Use of artworks in the public domain: Free for all?

June 25th, 2025

According to the Berne Convention, it is sufficient for a literary or artistic work to be fixed on a material medium in order for it to automatically have legal protection.[1] No constitutive procedure is required to obtain copyright. In Mexico, in this regard, a registration certificate issued by the National Copyright Institute (INDAUTOR) for an artwork only has declaratory effects regarding the authorship, ownership, date of creation, and/or date of disclosure of the artwork.[2]

This automatic protection of copyright—differing from the applicable regime for other forms of intellectual property, which require a formal procedure or the payment of fees for their constitution—is due to the need to protect the creation itself. This legislation is based on the assumption that once the work has been fixed in a material medium, and regardless of its merit, purpose, or mode of expression, rights are created for two main purposes: to ensure that the author retains control over their creation (via moral rights), and to allow them to obtain remuneration for its exploitation (via economic rights).[3]

In consequence, Mexican law establishes moral rights as inalienable, imprescriptible, and perpetual, while economic rights subsist throughout the lifetime of the author and up to one hundred years after their death.[4] Once this period has elapsed, the artwork enters the public domain, a situation entailing a relevant legal transformation: the artwork is no longer protected by economic rights, and therefore can be freely used by anyone without the need to request authorization or pay for its use.

Notwithstanding, current legislation is silent as to whether a declaratory act or additional condition is necessary for the artwork to be formally considered in the public domain after this period of protection has expired. This omission raises the question of whether the passing into the public domain also happens automatically or, to the contrary, an authoritative act is necessary that expressly recognizes this.[5]

This legal gap was recently addressed in the contradiction of thesis 107/2024 between the Eighteenth Collegiate Court and the Twentieth Collegiate Court, both courts in Administrative Matters of the First Circuit. The Plenary that resolved the contradiction ruled upon the type of legal interest necessary to promote the nullity of a certificate of registration of an artwork, as well as who legitimately holds such an interest.

The fundamental issue was to determine whether the public domain, being a legal asset that favors the community at large, entitles any person with the intention to use an artwork that is allegedly in the public domain to promote the nullity of the registration preventing such use, or rather, if a direct and specific affectation is required. The Plenary resolved that: “[…] whoever intends to use a work in the public domain has legal interest in challenging a registration that unduly prolongs its protection.”[6]

This criterion implies that legal interest does exist to be able to file nullity proceedings against the registration of an artwork which has entered the public domain when the plaintiff seeks to legitimately use it in activities such as reproduction, transformation, public communication, among others.

It should be noted that the criterion adopted by the Plenary is mandatory and binding in accordance with the provisions of thesis number 2030535, published on June 13, 2025, in the Judicial Weekly Journal of the Federation.[7]

In conclusion, the access, use, and effective exploitation of artworks that have entered the public domain are essential for the strengthening of culture, education, and collective creativity. In this regard, it is useful to determine who may annul, or at least question, the validity of a registration of an artwork that – allegedly – has fallen into the public domain. This without forgetting that, even under this new legal status, the figure of the author persists as a moral reference, reminding us that every creation in the public domain has an individual origin which must be recognized and respected          

[1] Berne Convention for the Protection of Literary and Artistic Works, Article 2.1

[2] Federal Copyright Law (LFDA), Article 161..

[3] Fernández-Novoa, C. (2002). Tratado de Derecho de Autor. Montecorvo.

[4] LFDA, Articule 29.

[5] Rojina Villegas, R. (2021). “La función del dominio público en el sistema jurídico mexicano.” Revista Mexicana de Derecho de la Cultura, 8(2), 34–52.

[6] Contradiction of Thesis 107/2024. Eighteenth and Twentieth Collegiate Courts in Administrative Matters of the First Circuit.

[7] Thesis 2030535, published in the Semanario Judicial de la Federación, June 13, 2025.