The Bishop and the Butterfly: Murder, Politics, and the End of the Jazz Age
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    Your New Year's Public Domain Report for 2016

    Happy New Year! It's Public Domain Day, the first day of the calendar year, on which people in other countries get new works of art and learning added to the public domain for everyone to use. And on the first day of the new year we in the United States get ...

    Zilch. Nada. Niente. Nothing.


    To review: American copyright law started out by specifying a 14-year term, renewable once to provide 28 years of exclusive protection. That was very much in line with the original 18th-century copyright laws in Britain. By 1976, that 28 years had crept up to 56. But that year Congress passed a new copyright act, extending terms to either fifty years after the author's death or (in the case of previously existing copyrights) 75 years from the work's creation. The law didn't go into effect until 1978, and copyrights that expired in 1978 weren't protected.  So on January 1, 1979, works published in 1922 entered the public domain. Works published in 1923 did not, and still haven't.
    Even with that extension, those works from 1923 would have become public on January 1, 1999. But in 1998 Congress passed another extension, variously nicknamed the Millennium Copyright Act or the Sonny Bono Act (after one of its sponsors), which added another 20 years to copyright terms. Now previously-copyrighted works stayed in copyright for 95 years. As we get closer to 2019, we can expect intense lobbying by large media companies to pass yet another extension, defying the Constitution's mandate that intellectual property be protected for "for a limited time." (Article I, section 8, clause 8.)

    So there's nothing under the tree this morning, same as last year. But let's review what would be public domain today if the laws had not been changed:

    If not for the Milennium Copyright Act:

    Bugs Bunny would leave copyright today. So would Tom and Jerry. Batman's best friend, worst enemy, and sexiest frenemy (Robin, the Joker, and Catwoman) would all join him in the public domain, as would a raft of Golden Age comics superheroes: Green Lantern, Hawkman, The Flash, The Spectre, and my kid brother's all-time favorite, Dr. Fate. Maybe more importantly, Will Eisner's classic masked detective, The Spirit, would enter public domain.

    Warner Brothers (who have always controlled Bugs Bunny and now control DC Comics and its characters) would not be pleased. But Disney would be upset too: today is the day that Walt Disney's Pinocchio and Fantasia were scheduled to leave copyright after the first copyright extension. (Under the laws when those movies were made, they would have become public property in 1997.)

    The public domain would also be enriched by classics like The Philadelphia Story, His Girl Friday, The Grapes of Wrath, and Chaplin's The Great Dictator (still timely after all these years). So would W. C. Fields's The Bank Dick and My Little Chickadee, the Marx Brothers' Go West!, The Mark of Zorro, Our Town, My Favorite Wife, Northwest Passage, Rebecca with Laurence Olivier, Angels over Broadway, The Invisible Man Returns, Young Tom Edison starring Mickey Rooney,

    They Drive by Night, and The Thief of Baghdad.

    Today would also be the day Eliot's The Waste Land and Hemingway's For Whom the Bell Tolls enters the public domain, as well as Grahame Greene's The Power and the Glory, Sholokov's Quiet Flows the Don, and Dr. Seuss's Horton Hatches an Egg, not to mention The Heart Is a Lonely Hunter, Darkness at Noon, Pal Joey, and Dylan Thomas's Portrait of the Artist as a Young Dog. Add to that books of poetry by Yeats, Auden, e e cummings, Pound, and Millay, classic detective novels by Agatha Christie and Raymond Chandler, and lit-crit landmark To the Finland Station. Not a bad list at all, and if they were allowed into the public domain they would be available in a wide range of editions, high-end and low-end.

    In classical music, a trove of works by Barber, Britten, Copland, Hindemith, Khachaturian, Messiaen, Rachmaninoff, Stravinsky, Shostakovich, and Walton would become free for anyone to perform or record, just as the works of Beethoven and Mozart are. So would a motherlode of popular songs by Cole Porter, Duke Ellington, Rodgers and Hart, Johnny Mercer, Johnny Burke, Sammy Cahn, Jimmy Davis, and Artie Shaw. "You Are My Sunshine" should be public domain today, and "When You Wish Upon a Star." But just keep wishing on that star, because all of these works from 1940 are going to stay locked up until at least 2036, and longer if the law gets changed yet again.

    If not for the 1976 Copyright Act:

    The Sound of Music would be leaving copyright today, with all of its songs. So would Gypsy. That was the law, and the expectation, when those musicals were written. But the hills apparently cannot be alive with the sound of music until 2055.

    We would also be getting a bumper crop of mid-century pop and rock and roll: "Breaking Up Is Hard to Do," "Dream Lover," "High Hopes," "Kansas City," "The Little Drummer Boy," "Love Potion Number 9," "Mr. Blue," "Oh! Carol!," "Poison Ivy," "See You in September,"  "Put Your Head on My Shoulder," "Shout," "Teen Angel," "There Goes My Baby," and of course the Ray Charles classic "What'd I Say?"

    Raisin in the Sun and Sweet Bird of Youth would be entering the public domain today, along with Jean Genet's Les Negres and Anouilh's Becket. Robert Bloch's Psycho, Richard Condon's The Manchurian Candidate, and Ian Fleming's Goldfinger would be free for anyone to publish. So would Naked Lunch, The Tin Drum, Henderson the Rain King, Faulker's The Mansion, Heinlein's Starship Troopers, and The Magic Christian, The Sirens of Titan, The Haunting of Hill House, The Loneliness of the Long Distance Runner, Zazie in the Metro, and Goodbye, Columbus. Then we'd have short stories by Ray Bradbury, H. P. Lovecraft, and Julio Cortazar. Karl Popper's landmark work The Logic of Scientific Discovery, which should be distributed as widely as possible, would become open-source today. And so would Strunk and White's Elements of Style.

    Ben-Hur would be in the public domain today. So would North by Northwest, Some Like It Hot, Sleeping Beauty, and The 400 Blows. But let's not forget Suddenly, Last Summer, The Defiant Ones, Pillow Talk, Anatomy of a Murder, Black Orpheus, Hiroshima Mon Amour, Gidget, The Hound of the Baskervilles with Cushing and Lee, The Imitation of Life, Look Back in Anger, The Mouse That Roared, Our Man in Havana, Rio Bravo, A Summer Place, The Sound and the Fury, and the lamentable but unforgettable Plan 9 from Outer Space. A batch of more than 20 classic Warner Brothers cartoons featuring Bugs, Daffy, and the gang would become public domain as well. And in a coincidence, today would be the day that Warner Brothers lost copyright of its rebooted Silver Age Green Lantern, whose Golden Age prototype

    But the whole point of this deal is that it's good for Warner Brothers. And Disney. And Sony. On that level, it works great. It just isn't such a great deal for you, me, or the general public.

    Anyway, all of those works will stay under the control of large mega-corporations until at least 2055. If 2055 seems long enough to wait, tell Congress not to extend copyright any further. The next extension will move the term of copyright beyond a century; its already been extended to 95 years. And you should expect the big companies to start lobbying hard for another extension over the next year or two. The public domain clock, stuck in place for Americans since 1979, is due to start moving forward again in 2019, and the Warner Brothers of the world will spend a lot of money to prevent that from happening.


    What do you think of the "Happy Birthday" case that is still (somewhat surprisingly) ongoing?

    I'm interested in those time capsules we send into space for aliens to assess our progress. Since we usually don't send copyrighted work up, they'll get a snapshot as we were 1 or 2 hundred years ago. Maybe they'll think we're too dumb to invade, maybe they'll think we're pushovers. In both ways they'd be right - we can't even manage basic intellectual property law, which doesn't say a lot for our intellects.

    Very informative. The laws governing intellectual property have been chasing technology the last two decades. I wast surprised at how much attention is paid to intellectual property in the TPP. I probably shouldn't have been surprised, but I was.

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