Ask Dr. Copyright

Dear Doc: What’s “the public domain”? Why should I care? And why is 1923 an important year?


Nothing Better to do Today Than Worry About Obscure Copyright Law Issues  

Dear Nothing, &c.:  

When the drafters of the US Constitution peered into their famous crystal ball (you know, the one that let them foresee the invention of machine guns, mass electronic media, and SnapChat), they saw that our Nation would be well-served if we encouraged authors and inventors to be as creative as possible. That is why they wrote Art. I, Sec. 8, Cl. 8 into the Constitution, granting Congress the 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.  

At first, Congress gave authors 14 years as their “limited time” of exclusive right. Then, over the years, Congress added more time, allowing authors to renew for another 14 years, then allowing their heirs to file for the renewal, and then in 1909, doubling the term to 28 years, and allowing a 28 year renewal. Not satisfied with 56 years of exclusive right, authors, film makers, musicians, and other artists got Congress to change the copyright law in 1976 to grant a term of 70 years after the death of author (and, if a work is of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first.)  

Then, just as the copyright on Mickey Mouse was about to expire, Sonny Bono (yes, THAT Sonny Bono) decided that for Disney, the beat should go on a while longer. He introduced legislation that retroactively extended the term of about-to-expire copyrights for 20 years. Yes, the Doc knows that it does nothing to encourage authors to give more time (and thus lots more money) in the late 20th  Century to owners of works created in the 1920s, but the good ol’ Supreme Court, never wanting to short-change large American media corporations, said this was okey-dokey with them in the case of Eldred v. Ashcroft, 537 U.S. 186 (2003)   

So, my friend, for the past 20 years, nothing has entered the “public domain”, which is what we call all of the works (literature, film. music, art, etc.) that is no longer protected by copyright, and that anyone, anywhere, is free to use in any way without permission, and without having to worry about being sued. The flow of things protected for a “limited time” just stopped. That meant that twenty years’ worth of creativity just stayed bottled up by copyright lawyers, like the Doc. Good for lawyers, great for Disney, but not so great for We The People. The Doc’s old friend, Brewster Kahle, founder of the Internet Archive put it best: “We have shortchanged a generation. The 20th century is largely missing from the internet.”  

On January 1, 2019, that changes. Works first published in 1923 will enter the public domain. Every January 1st from now on, a year’s worth of creativity will enter the public domain (unless Congress takes another corporate payoff!) It’s been a long 20 years, but we can finally bid farewell to Sonny Bono’s cork in the copyright pipeline. (On January 1, 2024, the first Mickey Mouse film, “Steamboat Willie” goes public!) So feel free to quote Robert Frost’s “Stopping by Woods on a Snowy Evening”. Sing “Yes, We Have No Bananas”. Party like it’s 1923!  

Have an obscure intellectual property question? The attorneys at LW&H enjoy providing obscure (but easy to understand) answers. Give them a call.  

Until next month,  

The “Doc”

— Lawrence A. Husick, Esq.