Earlier this week, the Supreme Court ruled unanimously that states can not be held liable for copyright infringement. We went into greater detail the reasons why previously, but it comes down to a concept known as sovereign immunity, which makes it so that states, such as North Carolina, can’t be sued in federal court.
This might seem odd as, at the literal same time this case was before the Supreme Court, the State of Georgia is also before the Supreme Court arguing that it has the right to enforce its copyright over the annotated version of its legal code.
It’s a bizarre world where states can’t be held liable for infringement, at least not without new federal legislation, but still enjoy protection in the works that they do own. However, that’s kind of par for the course of copyright. Though we tend to picture copyright as a monolithic thing, it’s a series of patches and changes. Often times those patches come into conflict with one another and, as with this case, they often come into conflict with other areas of the law.
That opens the door to some strange stories and that is exactly what we’re going to explore today. Five strange tales from the history of copyright.
Note: With each of the items you can click the heading to be taken to a full article about the story.
The most recent of the stories we discussed, the copyright symbol has a surprisingly brief history.
The United States has a long history of bucking the rest of the world and imposing formalities to claim copyright protection on a work. It wasn’t until 1989 that the U.S. joined the rest of the world in dispensing with formalities in total.
Prior to that, the copyright notice took a lot of different forms, most of them long and inconvenient. The copyright symbol we all known was created in the Copyright Act of 1909, but it wasn’t until 1954 that it became useful for all types of works.
It’s a bizarre and strange history, complete with terrible abbreviations and flowery language, that serves to highlight why copyright formalities are so misguided.
Similar to the copyright symbol, the famous line “All Rights Reserved” also has a bizarre history of its own.
In 1910, the United States joined up with 17 other nations from both south and central America to sign the Buenos Aires Convention. It was an attempt to ensure that copyrights between those countries would be mutually recognized and enforced.
The treaty included the requirement that the creator of a copyright-protected work make a statement indicating that they were reserving their rights. This was done with “All Rights Reserved”.
Slowly, the treaty was replaced by later treaties including the Universal Copyright Convention, the treaty that made the copyright symbol international, and the Berne Convention, which removed all copyright formalities. By the year 2000, there was nowhere in the world the phrase was required.
Despite that, it remains widely used and is a part of many, if not most, copyright notices.
One of the most important films from early cinema is the movie Metropolis. Released in 1927, the film is widely heralded as a landmark for cinema as an art form.
That said, the copyright history of the film is more than a little bizarre, especially in the United States. There, the film was registered in 1925, granting it 28 years of protection. It would have enjoyed another 28 upon re-registration but, for reasons lost to history, that didn’t happen and the film lapsed into the public domain in 1953.
However, in 1989 the United States became a signatory to the Berne Convention, which removed such copyright formalities. Initially, the U.S. said that it only applied to works created after 1989 but, after signing the Marrakesh Agreement and the passing of the Uruguay Round Agreements Act (URAA) in 1994, Metropolis left the public domain in 1996.
This created a major problem as, during the 43 years it was out of the public domain, many had made good business reselling prints or making derivative works based on the film. They sued, challenging the URAA and, in 2011, the Supreme Court ruled that Congress did have the authority to remove works from the public domain. This makes Metropolis not just one of the most important works in cinema history, but in copyright history as well.
The United States doesn’t have a monopoly on copyright weirdness. If you’re looking for the country with the longest copyright term, it isn’t the U.S. or any European nation, it’s Mexico.
With a copyright term of life + 100 years, it easily outlasts the copyright term of the United States and most of Europe, which is life + 70 years.
However, what is even more bizarre is what was proposed to happen after it. Originally, works that reached the life + 100 deadline were not supposed to lapse into the public domain, but instead would become owned by the country itself. Mexico.
The move caused a great deal of controversy and, at some point, it was dropped. The final version of the act lets works lapse into the public domain. The exact reasons for the move are still unclear but, even without the eternal copyright that would have happened, Mexico still has the longest copyright term and, as recently as 2015, Mexico was trying to push other nations to also adopt it.
From a work that left and re-entered copyright to a country that nearly passed an eternal copyright to a work that actually has a never-never-ending copyright. Finally, for today, we look at the story of Peter Pan.
The history of Peter Pan is complicated but, created by author J. M. Barrie, the character made its first appearance in Little White Bird, which was published in 1902. A play featuring the character would be performed, but not published, in 1904. That play would not be actually published until 1928, a full 17 years after the book Peter and Wendy, which focused heavily on the character, was published.
However, shortly after publishing the play, he gifted all of the rights to the character to the Great Ormon Street Hospital (GOSH), a children’s hospital in Londo. They used licensing fees from the character to fund much of their operation.
All of that would have come to an end in 1987, 50 years after Barrie’s death, when the works were to enter the public domain. However, former Prime Minister James Callaghan, who was still an MP at the time, sponsored a bill that granted GOSH a perpetual extension on the rights to the works.
As such, within the UK, GOSh has a perpetual right to Barrie’s work other than Little White Bird, which was excluded. Though more recent estimates say it isn’t a big part of the hospital’s budget, it’s a revenue stream that is continuing and appears prepared to continue for a very long time.
Copyright is not a monolithic thing. It is deeply complicated and tries to not only create a rational and sensible code in and of itself but also try and synchronize that code internationally. It should be no surprise that, even with the best of intentions, copyright has more than a little weirdness.
For the most part, these are just curiosities with little practical impact (outside of edge cases). However, they are still fun to explore and understand how they came about.
To that end, copyright isn’t much different than any other area of law. When you’re doing something as complicated as legislation, especially when that legislation involves international treaties, the best you can really hope for is that you avoid the bulk of the potential weirdness.