This article examines the public domain by looking at the gulf between what authors really do and the way the law perceives them. Part I outlines the basics of copyright as a species of property and introduces the public domain's place within the copyright scheme. Copyright grants authors" ' rights modeled on real property in order to encourage authorship by providing authors with markets in which they can seek compensation for their creations. Because parcels of authorship are intangible, however, the law faces *problems in determining the ownership and boundaries of its property grants. In particular, the concept of "originality," by reference to which copyright law purports to define property rights, provides an insufficient guide. The public domain - a commons that includes those aspects of copyrighted works which copyright does not protect - makes it possible to tolerate the imprecision of these property grants. Part II of this article traces the historical developmenf of the public domain in copyright case law. Courts have gradually come to deny copyright protection to ideas, methods, systems, plots, scènes à faire,18 and (sometimes) facts, even when blatantly copied from plaintiffs' works. The courts have not sought profound theoretical justifications for denying protection, and different classes of cases reveal different motivations. Courts have seemed to invoke the public domain, however, in cases where the breadth of plaintiffs' asserted property rights appeared to threaten the enterprise of authorship by curtailing the ability of authors to pursue their craft. Part III explores familiar theoretical justifications for the public domain and finds them for the most part unsatisfactory. Therefore, Part IV returns to the principle of copyright as property. This section argues that originality is a legal fiction. It is inherently unascertainable, and it is not the battleground on which infringement suits are in fact decided. Because authors necessarily reshape the prior works of others, a vision of authorship as original creation from nothing - and of authors as casting up truly new creations from their innermost being - is both flawed and misleading. If we took this vision seriously, we could not grant authors copyrights without first dissecting their creative processes to pare elements adapted from the works of others from the later authors' recasting of them. This dissection would be both impossible and unwelcome. If we eschewed this vision but nonetheless adhered unswervingly to the concept of originality, we would have to allow the author of almost any work to be enjoined by the owner of the copyright in another. Part V of this article suggests that the public domain provides the solution to this dilemma and examines that solution from the perspectives of potential defendants, potential plaintiffs, and the system of copyright law as a whole. The public domain contains elements of authorship that easily seep into our minds and our language or that for other reasons can be claimed by many authors. A broad public domain protects potential defendants from incurring liability through otherwise unavoidable copying. It protects would-be plaintiffs by relieving them of the impossible and unwelcome obligation to prove the actual originality of all elements of their works. It protects the copyright system by freeing it from the burden of deciding questions of ownership that it has no capacity to answer.
Litman, Jessica D. "The Public Domain." Emory L. J. 39 (1990): 965-1023.