Public Domain & Fair Use: Part One

A.K.A.: How Not to Get Sued.

Couple of ground rules: I’m not a lawyer.  This post is intended as a primer on when it’s acceptable to use other people’s ideas as inspiration for your own original work.  Please consider doing further research and remember that people can sue you even if you’re in the right.   (They just might lose the lawsuit.)

This post will not cover public domain use of music or song lyrics.  Why?  Well, mostly because laws governing music copyright are more complicated and best practices state that it’s more hassle than it’s worth.  If you really want to use lyrics the best thing to do is to contact the songwriter for permission, use extremely old music (70 years after the composer has died), or sift through the info listed here. (Scroll down a bit in the link.)

Ok, now that that’s out of the way, let’s start with the difference between Public Domain and Fair Use.  In general, works in the public domain belong to the public, therefore anyone can use them freely.  We’ll get back to that in a minute.

Fair use has more to do with how people are legally allowed to use copyrighted materials that don’t belong to them.  In general, you’re allowed to use copyrighted works as long as you are either 1.) commenting on or criticizing the work or 2.) parodying the work.

This is why Gilbert Godfried can read excerpts from 50 Shades of Grey and a theater company can produce a musical making fun of the book without E.L. James suing the pants off of them.  (You’re welcome, by the way.)  But it’s also why E.L. James could not legally name her characters Edward and Bella – that copyright belongs to Stephanie Meyer and E.L. James’s erotic novel does not qualify as a parody of Twilight.

Side note: Fan Fiction is almost always an infringement on copyrighted material and it is in their rights to sue you.  Luckily, most copyright holders don’t really care about fans creating content.  It’s free publicity when you get right down to it.  The problem comes when you take something you wrote and then try to publish it.  Publishers won’t touch fan fiction – it’s illegal copyright infringement to make money off of someone else’s intellectual property.  “But what about all those Star Wars novels in the expanded universe?”  Well, those are official licensed.  The author was hired by the publisher to write officially-sanctioned novels and is protected.

There’s some nuance involved here, so be aware that if you’re going to claim protection under the fair use laws you still might be sued, or at least receive a Cease and Desist letter from copyright owner’s legal team.  Again, just because someone threatens to sue you, it doesn’t necessarily mean you’re in the wrong.  If you’re following the rules you could win the case.  However, saying “We do not own this, please don’t sue us!” is not an acceptable legal defense, even if you state it outright.  Duh.

I originally planned for this to be one post, but I realize this is a lot of information to take in.  Instead, let’s break here and I’ll come back next Wednesday with Part Two: Public Domain laws.

Continue to Part 2…



2 thoughts on “Public Domain & Fair Use: Part One

  1. Pingback: Public Domain & Fair Use: Part Two – Liz Schriftsteller

  2. Pingback: Make ’em Laugh: Comedic Writing (Part One) – Liz Schriftsteller

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