The Public Domain Grows in 2019
For the first time this century, a wide array of artworks, books, music and films fell into the public domain. Works in the public domain, which now includes those created in 1923, are “ideas, images, sounds, discoveries, facts, [and] texts” that are no longer under copyright protection. Anyone who enjoys creating something can make use of works in the public domain for inspiration. Find a sample in the Internet Archive or rework a myth from a text in Hathitrust, and turn it into something new. Your creative opportunities now include the sheet music for “Yes! We Have No Bananas,” or Cecil B. DeMille’s Ten Commandments, or Jacob’s Room by Virginia Woolf, all published in 1923 (or the many other works from 1923 listed by the Duke Law Center for the Study of the Public Domain).
Copyright was established in the Constitution as being of limited duration with a definite endpoint so that the public could freely build on those works and create new things from them, known as derivative works. But copyright holders with deep pockets and a strong interest in longer terms of copyright were able to successfully lobby for extensions to the term, culminating in a bill signed in 1998 that established a duration of 95 years for most content created from 1924 to 1977 (other than in certain circumstances) and, for more recent works, 70 years following the death of the creator or 95 years if created by corporate authorship.*
Most of the classic fairy tales that get turned into animated movies are based on works in the public domain, like Cinderella, Snow White, Beauty and the Beast, Alice in Wonderland, The Little Mermaid, and so many others. The stories of Jane Austen and William Shakespeare are freely available to adapt and remake. Works in the public domain can be preserved and distributed, thus ensuring they might also be renewed and retold, reimagined and reworked, so they are never forgotten. Every generation gets at least one retelling of the story of Robin Hood because it is based on a legend of the 15th century and under no copyright restriction. And, of course, while the original story is available to all, each new version, including images, original music and the rewritten story, becomes protected by copyright granted to the corporate or individual creator, which gets to the goal of incentivizing creation to which copyright was always meant to contribute.
However, there are many works still under copyright protection (1924 to the present, unless the creator puts their work in the public domain at the time of creation, or for some works created between 1924 and 1989 depending on the circumstances) with unclear ownership. These are known as orphan works. The risk of liability should a copyright owner suddenly pop up limits the use of the many works — photographs, books, songs, films and more — for which this is the case. As a result, there are many examples of scholars and artists who are prevented from or decide against using these works for fear of liability. There is some recourse in the doctrine of fair use, which libraries and archives have used as a way to justify preserving orphan works. But beyond that, as books from this period fall out of print, it becomes a question of access: Paul J. Heald found in 2013 that books from the mid- to late 1920s, and the 1930s through the 1950s are simply less available to read as measured through listings on Amazon.
Heald and Christopher Buccafusco did a study in 2013 comparing the availability and quality of audiobooks created from public domain books and books still under copyright protection. Counter to the arguments in favor of longer terms suggesting that a work falling into the public domain would lead to, paradoxically, both over- and underuse of the work, the authors found that professionally recorded audiobooks from public domain books were of comparable quality and greater availability than books of the late 1920s and early 1930s still under copyright, even books of that era that were bestsellers when first published. Buccafusco and Heald concluded “[t]here seems little reason to fear that once works fall into the public domain, their value will be substantially reduced based on the amount or manner in which they are used.” Books still under copyright were more likely to be “disappeared,” as Heald put it, than still of interest to anybody.
Attempts have been made to address the issue of orphan works, but the conflicting priorities of those involved in the matter have led to little real progress. However, that changed somewhat in 2018. As the end of the freeze on the public domain approached, efforts were made to extend copyright protection such that some sound recordings would stay under copyright protection for 144 years since the date of creation. But what happened instead was a more comprehensive rethinking of the copyright law of sound recordings establishing “a process for lawfully engaging in noncommercial uses of pre-1972 sound recordings that are not being commercially exploited” and ensuring that other federal copyright exemptions — fair use, first sale, and others — applied to recordings produced prior to 1972, which differing state laws had not previously guaranteed.
The failure of Congress to further extend the copyright term for all creative works and the not unrelated lack of full-on lobbying from creative content owners showed a change in the culture surrounding copyright and ownership of creative material since the laws of the late 20th century that extended it to its current length. As a result, even Mickey Mouse may soon enter the public domain, once the character’s debut short Steamboat Willie of 1927 loses copyright protection (which is set to occur on January 1, 2024). However, the character will still be protected as a Disney trademark, and the only version of Mickey in the public domain will be the one in Steamboat Willie who did not yet wear the signature white gloves, so it will be interesting to see what happens next.
We will never know what has been lost because the fear of liability quashed creative expression. The public domain keeps works alive in a way that the long terms of copyright protection fail to do. Now that Public Domain Day 2019 has come and gone without any catastrophic results, hopefully the value of free access to works created by previous generations will help lead to a rethinking of copyright law beyond the 2018 law about sound recordings. Everyone benefits from greater access to inspiration!
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*Note: The exception to the confusing state of affairs concerning what is and is not protected by copyright is work created by government employees while on the job, which is always in the public domain. Different rules apply for works first published outside the U.S. The Copyright Information Center at Cornell University Library has a thorough explanation of what is protected and for how long.
Vicky Ludas Orlofsky has been the Instruction & Scholarly Communication Librarian at Stevens Institute of Technology in Hoboken, NJ, for more than five years. She has long had a personal and professional interest in issues of copyright, user privacy and intellectual freedom, which has informed her approach to instruction and reference. She lives in New Jersey with her family, and in her spare time, such as it is, enjoys bakeries, reading, and bullet journaling.