Distinguishing Between Creative Commons and the Public Domain

• Pages: 14-18
• Date: 01 December 2026
• Published date: 01 December 2026
• Author: Kelley Bregenzer
• Subject Matter: Derecho Constitucional

Published in Landslide, Volume 18, Number 2, 2026. © 2026 by the American Bar Association. Reproduced with permission. All rights

reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an

electronic database or retrieval system without the express written consent of the American Bar Association.

LANDSLIDE December/January 2026

14

Distinguishing Between Creative Commons and the Public

Domain

Kelley Bregenzer

Creative Commons provides artists and creators the ability to openly share, reuse, and remix one another’s

works. But users should be cognizant that unlike works in the public domain, materials available via Creative

Commons licenses are, indeed, still protected by copyright law. Accordingly, there are a number of legal consid-

erations that both Creative Commons users and intellectual property (IP) lawyers should be familiar with.

A Solution for Open Sharing of Content

While the concept of a public domain has existed for centuries, Creative Commons “grew up online.”1 When Congress

enacted the 1998 Copyright Term Extension Act, adding 20 more years to the lifetime of a copyright, a collective of

groups and individuals who relied on the public domain challenged the law.2 Although the collective ultimately lost

its challenge at the U.S. Supreme Court in Eldred v. Ashcroft,3 its members had already begun to conceive a system

wherein copyright owners could easily share their work for anyone to use at no cost.4 Thus, Creative Commons was

born—a nonprofit organization designed to facilitate the open sharing of art, information, and culture through a

series of ready-made copyright licensing agreements.

Tom Werner/DigitalVision via Getty Images