Public Domain Advice, Tips And Tricks

The Public Domain Expert 1 www.thepublicdomainexpert.com

Public Domain F i r s t A i d K i t


This report is presented for information and research purposes only and was

designed to provide accurate and authoritative information with regard to the

subject matter covered. It is sold with the understanding that the publisher and

author are not engaged in rendering legal, accounting, or other professional

advice. The material contained within also does not in any way constitute

professional advice and should not be perceived as such.

If legal advice or other professional assistance is required, the services of a

competent professional should be sought. The reader is also advised to consult

with an appropriately qualified professional before making any business

decisions related to the information contained herein.

The author, Tony Laidig, does not accept any responsibility for any liabilities

resulting from business decisions made by purchasers or users of this report. We

make no claim that you will earn any income using this report whatsoever.

Income results can vary based upon the reader’s personal business practices,

hard work and other benefits or strategies. You must assume the risk that you

will not earn any income from this product or its use.


Exceptions to Copyright

in Public Domain Resources

Copyrighted Elements in Public Domain Resources

There are instances where certain elements of a resource may be in the Public

Domain, but other elements are not. This type of scenario is mostly prevalent

with recorded media, such as film, video or audio recordings. An example of this

would be the television program, The Beverly Hillbillies. Some of the show’s

episodes are now in the public domain; however, the theme music is protected

by copyright. One approach that some businesses have used in this situation is

to remove the protected music and provide different, royalty-free music in its

place. The most important point here is to do your research homework! More

complete explanations of this type of copyright scenario can be found at

Copyright.gov.

Privacy and Publicity Rights

“Privacy and publicity rights reflect separate and distinct interests from copyright

interests. Patrons desiring to use materials from this website bear the

responsibility of making individualized determinations as to whether privacy and

publicity rights are implicated by the nature of the materials and how they may

wish to use such materials.

“While copyright protects the copyright holder's property rights in the work or

intellectual creation, privacy and publicity rights protect the interests of the

person(s) who may be the subject(s) of the work or intellectual creation. Issues

pertaining to privacy and publicity may arise when a researcher contemplates the

use of letters, diary entries, photographs or reportage in visual, audio, and print

formats found in library collections. Because two or more people are often


involved in the work (e.g., photographer and subject, interviewer and interviewee)

and because of the ease with which various media in digital format can be

reused, photographs, audio files, and motion pictures represent materials in

which issues of privacy and publicity emerge with some frequency.

“The distinctions among privacy rights, publicity rights, and copyright are best

illustrated by example, as follows: An advertiser wishes to use a photograph for a

print advertisement. The advertiser approaches the photographer, who holds the

copyright in the photograph, and negotiates a license to use the photograph. The

advertiser also is required to determine the relationship between the

photographer and the subject of the photograph. If no formal relationship (e.g., a

release form signed by the subject) exists that permits the photographer to

license the use of the photograph for all uses or otherwise waives the subject's,

sitter's or model's rights, then the advertiser must seek permission from the

subject of the photograph because the subject has retained both privacy and

publicity rights in the use of their likeness. The privacy right or interest of the

subject is personal in character, that the subject and his/her likeness not be cast

before the public eye without his/her consent, the right to be left alone. The

publicity right of the subject is that their image may not be commercially exploited

without his/her consent and potentially compensation.

“While copyright is a federally protected right under the United States Copyright

Act, with statutorily described fair use defenses against charges of copyright

infringement, neither privacy nor publicity rights are the subject of federal law.

Note also that while fair use is a defense to copyright infringement, fair use is not

a defense to claims of violation of privacy or publicity rights. Privacy and publicity

rights are the subject of state laws. While many states have privacy and/or

publicity laws, others do not recognize such rights or recognize such rights under

other state laws or common law legal theories such as misappropriation and

false representation. What may be permitted in one state may not be permitted in

another. Note also that related causes of action may be pursued under the


federal Lanham Act, 15 U.S.C. § 1125 (a), for example, for unauthorized uses of

a person's identity in order to create a false endorsement.

“While an individual's right to privacy generally ends when the individual dies,

publicity rights associated with the commercial value connected with an

individual's name, image or voice may continue. For example, many estates or

representatives of famous authors, musicians, actors, photographers, politicians,

sports figures, celebrities, and other public figures continue to control and license

the uses of those figures' names, likenesses, etc.”*

An example of this would be where you have located a Public Domain resource

that contains a photograph of Elvis. Because of Publicity Rights held by his

estate, you cannot use any likeness of Elvis for commercial gain, even if it is in

the Public Domain.

*(Library of Congress website; http://memory.loc.gov/ammem/copothr.html, accessed 1/26/06)

Trademarks

A trademark is a word, device, symbol, name, or combination of any of these

elements intended or used in business to distinguish and identify the products of

one company or seller from products sold or manufactured by others, and

indicate sources of the products. To make it simple, a brand name defines a

trademark.

Registration of a trademark is not required by the government. However, several

advantages can be given if a trademark obtained federal registration. It includes

evidences of trademark's ownership, nationwide constructive notice about the

owner's claim, federal courts jurisdiction can be invoked, registration can be a

basis to obtain international trademark registration, and registration can be filed

with the customs service of the U.S. to prevent infringing of imported goods.


Understanding the distinction between a copyright and trademark is necessary. It

really helps. The differences between the two can really come into play with

some Public Domain materials, especially images, movies and music. It is

possible to find resources that are in the Public Domain but are still protected by

trademark. A good example of this would be an ad advertising Coca-Cola from a

1922 magazine. The magazine may be in the Public Domain, but Coca-Cola

retains the trademark control of their brand.

Another excellent example of trademark protection concerns the popular book,

“Think and Grow Rich” by Napoleon Hill. The first version of the book, which was

published in 1937, is in the Public Domain and you do have a legal right to use

that text. However, the phrase, “And Grow Rich” has been trademarked by the

Napoleon Hill Foundation, thereby limiting its use. What that means is that you

cannot produce a derivative product and use a title that includes the words, “And

Grow Rich,” like “Think and Grow Rich Study Manual for the 21st Century.” The

Napoleon Hill Foundation will be in touch if you do. You could, however, title the

same material, “Successful Thinking Study Guide for the 21st Century.”

A trademark infringement is possible, if you will be able to prove that there is a

“possibility of confusion” between your trademark and the purportedly infringing

mark. Such possibility of confusion will be determined through a “trademark

analysis,” wherein the following items will be analyzed:

• The structure of the mark, both interior and exterior.

• The connotation of the mark. The meaning can be explicit or implied.

• How the mark is pronounced will be reviewed as well.

• The relation of the infringing mark to the goods or services will also be

analyzed.

• The impression of the public will also be assessed. Actual test

impressions on the consumers may be done.


The common penalty being given to a party who has been proven guilty of

trademark infringement is “injunction.” Injunction is a court regulation wherein it

orders the party to avoid doing certain actions such as infringing marks. Contrary

to the common belief, injunction is not a monetary judgment.

There are instances that “monetary relief” is bestowed to a winning party. Such

monetary respite may include the profit lost by the defendant, the claimants’

sustained damages and the over-all cost of action.

“Trademark dilution,” can be sought by plaintiffs with well-known trademarks. By

doing so, the infringed mark will not be further utilized. There are factors to

consider for a trademark to be specified as “famous” before an infringed mark will

be blurred or tarnished.

Trademark Genericide*

A trademark registration is renewable. If a trademark owner wishes to do so, he

may maintain a registration indefinitely by paying renewal fees, using the

trademark and defending the registration.

However, a trademark or brand can become unenforceable if it becomes the

generic term for a particular type of product or service – a process called

"genericide." If a mark undergoes genericide, people are using the term

generically, not as a trademark to exclusively identify the particular source of the

product or service. One famous example is "thermos" in the United States.

Because trademarks are registered with governments, some countries or

trademark registries may recognize a mark, while others may have determined

that it is generic and not protectable as a trademark in that registry. For example,

the drug "salicylic acid" (2-acetoxybenzoic acid) is better known as aspirin in the

United States – a generic term. In Canada, however, "aspirin" is still a trademark

of the German company Bayer. Bayer lost the trademark after World War I, when


the mark was sold to an American firm. So many copycat products entered the

marketplace during the war that it was deemed generic just three years later.[6]

Terms can be deemed "generic" in two ways. First, any potential mark can be

deemed "generic" by a trademark registry, that refuses to register it. In this

instance, the term has no secondary meaning that helps consumers identify the

source of the product; the term serves no function as a "mark". Second, a mark,

already in use, may be deemed generic by a court or registry after the mark is

challenged as generic – this is known as "genericide". In this instance, the term

previously had a secondary meaning, but lost its source-identifying function.

To avoid "genericide", a trademark owner must balance between trying to

dominate the market, and dominating their market to such an extent that their

product name defines the market. A manufacturer who invents an amazing

breakthrough product which cannot be succinctly described in plain English (for

example, a vacuum-insulated drinking flask) will likely find its product described

by the trademark ("Thermos"). If the product continues to dominate the market,

eventually the trademark will become generic ("thermos").

However, "genericide" is not an inevitable process. In the late 1980s "Nintendo"

was becoming synonymous with home video game consoles but Nintendo was

able to reverse this process through marketing campaigns. Xerox was also

successful in avoiding its name becoming synonymous with the act of

photocopying (although, in some languages (Russian) and countries (like India),

it became generic).

Trademarks currently thought to be in danger of being generic include Jello,

Band-Aid, Rollerblading, Google, Spam, Hoover, and Sheetrock. Google

vigorously defends its trademark rights. Although Hormel has resigned itself to

genericide [5], it still fights attempts by other companies to register "spam" as a

trademark in relation to computer products [6].


When a trademark becomes generic, it is as if the mark were in the public

domain.

Trademarks which have been genericized in particular places include: Escalator,

Trampoline, Raisin Bran, Linoleum, Dry Ice, Shredded Wheat (generic in US),

Mimeograph, Yo-Yo, Kerosene, Cornflakes, Cube Steak, Lanolin, and High

Octane, (Source: Xerox ad, reprinted in Copyright, Patent, Trademark, ..., by

Paul Goldstein, 5th ed., p. 245) as well as Aspirin (generic in the United States,

but not in Canada), Allen wrench, Beaver Board, Masonite, Coke, Pablum,

Styrofoam, Heroin, Bikini, Chyron, Weedwhacker, Kleenex, Linux (generic in

Australia) and Zipper.

Licensing

Non-equivalence of Licenses*

For various reasons, including the uncertainty in international law, the fear of

liability suits, and of course the not-quite-settled state of U.S. law, licenses have

become popular as a substitute for dedicating work to the public domain. Such a

license would grant permission for all of the acts which are restricted by copyright

law. Such a license is sometimes called a "public-domain equivalent license,"

which is somewhat of a misnomer. A more accurate term is "permissive free

software licences".

There are several ways in which this license does not substitute for a true public

domain release.

Revocability where no consideration

A "bare license" unsupported by consideration is (theoretically) revocable at will.

A license, generally in the law, is permission to do something that would

ordinarily be a trespass. For example, when a friend is invited to a home for


coffee, the friend has a license to remain in the house. The friend can be kicked

out of the house at any time. However, if the friend has paid money and signed a

contract to live in the house for a month, he has the right to stay.

Revocability is not a problem in practice for two reasons. Entities which release

software (such as M.I.T. and the University of California) are generally disinclined

to be obnoxious. Second, there are certain legal defenses which could be raised,

such as an "implied license by legal estoppel," if the original license purported to

be perpetual, or the flimsier defense of equitable estoppel otherwise. However,

most licenses, even the "public-domain equivalent" licenses, do not purport to be

perpetual. The M.I.T license, for example, does not.

A "bare license" of free software has been revoked in the past. Simply because a

friendly entity released a program under a license does not mean that the friendly

entity will continue to hold the copyright in the future. In the well-known

CyberPatrol case, the defendants settled in part by transferring the offending

program to a hostile party. The hostile party immediately revoked the GPL

license of the program. (As a general rule, licenses are revocable, and the GPL

does not purport to be perpetual.) His solution is to rely on 17 USC 205(e), which

holds:

(e) Priority Between Conflicting Transfer of Ownership and Nonexclusive

License. — A nonexclusive license, whether recorded or not, prevails over

a conflicting transfer of copyright ownership if the license is evidenced by

a written instrument signed by the owner of the rights licensed or such

owner’s duly authorized agent, and if — (1) the license was taken before

execution of the transfer; or (2) the license was taken in good faith before

recordation of the transfer and without notice of it.

To do so, someone signs a license to a friendly party, like the FSF, which, in his

theory, preserves the GPL license to the world forever. (He observes that under


other federal law, this can be done electronically, despite the language saying

"written instrument signed.") It is certainly possible that Eben Moglen's

interpretation would be upheld in court, but the case would be far from a slam-

dunk, especially in a case like CyberPatrol where the new copyright holder has

good reason to want the license revoked.

The problem with Eben Moglen's interpretation comes from the unique

construction of the GPL. The GPL purports to grant a new license from the

original grantor, rather than each succeeding author of a program granting a sub-

license to the next. By the very terms of the statute, however, licenses from the

original licensor are only protected if the license was granted before executing

the transfer. (New licenses from the original licensor are not allowed, because

the original licensor no longer holds the copyright to the work.) Therefore, further

distribution of a GPL program is significantly limited after GPL is revoked. To be

precise, the current holders of the program are authorized to modify and

distribute the software, if they hold a "written instrument signed by the [former]

owner," but the recipients of the software may not further redistribute it.

Verbiage

The license will usually contain language perpetuating itself, of several kinds of

wording. It can be unclear what license applies to what part of the work,

increasing the likelihood that provisions pertaining to certain parts of the work will

be breached. Outside the context of computer software, it may not even be

possible to use a license due to excess verbiage. Magazine publishers might

acquiesce to an author's request of putting a public domain notice on, say, a

magazine article, but not allow several column inches to be filled with license

boilerplate.

Privity problems

An unfortunate problem with proliferating licenses is privity. In short, when a user

has rights under a sub-license, they come only from the person who sub-licensed


the work to him. It does not matter on what terms that person licensed the work.

For instance, the original person may have paid money to receive extra

commercialization rights. The book Open Source Licensing by Lawrence Rosen

explains that virtually all open-source licenses use a "sub-licensing" model,

where each user's rights come from the person who gave him that copy. The

GPL is one of the very few that purports to issue rights from the original licensor.

It is well-settled that work in the public domain keeps that status, even after being

embedded in a copyrighted work. (See Nimmer above.) So that work can be

extracted and used in another work. But if a liberally-licensed work has been

included in a software program with a draconian license, it is not possible to

legally extract the liberally-licensed work from the program, unless the license is

an unusual one which purports not to sub-license. All of the user's rights flow

from the license under which he received the program; it is irrelevant whether the

previous person was subject to a more lenient license.

Instead the user must find the original, liberally-licensed work and take from that.

For example, the original 4.4BSD lite release was missing several important files

and would not run directly. Suppose that the developers who made the software

work chose to release the software under a harsher license which imposes

restrictions against commercialization, rather than preserving the original license.

Now suppose 10 years later someone wants to use some code from BSD in a

commercial program. It might be impossible to track down an original copy of

4.4BSD lite, but strictly speaking they are not permitted to take even original BSD

code out of the modern version.

Licensing Restrictions

There are situations where a resource may be in the Public Domain but its use

may still be limited due to licensing restrictions. This is where the owner of the

Public Domain work—a painting for instance—has the right to limit access to the


piece, even though it is in the Public Domain. Attorney Stephen Fishman

provides greater insight into this in his excellent book, The Public Domain:

“Theoretically, once a work of art enters the public domain it can be copied

freely by anyone for any use. However, to make a copy you must first

have access to the original. And here lies the problem: Owners of works of

art in the public domain are under no obligation to give anyone access to

copy the work. Even when a work of art is in the public domain, the

canvas, marble, clay, or other physical substance in which it is embodied

is still owned by somebody—whether a museum, gallery, or private

collector. Since a work of art is a piece of personal property as well as a

work of authorship, the owner enjoys all the rights of any personal

property owner. Copyright protection may expire or never exist in the first

place, but personal property rights attach to all works of art and last

forever.

“Private owners of public domain works of art are under no obligation to

allow anyone into their home to make copies of the art or even to view it.

And most major museums in the United States restrict the public from

taking photographs of their collections. “

“If you want a high-quality publishable photograph or other copy of a

painting or other artwork, you must ask the museum to provide you with

one. You will be charged a fee for this and usually required to sign a

license agreement restricting how you may use the photograph or other

copy. Such licensing fees are a major source of income for many art

museums. Moreover, many museums will not agree to license their works

for products that might compete with their own products, such as

calendars and note cards.”


(Fishman, Stephen, The Public Domain: How to Find & Use Copyright-Free Writings,

Music, Art & More (Berkeley, CA: Nolo, 2004), 160-161.)

When Public Domain works are made available to the public by the owner of that

work, the owner has every legal right to charge a fee for access to the work or to

make copies of the work. The owner may also require the user to sign or accept

a license agreement which restricts how the work can be used. This is especially

true when it comes to using a work for commercial gain, such as on t-shirts,

mugs, posters, etc.

Licenses take on many forms from actual contracts that you sign to specific

agreements that are negotiated to meet licensor requests. Licenses can also

take the form of click-wrap licenses, as in the case of distributing Public Domain

works online or by disc, such as a DVD or CD-ROM. The click-wrap license will

appear on-screen and require you to “accept” it by clicking on a button in order to

access the materials.

“Among other things, these license agreements impose restrictions on

how the licensee (the person obtaining or accessing a copy of the work)

can use the work. Typically, the licensee is barred from making more than

a specific number of copies or reselling them to the public. The licensee

may even be barred from creating new works from the public domain

materials or displaying or performing them in public.

If the licensee violates the restrictive terms contained in a license, the

licenser (person who owns the copies of the public domain materials) can’t

sue for copyright infringement because the materials are in the public

domain—they have no copyright protection. Instead, the licenser threatens

or actually does sue the licensee for violating the license. This is a suit

under state law for breach of contract. (Ibid, 47.)


In effect, people who use such licenses are trying to use contracts to

obtain the same exclusive rights that are provided under copyright law,

rights they can’t get because the work is in the public domain.”

If you would like to learn more about licensing, be sure to check out

LicensingPages®. They provide excellent resources on how licensing works, how

to obtain licenses, how to create them for your own products or brands and more.

Their web address is: www.licensingpages.com.

Patent*

With regards to patents, on the other hand, public use or publishing the details of

an invention before applying for a patent will generally place an invention in the

public domain and (in theory) prevent its subsequent patenting by anyone – an

effective disclaimer. For example, a chemistry journal publishing a formula

prevents patenting the formula by anyone. This tactic was commonly used by

Bell Labs. The famous Bell Labs Technical Journal was sent free of charge to the

library of the U.S. Patent Office to establish a base of prior art without the

inconvenience, cost, and hassle of filing patent applications for inventions of no

immediate monetary value. (Unix was famously described in this journal.) This is

sometimes called "defensive disclosure" - one way to make sure you are not later

accused of infringing a patent on your own invention. There is an exception to

this rule, however: in U.S. (not European) law, an inventor may file a patent claim

up to one year after publishing a description (but not, of course, if someone else

published or used it first).

In practice, patent examiners only consider other patents and the books they

have in their library for prior art, largely because the patent office has an

elaborate classification system for inventions. This means that an increasing

number of issued patents may be invalid, based upon prior art that was not

brought to the examiner's attention. Once a patent is issued, it is very expensive


to invalidate. Publishing a description on a website as a pre-emptive disclosure

does very little in a practical sense to release an invention to the public domain; it

might still be considered "patentable", although erroneously. However, anyone

aware of an omitted prior art citation in an issued patent may submit it to the US

Patent Office and request a "reexamination" of the patent during the enforceable

period of the patent (i.e., its life plus statute of limitions). This may result in loss of

some or all of the patent protection of the invention, or it may backfire and

actually strengthen the claims.

An applicant may also choose to file a Statutory Invention Registration, which

has the same effect as a patent for prior art purposes. These SIRs are relatively

expensive. These are used strategically by large companies to prevent

competitors from obtaining a patent.

Section 102(c) says that an invention that has been "abandoned" cannot be

patented. There is precious little case-law on this point. It is largely a dead letter.

If an inventor has an issued patent, there are several ways to release it to the

public domain (other than simply letting it expire). First, he can fail to pay the

maintenance fee the next time it is due, about every four years. Alternatively he

can file a terminal disclaimer under 37 CFR 1.321 for a reasonable fee. The

regulations explicitly say that the "patentee may disclaim or dedicate to the public

the entire term, or any terminal part of the term, of the patent granted. Such

disclaimer is binding upon the grantee and its successors or assigns." Usually

this is used during the application process to protect another patent from a

"double patenting" invalidation. Lastly, he may grant a patent license to the world,

although the issue of revocability may raise its head again.


Trade secret*

If guarded properly, trade secrets are forever. A business may keep the formula

to Coca-Cola a secret. However, once it is disclosed to the public, the former

secret enters public domain, although an invention using the former secret may

still be patentable in the United States if it is not barred by statute (including the

on-sale bar)[4].

Some businesses choose to protect products, processes, and information by

guarding them as trade secrets, rather than patenting them. Hershey Foods, Inc.,

for example, does not patent some of its processes, such as the recipe for

Reese's, but rather maintains them as trade secrets, to prevent competitors from

easily duplicating or learning from their invention disclosures.

One risk, however, is that anyone may reverse engineer a product and thus

discover (and copy and publish) all of its secrets, to the extent they are not

protected by other laws (e.g., patent, contract).

In Summary

The most important point I want to make through this report is that you do your

homework. If you find resources you want to use, but are unsure if they are in the

Public Domain, do your due diligence. The best and safest way to verify the work

or resource is through the use of a Copyright or Intellectual Property Attorney.

They will confirm the status of the work or resource for you, for a fee. The fee is a

small price to pay for the peace of mind you’ll have knowing that you are

swimming in safe, “shark-free” Public Domain waters.

* This portion excerpted from Wikipedia:Copyrights, http://en.wikipedia.org/wiki/Public_domain;

accessed 4/10/2007


http://en.wikipedia.org/wiki/Public_domain

Recommended Resources Recommended Reading

The Publishing Expert – Discover the answers, the secrets and little known facts that will make you wildly and amazingly successful in publishing YOUR OWN books!

Public Domain Code Book – The definitive guide for finding a nearly limitless supply of Public Domain books, movies, images, reports and more to develop into profitable information products for your online and offline businesses!

All-in-One E-Commerce Solutions

EasyWebAutomation.com – This is the BEST shopping cart on the web. Includes Ad Tracking, Auto-responders, Newsletter Broadcasting, Affiliate Programs, Digital File Delivery and a lot more! Works with most merchant accounts including iPowerPay, Paypal and 2CheckOut.

Recommended Payment Processors

iPowerPay.com – This is the secret Merchant Account Provider the world’s top Internet Marketing experts have been quietly using to process millions of dollars of Internet sales every single month

2CheckOut.com – Start accepting credit card payments from customers from several parts of the world! If you are staying in a country where you cannot accept PayPal and/or ClickBank payments, I recommend this.

Recommended Tools

The Public Domain Expert Toolbar – Gain easy access to over 450 Public Domain related websites, over 40 specialized Public Domain Search Databases and much more with this powerful toolbar that works right within Internet Explorer and Mozilla Foxfire.

Public Domain Television – The online weekly television show that brings you tips, tricks & techniques for making the most of the Public Domain…featuring special expert guests, how-to’s, website reviews and much more!


http://www.thepublishingexpert.com/

http://www.publicdomaincodebook.com/

http://www.easywebautomation.com/app/?pr=10&id=64979

http://www.ipowerpay.com/?900552

http://www.2checkout.com/cgi-bin/aff.2c?affid=157525

http://www.thepublicdomainexpert.com/

http://www.publicdomaintelevision.com/

Documents

Public Domain Advice, Tips And Tricks