It's Too Hard to Put Artwork Into the Public Domain

Dave Fagundes is a professor of law at the University of Houston Law Center, where he studies tangible and intangible property. Aaron Perzanowski is the author of The End of Ownership and Creativity Without Law. He is also a professor of law at Case Western Reserve University School of Law, where he specializes in copyright, trademark, and property law.

Earlier this month, the Smithsonian Institution released nearly 3 million images with the stated goal of abandoning its copyrights and dedicating those works to the public domain. The Smithsonian joins the Metropolitan Museum of Art, acclaimed photographer Carol Highsmith, and thousands of software developers, artists, musicians, authors, and photographers around the world in the effort to part with unwanted copyrights. But it turns out that it's not so simple to just give something away. Abandoning copyright is surprisingly complex.

Many of us have abandoned property. Prompted by a move across town or the sudden urge to redecorate, you decide to get rid of an old couch or a stack of used paperbacks that were taking up precious space. The most responsible among us list those items for free on Craigslist or arrange for a local charity to pick them up. Property law would call that a gift. But those of us less concerned with the orderly distribution of unwanted property simply carry the couch and the paperbacks to the nearest sidewalk and leave them there, perhaps with a hastily scribbled sign reading “Free.” That’s abandonment. When it comes to personal property, like couches and paperbacks, the law allows abandonment, within limits. You can’t just dump your unwanted junk anywhere, like a public park or someone else’s front lawn. But you’re generally free to leave your unwanted property free for the first taker.

But far fewer of us have felt the urge to abandon a copyright. First off, you might not even think of yourself as a copyright holder. But we promise, you are. Musicians, filmmakers, authors, and their publishers own copyrights. But so do everyday people. Every photo you take on your phone, every email you send, every doodle you draw on the back of a cocktail napkin is eligible for copyright protection. And since 1978, copyright in the United States has been automatic. There’s no formal process necessary to secure a copyright. If it’s saved in some durable form—“fixed in a tangible medium,” in copyright parlance—and minimally creative, any work of expression you make is automatically protected by copyright until the day you die, and for 70 years after, when it enters the public domain and becomes free for all to use.

But even if you recognize yourself as a copyright owner, the incentives to abandon unwanted copyrights are minimal. Unlike your old couch, the copyright in that photo you took of last week’s poke bowl or the shaky concert footage you bothered to record a month ago impose no ongoing costs of ownership. Copyrights are intangible legal rights; they don’t take up space. Unlike patents or trademark registrations, there are no fees associated with maintaining copyright ownership. And who knows, maybe that concert footage will turn out to be worth some money someday. So why bother abandoning it?

For some, like the Smithsonian, the answer is rooted in the broad public benefits of abandonment. By contributing works to the public domain, copyright holders make them available for anyone to use at no charge and without seeking permission. That means abandoned works can be shared freely, adapted into new creative works, and incorporated into databases, search tools, and even AI training data.

These upsides of copyright abandonment are in sharp contrast to the effects of personal property abandonment. When you abandon a couch, you rid yourself of a nuisance but run the risk of inflicting harms on the rest of society. Maybe someone happily snaps up your ratty old couch. If so, it’s a win-win. But maybe it sits there, blighting the neighborhood for days or weeks, until it’s finally disposed of by sanitation workers at public expense.

The copyright system depends on the availability of unowned works to serve as a basis for future generations of creativity. Given the relative trickle of works entering the public domain as a result of the Copyright Term Extension Act, which starved the public domain for two decades, a voluntary mechanism for abandoning copyright is particularly important. Not surprisingly, we’ve seen the emergence of the copyleft movement give rise to private efforts like the Creative Commons 0 designation or the Unlicense designed to give copyright holders a simple way to abandon unwanted works. But those tools depend on legal recognition of copyright abandonment. The Copyright Act doesn’t mention abandonment. The Copyright Office takes no position on whether these efforts to abandon are effective. And no court has yet determined that they get the job done. So while many owners believe they’ve abandoned their works, whether they’ve actually managed to do so remains an open question.

So we set out to uncover whether and how a copyright could be fully and irrevocably abandoned under U.S. law. As it turns out, the answer is complicated. We began by tracking down every published court decision that discussed copyright abandonment. We identified 131 cases, stretching back to 1834, that squarely addressed this question. Only 17 of them found that a work had actually been abandoned.

On the whole, courts are quite clear on what owners have to do to abandon a copyright. And it’s the same thing owners of physical property have to do: form an intent to abandon and engage in some act that clearly communicates this intent to outside observers. But how courts apply this straightforward test in practice is unpredictable. In one case, a court held that an architect who entered a contest to design the new World Trade Center abandoned his copyright, preventing him from successfully suing when that design was used to construct a Trump property instead. In another, the court found that the creator of a meditation video did not abandon his copyright despite public statements that he “let the video go out to the world unrestrained” and “never cared about the copyrights.”

Part of the problem is that the abandonment test makes a lot more sense in the context of physical property than intellectual property. Unlike your unwanted couch, which you can put on the sidewalk to indicate your intent, then there’s no physical object you can discard that communicates your desire to abandon an intangible asset like a copyright.

That’s not to say the law gives owners no options to abandon their copyrights. The cases suggest that a clear, unambiguous written statement, like the CC0 designation, that permanently relinquishes all rights to a work should do the trick. The problem is that there’s no officially-recognized pathway to abandon a work under U.S. law. Instead, we have to rely on courts making case-by-case determinations.

Here’s what we think should happen instead. The Copyright Act should be revised to recognize abandonment, and the Copyright Office should offer a clear, standardized, and legally enforceable method for doing so. Copyright owners should be able to file a simple form to publicly declare their intention to abandon a work. And filing that form should be free, as opposed to the Office’s usual $105 fee. In addition, the Office should create a searchable registry of abandoned works, so the public can actually find and use them. Ideally, this process would recognize the validity of the millions of works already abandoned under the CC0 designation as well.

Aside from recognizing abandonment, it’s worth considering whether the law should encourage it. Dedicating a work benefits the public but requires the owner to give up control and potential revenue. So policymakers should consider tools that create incentives, like tax breaks or small cash payments, for authors to abandon unwanted copyrights.

We don’t think anyone should be forced to abandon a copyright. So if you want to hang onto your rights in that photo of your lunch, then by all means keep them. But since we are all granted copyrights whether we want them or not, the law needs to provide an opt-out mechanism. And since abandonment entails both effort and risk, the law ought to provide enough encouragement to overcome the inertia of automatic copyright protection. By making abandonment available and attractive, copyright law could enrich the public domain and better fulfill its goals of encouraging the production of and promoting access to creative works.

And just to prove that our commitment to copyright abandonment isn’t merely academic, we hereby abandon all copyright interests in this article, fully and irrevocably, effective March 18, 2020.