However proper public domain protects the user against an author who might change his mind. In a jurisdiction where certain rights can’t be disclaimed or transferred you have to be more careful when you rely on works from the pseudo public domain.

In addition, the copyright owner might die and his/her heirs might decide to enforce the copyright if it wasn’t it the public domain.

[Walloon]

@Giles

In addition, the copyright owner might die and his/her heirs might decide to enforce the copyright if it wasn’t it the public domain.

But could a work that was placed in the public domain by the copyright holder, be subsequently taken out of it by the former copyright holder? That does not conform to definitions of abandonment of property; for example, can someone who quits claim to property by quit claim deed later say, “I changed my mind”? (It matters not whether it is the original quit claimant or his heirs; the heirs cannot claim any more right to a property than the claimant held at the time of his death.)

[Walloon]

To put it another way, intentional abandonment by overt act is not the same thing as granting a free license. The owner who grants a free license retains the right to withdraw the free license; the owner who abandons property does not retain any rights in it.

[Exapno_Mapcase]

@acsenray

(I’m just waiting for someone to step in here and say “Just don’t copywrite it!” )

I’m hoping that nobody’s doing so because everybody knows that under current law, all print material is under copyright from the moment of its existence.

And that they all know how to spell copyright. (It’s the right to copy.)

[Acsenray]

@Exapno Mapcase

I’m hoping that nobody’s doing so because everybody knows that under current law, all print material is under copyright from the moment of its existence.

And that they all know how to spell copyright. (It’s the right to copy.)

Well the reason you had to say that is that, despite your hopes, you know it’s not true.

[Walloon]

Exapno Mapcase is correct: under current U.S. copyright law, a work is under copyright from the moment of its creation.

[Acsenray]

Oh, god. Does not one get sarcasm, even marked by visible smilies? Twice?

And I didn’t say Exapno’s statement about copyright law is false. it’s Exapno’s hopes that are false. That’s why he had to explicitly correct me when he knew I was whooshing on both points.

[Walloon]

The “smilie” can also mean “Ha! I’m right and you’re wrong!”

[Rysto]

@Walloon

84 A.L.R.2d 462, Abandonment of Statutory Copyright

None of those cases happened after the Copyright Act of 1976. Does that matter?

[Exapno_Mapcase]

@acsenray

Oh, god. Does not one get sarcasm, even marked by visible smilies? Twice?

And I didn’t say Exapno’s statement about copyright law is false. it’s Exapno’s hopes that are false. That’s why he had to explicitly correct me when he knew I was whooshing on both points.

And yet my smilie was ignored.

Really, yes, I knew you were kidding. But given the abysmal level of ignorance always displayed in copywrong threads, I wanted to get the right information out there before somebody came along and cited it. I thought I had worded it so that you knew that I knew that you knew.

It’s Walloon who doesn’t have a sense of humor.

[Acsenray]

@Exapno Mapcase

And yet my smilie was ignored.

Really, yes, I knew you were kidding. But given the abysmal level of ignorance always displayed in copywrong threads, I wanted to get the right information out there before somebody came along and cited it. I thought I had worded it so that you knew that I knew that you knew.

I think we’re in accord. The wording of my reply to your reply to my comment clearly indicates that I knew that you knew that I was kidding.

It’s Walloon who doesn’t have a sense of humor.

Yah, definitely. Maroon.

[Gfactor]

@Rysto

None of those cases happened after the Copyright Act of 1976. Does that matter?

Courts11 and commentators12 agree that a copyright holder can abandon the Copyright Act’s protections.13. . . such an abandonment of copyright happens only rarely—and sees defining litigation even less frequently[.]

http://www.intellectualprivilege.com/book/IntellPrivCh6.pdf

@FN11

See Pacific & S. Co. v. Duncan, 572 F. Supp. 1186, 1196 (N.D. Ga. 1983) (finding that television station abandoned copyright in news broadcasts because evinced intent to do so by destroying copies thereof), aff’d in relevant part, 744 F.2d 1490, 1500 (11th Cir. 1984); Hadady Corp. v. Dean Witter Reynolds, Inc., 739 F. Supp. 1392, 1399 (C.D. Cal. 1990) (finding that notice limiting copyright to a two-day period effectuated abandonment after that time).

@FN12

U.S. DEPT. OF COMMERCE, INFORMATION INFRASTRUCTURE TASK FORCE, WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT ON THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 16 (1995) (“Those creators who wish to dedicate their works to the public domain may, of course, do so notwithstanding the availability of protections under the Copyright Act.”); Robert A. Kreiss, Abandoning Copyrights to Try to Cut Off Termination Rights, 58 MO. L. REV. 85, 92 (1993) (“[A]bandonment of copyright can be done explicitly or implicitly.”) (footnotes omitted); Henry H. Perritt, Jr., Property and Innovation in the Global Information Infrastructure, 1996 U. CHI. LEGAL F. 261, 292 n.119 (“Copyright owners may relinquish their property interest and put their works in the public domain.”); see also 2 Goldstein, [[cite to most recent edition]] 217, § 9.3 (describing how abandonment functions as a defense to copyright infringement); 4 Nimmer & Nimmer, [[cite to most recent edition]] § 13.06 (same).

@FN13

Notwithstanding that consensus, it bears noting that the Copyright Act nowhere specifically permits abandonment and perhaps even impliedly disavows it. See Kreiss, supra note 269, at 98. Professor Kreiss offers five powerful arguments, however, why no one can reasonably take the Act to forbid abandonment, see id. at 98-101, 117-18, one of which proves especially relevant the argument that we should allow an exit from copyright: “[P]ersonal freedom, including the freedom to control or dispose of one’s own property . . . underlies the notion that an author can abandon his copyrights.” Id. at 100.

[Exapno_Mapcase]

(“Those creators who wish to dedicate their orks to the public domain may, of course, do so notwithstanding the availability of rotections under the Copyright Act.”)

Well, sure. Who wants responsibility for orks?