Public Domain Faucet Is Open Again--But It's Just a Trickle

The U.S. Constitution grants authors the exclusive right to copy, publish, and derive income from their works for a "limited time" as established by Congress. After that time, those works fall into the public domain, which means the public, anyone, can publish or otherwise use the work without securing permission or having to pay a fee. This is why the novels of Charles Dickens, Jane Austen, Victor Hugo, and countless other celebrated authors whose copyrights have expired have been republished, posted on the Internet, and made into films, plays, and musicals so easily and freely. They became part of the world's culture. This cultural benefit might not have happened had authors been required to get the permission from and pay fees to the Dickens, Austen, and Hugo descendants or those to whom these families had sold copyrights that had lasted so long.

And yet, in 1998, as a result of intensive lobbying by the Disney Corporation and other companies and estates holding copyrights that were facing expiration, Congress passed the Sony Bono Copyright Term Extension Act, named after the late congressman and entertainer who had backed similar legislation. The act, basically, added 20 years to copyrights that had not yet expired. As a result, no copyrighted works passed into the public domain for 20 years. This benefitted some copyright owners whose works were still in print and continued to bring them revenue. It also kept works that had long been out of print and could have been reprinted and widely disseminated once again to remain forgotten and prevented an unknown number of works based on books, stories, films, and plays whose copyrights would otherwise have expired from being created.

I remember speaking at a meeting panel on copyrght a dozen years ago in which I said things similar to what I have just written. An attorney for a media corporation insisted that the 1998 legislation was necessary to make the U.S. copyright law consistent with that of other countries like the UK in that it changed the basic copyright term in the U.S. from the life of the author plus 50 years to the life of the author plus 70 years. The problem was, I responded, and is, that Congress added the 20 years not just to copyrights for new works but to works whose copyrights were due to expire. This shoved the concept of the public domain into limbo.

Twenty-years after the copyright term extension act was enacted, works published in print or film in 1923 have finally entered the public domain. The media has noted these incuded efforts by great authors, playwrights, and filmmakers that can now be used without permission of fees. There are indeed a few major works in this lot--Virginia Woolf's Jacob Room and Harold Lloyd's film Safety Last in which Lloyd iconically hangs from the hands of a tall building's clock. But there are more lesser works than great ones. Cecil B. DeMille's film The Ten Commandments is also now in the public domain, but it's the 1923 silent version and not the 1956 remake starring Charlton Heston, even though some media published a photo of Heston as Moses with their story about the opening of the public domain.  In fact, all of the films that entered the public domain on Jan. 1, 2019 are silent ones. Without the 1998 legislation, sound films once protected by copyright would have started enterting the public domain 13 years ago. We'll have to wait two years for F. Scott Fitzgerald's The Great Gatsby and a few more years for major works by Ernest Hemingway and William Faulkner to go into the public domain.  What is clear is that each year for the next 19 years a few more major works will be available for free use by the public, but they all could now be being used and reused and rethought if Congress hand't reacted to the needs of the few at the expense of the needs of the many 20 years ago.

Some things that have happened in the past two decades while the public domain remained frozen will widen public use of public domain material. For example, recent court action concerning the copyright of Arthur Conan Doyle's Sherlock Holmes novels and stories suggest that once works enter the public domain, so, mostly, do the characters that were created for those works.

But there are also unknowns. There are no indications that Congress would consider another copyright extension and, given all that is going on in Congress now, there is no evident appetite for such a move. But, who knows? And then there's the issue of trademarks. Disney's lobbying for the 1998 legislation was primarily designed to keep Disney's character of Mickey Mouse protected by copyright until at least 2024, at which time the copyrights of Mickey Mouse cartoons will start expiring and anyone can, argulably, show those cartoons and use the character's image without permission or fee. I say arguably because Disney owns trademarks in the words and some of the images of "Mickey Mouse,"  and trademarks, as long as they are used, do not expire. Edgar Rice Burroughs' Tarzan novels have largely entered the public domain, but the Burroughs' estate trademarked the name "Tarzan" and in such litigation as Burroughs v. Mann Theatres (C.D. Cal. 1976) has prevented the distribution of works using the Tarzan trademark. The Arthur Conan Doyle Estate did not emerge victorious in the litigation concerning whether the character of Holmes portrayed in Conan Doyle's pre-1923 stories and novels is protected by copyright.  But the estate has several trademarks in the name "Sherlock Holmes." Admittedly, the characters of Tarzan, Sherlock Holmes, and Mickey Mouse are likely the exception in that not all ficitional characters will qualify for trademark status. But if nothing else they are examples of how the influence that froze the public domain for 20 years could continue while copyrighted works once again enter the public domain, but only at a dribble.