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What commercial rights do I have to license and sell artwork in public domain?
Hi there! Thanks for your question about obtaining commercial rights to license and sell artwork that is in the public domain. The short answer is that in the United States, all art in the public domain is free to ues in anyway you (the public) desire. However, if you wish to obtain rights to license and sell this artwork, it must be altered in some way from the original (e.g., turning the artwork into line art for coloring purposes). Below you will find a deep dive of my findings and methodology.
METHODOLOGY
I began by looking up the legal definition of intellectual property that exists in the public domain. I learned that copyright laws surrounding the public domain vary from country to country. From here I learned that in the United States, if a piece of artwork is in the public domain it is free to use for commercial use, and no attribution is needed. Next, I looked for information on how to determine if a piece of art is in the public domain. This led me to look for any distinctions or limitations with using artwork that is in the public domain. From here I learned about the specifics of reproducing and using artwork in the public domain and how to obtain licenses for artwork eligible for copyrights. Finally, I did several advanced Google searches to learn of the best directories to find artwork in the public domain.
FINDINGS
In order to directly answer each aspect of your request, I have broken up my findings into four sections based on how you plan to use this information.
What art is in public domain?
In the US, any work published before 1923 is in the public domain. Viintage states that "there is no permission whatsoever needed to copy or use any public domain works . . . this means that it's free for you to use without permission." Viintage goes on to explain how to determine the copyright status of a piece of artwork in the United States, explaining that "any work published in the United States before 1923 is in the public domain. Anything after 1923 starts to get complicated." In order to simplify the explanation, they created this infograph with the following information:
--1923: Before 1923, any published work is in the public domain.
--1924 - 1963: If published with copyright notice it is protected for 28 years and it could be renewed for up to 67 years.
--1964 - 1977: Protected for up to 2 terms which total 95 years. 1978 - Now: Protected for a lifetime of the creator with an additional 70 years.
Additionally, I found that any artwork in the public domain that is copied and redistributed is safe from copyright, meaning the distributor cannot claim a copyright. Viintage explains that "a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. This means that public domain artwork that is copied to look like the original piece cannot be copyrighted." This law is explained in an interview with Christopher Sprigman in a 2012 Huffington Post article. Although this article is dated 5 years ago, the information is still relevant to the request, as Sprigman is explaining a current law.
Sprigman states that "U.S. copyright law says that to be copyrighted a work must be original." He explains that "if you just take a photo of a public domain painting that has no additional element to it, it’s not original; it’s just a reproduction and you don’t get a copyright in a public domain work simply by reproducing it." This essentially means that in order to obtain a license for a piece of artwork in the public domain, the artwork must be altered in such a way that it no longer looks like the original piece. For example, Dover Masterworks has a print version of a coloring book with images of classic Italian artworks. Dover holds the copyright to these images.
How can I use art for commercial purposes?
As long as the artwork is in the public domain, you are free to use it however you want. If you want to have a copyright on the materials, it has to be altered in some way to make it unique. In your case, that should be okay since you are interested in selling the line art of public domain artwork. Essentially, you would have to reproduce the public domain in a non-identical way (e.g., the Dover Masterpiece coloring book). Once you have created original content, you can purchase a CreativeCommons license which allows you to control the usability of your intellectual property. For example, the Attribution-ShareAlike "license lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under the identical terms. This license is often compared to 'copyleft' free and open source software licenses." Other available licenses can be found on CreativeCommons' web page.
Are there limitations?
The only limitation I could find for reproduction of artwork in the public domain involved current trademarks. Trademarked works cannot be used freely regardless of when the trademark was obtained as long as the trademark is renewed and current. Viintage states that "there is a difference between a trademark and a copyright." They explain that "a trademark may never expire as long as the registrar continues to renew it." So even if the image is not under any copyright (i.e., in the public domain), doesn't mean it is not trademarked. Viintage concludes that in those cases, "all you have to do is remove the trademark and you are good to go."
Do I need to show any disclaimers when using public domain art for a commercial project?
If you are using artwork that is an exact copy of artwork in the public domain, you do not have to attribute the artwork in any way. That said, if the artwork has been altered to be an original piece and you obtained a license for this artwork, then you would have no need to attribute the artwork.
What are best directories to find art that I can use in this type of project?
During my search, I found several directories with large portfolios of artwork that may be good for your project. I limited my search to public domain directories with classic art, line art, and clip art (i.e., no photography-only directories).
Since any artwork published by the government is in the public domain, so government art databases are also a great place to look. The National Gallery of Art has many classic pieces of artwork in their database.
Super Coloring's public domain section also offers many classic art works already converted into line art. Note that since these line art pieces are already in the public domain, you would not be able to obtain a copyright for these pieces.
99 Designs published an article with "30 free public domain image websites." I looked through the list and selected all the sites that have art which might be valuable to your project:
CONCLUSION
In short, in the United States, as long as a piece of art is in the public domain, you (the public) are allowed to copy and redistribute the artwork for commercial use without permission. That said, you cannot claim copyrights to this artwork unless it is altered in such a way to make it original as "the key element for copyrightability under U.S. law is originality." That said, if you do create original artwork using public domain art and wish to obtain a license, you can do this by selecting one of several CreativeCommons licenses. Additionally, if a piece of artwork is trademarked, the trademark must be removed before you can use that art for commercial use. This remains true regardless of the artwork's copyright status. For a quick chart on how to determine whether a piece of art is under copyright in the United States, you can view this infograph published by Viintage.
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