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What’s Yours is Mine: Copyright Protection and the Public Domain

By Jonnae Miller
Southern University Law Center
Juris Doctor, 2021

Among many things, New Year’s celebrations symbolize taking inspiration from our past mistakes and accomplishments to enhance our future selves. Around the globe, individuals celebrate the coming of New Year’s Day as the clock strikes midnight with a countdown, fireworks, and oftentimes a short-lived New Year’s resolution. Similarly, many authors and artists join in New Years’ countdowns for celebration of both the past and future in anticipation of Public Domain Day. Each year on this day, previously copyrighted materials enter public domain and become available for anyone’s use without payment or permission from the owning company, author, or their estate. On this past Public Domain Day, January 1, 2022, characters with household names, like Bambi, Winnie the Pooh and friends (with the exception of Tigger), were no longer shielded by the protections of the American copyright laws, thus availing them to use by all with no legal consequences. The cessation of these copyright protections is not the result of any litigation arising. In fact, thousands of titles each year fall from the exclusive hands of the creator or copyright owner and enter public domain once the copyright term has expired. For the benefit of society and evolution of works, it is imperative that artists remain aware of their rights to use and the scope of public domain works.

Generally, a copyright owner holds the exclusive rights to their own original works of authorship fixed in any tangible means of expression, preventing others from copying, displaying publicly, or performing their work without permission. Copyright protection, extending this bundle of “exclusive rights” to authors and copyright owners, is a very valuable right that is based in Article I Section 8 of the United States Constitution. One of the many purposes of copyright protections is economic value because the copyright owner holds the exclusive right to their own work and may determine under what terms that work can be used or shared by others. However, these rights are afforded to the copyright owners or authors of works for only a specified period of time. Once that period of time has lapsed, the copyright protections expire.

A work for which the term of the copyright protection has lapsed no longer receives copyright protection. These works enter public domain and remain available for anyone to use without obligation to make payment or receive permission to do so. Being in the public domain allows anyone to copy, display publicly, or perform previously copyrighted work without permission. Governed by 17 U.S. Code Section 302, the general duration of copyright protections for work created on or after January 1, 1978, is for the “…life of the author and 70 years after the author’s death.” For works with two or more known authors, the copyright duration is measured by the “…last surviving author’s death plus 70 years.”  Anonymous, pseudonymous, or works made for hire (such as those created for companies), experience copyright expiration after “… 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.” Again, at the end of the copyright term, the work falls into public domain and becomes available for use by all without legal consequences.

The first day of every calendar year has been deemed Public Domain Day. On this day, thousands of previously copyrighted works are transitioned from exclusivity into public domain for others to freely reproduce, recreate, distribute, display publicly or perform. Public Domain Day gained much recognition on January 1, 2021, when the eminent book, The Great Gatsby by F. Scott Fitzgerald, after 95 years of copyright protection, entered public domain, thrilling authors throughout the world. Currently, the U.S. public domain includes countless books, poems, music, film, and other related works published in or before 1926. More recently, those works published in 1926 entered the public domain on January 1, 2022. The opportunity to freely use another’s work, especially well-known works like The Great Gatsby, as foundation for your own without the risk of legal consequence is exciting news for creative artists around the globe. There are a host of public domain items for new authors to build inspiration from, including early literature, blues, jazz, ragtime, and more.

Many new works are created based on public domain works. While copyright protections promote economic benefit by granting artists exclusive rights in their original creations, U.S. copyright law also encourages creativity. The opportunity to freely use and enjoy the benefits of public domain works is a reflection of such encouragement. The line up for items entering the public domain in 2022 was spectacular, including music, comedy sketches, poems, and books by notable writers and artists such as Langston Hughes and Duke Ellington. Other long-awaited works that entered the public domain in 2022 include the novels, Bambi: A Life in the Woods by Felix Salten and Winnie-the-Pooh by A.A. Milne, including illustrations by E.H. Shepard (which both inspired Disney animated films). With these items in the public domain, an individual could create an adaptation based on the original books without paying and not suffer legal consequences. It is important to note, however, that there can be some copyright protections extended to authors of new material created based on public domain works. For example, Disney’s adaptation of A.A. Milne’s Winnie-the-Pooh adds elements (i.e. Pooh’s candy-red T-shirt) that were not present in the original version and as a result, will not enter public domain at this time. Furthermore, the character Tigger was added by Disney’s The House at Pooh Cornerin 1928 and remains under Disney’s copyright protection, with an expectation to enter public domain in 2024. To prevent infringing upon the copyright of new material, is best to ensure that use of public domain works are limited to the original work and not variations of such.

Public Domain Day 2022 was not only a celebration for high-esteemed literary works entering the public domain. Many artists applauded the fact that thousands of sound recordings are now in the public domain and became available for download after January 1, 2022. It was estimated that over 400,000 pre-1923 sound recordings entered the U.S. public domain on January 1, 2022, under the authority of The Music Modernization Act (MMA), which was signed into law in 2018. This enables artists to download, sample, remix, and reuse a number of recordings without obligation to pay or obtain permission from the author or previous copyright owner. This change in legislation was inspired by new forms of technology, such as digital streaming. All pre-1923 recordings in the collection, including hits like Fisk University’s Jubilee Quartet Swing Low Sweet Chariot, are available for download from the Library of Congress’s “National Jukebox”. Be sure to understand the difference between an old song composition and a perhaps more recent, still protected sound recording when exercising this right however.

The opportunity to freely use while showing respect to the authors of classic books, screen plays, or recordings now in the public domain allows creativity to be sparked while still honoring previous works.

At the start of each year, the U.S. public domain continues to effectively align with the goals of many, using our past to propel us into the future. Within this decade alone, we can look forward to celebrating Public Domain Day with the addition of the following works (unless of course copyright protection are extended legislatively): Disney’s Mickey Mouse (1929 animation); The House at Pooh Corner’s Tigger; Frankenstein (based on 1931 film); Little House on the Prairie by Laura Ingalls; Flash Gordon (1934 comic); Popeye by E.C. Segar, and many others. With a number of prestigious titles entering the public domain—where use seems limitless—we can expect an increase in (derivative) creativity and astronomical trends in the recreation of classic music, books, films, and more. Just remember, once new material is created based on those public domain works, the authors of the new works may enjoy copyright protections for their new contributions only. With knowledge increasing of the public domain, perhaps creative artists around the globe will transition their New Year’s celebrations to Public Domain Day celebrations, and dedicate January 1 as a day of gaining inspiration from and building upon our past to enhance the future of society as a whole. How will you celebrate Public Domain Day 2023?

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