Peter Vaughan Shaver, Esq.
SOUND ADVICE, LLC
3939 NE Hancock Street, Suite 308
Portland, OR 97212
(503) 473-8252 / email@example.com
© 2006 – 2016 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.
As Gene Simmons of KISS once said, “I never wanted to be in a rock ‘n’ roll band: I wanted to be in a rock ‘n’ roll brand.” Like it or not, your band IS a brand and you should take steps to protect your brand. Your band name and the logo are each separate trademarks. Trademarks, also known as “service marks” if used for services, are words, symbols, designs, slogans, or combination of these elements that identify the source of your goods and services. Generally, trademark rights begin when the mark is used for particular products, like your CDs and T-shirts; or services, like your live performances. These rights last as long as your marks are actively used. As long as your marks are not identical or even possibly confusingly similar to those that have been adopted earlier by other bands, you have some protected rights – even without registering your trademarks. However, you can gain some very important benefits by registering your marks.
To start with, be careful about choosing a band name. Research possible choices carefully and don’t use names that are easily confused with other bands or entertainers. Remember “R.E.O. Speeddealer”? They are now just “Speeddealer” because they were allegedly creating “consumer confusion” with “R.E.O. Speedwagon.” Also, the band “Squeeze” used to call themselves “U.K. Squeeze” until they heard about another band called “U.K.” who had established their trademark earlier. It is also a good idea to adopt a name that is not profane or offensive, as you will likely not be able to register such marks with the federal Trademark Office.
Properly researching your chosen band name can save you a lot of headaches and you can avoid wasting time and money. Research existing names on the Internet, doing general web searches for band names that you are considering. You should also search for band names in the federal Trademark office website database and your home state’s business registration database. For more general information on registrations, check out the U.S. Trademark Office website at www.uspto.gov.
Ok, so you have found a cool name that nobody else is using – why register? Registration gives you the exclusive right to use your trademarks within certain categories and territories. However, your rights may be limited to a specific state or entire country, depending on where you are actually using the trademarks. Registration provides evidence that you were the first to adopt and use a specific trademark and will help establish priority rights against later attempted users. Registration also enables you to recover money from infringers, including heavy penalties, and attorney fees. Federal registration in the U. S. also helps provide you with rights in other countries and marks can be registered worldwide.
Filing a state trademark registration can be fast and fairly inexpensive. State filing requires you to fill out a single page form and submit a fee for an initial, limited term. You also send in samples of your use of your trademarks. Actual use is generally required prior to registration and you can renew your mark for additional periods.
Federal filing is more expensive and complicated, but your rights have potentially broader scope.) Fees vary and are updated on an ongoing basis. Classes are separately numbered listings for the use of your trademark for different products or services. Some common federal classes for registering band related trademarks are: Class 41: Entertainment services, namely, live performances by a musical group; Class 25 for Clothing, such as T-shirts; Class 9 for sound recordings; and Class 16 for printed matter and paper goods, such as stickers and posters.
Federal trademark applications are more complicated to complete and may take over a year for the Trademark Office to issue a final registration. However, your registration rights date, at least, back to your initial filing date, and, possibly, back to your original adoption and use dates. There are also two types of federal trademark filings based on usage. Generally, actual use of the mark is required before a trademark can be registered. However, one form of federal registration allows you to reserve the future use of a trademark by filing an “Intent to Use” (ITU) application. The initial registration term is for 10 years and is renewable for additional 10-year periods. Federally registered marks can also be renewed for unlimited amounts of time, as long as they remain in active use for the classes you have claimed.
Here are a few more concepts to keep in mind regarding trademarks:
- After you start using a band name or logo you should document your use of your trademarks: keep dated copies of show posters and flyers, printers’ bills, photographs of the marks being used, etc. This will provide crucial evidence if there is ever a dispute over where and when you began using a specific trademark.
- Also consider registering your album artwork and logo designs with the Copyright Office. Copyrights give you additional power and control over valuable images related to your band. You can’t copyright band names, that’s why you must protect the names with trademarks.
- Use the “®” symbol only for federally registered marks. Use “TM” (Trademark) or “SM” (Service Mark) for state registered marks or unregistered marks. Check out how these are used on recordings and merchandise for well-known bands.
- Generally, you should always try to keep your merchandising rights for both trademarks and copyrights. In order to protect themselves, some labels will require that a band first register their trademarks and domain names, or that the label will otherwise do so and charge the costs to you. Avoid transferring any trademark or domain name rights to any recording companies, and try to retain all your rights for use in later independent merchandising or licensing deals. While it is standard to give record companies the limited rights to use your band name and logos on your recordings and promotional materials, they should not get the right to use the name on any merchandise without additional payments.
- It is also important to decide who will “own” the name and logos if band breaks up or a member leaves. Put this in your band’s written partnership agreement.
- Register your band’s domain name as soon as possible. Check carefully to see if anyone else is using your name or any similar names that might cause conflicts later on. Avoid registering domain names with other companies’ trademarks in them. Check out availability in the domain database at nsi.com. You can also research owners of domains there in the WHOIS database.
The Bottom Line: Registering your band’s trademarks is an important part of protecting your image and the valuable rights related to performance and merchandising income. You should carefully research band names and domain names before you start using them.
COPYRIGHT BASICS FOR MUSICIANS
© 2006 – 2016 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.
First off, it is important for musicians to know that there are two types of copyrights related to music: rights in the song compositions (imagine the songs written out as sheet music, with or without lyrics) and rights in the sound recordings (in the form of CDs, digital formats, etc.). Don’t confuse the two, because there are very different sources of revenue specifically related to each type of copyright.
The good news is that by merely writing down, or recording your songs in some form, you have protectable copyrights in your material. Even without filing copyright registrations, if you “fix” your original material in a “tangible medium of expression,” such as digital or audio tape format, you will have established copyrights in your work. However, the bad news is that without actually registering your songs with the federal Copyright Office, your copyright rights are very weak and limited.
Don’t wait until you get signed by a recording or publishing company to deal with your copyrights. Also, for certain publishing and licensing deals, it is a benefit to have previously registered your ownership of both your sound recordings and song compositions. You don’t have to register every song you create, but for songs that have any economic value, or are being offer to labels or exposed to the public, you should definitely consider registration. If you are looking for a recording or publishing deal you will be submitting your songs for other parties to review. Try to obtain the maximum protection of your stuff before sending them out.
Registering your copyrights is an inexpensive way to prevent getting ripped off and protecting rights to your creative output. The benefits of registration include proof that you created and owned the material as of a certain date, access to federal court (the only place you can file copyright infringement lawsuits), the ability to recover your attorney’s fees from any infringers and, as an alternative to actual damages, you might be able to collect “statutory damages” of up to $150,000 for each willful infringement.
Copyright registration can be confusing, but it is a crucial aspect of protecting your creative work.
- Print-out, or complete the online versions of copyright Application forms and the Instructions on how to complete them from the Copyright Office website at copyright.gov. Use the online Form eCO for reduced fee filings. However, you may still order paper forms from the Copyright Office from the Copyright Office website. Song compositions are registered using a Form PA (Performing Arts). Otherwise, use a Form SR (Sound Recordings). In certain circumstances, using the SR Form will entitle you to register both your compositions and sound recordings on one form. Check out Copyright Office Circulars #56 and #56a for more information. Also, you should consider separately registering your copyrights for album packaging artwork/ design (Form eCO or printed form VA).
- Complete the online or printed application Form and submit your application along with your fee payment (check the Copyright Office website for existing fees) and (“deposits”) of your song compositions and/or recordings (one copy for unpublished music, two copies for released music). Generally, you can register entire collections of songs together for one fee. However, in certain cases, you might want to consider registering individual songs, especially where an individual song is very popular. To get maximum benefits you should always register within three months of publication of your music – the date from which you first offer the work for sale or perform it in public. Keep copies of everything you send to the Copyright Office.
- In a few months, you will receive a certified and numbered registration certificate from the Copyright Office. Be patient. This can take a long time!
Important Note: Don’t bother with the practice of mailing yourself a sealed envelopecontaining your creative material (known as “poor-man’s copyright”). This is NOT the same as copyrighting and does not provide you with any of the important benefits of registration listed above.
Even if you don’t register your work, you should always place a copyright notice on any demos sent out for review, including putting your notice on the CD and the packaging, or along with any digital submissions. For compositions, album artwork and logos, the notice should look like this: “© 2015, your name here. All rights reserved.” If you own the sound recordings add “(P) 2015, your name here.” The circle “P” stands for “Phonogram” – an old school way of saying “recording.” You can see how other artists do this by checking out most major label CD packaging.
For more information download the following from the Copyright Office website:
- Circular 56 – Copyright Registration for Sound Recordings.
- Circular 56a – Copyright Registration of Musical Compositions and Sound Recordings.
- Circular 7d – Mandatory Deposit of Copies or Phonorecordings for the Library of Congress.
DISCLAIMER: This outline is intended only as a very general overview of copyright law and should not be relied upon as personal legal advice. Every situation is different and the reader is advised to obtain qualified legal assistance for their specific, individual matters.
THE ELEVEN COMMANDMENTS OF THE MUSIC BUSINESS
© 2006 – 2016 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.
I’ve developed some general guidelines that I like the call The Eleven Commandments of the Music Business. While these are literally NOT the gospel, keeping these key basic concepts in mind can help you protect your creative output, avoid legal hassles, and help you maximize your income from the music business.
- GET ALL AGREEMENTS AND PROMISES IN WRITING:
People don’t always do what they say and, in order to protect yourself, get all promises made to you in writing. Contracts are important to document each party’s rights and responsibilities. Engaging in business with anybody without a solid, written agreement is dangerous and can lead to expensive hassles later on. People’s memories fade and they will often lie to protect their interests. Written agreements keep people honest and give each party a record of your understanding at the time you enter into it. At the very least, try to document your verbal agreements of the terms of any proposed agreement by exchanging e-mails with the other party. State your understanding of the deal points and get them to confirm your position. Print out and/or save copies of these communications and keep them in a safe place. Preferably, if anyone tells you that they only do “handshake deals” give them YOUR own agreement to sign, or don’t do business with them at all.
- NEVER SIGN ANYTHING YOU DO NOT UNDERSTAND:
All too often, musicians sign contracts that they do not fully understand. If and when you are presented with a contract for any purpose, you absolutely need to know what it is all about. Ask questions and make sure that you understand every word of every agreement you are asked to sign. If in doubt, have the person offering you the agreement to translate any unclear legal language into “Plain English” for you. Contract terms should be clear and concrete. Don’t agree to anything that is unclear or subject to differing interpretations. Also, don’t fall prey to anyone who is pressuring you to sign anything, and avoid signing skimpy or incomplete “deal memos” that only recite the basic outline of your agreement with a promise that there will be a more complete contract later. Get that contract now so you don’t end up getting forced into ‘agreeing to agree’ on unknown terms in the future.
- (ALMOST) EVERYTHING IS NEGOTIABLE:
With some exceptions, you can almost always negotiate or re-negotiate the terms of any proposed agreement. This includes adding, deleting or changing contract language and terms. Know that often it is not what is IN the contract, but what has been left OUT that can be dangerous. Know © 2015 Peter Vaughan Shaver, Esq. / Sound Advice, LLC – pdxsa.comwhat to ADD to your contracts, or get advice from someone that does know. Remember: If you don’t ask for it, you won’t get it. You may be amazed that the other side may agree to everything that you request, if they are keen on working with you. Be wary about anyone who will not consider changes to their agreements. “Industry standard” terms in music business contracts are often not in your best interest. You need to call the other side on any terms that seem oppressive or unfriendly.
- ONLY GIVE UP THE MINIMUM RIGHTS NEEDED:
Many music industry contracts try to get musicians to give up more rights than they need to provide. Try to limit all deals in terms of how long they will last, the territories that apply and other parameters. For example, why give a company “worldwide” rights if they only work in the U.S.? Be wary of granting “exclusive” rights. Consider working with a number of parties on a “non-exclusive” basis, unless an exclusive deal makes economic sense. Always try to retain as many rights as possible. View your rights like a pie: only give the other party the smallest slice they need. Reserve the rest of the pie for yourself or for other companies that can work other territories on your behalf.
- KEEP YOUR PUBLISHING:
As a musician, try to think of your songwriting publishing rights as your pension plan. Reserving your song composition publishing and synchronization rights can benefit you greatly in the long run. Many industry companies will try to cut themselves in for some or all of your publishing rights. Try to resist such offers as much as possible. Even for major label deals, songwriters often make more money on their publishing rights than on the sales of their sound recordings. Certainly there are exceptions to this rule, such as if you are offered a good deal (and a decent advance payment) to sell or license some or all of your publishing rights. Otherwise zealously guard and protect your song compositions as if they were your children.
- DON’T GIVE UP YOUR CREATIVE WORK FOR FREE:
The music business is full of scams that take advantage of musicians who are desperate for exposure. Don’t devalue your creativity and remember: you can die from exposure. All too often, musicians get ripped off by people and companies that want to use your very valuable work without paying for the privilege. While you might very well get some good “exposure” for allowing your songs or compositions to be used by someone, often, when pressed, compensation for the proposed uses may be available. Again: if you don’t ask, you don’t get.
- REGISTER YOUR COPYRIGHTS and TRADEMARKS:
Register your copyrights – for BOTH your song compositions and your sound recordings. These are two very different copyrights. Registration is a crucial step toward solidifying your valuable rights in your creative work and preventing others from ripping you off. Copyrights will be part of virtually every music business agreement that you ever sign and you need to nail down your copyrights before you sign anything. Also, try to register and retain exclusive rights to your own album artwork and design, website domain names, logos and trademarks.
- THERE’S A REASON ITS CALLED THE MUSIC “BUSINESS”:
As soon as you start trying to make money from your music, you need to understand that your “hobby” is now a “business” – treat it as such. While the creative side of making music is more fun and interesting for most people, if you want to make a buck in the business, you need to conduct yourself (and your business) in a professional manner. Educate yourself about legal issues and how the business works.
- KNOW WHERE THE MONEY COMES FROM:
Again, there are two types of music copyrights: sound recording rights and song composition publishing rights. Learn and understand the differences between sound recording rights and song composition publishing rights and how money is made from each of them. For example, income related to sound recordings comes from the sales of familiar products like CDs or downloads, or for “master use” licensing for TV, films, commercials and video games. However, did you know that the owners of sound recordings, and the performers on them, are also paid royalties for the public performance of their recordings via digital media such as the Internet, cable TV systems and satellite broadcasters? Check out SoundExchange, it’s free to join and you may be missing out on some valuable income if you are not a member. Similarly, on the songwriting and publishing side, if you are a songwriter or have your own publishing company, you get paid by ASCAP, BMI, SESAC, or their foreign affiliates for the public performance of your song compositions. Make sure that you sign up with one of those performing rights organizations as BOTH a songwriter AND a publishing company to ensure that you are maximizing income from that source. Other familiar forms of income related to song writing and publishing are “synchronization rights” based upon the use of your song compositions in TV, films, commercials and video games, and “mechanical rights” payments which should be paid anytime your song compositions are commercially released by a record company or are recorded by another artist. Mechanical rights apply to both physical sound recording product formats and digital sales of individual songs or entire albums.
- DON’T USE OTHERS’ CREATIVITY WITHOUT PERMISSION:
Respect other musicians’ and songwriters’ rights in what they created, and don’t use samples including others’ work, or record cover songs, without paying for the privilege, or at least getting their permission to do so. Music is not free and you should do the right thing by your fellow musicians. Treat others as you would have them treat you and your creative work.
- OBTAIN QUALIFIED LEGAL ASSISTANCE:
It is often more expensive in the long-run to not get contracts reviewed, or to go it alone without proper knowledge or experience. Working with an attorney should be an educational experience that will provide you with greater knowledge about business industry practices. An experienced attorney should also be able to connect you with valuable industry contacts, or provide you with other insights into the general music business.
COPYRIGHTS FOR CREATIVE PROFESSIONALS
© 2006 – 2016 Peter Vaughan Shaver, Sound Advice, LLC
All rights reserved.
WHAT IS A COPYRIGHT?
KEY CONCEPT– Copyrights do not cover ideas, only individual expressions of ideas.
The Term, “copyright,” actually refers to a bundle of exclusive rights, including:
- The right to reproduce in copies or modify the work.
- The right to distribute and sell the work, or allow others to do so.
- The right to prepare or authorize derivative works.
- The right to perform or display the work publicly, depending on the type of work.
- The right to control the integrity of the work and the attribution of authorship.
Derivative works are adaptations or transformations of the earlier work.
It is important to separate the concept of copyright from the physical object that contains copyrightable content. Transferring or selling the physical work is not the same as selling the copyright to the artwork. The mere sale of the artwork does not necessarily mean that the creator’s copyright in the work has been transferred – All exclusive transfers must be in writing.
What is covered by copyright? Copyrightable works include creations that are: literary, musical (including compositions and sound recordings), dramatic, pictorial, graphic, sculptural, audiovisual, architectural, choreographic or pantomimes.
What is NOT covered by copyright? Ideas, facts, concepts, principles, discoveries, titles, names, slogans, short phrases, blank forms, typefaces, general topics, common plots or themes, stock characters, processes or procedures.
THERE ARE TWO REQUIREMENTS FOR A VALID COPYRIGHT:
- The work must be ORIGINAL.
- The work must be FIXED in a “tangible medium of expression.”
A very low threshold of creativity is required and the work does not have to be brilliant or unique. The work must simply exhibit a minimal level of creativity to be protectable. Any material added to a preexisting work is protectable, but you are not entitled to claim any rights in the preexisting work itself unless you also created it.
You have to record and save your work before it is protected by copyright. According to copyright law, all works are protected by as soon as they are “first fixed in a tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
THERE ARE TWO TYPES OF COPYRIGHTS:
- Unregistered Copyrights:
- Registered Copyrights:
This is copyright protection at its most basic level. Upon creation and fixation, a valid copyright exists. Copyrights are created the second your pen leaves the paper, the “save” button is clicked, etc. However, only minimal protections exist for unregistered copyrights. You can only sue for your actual damages or the infringer’s profits and you don’t get any of the benefits that you receive through federal registration (see below).
This is the highest, and most comprehensive, level of copyright protection. Federal registration is regulated by the Copyright Office of the Library of Congress. Registration is an inexpensive and effective way to obtain legal protection for your creative work. There are no state copyright laws.
DURATION OF COPYRIGHTS:
The effective date of your registration is the date your complete package, including completed forms, deposits and fee, is received by the Copyright Office. Generally, copyrights last for the life of the creator plus 70 years. This can be longer (95-120 years from the date of publication or creation) for other types of works, such as works created on a “work for hire” basis or works created under a pseudonym or anonymously.
Note: There are no longer any “renewals” of copyrights – only one set term.
HOW TO REGISTER YOUR COPYRIGHTS:
Copyright Registration Information: Check out the Library of Congress/Copyright Office website: copyright.gov to get more information and download forms. This site also features online copyright application forms and a searchable database containing registered works.
- Complete the online application Form eCO from the Copyright Office website, using the Directions for Completion for the eCO Form, either as a fill-in form or print out the online application. Paper application Forms may be ordered from the Copyright Office website including, VA (Visual Arts), TX (Text-based works), and SR (Sound Recordings).
- Include Deposit(s): You must deposit the “best edition” of the work presently available.
- The number of deposits depends on the publication status of the work. Send one copy for unpublished works; two copies for published works.
- “Publication” is generally defined as offering the work for sale or lease, or otherwise transferring ownership of the work to a third party.
- Applications should be submitted within THREE MONTHS of publication.
- Collections may be registered under one application (Collective Registration).
- Send to the completed application to the Copyright Office with proper fee.
- Be sure to retain a complete copy of everything you submit.
- For physical applications, send your application packet by registered mail for the purpose of tracking your package and confirming receipt by the Copyright Office.
- The registration process typically takes about six months, but the effective date of your registration is when your application was received by the Copyright Office. Your rights, however, date back to the date of creation.
Note: Fees vary. Check with the Copyright Office to see un updated schedule.
REGISTRATION MYTH – “Poor Man’s Copyright,” or mailing a sealed copy of the work to yourself or a friend. In reality, this practice is practically useless. Note that this process is NOT the same as obtaining a copyright certificate and does not provide you with any of the important benefits listed above.
Generally, you can register entire collections of items together for one filing fee. However, in certain cases, you might want to consider registering individual items, especially where a single work has a lot of commercial value.
In a few months, you will receive a stamped and numbered registration sheet from the Copyright Office.
BENEFITS OF REGISTERING YOUR COPYRIGHTS:
- Access to federal court system: All copyright cases are federal and registration is required in order to obtain access to the federal court system to file an infringement lawsuit. Copyright registration, if issued either before, or within five years of, the first publication, is considered proof of the validity of the copyright and your claim to ownership. Otherwise, the basic step of proving at trial that you created the work can be time consuming and expensive.
- At the discretion of the court, Legal fees and court costs may be recoverable from infringers.
- Statutory damages: As with unregistered copyrights, you can recover either your actual damages (your losses or the infringer’s profits) or, for registered works only, “statutory damages” of up to $150,000 for each willful, “bad faith” infringement. (Statutory damages may be less for so-called “innocent” infringements.)
- Possible injunctions against further infringement or seizure and destruction of infringing products by federal marshals.
- Possible federal criminal penalties against the infringer.
Placing the proper copyright information on your work provides an important notice to other people who might consider willfully using your creative output. However, since April of 1989, you are not required to actually place your copyright notice on your work. Regardless, you should always add your notice if possible. Optional Language: “All rights reserved” – important for international uses of the work and content placed on websites.
© / Copyright, Year of publication; Name of Creator(s).
Example: © 2016 Peter Vaughan Shaver. All rights reserved.
NOTICE MYTH – “If it doesn’t have a copyright notice, it’s not protected”: WRONG. You should always assume that copyright law covers works, even if they do not have a visible copyright notice on them. This is especially true for images, music or text found on the Internet. You should always try to determine who owns a work you wish to use, in whole or in part, and get their permission before you use it.
In order to establish an actionable infringement there are three things you must demonstrate:
- You must prove that you own the work. Properly registering your work makes this very easy. Federal registration is considered conclusive proof that you were the creator of the work. Registration must occur within three months of creation, or before an infringement occurs, in order for the copyright holder to sue in federal court or to be eligible to receive the benefits mentioned above.
- You must prove that the alleged infringer had access to the copyrighted work and copied it. Circumstantial evidence is typically sufficient to prove access to your work.
- You must prove that the infringing work is substantial similar to the original, copyrighted work. Substantial similarity is determined using an “Ordinary Observer” standard: would an “ordinary person” see similarities between the original copyrighted work and the allegedly infringing work?
Copyright infringement is a STRICT LIABILITY offense: Generally, regardless of the infringer’s intent, if the court finds unauthorized use of a work, the infringing party is responsible for any damages to the copyright holder. However, some infringements may be considered “innocent” and the infringing party may be subject to lesser penalties.
FAIR USE – Not all uses of another’s work are copyright infringements. In certain cases, reasonable, unpermitted uses of existing works are allowed. Fair uses including using a preexisting work for purposes of parody, criticism, commentary, news reporting, teaching (including creating multiple copies for classroom use), scholarship, research, or “transformative use.” Fair use is often an issue with collage, parodies, and other derivative works and exists as a defense to a charge of copyright infringement.
FAIR USE FACTORS:
- The purpose and character of the use.
– Is the secondary work “for profit”? For profit, or commercial, works have less protection than uses not involving someone profiting from the sales of secondary works
- The nature and character of the copyrighted work.
– The more creative and unique the original work is, the less the fair use defense applies to anyone using the original work. More generic works have less copyright protection.
- The amount and substantiality of the portion of the copyrighted work used.
– Quantitative and qualitative tests. How much of the original work was used and was the part used the most distinctive, valuable or central part of the original work? In general, do not use the “heart” of a copyrighted work. Less use is always better.
- The effect that the use will have on the market for, or value of, the copyrighted work.
- Do sales of the secondary work hurt or replace sales of the original?
- Are the markets for the two products similar or overlapping? It does not matter that your use may increase or create the market for the original work.
- Public interest (an unofficial factor):
- Is the use disparaging, obscene or done with knowledge and willful disregard of another’s interest?
- Was the original creator credited on the secondary work? Was a disclaimer used?
FAIR USE MYTH: “If I only take (10% / 20% / 30%) of someone else’s work, it is fair use.” WRONG. There is no set percentage that is the dividing line between fair and “unfair” use. Don’t rely on using any set amount, or by making any specific amount of changes to the original work, however drastic. Even minimal amounts of usage can be infringing.
GENERAL RULE: If you are in doubt about the fair use exception, seek permission from the copyright holder, perhaps obtaining a license to use their work.
THE PUBLIC DOMAIN:
As mentioned, copyrights have only limited terms. After the term of protection ends, all works revert to what is called the “public domain.” Public domain works can be freely used for any purpose, commercial or otherwise, without obtaining permission from the original creator or owner of the work.
Included in the public domain are works not subject to copyright protection such as works with expired copyrights, works never registered under earlier laws, improperly registered works and all federal government works paid for with our tax dollars, with the exception of designs for stamps, currency and materials which may have only been licensed by the government.
In order to determine whether or not something is in the public domain, check the date of creation. The copyright laws have changed greatly over the years and the date of creation or publication will determine exactly what law applies, not the current laws. The “safe date” is currently “frozen” at 1923. Anything dating before that date is generally considered to be in the public domain. Works from 1924 may be covered until 2019.
PUBLIC DOMAIN MYTH: “If I find it on the Internet, it must be in the public domain.” Often NOT true. Always get permission to use anything found online. Sometime people will post images, music or other content that they have stolen or posted without the permission of the copyright holder, and may offer this material to others. Relying on the false assumptions or statements of others does not create a fair use exception for your use of others’ creative work.