Submission Date:
Question:
Is it permissible to create an anthology of 20-30 poems, all by British poets, to be distributed to an entire grade level of students to be used for annotation and instruction? [It’s been suggested] that "since they're all available on the internet" they should be able to printed, collected, bound, and sold to students. A few things that I am unclear on are:
1. Does it make a difference that they are British poets whose work is in the public domain (as I understand, 70 years after death of author)
2. Does it make a difference that the collections are intended to be SOLD to students?
3. If they are, in fact, available through sites such as Project Gutenberg and https://www.whitemarketpodcast.co.uk/blog/2015/10/08/public-domain-poems-for-national-poetry-day/ are they okay to copy, bind, and sell?
Answer:
I wandered lonely as a cloud…wondering “is there a way to create our own custom array of poems by Wordsworth, Keats, and Burns?”
The answer is: Yes. If a poem was published before 1923[1], or meets certain other criteria, it is in the public domain. Being in the “public domain” means it is free from copyright protection, and that any would-be publisher may generate, duplicate, and sell their own version of it—with or without new illustrations, new original commentary, and other non-infringing works.
When taking on such a project, the critical factor for worry-free re-use is publication before 1923. For such poems, status in the public domain is assured.
For poems published after 1923, the analysis is a bit trickier. There is no hard-and-fast rule; the place of publication, the manner of claiming copyright protection, and the life of the author are all relevant. Cornell maintains an excellent chart that breaks down the factors to consider when assessing if a work is in the public domain.[2]
Public domain status, or permission from the copyright owner, is something a would-be publisher should verify on their own. It should not be assumed, even if the poem is free for download on the internet. Even Project Gutenberg puts terms and restrictions on its content (see the Project Gutenberg License), and does not guarantee that a work is in the public domain (check out PG’s statement on this issue).
Once a would-be publisher has a method for confirming that the poems are in the public domain, it does not matter how many poems they use. When working with public domain material, there is no limit on how many works can be assembled, duplicated, and distributed.
That said, there are a few serious caveats.
First, a publisher must truly verify that each and every poem was published (not written, but published) before 1923, or that any post-1923 publication meets the factors on the chart.
Second, a publisher must make sure they are not infringing someone else’s updated version of a public domain poem. All of Chaucer’s works may be in the public domain, but a new translation, or a copy with new cartoon illustrations, is not. To avoid any charge of copying, it would be best to re-type the poems. Do not copy a recently annotated version. Do not scan a newly illustrated version. Do not simply cut-and-paste. For the final compilation[3] to be owned and then sold by the new publisher, the typing should be done by an employee, as part of their work.
Third (but very important!), if preparing copies of public domain materials for sale, take care that trademarks are not a part of the newly compiled content. As an example…a publisher can re-print a pre-1923 poem about Coca-Cola, but can’t use the Coca-Cola logo to sell the copies (unless its for commentary/criticism, but that’s a fair use question…). Make sure the school has the rights to any images that are used.
Overall: The member’s question models the sense of caution when using previously published material. But with the above caveats in mind, a new publisher can relax, share some poetry, and say:
For oft, when on my couch I lie
In vacant or in pensive mood,
Poems flash upon that inward eye
Which is the bliss of solitude;
And then my heart with pleasure fills,
Thinking I will have no legal bills.
[1]When "Ask the Lawyer" started in 2016, the author was not thinking about how, just a few years later, the "Public Domain" date would change. To preserve this shameful lack of foresight, but also ensure accurate information, as part of the "2021 ATL Audit" we are adding this footnote: Please substitute "1923" with [whatever year it is minus 95]. For instance, if it is 2021, the year should be 1926. When in doubt, visit the excellent chart at https://copyright.cornell.edu/publicdomain.
[2] While rare, some copyright owners simply announce that their work is free to use, or free to use with very limited restrictions. Such an announcement should be verified and documented before being relied on.
[3] If the end product is simply a gathering of public domain material, it might not have sufficient originality to be subject to copyright. But if new illustrations or instructional materials are included, it might.
