How to Use the Public Domain to Produce Your Audiobook Demo

The public domain is as vast and deep as our oceans. Okay, that might be a bit of an overstatement. Although there are well over 100 thousand books in the public domain, there are 81 trillion gallons of water in the Atlantic Ocean alone.

There is so much information about the public domain available online. Yet, you won’t find all the answers in one place. Copyright Attorney, Mikaela Gross put forth her expertise in this area to help “dispel some myths around the public domain.”

In this article

1. Copyright Law History
2. What We Know For Certain About the Public Domain
3. How to Determine if a Book is in the Public Domain and Available for Audiobook Production
4. What to do if You Can’t Find Out Whether a Book is in the Public Domain or Not
5. What Voice Actors Looking to Add Narration Demos to Their Portfolios Need to Know
6. That’s The Public Domain in a Nutshell

Copyright Law History

A key concept, which brings us back to the United States founders, the constitution and copyright law, is the balance between creators’ rights to control what they’ve created and make a living off of, with the public interest of having a diverse marketplace of ideas and being able to use those to create new ideas.

In that balancing, one of the ideas is that copyrights are not perpetual. Eventually, works have been in existence for so long that they’re deemed as a part of our cultural fabric and “fall into the public domain,” which means that the author (or their heir) can no longer control the rights.

At some point, anyone can use those works however they want.

What We Know For Certain About the Public Domain

With that in mind, there are a few ways that works (like books) can go into the public domain. Unfortunately, there is no easy way to say with 100% accuracy what is in the public domain. What is known for certain is that today, and since 1989, authors have held exclusive rights for their works for the remainder of their lives, plus 70 years after they pass. At that point, the works fall into the public domain.

However, those policies listed above haven’t been active throughout US history (e.g. you can see there’s a gap between 1923 and 1989), so some works are affected by more complicated factors, which can make it really tricky to determine definitively if they’re in the public domain now.

It is also safe to say that pretty much anything created before 1923 is in the public domain. For instance, any play, manuscript or novel created by Shakespeare, is 100% in the public domain, which means no one has to get permission to make an audiobook recording of a Shakespeare work.

Another exception to the norm must be considered too. For instance, let’s say that Warner Brothers makes a Romeo and Juliet movie. That movie is protected by current copyright, meaning you can’t legally make copies of that movie without obtaining a license to reproduce it. However,  you can use the original work of Romeo and Juliet and make your own movie.

How to Determine if a Book is in the Public Domain and Available for Audiobook Production

Someone interested in using a literary work for an audiobook needs to look at 2 things:

• the year it was created
• the year that the author died

With those two things in mind, there is a chart that an incredible copyright lawyer created, entitled Copyright Term and the Public Domain in the United States. It’s a little overwhelming at first, but it shows, in the simplest way possible, what to look for when researching whether or not something is in the public domain.

It clearly highlights what conditions and copyright terms apply to any literary work, depending on its publishing date. It even covers literary works first published outside the U.S. or by U.S. citizens living abroad at the time. So, as long as you know what year the work was created and what year the author died, the chart’s thoroughness makes it a trusted source when trying to determine if the work is now in the public domain or not.

For example, it clearly shows that if a work was published before 1923, it’s in the public domain. However, work published between 1924 and 1963 is only in the public domain if the copyright wasn’t renewed.  Back then, there was a technicality that existed that required authors to renew their copyright every 28 years.  

Without really getting into the weeds of it all, copyright law has a complicated history and this chart most easily outlines the years of changes.

What to do if You Can’t Find Out Whether a Book is in the Public Domain or Not

Many times, it is extremely difficult or impossible to find answers as to when the book was first published, if the copyright was renewed, and other circumstances that the work might have been subjected to. At that point, copyright attorneys resort to a risk analysis.

For instance, they will look into answering questions like, ‘What is the likelihood that an individual author in the 1950s knew they had to file a renewal?’ Considerations like this play into the risk analysis. So, if you find yourself stuck on your journey to uncover the status of copyright, the knowledge of copyright lawyers can be very helpful.

What Voice Actors Looking to Add Narration Demos to Their Portfolios Need to Know

When asked what advice she would pass along to voice actors who want to make recordings of themselves narrating book passages, Mikaela says:

“From a legal perspective, you won’t make any friends if you infringe on copyright, especially in the first instance (meaning if there is no audiobook in existence, and you create a recording of the book).

“Even if you don’t narrate the entire book and only do the first chapter, that’s still considered an infringement if you don’t have permission, even though it’s just a portion of the book. There isn’t a ‘fair use’ argument there either. Because you’re using it to market yourself. It’s really not a transformative way of using it.

“Try to use a public domain work. There is so much in there. Use the chart to help you figure out what’s in the public domain.”

She also recommends leaning on any existing relationships with authors (or building new relationships), and asking for a limited license to create the demo. Big publishers probably won’t ‘play ball’ on that idea, though. The narrator would likely get caught in heavy negotiations with them. Try sticking to the author to avoid getting caught in such negotiations.

An author is much more likely to see the win-win benefit of letting a narrator produce the first chapter of a book, as it helps promote their book while also providing the narrator with a demo for their narration profile. The author can define the scope of that non-exclusive license by saying it can only be used for the demo on the narrator’s website and, say, their Voices profile page, but would stand to see more promotional payoff if they allowed the talent to share the demo elsewhere as well.

That’s The Public Domain in a Nutshell

The public domain exists to encourage the cultural development we see in our everyday lives. Many of the new movies, novels, podcasts, etc. that we enjoy today found their inspiration in the public domain. Don’t underestimate the gold mine that is in the public domain. Invest a bit of time perusing sites like Project Gutenberg for mass listings of public domain literary works that are available for any use one can think of!