PD Info Frequently Asked Questions

What is Public Domain?

Anything which legally has no owner is said to be in the public domain.  Once there was even public domain land, but now public domain is pretty much limited to intellectual property where copyright protection has expired or the creator has formally given his work to the public.  There is no "official" list of public domain property because something becomes public domain due to the absence of any law giving anyone claim to ownership.  In effect, if no one on this entire planet can find any law which gives them legal claim to a property, then that property is in the public domain.

What is intellectual property?

Intellectual property is any product of the human intellect where ownership can be claimed and protected by law.  This includes creative works such as music, lyrics, books, poetry, or art as well as more typical business applications such as inventions, chemical and biological advances, or computer software systems.  Intellectual property is most often protected by copyright, patent, and trademark laws. 

What is a Copyright?

A copyright is a "limited duration monopoly" provided by the U.S. Constitution to authors, inventors, and other creative individuals.  Copyright law is written to encourage the growth of knowledge by giving authors and artists limited time exclusive rights to use and profit from their creations.  If a song or book or anything else is under copyright protection, you cannot use it without the author's permission.  Usually a music copyright owner will charge fees called "royalties" in exchange for permission to use his music. 

What can be protected by copyright law?

Any original creative work expressed in a tangible form can be protected by copyright.   In addition to music and lyrics, this includes items such as books, letters, paintings, movies, television programs, computer software, photographs, and video games.   Ideas and facts cannot be protected by copyright law, although they can in some instances be protected under patent or trademark law.

Does the title of a song have copyright protection?

A title cannot be protected under copyright law, and there are many songs with the same or very similar titles. Titles can occasionally be protected by trademark law when the title can be proven to be directly identified with a product or organization.

Using Music

Do I have to work from a copy of a work with a 1928 or earlier copyright date?

Any work in the public domain can be freely used by any one in any manner they choose.  There is no law which requires you to have any proof of public domain in order to use a public domain work.  The problem is that it is virtually impossible to securely determine that a work is in the public domain in the USA unless you have a copy of the work with a copyright date of 1928 or earlier.  Most recognizable public domain songs have hundreds of arrangements of the song which are still under copyright protection, and in many instances the arranger has significantly changed the melody or lyrics from public domain versions.  So to be confident you are truly using a public domain work, you need to find a public domain version of the work before you begin your project.  A reprint from a source you trust or a photocopy from a library are most adequate.  You then work exclusively from your public domain source copy to change and arrange the song as you like to create the music you need for your project.

What happens if I accidentally use a piece of copyright protected music?

You would probably receive a "cease and desist" letter from the copyright holder advising that you have infringed on his copyright.  You would them present your PD research findings and attempt to reach an amicable agreement with the copyright holder.   If you had done your research properly and had good reason to believe you had a legal right to use the music, hopefully the copyright holder would accept the most reasonable royalties possible for the use you made of his song.  However, making an honest error in no way protects you from paying royalties due to a copyright holder.  After you have already used the song, you are pretty much dependent on the copyright holder's mercy when royalties are assessed.  If there is any doubt about rights to a song, you should always obtain clearance through an attorney or rights clearance organization prior to any usage.

I play and sing at a local bar.  Can I get in trouble if I perform popular music?

It is the responsibility of the bar owner to have proper licenses for the music used in his bar.  For public performance, the facility and not the performer is responsible for music licensing.

I found a piece of PD Sheet Music on the internet.  Can I download it and use it?   Can I sell it?

If someone places a piece of PD sheet music on their web site, it has been published and you have a right to "Fair Use" of the sheet music.  But the digital image file and the digital image of the sheet music are protected by copyright law and belong to the owner of the web site  This is still a gray area of law, and we highly recommend the advice of an attorney.  If the music is truly PD, there should be no problem with your printing or downloading the music and using it to make your own derivative work.   You can probably print several copies and distribute them among others involved in your project, such as a chorus group or musical production cast.  However, unless the web site gives you specific other permissions, you are treading on thin legal protection to go much beyond personal use of the actual image of the sheet music.  If you post the image on your own web site or sell digital or hard copies of the music, you possibly infringe on the web owner's copyright protection.  IMPORTANT:  If the web site is in error and the music is NOT public domain, YOU are liable for any royalties assessed by the copyright holder for any use you make of the song. 

Can I copy the back pages of sheet music I purchased and spread them out so I do not have to turn the page?
Can I copy songs from CD's I purchased onto my computer and use the computer to play them in my bedroom?
Can I sing "Happy Birthday" to my husband at dinner tonight without paying royalties?

The answer to all of the above is almost certainly yes, both legally and in common practice.  When you purchase music, you generally you have a right to its PRIVATE use as long as you do not distribute it either for free, for no profit, or for profit.  You also have a right to privacy at your dinner table tonight.  However, all of these are "Fair Use" situations which can involve complicated legal concepts outside the realm of this web site.  If you need a truly legal answer to this type of question, you will have to consult an attorney. 

Music Sound Recordings

My company provides training classes, and we play background music during class.  Can I use CD's from the local music store?

Any CD in the local music store is still under copyright protection; therefore, you cannot play the music in public without paying royalties.  Since you are charging for the classes, you are especially leaving yourself open to royalty fees and penalties.  If you hold classes in a public meeting facility such as a hotel, check with the facility to see if it has a license to play music.  If not, your company should license some royalty-free music or obtain a license from BMI, ASCAP, or SESAC.

I have a recording of "Aura Lee".  Can I use it in my film?

No.  Even though the song "Aura Lee" is in the public domain, virtually all sound recordings are under copyright protection until around the year 2067  You will either have to make your own recording from a public domain source or obtain a license to use an existing recording.  There are claims on the internet that sound recordings made in the U.S. prior to 1972 are in the public domain.  We have had these claims reviewed by several attorneys who have emphatically told us that this is NOT true.   It is imperative that you consult an attorney before using a pre-1972 recording that you believe to be in the public domain.

We are a 15 year old band and have just learned to play "Free Bird".  Can we record us playing it on our cassette deck and sell it to our friends?

Most any popular song on the radio, including "Free Bird", is still under copyright protection.  Therefore you cannot perform or sell the song without paying royalties to the copyright owners.  Copyright law does provide that anyone can record and distribute any nondramatic musical work which has previously been recorded and published by paying mechanical royalties to the copyright holder.  This is called a Compulsory License which is explained in Circular 73 of the U.S. Copyright Office.   Mechanical royalties are around 8 cents for each copy distributed for each song recorded.  Go to Google or your favorite search engine and search "mechanical license" and you should be able to find the information you need to obtain a compulsory license and pay the required mechanical royalties so you can sell and distribute your recording.  

We made a movie with Dad's video camera, and the movie theatre said we could show it before the real movie Saturday morning.  Since the band next door paid royalties for their "Free Bird" recording, can we use it in our movie?

Sorry, but no.  Licensing music for film, video, and TV is very different from sound recordings.  A license to use any popular song, even once in an amateur movie, would probably cost thousands of dollars and could take months to acquire.  For any "picture and sound" use of music, there is no automatic license similar to a mechanical license for a sound recordings.  Your best option is to get the band next door to record some original music which they wrote, then make a deal directly with the band and their parents.

Public Domain Music Sources

I found a music book with an 1895 copyright notice.   Are all the songs public domain?

Most likely yes.  Carefully check both sides of the title page of the book.  If it is an original book and 1895 is the only copyright notice on either side of the title page, all the music (and the book itself) are in the public domain in the US and probably the entire world.  Errors are often made when someone finds an 1895 date somewhere in a book and looks no further.  It is possible that the original copyright date was 1895, but the book you found is a later revision of the original or a modified reprint.  If you have any doubt, check with a music reference librarian.  

I have a piece of sheet music with a copyright date of 1921, but it says copyright renewed 1949.  Is this Public Domain?

The 1909 copyright law provided 28 years of copyright protection, which was extended another 28 years if the copyright was renewed during the 28th year.  This renewal extension was later increased to 47 years, giving a total of 75 years copyright protection.  If this sheet music is an identical reprint of the original except for the renewal notice, then this is a public domain version.  But without a pre-1929 copy to compare, you cannot be certain that this is the exact same work as published in 1921.  To be absolutely certain you are working from a true public domain version, you will have to find a copy with only the 1921 copyright date.

I have a book with a 1932 copyright notice on the Title Page, but one of the individual songs has a copyright date of 1895.

You must be very careful to determine if this is a reprint or a 1932 arrangement of an 1895 song.  Since music notation plates were quite expensive to make, most music collections were reprints of the original, even into the 1950's or later.  If you have found a 1932 reprint, the music is PD but the source book is still under copyright protection.  You can use the music to make your own derivative work, but you have only fair use rights to the book itself.  However, if the author made his own arrangement of an 1895 song, this arrangement is still under copyright protection.   This is an area where research experience is extremely valuable, and you should check with a music reference librarian.

I have a music book with no copyright dates anywhere in the book, but it looks very old.  Are any of the songs public domain?

Do NOT use this book for PD research.  It is quite possible for a 100 year old book to look almost new and a quite recent book to look very old.  There most likely is no copyright date because the title page is missing. The copyright law does not provide copyright protection in most instances where there is no copyright notice, but  this is an area where you must be guided by an attorney or rights clearance agency.  Without professional advice, this book is outside of the realm of amateur PD research.

I have a book with no copyright anywhere for the book, but one of the songs has a 1915 copyright notice.  Is the song public domain?

This is really a combination of the last two questions.  Any book or music with no copyright date is quite dangerous to use for PD research.  Most often, the copyright page has been lost or torn out.  Some books have been published without a copyright date, but it is not a common occurrence.  However, if the song is truly a reprint of a 1915 publication, it can be used as a PD source and it does not really matter when the book was printed.  Again, check with your reference librarian.  If there is any doubt, try to find a copy with an unambiguous copyright notice.

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