From Art Law Journal:
On Jan 1, 2019, we not only ushered in a new year but also an unprecedented amount of creative works entering the public domain. “Public domain” refers to creative works that are not protected by copyright so anyone can use them in any way they would like, such as reselling or using the material to create new or updated versions, without having to obtain permission from the previous owners nor compensating them.
Jennifer Jenkins, director of Duke University School of Law’s Center for the Study of the Public Domain said in an interview with Smithsonian Magazine, “We haven’t had a day quite like this in decades. . . The public domain has been frozen in time for 20 years, and we’re reaching the 20-year thaw.”
How 2019 came to have such special significance for the public domain is a sordid story of congressional incompetence, international treaties, and Mickey Mouse.
. . . .
Copyright protection dates all the way back to the founding of the United States. Article I, Section 8, Clause 8. States:
The Congress shall have 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.…
The United States was the second country to adopt a general copyright law passing the Copyright Act in 1790, which protected maps and books for a term of 14 years and another 14 years if renewed. Interestingly, the Copyright Act was passed with minimal discussion and was taken almost verbatim from Britain’s Copyright Act, The Statute of Anne, which passed in 1710.
. . . .
Over the next century, Congress broadened the scope of protection to include more types of creative works. At the same time, countries around the world began to embrace the idea that their countries benefited greatly from protecting intellectual property.
However, the United States became an outlier in how it defined the term for copyright, focusing on protection of the creative work over a fixed period whereas other countries gravitated toward protection based on the author’s life plus a certain number of years following it. Unfortunately, the US copyright system was incompatible with the rest of the world so when a group of sixteen countries (including France, Germany United Kingdom and Canada) convened in 1887 to sign an international copyright treaty known as the Berne Convention, the United States did not join.
. . . .
One noted difference was that for valid copyright [under US law], a work must have been registered with the US Copyright Office along with a formal copyright notice affixed to the work:
(1) The symbol © or the word “Copyright”; (2) the year of first publication; (3) the name of the copyright owner (i.e. © 2012 John Smith)
Because foreign works did not have this requirement, they automatically became part of the public domain in the United States. This created tension with other countries, including important political allies.
The US also continued to be the only country that viewed copyright terms based on publication, making several revisions to copyright duration. By1909, the copyright term had grown to 28 years with an additional 28 years if renewed but it wasn’t until 1955 that the US began to seriously consider harmonizing its copyright laws with the members of the Berne Convention.
. . . .
[I]n 1989 the United States joined the Berne Convention, which necessitated the removal of several key components of US Copyright law to comply with the treaty rules. For example, the condition of including the copyright notice and to register with the US Copyright Office was no longer applicable. As well, another condition of the treaty gave many foreign works copyright protections that were previously in the US Public Domain. Additional rules were also required to maintain copyright protection on works that would normally have entered the public domain under the previous US rules, even some that did not renew their registration or have a proper copyright notice.
Then in 1998, came a copyright power grab. Congress passed the Sonny Bono Copyright Extension Act, which added an additional twenty years to copyright duration for individuals (life of the author plus 70 years) and for companies, the copyright term became 95 years from publication or 120 years from creation, whichever came first.
As we discussed in How Mickey Mouse Keeps Changing Copyright Law, the Sonny Bono Act has been widely viewed as a way to keep Disney’s Steamboat Willie (1928), the first appearance of Mickey Mouse in film, from slipping into the public domain. It is seen as a prime example of successful corporate lobbying, although admittedly, Disney’s intervention is more conjecture than proof.
. . . .
[M]any works received an additional 20 years of copyright protection significantly decreasing the number of works entering the public domain during those two decades.
However, as of Jan 1, 2019, the extension has expired bringing the entire 20 years’ worth of creative works into the public domain, all at once. Itis the largest collective copyright expiration in recent memory. As well, without the extension, we can expect a more normal parade of works entering the public domain works every January 1st.
. . . .
From the hundreds of thousands of works that have entered the public domain in 2019, here are a few of the most prominent:
. . . .
- Edgar Rice Burroughs, Tarzan and the Golden Lion
- Agatha Christie, The Murder on the Links
- Winston S. Churchill, The World Crisis
- Robert Frost, New Hampshire
- Aldous Huxley, Antic Hay
- D.H. Lawrence, Kangaroo
Link to the rest at Art Law Journal
Meanwhile, the creative class can’t make money off someone else’s creation. It’s so unfair.
American copyright law will get better when Congress carves out the Mickey Mouse exception: All copyright shall endure for a term of 25 years, renewable for a second term of 25 years on payment of a second filing fee within the calendar year of the first term’s expiration, except for Mickey Mouse, whose copyright shall endure forever and ever, world without end. Amen.
I think Marvel and DC characters would need to be included. More money there these dsys. 🙂
The practical reality is that trademark is already achieving that so a new law would be redundant. And too blatant.
Felix, Yeah, but the lobbyists for Marval and DC are small stuff compared to the heavy hand of Disney.
Marvel *is* Disney.
And DC is ATT/WB. Their lobbyists are pretty good as the recent merger proved.
There’s big money in those trademarks. Batman and Spider-man are money making machines and lately even lesser known characters have racked up billion dollar box offices. The Aquaman movie alone has already brought in enough money to buy the entire Congress. 🙂
That might be for movies and “art” but in other fields, even life plus seventy has allowed a fair amount of twentieth century content from 1923 to the 60’s to enter the PD, including more than a few seminal works.
It’s not a total blackout as some like to pretend.
I had to look it up. 1921 works entered the public domain in 1978, 1922 works entered the public domain in 1998 and 1923 works entered the public domain in 2019.
“However, as of Jan 1, 2019, the extension has expired bringing the entire 20 years’ worth of creative works into the public domain, all at once. Itis the largest collective copyright expiration in recent memory.”
Incorrect. It brought one year, 1923, into the public domain. It is correct that every January 1st another year will enter the public domain as long as congress doesn’t change it again. It’s just that’s it’s been twenty years since the US has had an entire year of works enter the public domain. We had one year, 1922, enter in 1998 and years before that where nothing entered.