Publicly Available vs. Public Domain: When Are Copyrighted Works Free To Use?
While many may think of resolutions, family, friends, a Times Square countdown, or new beginnings on New Year’s Day, January 1 also quietly marks a significant annual event for copyright law. Each year, many previously copyrighted works enter the public domain, eliminating their copyright protection and rendering them available for use and reproduction by the public at large.
Duke University publishes a list of works entering the public domain, and 2026 will see a number of iconic works and characters from 1930 become free for public use and distribution. For example, some works entering the public domain this year include Lewis Milestone’s Academy-Award-winning film, All Quiet on the Western Front, Alfred Hitchcock’s Murder!, William Faulkner’s prized novel, As I Lay Dying, Bertrand Russell’s The Conquest of Happiness, T.S. Eliot’s Ash Wednesday, the musical composition for Dream a Little Dream of Me by Gus Kahn, Fabian Andrew, and Wilbur Schwandt, and nine new Mickey Mouse cartoons previously owned by Disney.
For individual authors, copyright protection lasts for the life of the author and seventy years thereafter, while copyright protection for works made for hire (such as corporate-owned copyright) lasts for ninety-five years from the dates of the works’ publication. See 17 U.S.C. § 302. The basis for copyright protection as we know it today arises from Article I, Section 8, Clause 8 of the United States Constitution and is founded on a principle of incentivizing the progress of knowledge, innovation, and creativity by securing exclusive property rights for authors in certain creative expressions for limited times. Once the term of protection expires, the works are stripped of exclusive property rights and become free for use by the public at large to further innovation and harmonize copyright law with freedom of speech principles. The public domain exists to identify that realm of works available for public use, performance, reproduction, and distribution.
The effectiveness of the public domain can be found in the success of derivative works that are based on defining works of art, literature, and music no longer subject to copyright protection. Consider 2005’s widely praised film adaptation of Pride and Prejudice, Guillermo Del Toro’s 2025 Netflix adaptation of Mary Shelley’s Frankenstein, and Disney’s The Lion King (an anthropomorphic adaptation of Shakespeare’s Hamlet) as just a few examples of creative derivatives based on works within the public domain.
Additionally, it is important to recognize the difference between works that are “publicly available” and works that are within the public domain. Just because a work is readily accessible online or through other means does not mean it is free for the public to consume or use. Many works are still protected by copyright laws and are subject to the author’s exclusive ownership. Federal law grants copyright owners a number of exclusive rights, such as rights to reproduction, public display, public performance, distribution, and the creation of derivative works. See 17 U.S.C. § 106. For example, a photograph may be made generally accessible on Google Images and still may be subject to copyright protection, meaning an unauthorized use of that photo would constitute copyright infringement and could expose the infringing party to monetary and equitable penalties.
A similar principle applies for uses of a protected work that exceed the scope of a consumer’s license. Imagine the owner of a local community center purchases a DVD copy of his favorite movie at retail and wishes to show that film at a promotional event for the center. While he may have purchased the DVD, his license to this copyrighted work likely only extends to personal viewing, not commercial uses or public screenings of the DVD. Similarly, imagine a restaurant owner who uses her personal music streaming account to play atmospheric music at her restaurant. Her streaming account likely only includes a personal-use license, and she would need to obtain a commercial license for the music before using it in her business operations. In each of these cases, the licensee has exceeded the scope of his or her right to use the protected work and tripped into copyright infringement.
The digital revolution has ushered in an age where human beings have greater, more instant access to creative and expressive works than ever before. The advent of machine learning has further promoted artificial intelligence platforms that can instantly create works based on one’s favorite franchises, genres, and art. While the public domain is a vast and beneficial realm, its reach is not unlimited, and consumers should remain diligent in ensuring that the expressive works they use are either part of the public domain or properly licensed from the copyright owners.
If you need assistance with matters involving copyright or intellectual property, Gentry Locke’s experienced IP team is here to help.
