# If you declare a work public domain, can your estate reverse your decision?
**URL:** https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516
**Category:** Factual Questions
**Created:** [December 29, 2012, 8:30pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516 "2012-12-29T20:30:59Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@enomaj](https://boards.straightdope.com/u/enomaj)
#### Post date: [December 29, 2012, 8:30pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/1 "2012-12-29T20:30:59Z")
Upon death, that is.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [December 29, 2012, 9:04pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/2 "2012-12-29T21:04:15Z")
There is no mechanism in the law to declare a work public domain.
If you use any of the variety of Creative Commons licenses, you can always rescind them, and therefore so can your estate. But nothing places a work into public domain today except the passage of time.
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### Author:  [@ftg](https://boards.straightdope.com/u/ftg)
#### Post date: [December 29, 2012, 9:14pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/3 "2012-12-29T21:14:07Z")
I’ve always wondered if an individual can actually declare something to be “in the public domain”. But leaving that aside …
For computer programs (which I deal in most regularly), there are various forms of “free” software licenses. Whatever restrictions that might be on them could range from “just keep the credit on them” to “if you change or redistribute it, you have to provide source code on request”.
From time to time Slashdot runs a story about a company reneging on a previous “free” software license. Hue and cry results but I don’t think a case has gone to court simply because of the relative cost-benefit of suing. (These licenses have stood up in court when other terms are violated, however. But these are suits brought forward _by_ the copyright owners or their reps., not _against_ the copyright holders.)
A related issue is updating licenses when a new version comes out. If GNU comes out with a new license, does the old when still apply if you stick the new version on your latest release? Some versions said “and later versions” which is cool, but not everyone used to be so careful.
In principle, for these kinds of licenses, you can’t back out of them. But in practice it seems it’s who most wants to pay the lawyers.
I have never heard of the [Creative Commons license](http://en.wikipedia.org/wiki/Creative_Commons_license) being rescindable.
* * *
Back to deliberately making something public domain. Before 1989, one could just skip registering something and that’s that. But it is not yet clear what the official way to do it is now. From [here](http://www.edwardsamuels.com/copyright/beyond/articles/public.html):
“In any event, the elimination of formalities under the copyright law has protected against the unintentional forfeiture of copyright in works, but raised questions about how works should get into the public domain in the unusual cases where that result is intended. I have suggested a cautious and protective approach to the abandonment of such rights, consistent with the new regime that has eliminated formalities; but the law in this newly ambiguous area will probably have to be developed on a case-by-case basis.”
Apparently just slapping a “I declare this work to be in the public domain.” tag on something _might_ not be considered official.
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### Author:  [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)
#### Post date: [December 29, 2012, 9:26pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/4 "2012-12-29T21:26:33Z")
> [@Exapno\_Mapcase](#):
>
> If you use any of the variety of Creative Commons licenses, you can always rescind them, and therefore so can your estate.
The part of the license that declares it to be perpetual doesn’t mean anything at all?
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [December 29, 2012, 9:49pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/5 "2012-12-29T21:49:20Z")
> [@Lord\_Feldon](#):
>
> The part of the license that declares it to be perpetual doesn’t mean anything at all?
Not to me. It’s not a formal contract in any way I can describe. When proclaimed it has not been signed, or sworn to, or formalized in any way. It has no standing in law. It’s a declaration and as such can be undeclared. It has as much force as a New Year’s resolution.
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### Author:  [@Chronos](https://boards.straightdope.com/u/Chronos)
#### Post date: [December 29, 2012, 10:44pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/6 "2012-12-29T22:44:20Z")
Wait a moment… When the _Lord of the Rings_ movies became such huge hits, could the Tolkien estate have revoked the movie rights from the movie company, contingent on them getting a bigger cut? I presume not, but how would that be different from the “undeclaring” you’re talking about there? If someone gives me permission to use their work, then I have their permission, no?
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### Author:  [@SmartAlecCat](https://boards.straightdope.com/u/SmartAlecCat)
#### Post date: [December 29, 2012, 10:51pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/7 "2012-12-29T22:51:43Z")
> [@Chronos](#):
>
> Wait a moment… When the _Lord of the Rings_ movies became such huge hits, could the Tolkien estate have revoked the movie rights from the movie company, contingent on them getting a bigger cut? I presume not, but _ **how would that be different** _ from the “undeclaring” you’re talking about there? If someone gives me permission to use their work, then I have their permission, no?
A signed contract?
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [December 30, 2012, 1:30am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/8 "2012-12-30T01:30:57Z")
This.^
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### Author:  [@Senegoid](https://boards.straightdope.com/u/Senegoid)
#### Post date: [December 30, 2012, 2:19am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/9 "2012-12-30T02:19:08Z")
Regardless of the legal technicalities, once an artist declares his work to be in the public domain, or licensed under any sort of GPL (typically for software applications), and umpteen-thousand copies have been downloaded, it seems like it would be impossible, in practice, to claw them all back, no?
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### Author:  [@tellyworth](https://boards.straightdope.com/u/tellyworth)
#### Post date: [December 30, 2012, 2:30am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/10 "2012-12-30T02:30:48Z")
> [@Exapno\_Mapcase](#):
>
> If you use any of the variety of Creative Commons licenses, you can always rescind them, and therefore so can your estate.
This is [incorrect](http://wiki.creativecommons.org/Frequently_Asked_Questions#What_if_I_change_my_mind.3F).
If you give Alice a copy of something under a given licence, then (unless that licence included some kind of revocation clause) it’s permanent. You can subsequently issue Bob and everyone else with copies under a different and more restrictive licence, but you can’t retrospectively change Alice’s licence.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [December 30, 2012, 3:06am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/11 "2012-12-30T03:06:42Z")
> [@tellyworth](#):
>
> This is [incorrect](http://wiki.creativecommons.org/Frequently_Asked_Questions#What_if_I_change_my_mind.3F).
>
> If you give Alice a copy of something under a given licence, then (unless that licence included some kind of revocation clause) it’s permanent. You can subsequently issue Bob and everyone else with copies under a different and more restrictive licence, but you can’t retrospectively change Alice’s licence.
And what’s the punishment? How is it enforced?
Look, I’m well aware that in a practical sense, once it’s out there it’s out there. But the whole CC concept was created as a workaround since the law did not permit placing a work into the public domain. Therefore, anything it does lies outside of the law. Those FAQ’s merely say that if you misuse the license you can’t call it a CC license any more. Gosh. Moral suasion is nice if everybody plays along; law exists for the cases in which they don’t.
Public domain is a thing inside copyright law. Many people, including those who created CC, dislike the way the law reads. However, the law supersedes all workarounds. I would love to see a case in which someone asserts copyright after a CC license. My bet is that the judge would have absolutely no choice but to sustain copyright. Why? Because CC is a sophisticated form of pinky swear and nothing more.
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### Author:  [@Chronos](https://boards.straightdope.com/u/Chronos)
#### Post date: [December 30, 2012, 3:38am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/12 "2012-12-30T03:38:06Z")
Creative commons licensure might not involve a signed contract, but it does involve a contract. The receiver of the material gains use of the work (there’s the consideration for that party), and agrees to certain limitations on its use (consideration for the creator), and this state of affairs is agreed upon by both parties. And as I understand it, a signature on a contract isn’t actually a legal requirement; it just makes it easier to prove that the contract exists.
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### Author:  [@kellner](https://boards.straightdope.com/u/kellner)
#### Post date: [December 30, 2012, 3:42am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/13 "2012-12-30T03:42:21Z")
> [@Exapno\_Mapcase](#):
>
> And what’s the punishment? How is it enforced?
Why should there be any punishment? It just means that you have no leg to stand on if you want to revoke a license that you granted someone earlier. (Things are slightly more complicated for non-US jurisdictions with moral rights, but not much.)
> [@](#):
>
> But the whole CC concept was created as a workaround since the law did not permit placing a work into the public domain.
Absolutely not. The licenses may be more permissive than most traditional licenses, but they contain substantial restrictions and rely on a valid copyright to work.
> [@](#):
>
> Therefore, anything it does lies outside of the law.
I have no idea how you got that idea.
The Creative Commons site has a lot of good information about all this.
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [December 30, 2012, 4:00am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/14 "2012-12-30T04:00:35Z")
> [@kellner](#):
>
> The Creative Commons site has a lot of good information about all this.
Great. Then I’m sure you can point to the spot in the law that explicitly allows placing works into the public domain. Not a fake quasi kinda sorta public domain, but the real one recognized in Copyright law.
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### Author:  [@kellner](https://boards.straightdope.com/u/kellner)
#### Post date: [December 30, 2012, 4:09am UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/15 "2012-12-30T04:09:54Z")
> [@Exapno\_Mapcase](#):
>
> Great. Then I’m sure you can point to the spot in the law that explicitly allows placing works into the public domain. Not a fake quasi kinda sorta public domain, but the real one recognized in Copyright law.
I didn’t claim that such a spot exists because I know that it doesn’t. My post and the one you replied to were about Creative Commons licenses which have very little to do with the public domain (arguably with the exception of the CC0 license which never really caught on and hasn’t come up here.)
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### Author:  [@ricksummon](https://boards.straightdope.com/u/ricksummon)
#### Post date: [December 30, 2012, 2:37pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/16 "2012-12-30T14:37:13Z")
There is no signed contract required to use the [Open Gaming License](http://www.wizards.com/d20/files/oglv1.0a.rtf) from Wizards of the Coast, yet the Paizo company has been using it to sell an entire [roleplaying game](http://paizo.com/pathfinderRPG) based on 3rd Edition D&D in competition with Wizards for years now.
Why can’t Wizards just revoke it? Because the license says:
> [@](#):
>
> 1. Grant and Consideration: In consideration for agreeing to use this License, the Contributors grant You a perpetual, worldwide, royalty-free, non-exclusive license with the exact terms of this License to Use, the Open Game Content.
Who enforces it? The courts would — but only if someone actually brought a case before them. If Wizards told Paizo they were revoking the license, Paizo would say, “That’s nice,” and keep selling **Pathfinder.** If Wizards took them to court, the judge would read the above text and say, “They’re using your copyrighted material, but you gave them a license to do so, and it’s perpetual. Case dismissed.”
Of course, none of this material is in the public domain — but that doesn’t stop Paizo and dozens of third-party publishers from selling it. Why should the Creative Commons license be any different?
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [December 30, 2012, 4:01pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/17 "2012-12-30T16:01:23Z")
> [@ricksummon](#):
>
> If Wizards told Paizo they were revoking the license, Paizo would say, “That’s nice,” and keep selling **Pathfinder.** If Wizards took them to court, the judge would read the above text and say, “They’re using your copyrighted material, but you gave them a license to do so, and it’s perpetual. Case dismissed.”
I disagree, because that’s the circumstance I hypothesized about above. Paizo could probably keep selling what they had under the license, but I doubt that a judge would allow them to sell new versions that were printed later. The law doesn’t like perpetuals. That’s why leases are usually capped at 99 years, e.g.
Until an actual case makes it through the system, this is all fun debate and no more. It would be nice if Acsenray, who’s a real lawyer and posts in most copyright threads, would see this thread and add some expertise about licenses and perpetuals.
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### Author:  [@Derleth](https://boards.straightdope.com/u/Derleth)
#### Post date: [December 30, 2012, 7:48pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/18 "2012-12-30T19:48:06Z")
[“It is well settled that rights gained under the Copyright Act may be abandoned.”](http://caselaw.findlaw.com/us-9th-circuit/1107173.html) — Ninth Circuit Court of Appeals, “MICRO STAR v. FORMGEN INC GT 3D 3D DOES 100”
(Incidentally, this is also a decision that stated Duke Nukem 3D is “very cool”.)
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### Author:  [@OldGuy](https://boards.straightdope.com/u/OldGuy)
#### Post date: [December 30, 2012, 8:00pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/19 "2012-12-30T20:00:59Z")
Suppose I write and publish a book and in the book itself I state on the usual copyright page, “This book may be freely copied and redistributed by anyone provided that this notice is included in all copies.”
After I die, my heirs seek to rescind this. How would they go about doing so. Could they file notice of this with the copyright office? Anyone who happens across a copy of the book would presume to have license to copy. Even if they thought such rights had been rescinded, unless there was notice of such in some place official how could they even determine that?
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### Author:  [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)
#### Post date: [December 30, 2012, 8:22pm UTC](https://boards.straightdope.com/t/if-you-declare-a-work-public-domain-can-your-estate-reverse-your-decision/645516/20 "2012-12-30T20:22:30Z")
> [@Derleth](#):
>
> [“It is well settled that rights gained under the Copyright Act may be abandoned.”](http://caselaw.findlaw.com/us-9th-circuit/1107173.html) — Ninth Circuit Court of Appeals, “MICRO STAR v. FORMGEN INC GT 3D 3D DOES 100”
>
> (Incidentally, this is also a decision that stated Duke Nukem 3D is “very cool”.)
Tracing the string of citations back, I stumble to an end in [191 F.2d 594: National Comics Publications, Inc. v. Fawcett Publications, Inc. et al](http://law.justia.com/cases/federal/appellate-courts/F2/191/594/91740/#fn2), a 1951 decision.
> [@](#):
>
> The judge based his decision upon the ground that “Detective” had “abandoned” the copyrights in suit, and it is necessary at the outset to distinguish between “abandonment”, strictly speaking, and what for convenience we shall call “forfeiture.” we do not doubt that the “author or proprietor of any work made the subject of copyright” by the Copyright Law[sup]1[/sup] may “abandon” his literary property in the “work” before he has published it, or his copyright in it after he has done so; but he must “abandon” it by some overt act which manifests his purpose to surrender his rights in the “work,” and to allow the public to copy it.
The footnote goes to then current Copyright law, which has long been superseded. I don’t see the actual decision online, at least not in a fast Google search. However, this is still being cited 50 years later under the new law.
This appears to be very convincing case law. Before I admit ignominious defeat, though, I’d like to ask: why? What in the Copyright Law, old or new, absolves the judge of doubt? I’ve read the current Copyright Law all the way through and I can’t remember anything that justifies this. It is simply not mentioned one way or the other. What is the precise wording of which law?
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