Public domain is like a zombie. It’s clearly not dead, but it’s also not exactly doing well either. As far as the law is concerned, only published materials created during the early 1900s and before might be in the public domain, and unpublished materials since 1976 are all protected. But that hasn’t stopped us from rampantly incorporating copyrighted works into popular culture. Fortunately for us, public domain persists as a sort of cultural commons that sits in modern copyright’s blind spot.
To understand what public domain is, we have to dig into the purpose of copyright. Legally, public domain encompasses content no longer guaranteed exclusively to their creators. Copyright and public domain serve two important purposes: to incentivize creators to create more culturally significant works and to ensure that society eventually repossesses the work after the creator has had a chance to benefit from its production. After all, very few copyrightable works are truly original, especially in modern American society where every quip could be copyrighted. It only makes sense that works derived from society’s culture are eventually returned to it.
Obviously, that doesn’t happen. One needs only to look at the current state of the music industry for a perfect example. Under the guise that “artists deserve to be paid for their work,” we have artists chasing down completely innocuous videos of babies dancing to copyrighted music and the recording industry trying to institute internet taxes to compensate themselves. It’s also illegal to play music under copyright protection publicly, even though many venues clearly play unlicensed music regardless. Likewise, all of these measures have yet to stop Americans from working around copyright restrictions through sharing disks offline and sharing files online. We know the law, but that hasn’t stopped us.
There’s a rule of thumb that one cites image sources. While these images are clearly copyrighted somehow, image appropriation is so rampant that many people just settle for simply citing the website where they got the image. Others seem not to bother. Case in point, here’s a longcat. I got it from a parody article on scrapetv.com. But more importantly, who even knows or cares where longcat came from?
We appropriate significantly more content than copyright law actually permits. Even though almost everything is by default not in the public domain, many copyrighted works have clearly been appropriated and treated as if they were in the public domain, and we’ve just ignored or worked around the copyright problems. Despite public domain’s meager existence, we’ve somehow managed to keep a healthy cultural discourse based on waving our hands and treating copyrighted works like public domain works. Is this a good thing? It depends on who you ask. Personally, I’m glad we’ve worked around the copyright extensions and kept public domain around in the cultural sense, and I wish we’d fix the law to reflect this attitude.