Thousands of beloved works started pouring into the public domain on January 1, 2019
For the first time since 1968, on January 1, 2019 copyrights in tens of thousands of our culture’s important creative works – books, films, music, poetry, plays, artworks, etc. – have expired. Those works are now in the public domain, meaning anyone can copy them, reuse them, adapt them into new media and new creative works. Some of the famous films now in the public domain include Cecil B. DeMille’s 1923 silent film The Ten Commandments, Harold Lloyd’s Safety Last!, which includes the famous scene where he dangles from the clock tower, Charlie Chaplin’s The Pilgrim, Buster Keaton’s Our Hospitality, and Felix the Cat cartoons. Books include Kahlil Gibran’s The Prophet, Sigmund Freud’s The Ego and the Id, and some poetry by Edna St. Vincent Millay, e.e. cummings, William Carlos Williams, Rainer Maria Rilke, Wallace Stevens, and Robert Frost (including Stopping by Woods on a Snowy Evening – “Miles to go before I sleep”). Musical works include Yes, We Have No Bananas, Who’s Sorry Now?, Nobody Knows You When You’re Down and Out, Tin Roof Blues, The Charleston, and Igor Stravinsky’s Octet for Wind Instruments.
Why is this happening?
The term “public domain” is commonly misused to indicate works that are readily accessible, especially online. However, under copyright law, “public domain” has a specific meaning. Its not about public accessibility, its about whether creative works are protected by copyright. If they are not subject to copyright, such works are in the public domain, meaning anyone is free to copy and adapt them into new creative endeavors.
Typically, works are in the public domain once copyright protection for them has expired (there are exceptions, such as works created by government employees, which are in the public domain immediately, for example, NASA space photographs). Historically, copyright registration established U.S. copyright protection, which expired upon the end of either a 28-year term, or after that term was renewed for a total of 56 years, after the work was published. However, when copyright law was reworked back in 1978, the term for copyright protection changed, to life of the author plus 50 years (later expanded to life + 70 years) to match copyright terms in other countries. In order to bring older works into harmony with this new copyright term, renewals for the older works were expanded, so that most enjoyed copyright protection until 95 years after they were first published in the U.S. As a result, many works that were first published in 1923 received the same extended renewal term, until 2019. Next year, another batch of old works, first published in 1924, will enter the public domain, and the trend will continue each January after that until works first published in 1977 expire on January 1, 2072.
(Note: Certain U.S. works will have lost copyright protection earlier, due to failure to comply with formalities that were required under our old copyright law. The term for older works in other countries are different, for example, in Europe, works by authors who died in 1948 entered the public domain this year upon expiration of the EU’s life plus 70 years copyright term.)
Why is this important?
The release of tens of thousands of works into the public domain at one time is unprecedented, and many believe there will be a big impact on our culture, especially now that it’s so easy to share works online. All of these new public domain works can now be posted on the internet, and can be copied and adapted by anyone. Authors can quote freely from these works, and fans can create their own sequels or alternative versions without fear of being sued by the author’s estate. On the other hand, advertisers can also freely use these works to sell commercial products, which in other countries would violate the authors’ moral rights to control how their works are used. In the U.S., however, we only have moral rights for a small subset of noncommercial visual arts. We may see a push for extending U.S. moral rights to other types of works once we experience how these new public domain works are treated in our marketplace.
The online copyright registration system may be getting a significant upgrade
In October 2018, the Copyright Office put out a “Notice of Inquiry re Registration Modernization.” The Notice included many suggestions and questions about how the online application system for copyright registration could be improved. Responses were due on January 15. Owen, Wickersham & Erickson’s Linda Joy Kattwinkel consulted with the Graphic Artists Guild, a national organization serving the graphic arts community, on the Guild’s response to the Copyright Office’s inquiry. Linda Joy, who is a visual artist and former professional graphic artist, serves as advocacy counsel to the Guild.
Along with other artists’ organizations, the Coalition of Visual Artists and the Copyright Alliance, the Guild’s response offered several suggestions for improvement, including recommendations that the online registration system be completely revamped to ensure a more user-friendly and more comprehensible application format, integration of copyright information and help systems into the online application, development and integration of API’s with the online application so that copyright registration applications can be coordinated with image management systems that artists and photographers use in their everyday business, making filled-out application forms available for review before final submission (so clients can review the accuracy of information entered by their counsel), making digital registration certificates available, elimination of mandatory physical deposit copies for most works, expansion of group registration options, and offering dynamic pricing models, including tiered and subscription-based pricing, and a provisional application process allowing copyright owners to submit deferred-examination applications for a lesser fee (which could be upgraded to full review and registration if, for example, registration is needed to support an infringement lawsuit). We also urged the Copyright Office to resolve widespread confusion regarding the distinctions between published and unpublished works, especially for those that are displayed online, and to prevent registrations from being invalidated if applicants mistakenly identify their works as published or unpublished.
Given the typical glacial pace at which the Copyright Office, like most government agencies, moves through its tasks, it may be a while before we see evidence that the Office has acted on these suggestions. Typically, we may see a follow up “Notice of Proposed Rulemaking” regarding changes the Office wants to adopt, with another round of opportunities for public comment. Nevertheless, it seems clear that the Office is serious about improving the registration process for both copyright owners and Copyright Office staff, and eventually, changes (hopefully, improvements) will be made.
— Contributed by Linda Joy Kattwinkel