Here at Selling Jesus, we advocate that ministries release their content into the public domain.^[1] Among other reasons, we believe this to be the most consistent approach to Jesus’s command to “freely give” in Matthew 10:8.

However, a question occasionally arises at this point: Couldn’t another party republish that content and claim it as their own? Further, couldn’t they then take legal action against the original creator who hadn’t claimed copyright?

For lack of a more official term, I’ll refer to this as “copyright hijacking.”

1. The Public Domain Is Not New Ground

Often, people have this concern because they believe the public domain is untrodden territory, and they would be taking a relatively new risk that others have not. This simply isn’t the case.

Innumerable older works are already in the public domain and have been for a long time. While someone could claim authorship of older works and then use this to litigate others who might republish, we’re not aware of any cases where this has happened.^[2]

Works by the US Government are in the public domain. This would include the speeches of government agencies as well as any information produced directly by them and not some third party contractor. These comprise millions of documents and recordings. Once again, we’re not aware of any case where someone has claimed ownership of one of these works and then used that claim to litigate others.

Other public domain dedications have been around for some time. The most popular of these, Creative Commons Zero, has been in frequent use since 2009.^[3] If copyright hijacking is such a serious threat for works dedicated to the public domain, where are the manifold examples of a Creative Commons Zero work being hijacked in this way?

2. Copyright Hijacking Is Not Legal

Perhaps the main reason folks worry about copyright hijacking is because they imagine it is legal. However, it is not. If one waives their rights to a work, there is no legal ground for another party to come along and claim those rights exclusively.

The Berne Convention (an international copyright treaty) addresses these matters with common sense. Rights are granted specifically to authors, not publishers or other distributors.^[4] Someone may falsely claim to hold the rights to a work “in the absence of proof to the contrary”, but this “shall cease to apply when the author reveals his identity and establishes his claim to authorship of the work.”^[5] Likewise, in the United States, one has to be the author of a creative work or receive a license from that author in order to claim exclusive rights.^[6] Apart from such licensing, no prosecution would have legal standing. Any evidence of prior authorship would immediately render the claim invalid.

In fact, a claim to ownership over a work authored by another and dedicated to the public domain would not only be invalid but potentially would even be subject to litigation. One photographer who had dedicated her images to the public domain brought a lawsuit against Getty Images for claiming ownership of her photos. The court agreed with Getty that the public domain photos could be commercialized but it also upheld the photographer’s claim^[7] that Getty was acting deceptively by claiming ownership of them. While the parties involved ended up settling outside of court, it is evident from this case that you cannot claim exclusive rights to a public domain work, and even large corporations can’t get away with falsely claiming ownership.

These are basics when it comes to copyright.^[8] Simply put: when one waives exclusive rights, that exclusivity does not become “up for grabs.”

3. Asserting “All Rights Reserved” Does Little to Prevent Copyright Hijacking

Even if one does claim “all rights reserved” on a creative work, it does little to prevent copyright hijacking.

Regarding unintentional actors, there are some instances where a public domain work, because it is freely available, may be added to a system designed to detect unauthorized copies. By all appearances, this is what happened in the Getty Images case.^[9] However, other well-known phenomena like the frequency of false YouTube copyright strikes on original content make it evident that platforms will often claim third party ownership even of fully copyrighted works. In either case, legal recourse is available.

Regarding malicious actors, there is no difference. One could just as easily claim authorship/exclusive rights to work that is dedicated to the public domain as they could to a work that is not. Criminals don’t stop simply because you put a sign up that says, “You’re not allowed.”

4. Copyright Registration and Public Domain Dedications Are Not Mutually Exclusive

If even works with “all rights reserved” are subject to copyright hijacking, what is the remedy? The generally recommended solution is copyright registration. By registering with the copyright office, you make some public record that could assist you in the event of litigation and would even be necessary if you were the party filing legal action.

In fact, this is exactly the same approach one can take with a work dedicated to the public domain. Dedication to the public domain does not change whether a work can be registered. Stated differently, what you intend to do with the work and how you intend to license the work does not affect the authorship of the work.

Of course this registration process takes several months^[10] and costs $65.^[11] Depending on the quantity of creative works your ministry produces, registering each could become onerous. Furthermore, legal protection still exists even without this registration, which is why few choose to pursue this route with most forms of creative works. Practically, uploading your work on a third party website like archive.org under your own account would provide equivalent evidence of authorship while being both quick and free.

5. Principle Trumps Pragmatism

Finally, it’s important to ask such hypothetical questions about copyright with the right mindset. There are commendable ways of approaching this concern:

• How do I dedicate my work in the public domain responsibly so that I don’t open myself or others up to unnecessary harm?
• Are there any implications to the public domain that would prove inconsistent with other moral imperatives in Scripture?

There are also less honorable approaches. For example:

• Regardless of what Jesus commands, what approach seems like it will ensure my ministry has the most success?
• What justifications can I find for withholding generosity in ministry?

While we should walk by faith and not by sight in every area of life, this is especially true in the work of ministry. In fact, the Bible specifically tells us that pragmatic (results-oriented) approaches to generosity typically don’t play out as one would expect.

One gives freely, yet gains even more; another withholds what is right, only to become poor. (Proverbs 11:24)

Let me encourage you to take a step back and examine your heart around whatever concern you may have regarding copyright hijacking.

Conclusion

While copyright hijacking is a real thing, it is a rare threat and should not be a major concern for ministries. Moreover, the difference between asserting “all rights reserved” and making a public domain dedication has little impact on whether a work would be subject to copyright hijacking.

As such, a ministry’s decision to dedicate their works to the public domain should not be influenced by such pragmatic concerns. Instead, it should be based on their desire to generously follow the command and example of Christ.

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1. For those familiar with other forms of free licensing, see why Creative Commons Attribution ShareAlike is not enough. ↩︎

2. With the potential exception of critical texts. In this case, some have claimed copyright around their recension of older texts, due to ambiguities in the actual content of autographs (the manuscripts penned by original authors). ↩︎

3. For example, the Metropolitan Museum of Art made over 492,000 images of public-domain artworks available under CC0. ↩︎

4. Authors may grant a license or transfer rights to a publisher or other entity, but that is only if the author consents to such things. ↩︎

5. Article 15 of The Berne Convention. ↩︎

6. Once a work is in the public domain it is no longer subject to copyright law and cannot regain copyright protection by another party. As stated in Title 17, Appendix Q, Section 12: “Title 17 […] does not provide copyright protection for any work that is in the public domain in the United States.” ↩︎

7. The court dismissed matters related to copyright (since the photos were public domain) but allowed claims of violation of New York General Business Law § 349 regarding deceptive business practices. ↩︎

8. I am not a lawyer. ↩︎

9. See the previously mentioned article. ↩︎

10. See US Copyright Office’s processing times. ↩︎

11. See US Copyright Office’s fees. ↩︎