The Public Domain Landscape 2019

By Carolyn Wimbly Martin

For the first time in over 20 years, on January 1, 2019, US copyrighted works entered the public domain due to the expiration of their copyright term. Going forward, more works will now enter the public domain annually. The expiration of copyright for works published in 1923 means that everyone may use these materials, for education, for research, or for creative endeavors — whether it is translating the books, making new versions of the films, or building new music based on old classics – without payment or consent. (Duke, 2019)

Works from 1922 entered the public domain in 1998, and works from 1923 were to go into the public domain in 1999 under the then-existing copyright regime. However, in 1998, under the Sonny Bono Copyright Term Extension Act (the "Act"), the copyright term was increased to 70 years after the death of the author, and to 95 years after publication for works-for-hire. The Act retroactively extended the term of protection for works that were already copyrighted. The effect of the 1998 extension was that an entire generation of works were given exclusive copyright protection for an additional 20 years. To put this 20-year gap in perspective, the last time a treasure trove of works entered the public domain, Google did not exist. (Fleishman, 2019)

 

A Bit of History in the US

Article 1, Section 8, Clause 8 of the US Constitution (the Copyright Clause), provides that Congress has the power, "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Emphasis added. (Stanford)

The first US federal copyright law, the Copyright Act of 1790, provided for a copyright term of 14 years, with the option to renew for another 14 years if the copyright holder was still living. Fast forwarding to 1978, the copyright term was 28 years from the date of publication, renewable for another 28 years. Under the 1976 Copyright Act, which went into effect in 1978, the term became 50 years from the date of the author’s death. With these and other interim extensions, the copyright term has been extended 11 times in the past 50 years. (Duke, 2019)

 

International Copyright Terms

Under the Berne Convention for the Protection of Literary and Artistic Works of 1886, the 176 signatory countries are required to provide copyright protection for a minimum term of the life of the author plus 50 years. Since the 1993 Directive on harmonizing the term of copyright protection, member states of the European Union implemented protection for a term of the author's life plus 70 years. Effective July 23, 2003, Mexico has the longest copyright term (life plus 100 years), but most of the world remains in the range of life plus 50-70 years. (Wikipedia, 2019)

 

The Gray Areas

Many of the most valuable intellectual property assets have layers of protection with multiple copyrights and trademarks. Therefore, while the public domain dates provide some clarity, other factors, including trademarks, must be considered. The most well-known example of this is Disney’s rights in Mickey Mouse. The copyright in the original version of Mickey Mouse will now expire on January 1, 2024. But Disney will still retain copyrights in later versions of the character as Mickey evolved from black and white to color and as elements such as the iconic white gloves were added. Disney will also retain trademark rights in the name and the visual aspects of Mickey as used in animated and live action motion pictures. (Carlisle, 2014) The full impact of these overlapping rights remains to be litigated.

There may also be some works that appear to be from 1923, but are not in fact entering the public domain in 2019 because their pre-1924 publication was not authorized by the author. (Duke, 2018) On the other hand, many works from 1923 may already have entered the public domain because the copyright holders did not comply with the formalities required at the time, such as a copyright notice, or failure to renew the copyright after 28 years. (Duke, 2018)

The longer copyright term has also been cited as a contributing factor in the increasing number of orphan works which are still presumably under copyright but whose copyright owner cannot be identified or located. (Duke, 2019)

Also note that copyright may still apply to unpublished works. Family heirlooms, such as private letters and photographs from the 1800s or the great American novel that someone’s great-great-great uncle wrote, but never showed anyone, may still be protected. (Lutzker, 2003)

Each of these potential gray areas requires research when attempting to clear a work for use, and often the results of the research are inconclusive. Because of the uncertainty over potential copyright claims, creative artists and scholars (and their lawyers) have appropriately shied away from the use of such works.

Finally, the Music Modernization Act of 2018 gave a few years of added protection to early sound recordings. (Lee, 2019)

 

Who Benefits from Limited Exclusivity

The copyright laws grant the copyright holder the exclusive right to determine whether, and under what conditions, including costs, an original work can be used by third parties. Most copyrighted works have exhausted their commercial value well shy of the expiration of the copyright term, but a fraction of works retain their value both for the copyright holder to exploit and for the public to enjoy.

Teachers, libraries, museums, historians, archivists, and database operators can use works no longer under copyright protection to collect, preserve, and teach. Literary works can be accessible online for free or in print at a low cost. Artists can rely on the public domain for inspiration. For example, Homer’s The Odyssey has given us Mark Twain’s The Adventures of Huckleberry Finn, James Joyce’s Ulysses, and the Coen Brothers’ O Brother Where Art Thou? (Duke, 2018) The copyright to Robert Frost’s poem, “The Road Not Taken,” expired in 1992.

Two roads diverged in a wood, and I—

I took the one less traveled by,

And that has made all the difference

These lines have inspired lyrics from Bruce Hornsby, Melissa Etheridge and George Strait, and its phrases have been used to sell cars, careers, computers and posters that feature the final lines as an exhortation to individualism. (Fleishman, 2019)

 

What Happens Next

The Internet Archive, Google Books and HathiTrust made tens of thousands of books available on January 1, with more to follow. Newspapers, magazines, movies and other materials will also be available online. (Fleishman, 2019)

The political climate for copyright legislation has changed significantly over the last 20 years. With the 2019 date looming on the horizon, three of the most powerful rights holder groups — the Motion Picture Association of America, the Recording Industry Association of America, and the Authors Guild — did not lobby for legislation extending copyrights. In the 1990s it was Disney, the Gershwin family trust, and Oscar Hammerstein’s grandchildren at the forefront of the lobbying for the extension. Today, digital rights groups, online activists, and lobbyists from technology companies, as well as the Internet itself, have changed the conversation surrounding the length of exclusive intellectual property rights. (Lee, 2019)

How creative artists, historians, scholars, casual readers and music lovers will make use of this new wealth of material in the public domain remains to be seen.

 

How We Can Help

We are available to work with you to determine what works you can use freely, what works remain under copyright or subject to other forms of intellectual property protection, and how to assess the risks when the research is unclear. We can also help you determine how you can best protect your own intellectual property with copyrights, trademarks or both.

 

A Sampling of What is Entering the Public Domain in 2019 and beyond

According to Fleishman and Duke University Law School’s Center for the Study of the Public Domain, the following will enter the public domain in 2019.

 

Films

The Ten Commandments, directed by Cecil B. DeMille

The Pilgrim, directed by Charlie Chaplin

Our Hospitality, directed by Buster Keaton and John G. Blystone

 

Literature

• Edgar Rice Burroughs, Tarzan and the Golden Lion

• Agatha Christie, The Murder on the Links

• Winston S. Churchill, The World Crisis

• e.e. cummings, Tulips and Chimneys

• Robert Frost, New Hampshire

• Kahlil Gibran, The Prophet

• Aldous Huxley, Antic Hay

• D.H. Lawrence, Kangaroo

• Bertrand and Dora Russell, The Prospects of Industrial Civilization

• Carl Sandberg, Rootabaga Pigeons book and book cover

• Edith Wharton, A Son at the Front

• P.G. Wodehouse, The Inimitable Jeeves, Leave it to Psmith and others

• Virginia Woolf, Jacob's Room

• Willa Cather, poems, an essay, "Nebraska" in The Nation and A Lost Lady

 

Music

• "Charleston," w.&m. Cecil Mack & James P. Johnson

• "Yes! We Have No Bananas," w.&m. Frank Silver & Irving Cohn

London Calling! (musical), by Noel Coward

• "Who’s Sorry Now," w. Bert Kalmar & Harry Ruby, m. Ted Snyder

• Songs by "Jelly Roll" Morton including "Grandpa’s Spells," "The Pearls," and "Wolverine Blues" (w. Benjamin F. Spikes & John C. Spikes; m. Ferd "Jelly Roll" Morton)

• "Violin Sonata No. 1" and "Violin Sonata No. 2" and others by Bela Bartok

• "Tin Roof Blues," m. Leon Roppolo, Paul Mares, George Brunies, Mel Stitzel & Benny Pollack

 

Theater

• Theodore Pratt, stage adaptation of The Picture of Dorian Gray

• Willis Richardson’s The Chip Woman’s Fortune (The first drama by an African-American author produced on Broadway.)

 

In upcoming years the following works will enter the public domain:

• George Gershwin, "Rhapsody in Blue," 2020

• F. Scott Fitzgerald, The Great Gatsby, 2021

• Ernest Hemingway, The Sun Also Rises, 2022

Steamboat Willie, January, 2024, and with it one layer of Disney's claim to Mickey Mouse.

• Superman, Batman, Disney's Snow White, and early Looney Tunes characters, 2031 through 2035. (Story lines, characters, and other elements that were released in later years will still be under copyright)

 

Sources

Carlisle, Stephen. Mickey’s Headed to the Public Domain! But Will He Go Quietly? 17 October 2014. Web 17 January 2019. http://copyright.nova.edu/mickey-public-domain/

Duke Law, Center for the Study of the Public Domain, 2019. Web 9 January 2019. https://law.duke.edu/cspd/publicdomainday/2019/

Fleishman, Glenn. For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain. Smithsonian Magazine. January 2019. Web 9 January 2019. https://www.smithsonianmag.com/arts-culture/first-time-20-years-copyrighted-works-enter-public-domain-180971016/

Lee, Timothy B. SORRY DISNEY — Mickey Mouse will be public domain soon—here’s what that means. 1 January 2019. Web 9 January 2019. https://arstechnica.com/tech-policy/2019/01/a-whole-years-worth-of-works-just-fell-into-the-public-domain/

Lutzker, Arnold P. Content Rights for Creative Professionals Copyrights and Trademarks in a Digital Age. 2nd. ed. Focal Press, Burlington, MA. 2003. Print.

Stanford University Libraries Copyright & Fair Use Primary Materials. Web 15 January 2019. https://fairuse.stanford.edu/law/us-constitution/

Wikipedia. List of countries’ copyright lengths. 2019. Web 15 January 2019. https://en.wikipedia.org/wiki/List_of_countries%27_copyright_lengths