Hopefully For The Last Time: The US Has Zero New Works Enter The Public Domain On January 1st

from the one-more-year... dept

For many years now, during the first week of January, we write a post about Public Domain Day. That's the day -- January 1st -- where works that have reached the statutory limit reach the public domain. The Public Domain Review has an excellent collection of the Class of 2018 -- showing what works entered the public domain this week in the "life plus 50" copyright countries (Canada, New Zealand, and many countries in Asia and Africa) and the "life plus 70" copyright countries (most of the EU, Brazil, Israel, Russia, Turkey, Nigeria). For life plus 70 countries, the works of Aleister Crowley and Winston Churchill are now in the public domain. For the life plus 50 countries, Rene Magritte's paintings, the song compositions of Woody Guthrie and Otis Redding, and the writings of Jean Toomer are now in the public domain -- among many others.

Except, as we note each and every year, there is no such "graduating class" in the US. Because, thanks to Disney's heavy lobbying, copyright keeps getting extended and extended and extended. If you're interested, the Center for the Study of the Public Domain at Duke University has also put together its depressing annual "What Could Have Entered the Public Domain..." list for the US, if the law had remained as it was prior to 1978, when the maximum length of copyright was 56 years. Under that setup, Josepher Heller's Catch-22, Salinger's Franny & Zooey and Robert Heinlein's Stranger in a Strange Land all would have entered the public domain. Grok that. Movies including Breakfast at Tiffany's, West Side Story, and The Guns of Navarone all would have entered the public domain as well. And, of course, a ton of music:

What 1961 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely use some of the influential music from 1961, January 1 2018 would have been a rocking day for you under earlier copyright laws. Patsy Cline’s classic Crazy (Willie Nelson) would be available. So would Stand By Me (Ben E. King, Jerry Leiber, Mike Stoller), Runaway (Del Shannon, Max Crook), and Let’s Twist Again (Kal Mann, Dave Appell). You could publicly perform or set short films to Surfin' (Brian Wilson, Mike Love) or Crying (Roy Orbison, Joe Melson), all without permission or fee. Today these musical works remain copyrighted until 2057

There's much more as well. As the Center notes in a companion post, this should be seen as highly problematic. Locking up our culture like this does no one any good -- except for a very, very, very, very small number of copyright holders on the few works that are still economically viable. Even worse, because things are locked up for so long, so much of our culture becomes orphan works -- which tend to disappear entirely, as no one can even figure out who holds the copyright in question, should they even want to make use of it. And, without the public domain, we lose access to potentially wonderful aspects of culture:

What happens when works enter the public domain? Sometimes, wonderful things. The 1947 film It’s A Wonderful Life entered the public domain in 1975 because its copyright was not properly renewed after the first 28-year term. The film had been a flop on release, but thanks to its public domain status, it became a holiday classic. Why? Because TV networks were free to show it over and over again during the holidays, making the film immensely popular. But then copyright law reentered the picture…. In 1993, the film’s original copyright holder, capitalizing on a recent Supreme Court case, reasserted copyright based on its ownership of the film’s musical score and the short story on which the film was based (the film itself is still in the public domain). Ironically, a film that only became a success because of its public domain status was pulled back into copyright.

The one bit of good news, hopefully on the horizon is that this should be the last year that nothing enters the public domain on Public Domain Day. While Disney and other big copyright holders have been able to continually push out the eventual entrance of new works into the public domain in the US, if nothing changes, next January we will finally have works published in 1923 enter the public domain in the US. There had been rumblings about another attempt at copyright term extension in the US a few years back, but it's been much quieter in the past few years, as I think even the lobbying powerhouses in the music and movie industries have realized this isn't a fight they could win, or one really worth having. That doesn't mean someone won't try to extend the term again, but I hope most people now recognize what a bad idea it would be.

Of course, it's still ridiculous that it's only now that those works from the 1920s are entering the public domain -- while other countries are at least getting works from the 1940s or 1960s. Rather than worrying about copyright term extension, it seems we should really be exploring ways to bring copyright term back down to a much more reasonable time frame.

Filed Under: copyright, copyright term extension, public domain, public domain day

The Grinch Who Stole The Public Domain

from the we-need-more-than-12-angry-men dept

As they do every year, unfortunately, the good folks at the Center for the Study of the Public Domain at Duke have put together a depressing list of what should have entered the public domain yesterday. As you hopefully know, until 1978, the maximum amount of time that work in the US could be covered by copyright was 56 years (you initially received a 28 year copyright term, which could be renewed for another 28 years). That means, back in 1957, everyone who created the works in that list knew absolutely, and without a doubt that their works would be given back to the public to share, to perform, to build on and more... on January 1, 2014 at the very latest. And they all still created their works, making clear that the incentive of a 56 year monopoly was absolutely more than enough incentive to create.

And yet, for reasons that still no one has made clear, Congress unilaterally changed the terms of the deal, took these works away from the public, without any compensation at all, and will keep them locked up for at least another 40 years. At least. The website lists out books, movies, music and much more that is locked up away from the public for no good reason at all. In the books, there are works such as:

• Jack Kerouac, On the Road (completed 1951, published 1957)
• Ayn Rand, Atlas Shrugged
• Margret Rey and H.A. Rey, Curious George Gets a Medal
• Dr. Seuss (Theodor Geisel), How the Grinch Stole Christmas and The Cat in the Hat
• Eliot Ness and Oscar Fraley, The Untouchables
• Studs Terkel, Giants of Jazz
• Corbett H. Thigpen and Hervey M. Cleckley, The Three Faces of Eve
• Ian Fleming, From Russia, with Love

The list of movies is quite impressive as well. Imagine the kind of creativity that would be unleashed if people could take clips from the following list of films and mash them up into something new and wonderful. While I'm sure some folks (including, perhaps, folks reading this right now) could make something amazing out of mashing up clips from many of these works, you'd be making a very risky bet on fair use protecting you -- and even if it did, you might still have to face an insanely costly lawsuit first.

• The Incredible Shrinking Man (Based on Richard Matheson’s 1956 book The Shrinking Man)
• The Bridge on the River Kwai (Best Picture, Best Director (David Lean), Best Actor (Alec Guinness); also starring William Holden, Jack Hawkins and Sessue Hayakawa)
• A Farewell to Arms (Rock Hudson and Jennifer Jones)
• Gunfight at the O.K. Corral (Burt Lancaster and Kirk Douglas)
• 3:10 to Yuma (1957 original starring Glenn Ford and Van Heflin)
• Island in the Sun (James Mason, Joan Fontaine, Dorothy Dandridge, and introducing Harry Belafonte)
• Witness for the Prosecution (Tyrone Power, Marlene Dietrich, Charles Laughton, Elsa Lanchester)
• 12 Angry Men (Henry Fonda, Lee J. Cobb, Jack Klugman, Ed Begley, and more)
• Sweet Smell of Success (Burt Lancaster and Tony Curtis)
• Jailhouse Rock (Elvis Presley)
• The Prince and the Showgirl (Laurence Olivier and Marilyn Monroe)
• Funny Face (Audrey Hepburn and Fred Astaire . . . and Paris as only Hollywood can imagine it)
• An Affair to Remember (Cary Grant and Deborah Kerr . . . and the Empire State Building)
• Nights of Cabiria (written and directed by Federico Fellini and starring Giulietta Masina)
• The Seventh Seal (written and directed by Ingmar Bergman and starring Max von Sydow and Bengt Ekerot)
• What’s Opera, Doc? (Bugs Bunny and Elmer Fudd do Wagner)
• The first episodes of Leave It to Beaver and Perry Mason
• Elvis Presley’s third and final appearance on The Ed Sullivan Show on January 6, 1957

There's plenty of some of the most influential American music from the early days of rock and roll as well.

If you wanted to find guitar tabs or sheet music and freely record your own version of some of the influential music of the 1950s, January 1, 2014, might have been a booming day for you under earlier copyright laws – “That’ll Be the Day” and “Peggy Sue” (Buddy Holly, Jerry Allison, and Norman Petty), “Great Balls of Fire” (Otis Blackwell and Jack Hammer), and “Wake Up, Little Susie” (Felice and Boudleaux Bryant) would all be available. You could score a short film with Dmitri Shostakovich’s Symphony No. 11 in G minor (Opus 103; subtitled The Year 1905). Or you could stage your own performances of some of Elvis Presley’s hits: “All Shook Up” (Otis Blackwell and Elvis Presley) and “Jailhouse Rock” (Jerry Leiber and Mike Stoller). Today, these musical works remain copyrighted until 2053.

They further note that the classic musical West Side Story came out in 1957 as well. It should be in the public domain. But it's not.

And it's not just arts and entertainment. The post points out plenty of science and technology is still locked up thanks to all of this.

1957 was a noteworthy year for science: the USSR launched Sputnik 1 and Sputnik 2, IBM released the first FORTRAN compiler, and the UK’s Medical Research Council published an early report linking smoking and lung cancer. There were groundbreaking publications in the fields of superconductivity and astrophysics such as “Theory of Superconductivity” by John Bardeen, L.N. Cooper, and J.R. Schrieffer and “Synthesis of the Elements in Stars... ” by Geofrey Burbidge, Margaret Burbidge, William Fowler, and Fred Hoyle.

They further make an important point that while the works listed above grab all the attention, because they were so successful, the real shame is in lots of other works that are simply not available at all any more. And this would likely include all sorts of works from 1985. After all, works created in 1985, if created under the old law, would have been given an initial 28 year copyright term, which would also be expiring, and if history is any guide, the vast majority of those would not have their copyrights renewed. Instead, they're locked up... and quite frequently completely unavailable, with a very real risk of being lost to history.

The really crazy part about all of this is that it's the exact opposite of the entire original purpose of copyright. Copyright law was put in place specifically to encourage the creation of works that would be put into the public domain to promote learning, knowledge and understanding. Yet, instead, it's been distorted, twisted and misrepresented into a system that is used solely to lock stuff up, make it less accessible and less available, limiting the ability to promote knowledge and learning. What a shame.

Filed Under: copyright, copyright term extension, copyright terms, public domain, public domain day