A treasure trove of Hollywood intellectual property is heading for the public domain

From The Economist:

A.A. Milne, who created Pooh in 1926, might not have approved of “Winnie-the-Pooh: Blood and Honey”, a low-budget slasher film due out in February. But no approval from his estate was needed. In January 2022 the copyright on “Winnie-the-Pooh” expired in America and the work entered the public domain. Since then the bear has also featured in a mobile-phone advertisement as “Winnie-the-Screwed”, complaining to Rabbit that his mobile bill is too high.

Every year a new haul of creative work leaves copyright and becomes free for anyone to adapt and exploit. In America, where copyright for older works is usually 95 years, recent entries to the public domain include Ernest Hemingway’s “The Sun Also Rises” and F. Scott Fitzgerald’s “The Great Gatsby”.

But a new era in copyright is now dawning. As the limit begins to expire for works created in the late 1920s, the public domain is starting to receive not only works of literature, art or music, but video, too. Hollywood’s intellectual property, some of it still wildly valuable, is increasingly up for grabs.

In January “The Jazz Singer”, one of the first successful “talkies”, will go out of copyright. Warner Bros, which released the film in 1927, is unlikely to worry much about losing the rights to what is today a historical curiosity. But a year later “Steamboat Willie”, the first film featuring Mickey Mouse, who sits at the centre of Disney’s merchandise business which brings in more than $5bn a year, will be there for the taking. In the 2030s Disney films including “Snow White”, “Bambi” and “Fantasia” will slip out of copyright. So will some of the comic-book heroes who are among the most successful performers at the modern box office. The latest Batman movie took more than $770m at the box office; Warner has two sequels planned. Yet from 2035, anyone will have the right to make one.

For Hollywood executives 95 years may feel all too fleeting, but copyright terms used to be much shorter. The first modern copyright law in the English-speaking world, published in 1710, gave rights-holders in England up to 28 years’ ownership of their work. America followed suit with its first federal copyright law in 1790. By 1909 the term was 56 years. This held until the 1970s. Then, just as Hollywood’s treasures were about to become public property, Congress stepped in to lengthen the term to 75 years. In 1998, as Domesday approached once more, Congress passed the “Mickey Mouse Protection Act”, as it was mockingly known, extending the copyright term to 95 years.

Many expected a further extension. None has materialised. The reason, in a number of ways, is the internet. First, it has turned voters into copyright liberals. In the 1990s the subject of copyright was of interest only to “educators, historians and librarians”, says Mitch Stoltz of the Electronic Frontier Foundation, a free-speech pressure group. With the advent of the internet, people saw how easily information could be copied, and how copyright rules curtailed their ability to share music or images, or to post on social media.

The internet also changed the balance of lobbying power. Publishers, record labels and film studios had always pushed for lengthy copyright terms; no commercial interest had reason to push hard against them. That is, until the arrival of companies such as Google and YouTube, which make their money by sharing other people’s content. Google won legal battles over its use of copyrighted pictures in its image search. Record labels sued YouTube for hosting clips featuring their music, before the labels decided to settle.

Link to the rest at The Economist

Protection of intellectual property in the United States originated in the British system of protecting intellectual property, beginning with the introduction of the printing press to England in the late fifteenth century. This invention allowed the owner of a printing press to create a great many copies of an original written work. British law was about protecting printers for quite a long period of time.

In 1710 Parliament enacted the Statute of Anne. The 1710 act established the principles of authors’ ownership of copyright and a fixed term of protection of copyrighted works (14 years, and renewable for 14 more if the author was alive upon expiration). The statute prevented a monopoly on the part of the booksellers and created a “public domain” for literature by limiting terms of copyright and by ensuring that once a work was purchased the copyright owner no longer had control over its use.

This relatively recent history undoubtedly had an impact on those who drafted the United States Constitution, adopted in 1787.

The United States Constitution gives Congress the right to pass copyright and patent legislation:

Article I  Legislative Branch

Clause 8 Intellectual Property

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 Congress first gave life to this provision of the Constitution with The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies. This first copyright act was modeled on the Statute of Anne.

PG notes a couple of items in the Constitution.

1. The purpose of the clause is to promote the progress of science and useful arts.

This concept is easy to understand. The drafters of the Constitution saw value in encouraging the creation of intellectual property. New discoveries, devices and writing were not only a cultural benefit to the country and populace, they also provided an economic benefit by allowing creators to earn money from their creations – encouraging both new and more efficient industries and spreading knowledge among the general populace.

2. The method for promoting such creativity is to allow creators to commercially exploit their discoveries and creations on an exclusive basis for a limited period of time. They could do this by being the sole source for the invention or creation or by permitting as many others as the inventor thought wise to make commercial use of the creation. Generally speaking, the creator obtained compensation, usually financial, in exchange for his/her/their grant of rights to others.

Filing for patent or copyright creates a public document, either a description of the invention sufficient for others to understand the details of the invention and its unique character or, in the case of copyright, a copyright, a complete copy of the writing receiving protection.

Such filings were made available for examination by the general public by the government bureau where they were filed/registered. This allowed other interested parties to increase their knowledge and, potentially, to benefit the public by encouraging even more research and discovery sparked by the patent description. The difference between a new creation similar to a protected work and one that was derived from the protected creation sometimes results in gray areas.

Today, of course, you can see copyright and patent filings online, either at not cost through a clunky government website or from private information providers who charge a stiff fee for their services.

Here’s what the US Patent & Copyright Office has to say about derivative works in its Circular 14: Copyright in Derivative Works and Compilations:

A derivative work is a work based on or derived from one or more already existing works. Common derivative works include translations, musical arrangements, motion picture versions of literary material or plays, art reproductions, abridgments, and condensations of preexisting works. Another common type of derivative work is a “new edition” of a preexisting work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.

To be copyrightable, a derivative work must incorporate some or all of a
preexisting “work” and add new original copyrightable authorship to that work.
The derivative work right is often referred to as the adaptation right. The following are examples of the many different types of derivative works:
• A motion picture based on a play or novel
• A translation of an novel written in English into another language
• A revision of a previously published book
• A sculpture based on a drawing
• A drawing based on a photograph
• A lithograph based on a painting
• A drama about John Doe based on the letters and journal entries of John Doe
• A musical arrangement of a preexisting musical work
• A new version of an existing computer program
• An adaptation of a dramatic work
• A revision of a website

At least in the United States and, likely, in other nations that provide robust protection of creative works (not all do this), there is an ongoing tension between protecting new creations in order to encourage others and allowing other creators to build upon and extend the original creation/discovery.

During the last 30-50 years, the heirs and/or successors in interest of the original creators/inventors have persuaded Congress to extend patent and copyright terms for a longer and longer period of time. The Walt Disney Company has been in the forefront of many such lobbying efforts.

For PG, this is an indication that the purpose of the patent and copyright laws – to encourage original creativity in a wide range of fields, which is often an individual or small group effort, has been diluted into a corporate right to ongoing exclusive exploitation of the work of one or more dead individuals.

If PG were king for a day, he might consider going back to earlier copyright protection terms – 14 years after initial publication plus an additional 14 years upon filing of an application for copyright extension. He’s not tied to the specific term of 14 years, but he is inclined not to have copyright protection be calculated based upon the year the author died.

For PG, the fundamental bargain the government offers is: Exclusive use for commercial purposes for a limited period of time in exchange for a public filing of the creation so others can study it, learn from it and build upon it after the period of exclusivity ends.

4 thoughts on “A treasure trove of Hollywood intellectual property is heading for the public domain”

  1. One major correction to the homeboys at WSJ: US copyright protection is not, never has been, and probably never will be the “world standard” that they imply/state. In the nineteenth century — all the way up to adoption of the 1909 Act — the US was largely considered a pirate haven. Indeed, Arthur Sullivan (half of Gilbert and Sullivan) toured the US twice urging people to see only authorized productions consistent with the way things were done in Europe.

    And “life of the author plus fifty years” has been the international standard since 1886, you arrogant swine.

    We won’t get into the “work made for hire” questions.”

    The place the US copyright systems/doctrine is superior to the rest of the world is in “fair use” (distinct from the “fair dealing” enabled by the Berne Convention and just about every other nation’s domestic copyright law)… but that’s because we’ve got the First Amendment and they don’t, not because our copyright statute is the leader. One would think that a purportedly journalistic outlet would emphasize the First Amendment!

    • Who is the swine you refer to in paragraph two? Is it the same individual your correcting in paragraph one or is it in reference to the individual who wished if they were king for a day what they’d propose?

      • It’s the plural swine “homeboys @ WSJ”.

        If there’s one place in the US that one can find Manifest Destiny all the time, it’s the WSJ. This has been a problem for me for several decades. And it’s both personal and professional (relating to both of my professions).

  2. I would go with shorter renewal periods, but allow for unlimited extensions, but with the renewal fee increasing (doubling??) each time. Since you cannot copyright “Mickey Mouse” but have to copyright every work he appeared in, over time this would turn into a big revenue stream from corporations who have what they consider valuable IP, while allowing the works with lesser demand on them to move into public domain at a faster pace.

    There are very few works that are of commercial value more than a couple decades after they were created.

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