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Spotlight On: How Do I Tell If Pictures Are Public Domain Or Not?

Updated on July 15, 2014

Vincent van Gogh - Self Portrait 1889

Painted after he cut off his left ear, most (not all) of his self portraits were from the right side because he looked in a mirror and that is the side he saw.
Painted after he cut off his left ear, most (not all) of his self portraits were from the right side because he looked in a mirror and that is the side he saw. | Source

Published June 1, 2014, Updated 7/15/2014

by Rachael O'Halloran

Disclaimer: This hub offers researched information and links where possible regarding works in the public domain. This does not constitute advice nor should it be construed as advice. You still have to do your own homework if you want to determine whether you are using truly public domain work.

Spotlight On: Works In The Public Domain Explained has more information.

Rachael O'Halloran's Trivial Points of Interest for the Trivia-Minded Reader™

What is the oldest work which is still copyrighted in the United States?

In the United States, a letter from John Adams to Nathan Webb written on September 1, 1755 is the oldest U.S. copyrighted work.

Copyrights for John Adams' works were transferred to the Massachusetts Historical Society in 1956, and they published a microfilm edition of the letter. They registered the copyright with the Copyright Office in 1956 which made it good for 28 years.

At the end of the 28 years, in 1984, they renewed the copyright again which should have been for 47 years for a total of 75 years. But this time the renewal is good for 67 years for a total of 95 years. I

This is because in 1998, the Sonny Bono Copyright Term Extension Act extended the term of all existing copyrights by 20 years. Anything that was previously due to expire at the end of 75 years will now expire in 95 years.

This means the copyright on the John Adams letter will expire on Jan. 1, 2052, nearly 300 years after the date it was written.

I wonder if that time gets extended again if the Massachusetts Historical Society renews the copyright ....

Changes In The U.S. Copyright Law

I want to clear something up about copyright ownership. There is a big misconception about who owns the copyright of a work, especially after the work is sold.

Ownership does not equate to copyright ... just because someone owns a painting doesn't mean they own the copyright to it. An artist doesn't lose his copyright to a work just because he sold the artwork, unless he physically signs his copyright over to the new owner in a written document, which rarely happens ... unless duped.

In the 20th century, there have been several changes and additions to our copyright laws.

Regarding copyrights and ownership, there have been two major United States federal copyright acts, one in 1909 and one in 1976 (which became effective two years later in 1978). Both acts say the same thing about copyrights and ownership and that is, if an artist sells his work, the art doesn't carry the copyright with it. It reads:

The copyright is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not in itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object.

In 1942, in the case of Pushman vs. New York Graphic Society, Pushman wanted the copyright to follow the resale, to whomever bought the work. Pushman supported the notion that the artist automatically loses the copyright unless he or she retained it through a written agreement. He lost the lawsuit. The law is clear. The artist retains the copyright to his work unless he signs it away in a written agreement.

This was challenged and upheld again in 1966 but the wording came out differently and much to the detriment of public domain works.

Whenever a work of fine art is sold or otherwise transferred by or on behalf of the artist who created it, or his heirs or personal representatives, the right of reproduction thereof is reserved to the grantor until it passes into the public domain by act or operation of law unless such right is sooner expressly transferred by an instrument, note or memorandum in writing signed by the owner of the rights conveyed or his duly authorized agent. (Section 224, Article 12-E, 1966 New York General Business Law) (emphasis mine)

So it stands to reason, for all intents and purposes, that once a work becomes part of the public domain, it is supposed to stay in the public domain. Right?

Well, no.

Meet the "operation of law" and meet the "instrument!"

The Supreme Court made a ruling in 2012 - authored by Supreme Court Justice Ginsburg - which literally changed the public domain rules.

It said that U.S. Congress can change the status of any public domain work to make it come under copyright again, if the work can be commercially benefiting.

"Commercially benefiting" means to make money.

In other words, if enough people want to use the work in some fashion, the government can change the status to take the work out of public domain, so that they can charge a "per use fee" for that work.

If the copyright holder is dead, does that mean the U.S. government will become that duly authorized agent in 70 years?

In this case, yes.

No doubt this will be argued again and again in future Supreme Court sitting justices, but for now, that is the law of the land.

What was taken out of public domain?

We don't know exactly what was taken out of public domain because that information is not shared. We just know what is not making it into public domain. Check out this site for what could have come into public domain if the laws had been left alone and the pre-1978 law was still in effect. Ahhhh, please go look when you are done reading this hub. :)

On Public Domain Day, which is every year on January 1, almost nothing became public domain in 2014. And this will continue now for next year and every year all the way up to 2019 which is when Congress said the next works will be released into public domain.

By that time, there will probably be another law in place to stop it from happening in 2019.

As long as a buck can be made from something, they aim to keep it out of public domain.

And somehow, that is just not right.

If the work satisfies the copyright owner rule, and there are no forthcoming heirs, it should not be tampered with by Congress just because there is money to be made on the copyright or the licensing of that work.

Copyright vs Ownership

You probably knew this already, but all those websites you've seen that slap a copyright on their site to say they own the copyright to famous artists' paintings which they are showing for sale on their site, are most likely very false claims.

They can copyright their website, not the artist's original work, especially after it's a work that has been in public domain for years.

If the artwork is a reproduction, first, the artist has to say it is a reproduction, and yes, the artist can own the copyright on the reproduction, but only on the reproduction. The website owner does not own the copyright on any of the artwork. The artist does.

Chances are the website owner is only a licensing agent for the artist. However, if they contracted with an artist in a work-for-hire arrangement, then they could own the copyright on the reproduction, because in a work-for-hire situation, the artist usually forfeits his copyright unless otherwise specified in the contract.

Well, what about Getty Images and all those other websites who say they own the copyright on artwork and photographs I've seen in public domain or works that should be in public domain because of the long time since the artist's death?

Getty Images doesn't own the copyright on everything they put the copyright symbol on. They own the licensing rights, which means they can secure a fee for its use and decide if your use is within the scope of how the copyright holder would want to see the work used. Getty Images works for the copyright holder and fields requests for permissions on their behalf. In some cases, they have bought the licensing rights to some works which will clearly state that in their terms of service.

If a photographer working for Getty Images snaps photographs, you will always see that photographer's name next to Getty Images imprint. When you see the photographer's name still on the photograph, that means the photographer still owns the copyright to it, not Getty Images.

What about websites displaying photographs or artwork for sale? They said they will prosecute if I take a screenshot or copy paste anything from their website!

These websites can own the copyright on reproductions, but on original works of art unless the artist signed over his copyright, they are licensing agents only. They cannot put a copyright on artwork owned by dead or alive artists, even if they bought the artwork because copyright doesn't transfer with the sale of the art.

Conversely, they can copyright their website - the appearance of the site and the information on it, but they cannot really control or enforce the copyright when the art is exhibited for sale purposes on a website.

They can state that they will monitor to see if anyone snapped off a screenshot by checking to see if it was used on a blog and then cite for copyright infringement, for example, but more power to them. If push comes to shove, the words "fair use" can get a real workout there.

Some websites will even go so far as to say they have watermarked the web image of each reproduction so that if someone were to copy it or snap off a screenshot, then they will be able to trace that it was theirs in order to prosecute. I can't tell you how many times I've seen that threat on art websites.

Not only will this be very hard to prove, but the little blogger who only gets 20 views per week who uses it on his blog is probably not going to be prosecuted for that use. He will get a cease and desist letter, and possibly a DMCA notice to take it down, but to end up in court is a frivolous lawsuit which no doubt will get tossed.

Does that mean it is okay to do it?

No.

It means that IF you missed that fine print on their website and IF you do use their reproduction on a blog or website, you can expect a cease and desist letter followed quickly by a DMCA filing. You can argue "fair use," but you are better off just removing their picture.

But, instead of snapping off a screenshot of their reproduction, if you simply must have a screenshot, I'd much rather see you snap off a screenshot of the real deal because that would be more of an argument for fair use.

If you are truly using it as a fair use (see fair use rules below), you would have a better shot at pleading your case of copyright infringement and winning.

It would be nice if you emailed to ask permission first, because many owners will gladly grant permission for a fair use as long as they know what the use is and possibly if there is a link back to their site.

Example of misuse of copyright on Flickr

Van Gogh's self portrait of 1889 is public domain
Van Gogh's self portrait of 1889 is public domain | Source

Example Of Copyright Notice On A Website

They can copyright reproductions & website design. Threats about monitoring for image usage are extreme to see on a site. Bad PR. After threats, they say to ask permission to use images that they'll probably be granted. Hmm with or without Watermark?
They can copyright reproductions & website design. Threats about monitoring for image usage are extreme to see on a site. Bad PR. After threats, they say to ask permission to use images that they'll probably be granted. Hmm with or without Watermark?

Fair Use Explained

The Copyright Act allows for copyright works to be used, for the purposes of criticism, comment, news reporting, teaching, scholarship, research as long as the work is fairly used. The four step rule must be considered to satisfy fair use:

Step 1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.

  • 1a. Purpose and Character of Use. If you are using the work to criticize (analyze), compliment (tribute), give commentary as in opinion or reviews, report as in news reporting, in teaching (not limited to a classroom), or for research, it is not considered copyright infringement. This probably covers most blogs and personal websites, but there are other factors to consider. Continue to Step 1b.
  • 1b. Where You Are Using It. If you are going to use the work on HubPages, a blog or any website where you have an advertising program enabled on your account, you should disable ads for the article using the work. That doesn't get you off the hook of being accused of copyright infringement, because it could still happen. Answering Step 1a and the rest of these steps will help decide if you are within fair use.

Step 2. The nature of the copyrighted work.

  • The Type or Kind of Work. It depends on what the work is. Is it a rare painting? Check copyright dates with the table below. Is it a celebrity? Check to see if anyone owns the rights to their name or to the estate (example: relatives) and if not, check step 1 to see if your use can be considered fair use. Is it of a YouTube movie scene (still)? Again step 1 applies along with step 3 and step 4. If the images are historical in value (documents, for example), the age listed in historical table below applies.

Step 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

  • How Much You Are Using. If the original is 2,000 pages long, and you are quoting one page, that is most likely not infringement. But, if the original is one page, and you reproduced just that one page, you have likely infringed on the copyright.
  • How Much You Are Using. Contrary to popular belief, even if you alter it by scaling down (reduce or resize) the image to just 20% of the original, for example, you are still using the image in some form and still have to pass Step 1a.

Ste 4. The effect of the use upon the potential market for, or value of, the copyrighted work.

  • 4a. Value. If your use diminished the value of the original work, that is likely to be considered copyright infringement. Commercial reproduction is closer to copyright infringement than it is to fair use because of the monetary gain. The value of the copyrighted work may be diminished by your use - why should anyone go see the original copyrighted version when they can see yours without navigating to another site? If your site gets more traffic, you have diminished the value of the original work. If your site outranks the copyright holder in search engines (gets more views and traffic), for sure they will seek charges of copyright infringement because you are deviating traffic from their website. It is all due to the commercial gain factor - because you are making money off the use on your site. If your use hasn't hurt the earnings of the original image and if you're not making money directly from that image, you should be within fair use.
  • 4b.Effect of Use on the New Site. As long as your use is not strictly commercial - where you are using the work to sell a product or where you are making money off the site because of the use of the work on the site, it is fine.
  • 4c. Effect of Use on the New Site. On the other hand, if you are using the work to essentially badmouth (negative criticism) or to denigrate the subject matter, you can pretty much be sure it is NOT fair use of the screenshot. (see step 1)
  • Fair use is the most contested use and often has to be decided in a court of law when the parties either don't get permission or can't come to a happy medium regarding the usage.

Historical Table

A photograph or other work is considered public domain if it was:

  • created before 1923
  • created between 1923-1963 without a copyright notice
  • created between 1923-1963 with a copyright notice
  • if the copyright was not renewed
  • created between 1964-1977 without a copyright notice
  • created by the federal government.

See individual country chart for "years" status after death of author.

Are Pictures In Google Search Results Public Domain?

Contrary to popular belief, just because you see a photo, text, video, or song in Google's results (or any other search engine's results), that doesn't mean it is in the public domain.

It means you searched for it and you found it! lol

Likewise, some public domain works may show up in a search engine's results, however, you will have to go the extra step to make sure they are truly in the public domain to justify your legal usage.

If a photograph of a drunk and disorderly popular A-List movie star comes back with 25 sites using the photo, by picking one of them off the list just so you can show a source where you found the photograph is a nice cover-your-ass measure, but not likely to hold up in court if it was an illegal use on that website in the first place.

Will you get prosecuted for the usage?

Look at it this way ... if you are 25th in line AND your site only gets very little traffic per week AND your use of the drunk and disorderly movie star's photo was mild in comparison to the other 24 ahead of you, chances are you will be overlooked.

But if you chose to make a derogatory commentary where you literally ream out the movie star for his behavior and call into question his manhood, his family ethics and employment responsibilities, you can expect to get a cease and desist letter, a DMCA notice, lose your advertisers, and be hauled into court of at least five offenses I can think of off the top of my head.

Google results are not public domain and are not trustworthy to list as a source. Google did not snap the photo, so they do not own it.

How To Check Public Domain Status: Flow Chart from Open Knowledge Foundation

From Open Knowledge website
From Open Knowledge website

Step By Step Directions How To Find Public Domain Pictures On Google

Public Domain Explained

When and how do public domain works get into the public domain?

There is a guideline for each country, but because my country of origin is the United States, I will keep this hub to the guidelines of the United States.

Every year on January 1, due to the fact that copyrights have expired on the works of authors who have died years ago or because the content is no longer owned by anyone, these works pass into the public domain.

This makes the work free to use for most purposes, without having to pay a fee to use it and it means that you can expand upon, make derivatives, enhance, transform or use in any manner you choose - free of charge.

That is why we see so many adaptations of old works into new plays, books or movies. (Example: updated songs, plays like The Odd Couple, many versions of Disney movies, etc.)

Public Domain Pictures (Photographs)

Don't assume just because you found a picture which everyone has been using for some time that it is in the public domain.

Don't assume just because a photograph appears to be out of copyright period, that it is in the public domain. You have to check on the death of author, add 70 years (if in US) and make sure no heirs took over the copyright.

Once a work is public domain, it is public domain forever. True?

Maybe.

There have been great attempts to buy public domain photographs and trying to include them in with collections that are covered by copyright and the law is clear on this. You can't copyright a public domain photograph. You also can't take a public domain photograph out of public domain.

Oh, but the U.S. government can.

What?

Besides the 2012 Supreme Court ruling I spoke of above, on December 8, 1994, the President of the United States signed into law the Uruguay Round Agreements Act ("URAA"). After a U.S. President signs something into law, it becomes law two years later on January 1.

So January 1, 1996, the URAA kicked in. The Act says the United States is required to restore full recognition to foreign works that fell into the public domain in the United States, due to non-compliance with formalities of the U.S. Copyright Law, as long as the source country is a member of The Berne Convention or the WTO (World Trade Organization).

If the author's home country is a member of the 168 member Berne Convention, the U.S. has to abide by the URAA. If the author's home country is not a member of The Berne Convention, the work remains in the United States public domain.

So the URAA that the President signed brought the U.S. into compliance with The Berne Convention (the U.S. joined them in 1989 and it only took them six years to come into compliance in 1996).

The treaty says that new countries joining The Berne Convention must honor the copyrights of existing member countries. So if the author's home country says his copyright is good for 50 years after his death and then it becomes public domain, no matter if it is 70 years in the U.S., all member countries have to honor the home country's ruling and put the work in public domain.

What this also meant was that all foreign works (especially certain Mexican and Canadian motion pictures which had fallen into U.S. public domain because they didn't comply with U.S. copyright time-sensitive re-filings) which had been exploited in the U.S. without authorization in the past, because of failure to comply with U.S. formalities, they were restored to full copyright protection. It reads in Section 514 of the Act as "Restored Works." It amends Section 104A of the U.S. Copyright Code (Title 17).

Public domain means that the photographs, movies or any other work has not only exceeded the lifetime of the photographer, but also plus seventy years, in the United States. Other countries have other guidelines on the number of years to exceed the author's lifetime.

When Does Public Domain Kick In?

The reasons that a work is no longer protected, so that it would pass into public domain include:

  • the copyright date for the work (author's lifespan plus denoted years) has expired
  • the author failed to satisfy regulations to sustain or renew the copyright
  • the work belongs to the United States Government (check for individual photographer credentials as not all US websites are maintained by the US government)

You have to be a little bit of a detective nowadays to make sure you are using truly public domain work. You can't always trust a website or an authority to say that a work has passed into public domain.

So how do you tell?

By doing your homework. If you are responsible enough to put your own name on a work which you have solely created, then you should be doubly responsible in making sure the other works you use in your project are attributed properly (with correct names), used with permission (you do have to ask!) or are copyright free.

If the work was published before 1923, it’s in the public domain.

If a work was published after 1963, its copyright has not expired, so it won’t be in the public domain for that reason. But it could be in the public domain if it was published without a proper copyright notice.

You can’t know how long a work’s copyright will last if you don’t know when, or if, it was published. The length of its copyright protection will depend on which law was in effect at the time of publication -- the 1909 Act or the 1976 Act.

If the work is operating under a Creative Commons license, different rules apply.

All Creative Commons licenses do not mean the work is in the Public Domain. Creative Commons is a way to allow anyone to use a work but usually a hitch in the fine print which says that the user cannot make changes to the work and still has to link back to the original author with attribution.

Creative Commons 1.0 Universal is the only license in which an author gives the work to public domain, which reads: The person who associated a work with this deed has dedicated the work to the public domain by waiving all of his or her rights to the work worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law. You can copy, modify, distribute and perform the work, even for commercial purposes, all without asking permission.

Whether it is a document (historical or not), a painting, a song, (or even just the words to a song), a photograph, a video or even an interview from long ago you found in a magazine or on film, you need to check to make sure your use is legal so you are not the one who is charged with copyright infringement.

Your name is on the project, you are the one who is legally responsible.

Is it possible for someone to renew the copyright on a public domain work?

Yes and no. Sorry, I hate answers like that too, but I have to qualify it that way.

No, not just anyone can renew and yes, someone can renew the copyright, but they have to be entitled to renew it and they have to produce all kinds of proof in order to do so. Obviously they can't be the original dead owner or the work would never have passed into public domain. But they can be the heirs to the original author.

If the widow, child, sibling, parent, or any first degree relative of the original copyrighted author applied for copyright, after satisfying all the hoop jumping, they would be issued a copyright.

However, it would only be good for up to 67 years. The 67 years computes like this: the original copyright was for 28 years. In order to bring it in line with the Sonny Bono law of 95 years, 28 plus 67 equals 95 years.

Any work published after 1923 must wait 95 years to come into public domain, instead of 70 years. See my hub on Works In The Public Domain Explained

How do I know what day of the 95th year the copyright expires before it goes into public domain?

All terms of copyright run through the end of the calendar year in which they would otherwise expire. That means, a work enters public domain on January 1 following the copyright expiration.

For example: If a book was published on June 15, 1923, it will enter public domain on January 1, 2019, not on the 15th of June, 2019. This is how they calculate it: 1923 plus 95 equals 2018 which means it is still in copyright up to December 31, 2018 and the work enters public domain on January 1, 2019.

Someone told me unsold copies with no U.S. copyright have a different guideline. Is that true?

No, not if it is rectified within five years of noticing the omission of copyright. Under the 1909 Act, works published without copyright notice went directly into the public domain upon publication.

U.S. works published without copyright notice between January 1, 1978 and March 1, 1989, (the effective date of when the U.S. joined The Berne Convention Implementation Act,) retained copyright only if efforts to correct accidental omission of the notice was made within five years by placing a copyright notice on unsold copies. 17 U.S.C. § 405.

I see websites talking about the European Union (EU) timeline. What countries are in the European Union?

See chart below

28 Countries Are In The European Union (EU)

 
 
 
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Netherlands
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
United Kingdom
 
 
Croatia was the newest country, the 28th, and admitted to the EU on 7/1/2013. Potential candidates are listed on the following graphic.

Graphic showing possible future candidates for the European Union

Source

Entering Public Domain: Works Registered or First Published in the U.S.

Date of Publication
Works Registered in U.S. Copyright Office
U.S. Copyright Term
Before 1923
None
In the public domain due to copyright expiration
1923 to 1977
Published without a copyright notice
In the public domain due to failure to comply with required formalities
1978 to 1 March 1989
Published without notice, and without subsequent registration within 5 years
In the public domain due to failure to comply with required formalities
1978 to 1 March 1989
Published without notice, but with subsequent registration within 5 years
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
1923 through 1963
Published with notice and the copyright was renewed
95 years after publication date
1964 through 1977
Published with notice
95 years after publication date
1978 to 1 March 1989
Created after 1977 and published with notice
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
From 1 March 1989 through 2002
Created after 1977
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
From 1 March 1989 through 2002
Created before 1978 and first published in this period
The greater of the term specified in the previous entry or 31 December 2047
After 2002
None
70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first
Until the Copyright Office puts out a new schedule, this is the one in effect. Source: http://copyright.cornell.edu/resources/publicdomain.cfm

Quick Facts

Birth Name: Vincent Willem van Gogh (The first name of Vincent was a family name; at least one child per van Gogh family relations was named Vincent)

Birth Date: March 30, 1853 in the Netherlands

Parents: Father, Theodorus van Gogh, a minister (d.March 30,1885), Mother, Anna Cornelia Carbentus (b. September 10, 1819- d.April 29, 1907)

Siblings: 2 brothers, Cornelis (Cor) Vincent van Gogh (b. 1867-d.1900), Theodorus (Theo) van Gogh, an art dealer (b. May 1, 1857-d.January 25, 1891), and 3 sisters, Anna Cornelia van Gogh (b. 1855 -d. 1930), Elisabeth (Lies) Huberta van Gogh (b.1859 -d.1936), Willemina Jacoba van Gogh (b. March 16, 1862 - d. May 17, 1941)

Occupation: Post-Impressionist Painter, Sketch Artist, Author of 928 letters where most information about the artist was obtained

Died: July 29, 1890 at age 37, self inflected gunshot wound. Buried in Auvers-sur-Oise, France next to his brother Theo

Heirs at time of death: Theo, his brother. When he died six months later, all passed to Theo's wife, Johanna Bonger, and their son Vincent Willem van Gogh (b.1890)

Vincent van Gogh's Copyright

For my example, I chose Vincent van Gogh's artwork for a reason ... because I can trace the copyright fairly easily to demonstrate "public domain."

When you are investigating whether something is public domain or not, you will have to do some research. This is how I followed the path of copyright to public domain.

It is assumed that Vincent van Gogh (pronounced as van Go' or van Goff') registered a copyright to his works, because he would have understood the seriousness of it due to his brother Theo being a successful art dealer, who would have encouraged it. Theo was not only his adviser, but he also supported him financially for most of his life since Vincent never made a steady living from his work.

The Berne Convention came into being in 1886 which stated that formally registering a copyright was no longer necessary and all works automatically were covered under copyright. At that time, the term was life of the author plus 50 years. It was updated in 1912 to life plus 70 years.

Vincent van Gogh became more famous after death, primarily due to his sister-in-law's steadfastness in promoting his artwork from 1891 until her death in 1925. In the last two years of his life when he was the most active, Vincent completed many of his best known works.

He had art shows in several countries. However, his shows always included the work of two or three other artists, so that he was never really showcased as an individual or solo artist. In those days, artists had to pay a stipend to the gallery to show their work and because artists were typically poor, often they would chip in with a couple of other artists to be able to afford a show. His brother, Theo, was an art dealer, not a gallery owner.

Vincent didn't start painting seriously until he was in his 20's, so in just over a decade, he produced more than 2,100 artworks, consisting of 860 oil paintings and more than 1,300 watercolors, drawings, sketches, and prints.

All his works have not been found yet, so does that mean they will be in public domain when they are found?

No, it doesn't.

It means that at the moment, they have a different owner (whomever has them in their possession) and until the owner puts the artwork in the public domain, it stays in private collection or to be bought and sold at whim. The art pieces can literally stay in private collection forever. There is no law that says a collector has to put artwork into the public domain just because most of the artist's other works are in public domain.

van Gogh's death

Vincent van Gogh never married and never had children. He died in July 1890.

Vincent's immediate heir was Theo. However, Theo died six months after Vincent in January 1891.

Theo had married nearly nearly two years before he died and his wife Johanna Bonger inherited everything from her husband Theo, including the van Gogh collections of paintings, sketches, drawings and letters.

When Vincent van Gogh died in 1890, because his country of origin was The Netherlands, the copyright term at that time was for the life of the author plus 50 years. (1890 + 50= 1940) In this case, his work would have come into public domain January 1, 1941 if the collection was not in private ownership and if no one held a copyright.

Tracing Copyright

In April 1889, Vincent van Gogh's brother Theo married Johanna Bonger.

Johanna gave birth to Theo's only son on January 31, 1890 and named him after Theo's brother, Vincent Willem van Gogh.

Painter Vincent van Gogh died July 1890.

Theo died on January 25, 1891 five days before his son's first birthday and almost six months after his brother Vincent died.

It is not known if Theo registered a copyright in the last six months of his life between the time Vincent died and the time he died.

But we do know his wife Johanna, as the new heir, registered copyrights for Vincent's paintings, drawings and sketches in 1891 shortly after her husband Theo died. It was a time when the value of the paintings was not considered to be much, but as a single parent and widow, they were counted in her assets.

In 1891, she wrote in her diary after the death of her husband that she didn't know the worth of the paintings and drawings but she knew she needed to protect them. Her intent was to sell the pieces and she may have been under the impression that she needed proof of copyright as well as proof of ownership. At any rate, she was granted a copyright in 1891. Keep in mind, for that country, copyrights were only for 50 years.

Now do we calculate the term from Vincent van Gogh's timeline or do we calculate it from Johanna Bonger's copyright timeline?

She was not the author. The paintings were signed by Vincent van Gogh, he is the author so we use his timeline. The fact that she was granted a copyright at this point is inconsequential because she was not the true author; she was a protector of the works. In those days, a copyright protected the work from being copied or claimed, and it is possible that is what she thought her piece of paper was good for.

It wasn't until she had a successful art exhibition that she knew Vincent's work was a legacy she had to preserve for her son. This gave her a new direction in her life, at a time when she was a newly single mother with no employment. However she did marry again and that improved her financial situation somewhat as well as being a letter and manuscript translator.

After registering the copyright, Johanna had art shows until 1905. From 1890 to 1923, she sold 247 of Vincent van Gogh's paintings and drawings, though her correspondence, diary entries, and letters show the number to be substantially more than that.

From 1890 to 1925, she was also the keeper and translator of Vincent's and Theo's letters. She made her living primarily by translating short stories from French to English and from English to Dutch. It is because of Johanna's typewritten translations of over 800 letters that we get to know Vincent, the man and the painter, giving us details about his life, relationships, health, faith, love, and beliefs.

Johanna Bonger van Gogh remained the sole heir to Vincent's paintings until her death in 1925, keeping up with the legalities of copyright and ownership from 1891 to 1925, which was 34 years.

Heir: Vincent Willem van Gogh

When Johanna died, her son Vincent Willem van Gogh became the heir to his uncle Vincent van Gogh's works. The copyright did not pass to him. Early on, he didn't show as much, if any, interest in the artwork except for loaning them out to various museums. He was an hydroelectric engineer and later a consultant with that industry for most of his early life. He married and had 3 sons and 1 daughter. In 1933, his wife Josina died; he became despondent. His business took a turn for the worse due to the Depression, but he still didn't sell any of the paintings.

Vincent Willem van Gogh kept the collections in his homes and continued to lend them to museums. However, when World War II was imminent in 1939, he became concerned about the safety, promotion and preservation of the van Gogh art collection and stopped loaning them to museums. He married a second time in 1942 to Nelly van der Goot.

Because Vincent still had the collection in his possession, the artist's 1940 date of coming into public domain doesn't apply because the collection was family owned. The Berne Convention was amended in 1912 to extend copyrights to 70 years but it wouldn't apply here because there was no copyright at this point.

On March 8, 1945, tragedy struck Vincent's oldest son, named Theodore after his father. He was executed by the Germans, accused of being a resistance fighter. When the war was over, Vincent started to think about locating a permanent museum for the artwork.

But it wasn't until 1960 that he, his wife Nelly and several family members and friends became members of a Board of the Directors to start the Vincent van Gogh Foundation with the intention of keeping the artwork together and possibly having a museum built to house them.

That came to be in 1962 when he and the Foundation's board signed an agreement with the State of The Netherlands to build a museum in the painter's honor.

The van Gogh family members contributed $15 million (in 1962 dollars), 200 paintings by Vincent van Gogh and some other works by his friend Paul Gauguin, about 400 drawings, and 800 plus of Vincent's letters - all these were given to the State of the Netherlands. Vincent van Gogh had over 2100 paintings, drawings and works, so this was only a small part of the collection.

The Amsterdam van Gogh Museum opened eleven years later on June 2, 1973.

Vincent van Gogh's wife Nelly died in 1967 and he died in 1978. The copyrights have never been renewed and van Gogh's works are public domain.

However, as a point of interest for anyone familiar with the van Gogh name, more tragedy followed this family. Vincent's second son John was the father of the famous filmmaker Theo van Gogh who was assassinated in 2004 in direct retaliation for a movie he made about Muslims. Click link to read about his murder, his film career as a producer, actor and writer.

Will Vincent van Gogh's Artwork Always Be In Public Domain?

Since Vincent van Gogh's paintings, drawings and letters have passed into the public domain by way of a gift to the State of the Netherlands in 1962, there are no claims to the copyright which can be claimed at this point in time.

There is also no way van Gogh's works can ever be removed from U.S. public domain and I'll tell you why --- van Gogh's art collection is not the property of the United States. The van Gogh collection is the property of the State of Netherlands, a country who is very unlikely to remove the works from public domain, especially something so valuable and important to art and culture of the world.

So, van Gogh's work is safely in the public domain and free to use without impediment of infringement.

Example of Permissible Use of Public Domain Picture

If a picture is public domain, you can transform it, write on it, change colors, frame it, change size, add people or objects. anything goes.
If a picture is public domain, you can transform it, write on it, change colors, frame it, change size, add people or objects. anything goes.

So What Am I Allowed To Do With Public Domain Works?

With public domain, everything is fair game. There are no restrictions, no one to ask if this or that is okay, and as long as you are making your own expression from it in good taste, your use will likely be very welcomed by the masses.

You can write a book using the same locale as, for example, Tale of Two Cities, by Charles Dickens.

All of Charles Dickens' works are in the public domain. You can name your characters differently, or not. You can use the same locale or a different one. You can follow the same story line (as in a remake) or you can alter it. You can even use the same title for your story.

You can reproduce a painting using any medium you want.

In the photo of van Gogh below, a very creative fellow made a modern day photograph using one of van Gogh's paintings as a model.

You can put new music to lyrics or you can put new lyrics to songs.

We are hearing more and more ways that recording artists are changing musical arrangements around to old recordings, or keeping the arrangements and changing the words. It is their expression of art on an old standard which is in the public domain.

You can paint the same scene and just replace the colors with your own color schematic.

If a winter scene was too snowy or didn't have very many houses in the painting, you could paint the same scene and add more houses, add more snow, change the colors of the sky or scenery, add people, animals, vehicles, horses, anything goes!

Van Gogh - Before and After Example of Derivative Use of a Public Domain Work

Photographer Tadao Cern recently created  photo of Van Gogh  to recreate it as a still photo.
Photographer Tadao Cern recently created photo of Van Gogh to recreate it as a still photo. | Source
Result - with his imprint to copyright it
Result - with his imprint to copyright it

Reproduction Van Gogh on Ebay (Notice copyright imprint)

This modern postcard features a reproduction of Dutch post-impressionist Vincent van Gogh's 1889 self portrait. starting bid is $4.99
This modern postcard features a reproduction of Dutch post-impressionist Vincent van Gogh's 1889 self portrait. starting bid is $4.99 | Source

Is It Real Or A Copy?

A painter painted his version of van Gogh's famous self-portrait painting. Whether he was trying to make it an exact copy or not is beside the point.


The point is that he "shows" it as a reproduction and as such, he can put his imprint (and copyright) on the new painting.


He is permitted to do this because the original van Gogh painting is in the public domain, available for anyone to create their own expression from it.


Any work in the public domain is available to expound, change, or build upon in any manner one chooses.



Once In The Public Domain, Always In The Public Domain?

Commentary

There are those who worry that great treasures may be removed from public domain in the future.

They only have to worry about that with one country, so far -- the United States.

That is because of the fickle change in copyright rules and their 'power' to remove from public domain that which we have enjoyed freely for some time in the past and that which we have adapted to our own expression of art as was our right with a work in the public domain.

If the United States were to exercise its banning or removal of any body of work from the public domain after it has resided there for any length of time, as it clearly intends to do, if one believes the 2012 ruling of the Supreme Court by Justice Ginsburg, it would be a most unwise choice on their part for a number of reasons.

First, their conduct could be viewed as a violation of The Berne Convention (which they just joined in 1989 swearing to honor the ways and rules of other 167 member countries!). By joining, they also agreed to make public domain available to all 167 member countries. To pull something back and say "No, we want to charge for usage of that now" might not go over too well and they could be kicked out.

Secondly, since there are so many derivative works stemming from the public domain access, including paintings, movies, books, letters, plays, photographs, and various types of art expressions, that it would be impossible to trace and recall each of derivatives to pull them from public domain as well, which is the normal course when one item has been pulled from public domain.

Just look on this page at the derivatives from Vincent van Gogh's work. It is but a small sample of how creative people expound on works in the public domain.

One Supreme Court legal brief I read suggested an alternative is to have the derivative artists pay a usage fee. Money again!

Another legal brief said that all derivative uses would be charged with copyright infringement after the public domain work was removed from public domain. A lot of good that would do, unless the government was sure a fine would be levied and they would (again!) make money off of it.

One friend of the court brief to the Supreme Court argued that it would be ludicrous to charge derivative artists with copyright infringement against any public domain works which are no longer available, because they were within their legal rights when the work was freely in the public domain when they created their new work. This was the only levelheaded brief I read out of all of them!

Another example:

The 1923 movie "The Hunchback of Notre Dame" has been in the public domain since 1950s. It has been remade into new movies no less than 12 times. The story has been retold in several venues. It has been made into ballets, musical theatre, television programmes, cartoons, audio books, comic books, and the list goes on. Just think: one public domain work had all these derivatives stem from it.

If that one 1923 work was put back under copyright (pulled out of public domain for whatever reason), all the derivatives would have to pay a fee for adaptation use so as not to be guilty of copyright infringement. No future works would be able to be made from the newly re-copyrighted 1923 version unless they paid the fee to be allowed permission.

It doesn't make sense to take something out of public domain just for the almighty buck, when the public has already benefited in many ways from the original work in being able to adapt it because they were told they could do "as they so choose" with a work in the public domain.

You can see how unreasonable it is to pull one thing from public domain when other works were a commentary, a derivative, if they expounded on it or new works were created from it.

As much as has been said in the briefs of the Supreme Court decision about tracing and removing derivative works from public domain when the source work is removed, it will be a monumental task to do so.

But ... money talks, and that is what it is all about when the U.S. government exercises its authority in removing works from public domain.

The Supreme Court decision specifically says that two of the reasons to remove works from the public domain are so that

  1. all works created at the same time as the public domain work in question or authors whose copyrights expire at the same time, these works will all be released into the public domain at the same time for the year of expiration of term, (for example, all 1935 works released with other 1935 works) AND
  2. so that "a copyright holder" OR his heirs can have the opportunity to apply for copyright in order to reap some financial benefit from the act of owning the copyright on the work and to control in what fashion and where the work will appear.

All for the arbitrarily and argumentative reason of money.

My opinion is --and we all know I have one - public domain should be viewed and treated the way President George H Bush (the father) spoke about our Social Security program.

Leave it alone!

When In Doubt, Do Without

If you are not sure, if you cannot find anything to back up your free usage, if you come across more nays than yays, do without.

Do Not Copy - Thank You!

Do not copy this article
Do not copy this article


© Rachael O'Halloran, June 1, 2014

© 2014 Rachael O'Halloran

Comments

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  • RachaelOhalloran profile image
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    Rachael O'Halloran 2 years ago from United States

    Hi Essie!

    Thank you so much for your compliments and votes :)

    I'm glad you found some useful info here.

    Rache

  • EsJam profile image

    Essie 2 years ago from Southern California

    Wonderful, helpful, and skillfully written! This is a treasure trove of useful information!

    Voted up! Interesting! Useful!

    Essie

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #RonElFran

    Thank you.

    I get questions emailed to me weekly asking me to explain some fine point in either this article or one of the other copyright articles I have written. I don't profess to know all the ins and outs, but I do understand most of it. Feel free to drop me a line if you have questions. What I don't know, I usually consult an Intellectual Property attorney who is a friend to my husband and I, so that when I write copyright and public domain articles here on HubPages, they are correct and true facts.

    Thanks for reading through this, for your praise and your comment.

  • RonElFran profile image

    Ronald E Franklin 3 years ago from Mechanicsburg, PA

    Rachael, this is the most comprehensive discussion of copyright I've seen. To be honest, I still don't understand it all, but that's certainly not your fault! Great job.

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #Faith Reaper,

    Thank you! :)

  • Faith Reaper profile image

    Faith Reaper 3 years ago from southern USA

    Congratulations on your Hubbie for this Most Useful Hub!!!

    Blessings always

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #teaches12345,

    Thank you for reading my article and for your comment.

  • teaches12345 profile image

    Dianna Mendez 3 years ago

    Thank you for sharing this important information. As a writer, one must be very careful when using other's photos. In general, I use my own work. Your facts will help me keep legal when I do choose to use public domain photos and works.

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #Jackie Lynnley,

    I'm going to refer you to the comments of this link to see what I've told others about watermarking photos.

    https://hubpages.com/education/Spotlight-On-Works-...

    All you can do is text write your name on each photo toward the center so that it can't be cropped off. Sending a cease and desist email usually gets the infringer to take down the photo but by then, who cares, it's already been used and seen by umpteen readers already.

    So I also see your point as to why bother. Identifying your photo so that you know it is yours is about the only peace of mind you can have, because once you put something on the internet, it is gone and will be duplicated ad infinitum.

    Thanks for reading and please read the article at the link as well as the comments about watermarking.

    Rachael.

  • Jackie Lynnley profile image

    Jackie Lynnley 3 years ago from The Beautiful South

    This whole thing is such a headache; isn't it? I am doing my best to add "everything" to my photography to use myself but it seems there is always something we just have to have that we don't! I have had my pictures stolen left and right and of course it is not worth what I would have to go through to do anything about it.

    Interesting article and extremely well done!

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #vkwok, Thank you for reading :)

  • vkwok profile image

    Victor W. Kwok 3 years ago from Hawaii

    This is a very interesting and well-researched hub. Thanks for sharing!

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #TotalHealth

    Public domain usage has always been a gray area. Thank you for your comment, and for following me.

  • TotalHealth profile image

    TotalHealth 3 years ago from Hermosa Beach, CA

    Impressive research covering copyright law. I saved the URL for a second read! Kudos!!

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #bravewarrior

    We all have to do extra homework because of all the bad info that is out there. lol Thanks for reading :)

  • bravewarrior profile image

    Shauna L Bowling 3 years ago from Central Florida

    Wow, you've certainly done your homework, Rachael! I agree with you. Once something attains Public Domain status it should remain there. Pulling it out to make a buck is just wrong.

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #Vellur, There is another hub on this subject too. Thank you for reading and commenting.

    Rachael

  • Vellur profile image

    Nithya Venkat 3 years ago from Dubai

    Great hub, interesting, informative and excellent research work. I have learned so much about public domain images. Thank you for sharing this hub, voted up. Bookmarked for future reference.

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #FlourishAnyway

    Thank you for your kind praise. I love getting lost in the research and I guess that shows through. I'm glad you liked my two public domain articles and thank you for your comment.

    Rachael

  • FlourishAnyway profile image

    FlourishAnyway 3 years ago from USA

    You have so thoroughly researched this. Its depth is impressive. Although I did not leave a comment on your other copyright hub, I read that one, too, and was similarly impressed by your skills. You may have missed your calling as a researcher or professor. One fine job.

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #csmiravite-blogs - I have such a good time researching almost every article I write because they all involve some level of research. Often I get lost in the clicking of links so that a typical article that should have taken me 6 hours or so to write, will often stretch out to 10 to 12 hours. In the interim, I have fodder for 3 or 4 more hubs with all the research I find. I so enjoy what I do and I am glad you enjoyed it too.

    Welcome to my hubs, I hope you take a look around while you are here.

    Thank you,

    Rachael

  • RachaelOhalloran profile image
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    Rachael O'Halloran 3 years ago from United States

    #travmaj,

    Thank you for your praise and most of all for reading through this rather long article. It is great that you take your own photos, but please get in the habit of watermarking them so that your name will go with the photos in the event that someone takes them - and they will - because they take everything on the internet because they think it is free to take! Use Picasa or a Paint program and make sure you don't put your name on an edge where someone can crop it off. I use colors that blend and usually put my name near hair, a shoulder, in the petal of a flower, in a window, somewhere I know I'll see it but it won't be obvious to someone just glancing at the picture.

    Anyone who takes their own photos should get in the habit of watermarking - all that means is putting your name in on them far enough into the photo so someone can't trim it off.

    Thank you for your comment,

    Rachael

  • csmiravite-blogs profile image

    Consolacion Miravite 3 years ago from Philippines

    Wow! The research for this article must have been awesome! I enjoyed reading it and it was an eye opener about Public Domain pictures and Vincent Van Gogh as well.

    What a mighty fine hub! Great work!

    writer_csm

  • travmaj profile image

    travmaj 3 years ago from australia

    Rachael, you write the most informative and fascinating hubs. I agree with Jodah, this is truly a wonderful research tool. I'm not savvy either! I'll be extremely careful and take lots of my own photos. As I write mainly travel I'll keep secure. But I know I'll keep your references handy. Thank you - voting up

  • RachaelOhalloran profile image
    Author

    Rachael O'Halloran 3 years ago from United States

    Thank you to all of you for reading and commenting. The notifications are all messed up on HubPages so I am just now getting to see that you left comments.

    The other hub about public domain is published now too.

    https://hubpages.com/education/Spotlight-On-Works-...

    Thank you,

    Rachael

  • Jodah profile image

    John Hansen 3 years ago from Queensland Australia

    Good info Rachael. I am not very savvy when it comes to copyrght issues, so this hub is handy reference for me. Voted up.

  • MsDora profile image

    Dora Weithers 3 years ago from The Caribbean

    Rachael, thank you doing the research and presenting all these details on copyright, in or out of public domain. I have learned a few things. Thank you and voted up!

  • Artois52 profile image

    Artois52 3 years ago from England

    Thanks for posting this. I've always been worried about what I can use, what I can't and what attribution I should apply to images. There's a lot of info here so, i'm going to read and digest it in detail later!

  • Elizabeth Bowers profile image

    Elizabeth Bowers 3 years ago from Tennessee

    Wow. This was extremely in depth and very helpful. I love that you used van Gogh as your example, as I love his work. This was an extremely impressive Hub and you must have spent a lot of time and effort putting it together, so I applaud you. Thank you for sharing your talent and insight!