On January 1, 2019, something happened in the United States that hadn’t happened in 20 years. However, it was easy to miss, especially if you don’t follow copyright news, and its importance is still the subject of much debate.
With the new year, new works entered the public domain.
Lists such this one provided by the Center for the Study of the Public Domain at Duke University, highlight some of the works that lost their copyright protection at the stroke of midnight.
However, since the year lapsing is 1923, it’s not exactly a gangbuster list. Highlights include Safety Last!, the famous silent film starring Harold Lloyd that features the clock tower scene, The Ten Commandments by Cecil B. DeMille (the 1923 silent one, not the much more famous 1956 version), the composition for Charleston, the song that accompanies the dance of the same name, and various lesser-known works by Agatha Christie, E. E. Cummings, Virginia Woolf and more.
But, despite the meager list, the event has been widely celebrated by those who feel that copyright has grown too expansive. This most prominently includes Creative Commons and the Internet Archive, which are hosting an event to celebrate the “grand re-opening of the public domain” later this month.
But what does the first public domain day in two decades really mean? The answer for most creators is not much. However, there are some potentially interesting implications for the larger copyright picture, especially as we look down the road.
How Did We Get Here?
Under normal circumstances, new works lapse into the public domain every year. As the clock strikes midnight on January 1st, works that now fall outside of their copyright term become public domain.
However, in 1998, Congress passed and President Bill Clinton signed the Sonny Bono Copyright Term Extension Act (SBCTEA). The act did one very simple thing, it added 20 years to the copyright term. This meant works of individual authorship would be protected 70 years after the creator’s death instead of 50 and works of corporate authorship would be protected for 95 years instead of 75 years.
While the term itself is actually one of the most common globally, it was still significantly controversial at the time. The act is often derisively called the Mickey Mouse Copyright Extension Act because of the works that saw a reprieve was Steamboat Willie, which was set to expire in 2004 but now has protection until 2024.
But one effect of the act was that, for 20 years, no new works would enter the public domain. Any works that were preparing to enter in 1999 would have to wait 20 years. Those 20 years have now expired and works are entering the public domain as they would have 20 years ago without the extension.
How big of a deal you feel this is likely depends on your views of the current copyright term and rules. However, for creators it really doesn’t mean that much. Though thousands or works from 1923 are entering the public domain, the copyright term on newer creations remains unchanged and very little happens to living creators.
But that doesn’t mean changes aren’t coming, they just may not be what many expect.
The Actual Impacts
The 1923 collection to enter the public domain isn’t particularly exciting. Very few of the works involved are still commercially viable. However, that won’t be the case for much longer.
The most-discussed example is Steamboat Willie, the cartoon that marked Mickey Mouse’s first appearance and was the work that many allege the SBCTEA was meant to protect. Though Disney’s role in passing the SBCTEA is greatly exaggerated, there’s not much doubt that they were a beneficiary of the law, this cartoon being the prime example.
However, January 1, 2024 won’t be the day that Mickey Mouse becomes public domain. Barring another change in the law (which is unlikely) the cartoon will lapse, but the character will be very much protected.
First and foremost, it will be because the Mickey from Steamboat Willie is a very different character than the one we know today. As we see today with Sherlock Holmes, when some of a character’s work is public domain and some of it protected, it can get very complicated as to what others can use.
But then there is the issue of trademark. Mickey Mouse, his name and his likeness, are both trademarks of Disney and the company protects them fiercely. The result is that 2024 will not be the year you can start up your unlicensed Mickey Mouse t-shirt enterprise or start making new cartoons based on the character.
Though the Supreme Court ruled in 2003 that you can’t use trademark to extend a copyright past its expirationvwwafyvddzvuxsbraavywfwrsuetxwybzrzdtb, that only applies to the work itself. Still, one can easily predict that there will be significant legal battles over the Mickey Mouse character and just what the boundaries are regarding its copyright status (or lack thereof).
And Mickey Mouse is, in many ways, just the tip of the iceberg. As more classic but still commercially-viable works enter the public domain, there is going to be more and more legal battles over them. As we saw with the long, protracted battle over Happy Birthday To You, it can be difficult to prove something is in the public domain, even if there are multiple arguments for why it should be.
In short, as new works enter the public domain, what we’re actually going to be looking at is a lot of litigation. This isn’t necessarily a bad thing as it may help clarify areas of copyright law that are currently muddled, but it means that the reopening of the public domain isn’t likely to be smooth or quiet.
So brace yourself, not for a radical change in copyright law, but for new legal battles. Though we’ve had our share of public domain-related legal battles over the past two decades, it’s about to get a lot more heated.
Regardless of what you think about the current term of copyright, the new admissions to the public domain don’t really have a major impact for living creators.
However, as more and more works do lapse we are going to be entering somewhat uncharted territory. Though most works cease being commercially viable after a few years or decades, many very lucrative works have held on to their value for much longer.
Couple that with modern licensing and rights tracking, these works have owners that are still exploiting them and are highly motivated to not lose them.
We’ve seen this with Sherlock Holmes, Peter Pan, Happy Birthday to You, It’s a Wonderful Life and more. History is filled with ways rightsholders have fought (and succeeded) to keep lucrative works out of the public domain.
That particular campaign is about to get a lot more active, for better or worse.