Should Public Domain Be Viral?
by Larry Heyl - CC0 - public domain

If you build on a copyrighted work you produce what is called a derivative work. You don't really own this. The copyright holder has rights involved. Rights to the characters, the world, the trademark, etc. So if you want to do anything with your derivative work you have to go to the copyright holder and get an agreement, usually a licensing agreement with revenue sharing. Often the copyright holder will not want an agreement and you cannot publish your derivative work without violating the copyright.

If you build on a public domain work that is all completely legal. I am in favor of people building on public domain works whether the are declared public domain by the creator or whether they have become public domain because of the age of the work.

The question is should a derivative work of a public domain work be eligible for copyright? If the creator still held the rights to that work your copyright could be contested and would probably be found invalid. Why is this different for a work already in the public domain? Shouldn't the public domainness of the work attach itself to derivative works?

There is a legal argument that supports this called prior art. If someone sues me for using a chord change that is in their copyrighted song and I can show where this exact chord change was used by J.S. Bach then that is a prior art argument. The copyrighted change was already public domain and I can claim I learned the change by listening to Bach.

This is not exactly parallel to a viral public domain that attaches to derivative works. It's more of a durability of public domain art in spite of later claims to the same idea or in this case, a chord change.

I think it would take legislation to turn the public domain viral and attach itself to derivative works. I also think the possibility of getting this legislation passed is approximately nil.

Because there is not a lot of money to be made by making the public domain viral but there's a whole lot of money made every year by companies appropriating the public domain and using it in their products. And they want to make sure they are protected by copyright even when they have no rights to the original work.

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Disclaimer - This is a thought experiment. I am a free culture advocate. I am not a lawyer. But I do know this. In the US every copyright claim is adjudged on a case by case basis in Federal Court. Every case is up in the air as to the results. And the minimum nut to go to Federal Court is $50,000. So it is a game for those with deep pockets.