Public domain images can be used commercially without a copyright license or royalty payment. You can put them on product packaging, in advertising, on merchandise, in books you sell, and in any other for-profit project, and you do not need permission from anyone to do it. What “public domain” does not mean is “no legal risk.” The image itself may be free of copyright while the people, logos, and property inside the frame carry their own legal protections, and those can produce lawsuits every bit as expensive as a copyright claim.
What You Are Actually Allowed to Do
Once an image is genuinely in the public domain, copyright law imposes no restrictions on how you use it. Print it on T-shirts. Feature it in a television spot. Build a company logo on top of it. Modify it into something unrecognizable. No license, no royalty, no permission, because there is no copyright holder to grant or withhold any of those things.
You also have no legal obligation to credit the original creator. The Supreme Court addressed this directly in Dastar Corp. v. Twentieth Century Fox Film Corp., holding that the Lanham Act does not prevent the unaccredited copying of an uncopyrighted work.1Justia Law. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23 (2003) Attribution is a professional courtesy. Skipping it will not expose you to a lawsuit.
Legal Risks That Have Nothing to Do With Copyright
This is where commercial users get hurt. Three bodies of law reach into the image regardless of its copyright status.
Right of Publicity
A majority of states recognize a right of publicity, which lets a person control how their name, image, and likeness are used for commercial purposes. If a public domain photograph shows an identifiable person, using it to advertise a product can imply an endorsement the person never gave. The copyright status of the photograph is irrelevant; the person’s identity is a separate legal interest. The standard safeguard is a model release from the person or their legal representative.
In roughly half the states, the right of publicity survives death, so an estate can enforce it for years or decades after the person is gone. The duration varies widely by state. If a historical photograph shows a recognizable individual and you plan to use it commercially, this is worth investigating even when the image itself is unquestionably public domain.
Trademarks Inside the Frame
Images often contain trademarked material: logos, brand names, product packaging, or distinctive product shapes protected as trade dress. Putting a public domain photograph that prominently features a company’s registered trademark into your own advertising can suggest a false association or endorsement. Under the federal Lanham Act, that use can constitute trademark infringement regardless of the image’s copyright status. The safest approach is to avoid featuring recognizable trademarks in commercial materials, or to obscure them when the image is otherwise a good fit.
Property Releases
Photographs of distinctive private property used in a commercial context can sometimes require a property release from the owner. The risk shows up most clearly when the property is easily recognizable and strongly associated with a particular owner or brand. A public domain aerial shot of a famous private estate used in real estate marketing, for example, can generate objections from the owner. The exposure is lower than for people and trademarks, but it is real.
When Someone Else’s Copyright Sits on Top of a Public Domain Image
A public domain image can carry newly copyrighted layers, and this is a common source of accidental infringement.
Derivative Works With Original Additions
When someone takes a public domain image and adds genuinely original creative elements, those additions can receive their own copyright. The U.S. Copyright Office is clear that a derivative work must add “new original copyrightable authorship,” and copyright in the derivative work covers only the new material, not the underlying public domain image.2U.S. Copyright Office. Copyright in Derivative Works and Compilations If an artist colorizes a Civil War photograph, adds illustrated elements, and composites it into a new scene, the original photograph remains free but the artist’s treatment is protected. You can still use the original. You cannot copy that artist’s specific version of it.
Faithful Reproductions Usually Do Not Create New Copyright
The flip side favors commercial users. A faithful, high-resolution scan or photograph of a public domain painting does not generate a new copyright for the person who made the scan. The federal court in Bridgeman Art Library v. Corel Corp. held that exact photographic reproductions of public domain artworks lack the originality required for copyright protection.3Justia Law. Bridgeman Art Library, Ltd. v. Corel Corp., 25 F Supp 2d 421 When a museum digitizes a Rembrandt with perfect accuracy, the resulting file is in the public domain along with the painting. Some museums still claim copyright over their scans or impose restrictions through their website terms of use, but those claims rest on contract law, not on copyright in the image.
The Foreign-Works Trap
This one catches people more than any other public domain problem. A work that entered the U.S. public domain because a foreign copyright holder failed to comply with old U.S. formalities such as registration or renewal may have had its copyright automatically restored. The Uruguay Round Agreements Act amended the Copyright Act to restore protection in qualifying foreign works, effective January 1, 1996 for works from Berne Convention and WTO member countries.4Office of the Law Revision Counsel. 17 USC 104A – Copyright in Restored Works A restored work gets the remainder of the term it would have received had it never fallen into the U.S. public domain.
The practical effect: a European painting or photograph from the early 1900s that looks safely public domain may in fact be under active U.S. copyright. If you are working with foreign-origin images, especially from the 20th century, verify their U.S. status independently. A publication date alone is not enough.
International distribution creates a separate problem. Copyright terms vary by country, and an image that is public domain in the United States may still be protected elsewhere. The Berne Convention allows member countries to limit protection to the term in the work’s country of origin, but not every country applies that rule consistently. If your marketing materials will run internationally, check the status in each country where they will appear.
What Happens If You Get the Status Wrong
Treating a copyrighted image as public domain is copyright infringement, and the penalties are not theoretical. A copyright holder who registered the work can elect statutory damages instead of proving actual loss. The standard range runs from $750 to $30,000 per work. If the holder proves willful infringement, a court can push the award up to $150,000 per work.5Office of the Law Revision Counsel. 17 USC 504 – Remedies for Infringement: Damages and Profits Going the other direction, a user who can show they genuinely and reasonably believed the image was in the public domain may see statutory damages reduced to as low as $200.6Office of the Law Revision Counsel. 17 US Code 504 – Remedies for Infringement: Damages and Profits
That $200 floor is why documenting your due diligence matters. A record of your search process, the sources you checked, and the reasoning behind your public domain conclusion is what supports a good-faith defense.
There is also the stock-agency demand letter problem. Some agencies have been caught claiming licensing rights over images that were genuinely public domain. In one well-known example, photographer Carol Highsmith donated her entire collection to the Library of Congress for unrestricted public use, only to find stock agencies listing thousands of her donated images in their commercial catalogs and sending invoices and legal threats to people who used the images straight from the Library’s own website. A demand letter from a stock agency does not necessarily mean you did anything wrong. It does mean you need documentation of where you got the image and why you believed it was free.
How to Verify Public Domain Status Before You Use an Image
Verification is the step people rush, and it is the one that saves the most money. A few minutes here can prevent tens of thousands in exposure.
Start With the Source Institution
Reputable institutions like the Library of Congress, the National Archives, and major museum digital collections typically publish rights information alongside their images. The Library of Congress provides a “Rights and Access” or “Rights Advisory” statement on items in its digital collections describing what it knows about the copyright status of each work.7Library of Congress. Using Items from the Librarys Website: Understanding Copyright These statements are not legal guarantees, but they are the strongest starting point available. A “no known copyright restrictions” notice is a good sign, though you should still apply judgment to the specific image, especially if it depicts identifiable people or trademarks.
Look at the Image Metadata
Image files often carry embedded metadata (sometimes called EXIF data) recording the creator’s name, creation date, and any copyright notice. On Windows you can usually see it by right-clicking the file and selecting “Properties.” On a Mac, use “Get Info.” A copyright notice or creator name in the metadata is a lead worth chasing. Blank metadata does not confirm public domain status; it just means nobody filled those fields in.
Run a Reverse Image Search
Reverse image search through Google Images or TinEye shows where an image has appeared online. If it turns up in a stock agency’s paid catalog, that is a warning worth investigating. If it appears across dozens of sites with no consistent copyright claim, that supports (but does not prove) public domain status. The search can also lead you to the original source, which is usually the most reliable way to determine legal status.
Save the Paper Trail
Keep a file for every public domain image you use commercially. Save screenshots of the source page showing the rights information, the date you accessed it, the image metadata, and any reverse image search results. If the image came from a government website or carries a CC0 dedication, save proof of that designation too. This record does two things: it supports a good-faith defense if anyone challenges the use later, and it is the evidence a court needs to drop statutory damages toward the $200 minimum instead of the $30,000 standard ceiling.6Office of the Law Revision Counsel. 17 US Code 504 – Remedies for Infringement: Damages and Profits