Artwork in the public domain can generally be reproduced, adapted and used commercially without copyright permission. However, copyright and trade mark rights are separate, and using a public-domain image in certain circumstances could still infringe an existing trade mark.
What's the Difference Between Copyright and Trade Marks?
Copyright protects original creative works, such as paintings, illustrations and photographs. Once copyright expires, the work normally enters the public domain.
Trade marks, on the other hand, protect signs used to identify the commercial origin of goods or services. These can include names, logos, symbols and, in some circumstances, images or distinctive designs.
Unlike copyright, registered trade mark protection can potentially continue indefinitely, provided the registration is maintained and the relevant legal requirements are met.
When Could Using Public-Domain Artwork Infringe a Trade Mark?
Imagine an illustration created more than a century ago that is now in the public domain. A company might also use that illustration, or a distinctive element of it, as a registered trade mark.
Reproducing the original illustration as a decorative print would not automatically infringe that trade mark. However, using it as a logo, product branding or other commercial identifier could create legal problems, particularly if customers might mistakenly believe your products are connected with the trade mark owner.
Trade mark rights can also protect well-known brands against certain uses that unfairly exploit or damage their reputation, even where consumer confusion is unlikely.
The important distinction is how the image is used, rather than simply whether the artwork itself is out of copyright.
How Can You Protect Yourself?
Before incorporating public-domain artwork into a commercial product or brand identity:
- Check whether the image or a distinctive element is registered as a trade mark.
- Consider whether your intended use might suggest an association with another business.
- Search relevant trade mark registers, particularly in countries where you intend to sell.
- Seek professional legal advice if there is uncertainty.
The UK Intellectual Property Office and United States Patent and Trademark Office provide searchable trade mark databases.
A Final Consideration
Public-domain status is an important freedom, allowing historical artwork to be enjoyed and reused. It does not, however, guarantee that every possible commercial application is free from legal restrictions.
At Public Domain Image Library, we provide artwork believed to be out of copyright. Customers remain responsible for ensuring that their intended use does not infringe any applicable trade mark or other third-party rights.
This article is intended as a general guide, not legal advice. Copyright rules vary by country, and trademarks, moral rights, estate rights or rights in later editions may still affect particular uses.