This year marks the first in two decades that a significant body of copyrighted work has lost its U.S. copyright protection and fallen into the public domain. Why is that...and what does it mean for scholars and educators?
Prior to 1978, the term of copyright protection for a work in the United States was measured from its date of first publication in the U.S. Under the first U.S. copyright act in 1790, U.S. works enjoyed an initial term of 14 years of protection, with an optional second term of another 14 years. In 1909, these terms were lengthened to 28 years each (for a total of 56 years possible). By 1978, the law changed again to lengthen the term for copyrights then in existence to 75 years, and to measure the term for works newly created in 1978 not from their date of first publication, but instead by the lifetime of the author. The term of copyright for works then under U.S. protection varied depending upon which version of the law was in effect at the time of its publication, part of a byzantine scheme of protection that the New York Times recently described as mind-numbingly complex.
Under the legal limits in effect until 1998, works that had been first published in 1923 (more than 130,000 were registered in that year) were set to lose their copyright protection on January 1, 1999. But in 1998, Congress passed yet again another extension to works then under existing U.S. copyright protection - this time an additional 20 years was added to the end of the terms of all copyrights then in existence. Formally named the Sonny Bono Copyright Term Extension Act (for a by-then-deceased celebrity advocate for strong copyright), but sometimes derisively referred to as the Mickey Mouse Protection Act, this change in law came just in time to save Mickey from the public domain. His first appearance, in the Steamboat Willie animation, was released in 1928 and so the U.S. copyright in the animation (and in the Mickey Mouse character) was set to expire a short five years down the road, in 2004. Disney, not unexpectedly, was among those lobbying for a stay of execution...and they got a 20-year reprieve.
As a consequence, what had been a steady stream of older works falling into the public domain as each year-class of works hit its January 1 deadline dried up. For two decades, 1923 remained the magic number - any work first published in the U.S. before that year was necessarily in the public domain and no set of circumstances could alter that fact (though more recent works might also have lost protection, not by the passage of time but by failure to comply with one of several formalities then required). For two decades paperback publishers had no new public domain works to add to their catalogs, researchers' and academicians' use was constrained to what they could justify as a fair use or could afford to license, and artists were limited to an ever stagnating body of public domain resource material.
As of January 1 this year, all that has changed and the flow has resumed. Among those works now in the public domain and freely available for reproduction, adaptation, public display, or performance are these classics:
- The Ego and the Id, by Sigmund Freud
- New Hampshire (including Stopping by the Woods on a Snowy Evening), by Robert Frost
- Men Like Gods, by H.G. Wells
- The Rover, by Joseph Conrad
- The Hunchback of Notre Dame, directed by Wallace Worsley and featuring Lon Chaney
- Kangaroo, by D.H. Lawrence
- The Ten Commandments, by Cecil B. DeMille
- Tarzan and the Golden Lion, by Edgar Rice Burroughs
- The Murder on the Links, by Agatha Christi
- Doctor Dolittle's Post Office, by Hugh Lofting
- Yes! We Have No Bananas, by Silver & Cohen
- Wolverine Blues, by Jelly Roll Morton
- Dramatic works of Noel Coward, W. Somerset Maugham, A.A. Milne, and Henrik Ibsen
- Works of artist/historian John W. Kelchner, sculptor W. Clark Noble, American painter Jean Leon Gerome Ferris, British artist Henry J. Dobson
Find a more extensive list to inspire you at the Center for the Study of the Public Domain at Duke Law School.
Or you can find a searchable database of more than 53,000 1923 now-public-domain works at the Hathi Trust.
What can be done with these and other public domain works? They can be uploaded for internet access, as Google Books, the Internet Archive, and Project Guttenberg are likely to do. A new list of classic public domain films will be available to cost-conscious film and theater departments for screenings. Students will be able to adapt and perform musical works, out of the classroom as well as in. Teachers can use them for research or education. Translators won't need a license. Scholars can extensively quote from, reproduce, and annotate them free of fair use constraints or burdensome and expensive permissions.
What of the future? What will happen to Mickey Mouse in 2024?
Steve Gillen is a lawyer and partner in the intellectual property firm of Wood, Herron & Evans and has focused his practice on publishing and media matters for 35 years. He is a member of IBPA and a frequent contributor to the Independent. This article was excerpted from Guide to Rights Clearance & Permissions: in Scholarly, Educational, and Trade Publishing (Textbook & Academic Authors Association, 2018). He can be reached at [email protected] or 513-707-0470.