Welcome to the Public Domain

by Public Service Associate Hannah

Each year on January 1st, a collection of works loses its protected status and enters the public domain where anyone can legally use or reference them. This year, the year many works from 1927 concluded their copyright term, I decided to see what that even means. And it was more interesting than I expected!

What is copyright?

In the United States, copyright is a type of intellectual property that protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture as soon as their author(s) fix the work in a tangible form. Trademark and patent protection would be a whole other blog post.

Where did copyright come from and why?

Copyright law began when Article I, Section 8 of the Constitution granted Congress the power “to promote the Progress of Science and useful Arts.” Naturally, the law has evolved since then, with the Copyright Office of the Library of Congress overseeing administration. Essentially it exists to incentivize creation and creativity.

What does original mean in this context?

Original works are independently created, not copied, and according to the Supreme Court must possess a “modicum” of creativity. So the 15 unique works of art in the Bexley Art Library are all under copyright, but the white pages section of ye olde phone book is not. (Feist v. Rural, 1991) 

What’s this about fixing?

A work is fixed when “it is captured in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.” That means the next great American novel you workshop in your head is technically fair game until you sit down and type it up.

Do I have to register with the Copyright Office?

Registration is recommended but not really required thanks to the Berne Convention Implementation Act of 1988. So when we see “Copyright 1927 Virginia Woolf” inside To the Lighthouse or that familiar © on just about everything it’s insurance a lawyer probably advised. 

Is everything covered by copyright? 

No. While it may protect the way something is expressed, copyright does not protect mere variations, facts, ideas, systems, or methods of operation, among others. For example, images from the James Webb telescope and census data go right into the public domain. 

How long copyright lasts is based on a myriad of factors which include Disney and the estate of Sir Arthur Conan Doyle of all things. Their courtroom battles to maintain Mickey Mouse (Steamboat Willie) and Sherlock Holmes are how we got to timeframes like [life of the author] + 70 years, and in the case of corporate/anonymous works, 120 years after creation or 95 years after original publication. A bit ironic considering they use what’s in the public domain like Hans Christian Andersen’s The Little Mermaid, no? 

Nevertheless, we can still welcome “fresh” material into the public domain which I like to think of as a “place” where our history is all the more free to be observed. For example, The Jazz Singer is celebrated as the first feature-length “talkie” with synchronized dialogue, singing, and sound effects. The film also shows performances in blackface, a distressing reminder of the era’s segregation and racism. In contrast, Caroling Dusk: An Anthology of Verse by Negro Poets edited by Countee Cullen shares a slice of the ever fascinating Harlem Renaissance. Meanwhile, Edith Wharton’s Twilight Sleep showcases our ever changing ideas of what constitutes the perfect female body. 

The public domain is also a place where culture can continue to be made into new culture. Books can now be published more cheaply or made available for free online; orphan films might be picked up and preserved; scholars can access and publish material more easily; and musicians can sample. Don’t act like you don’t want a Goodnight Moon t-shirt, or to see who reinterprets the Hardy Boys for the TikTok crowd!

So I’ll continue to enjoy the spin offs like Enola Holmes in The Case of the Missing Marquess by Nancy Springer, but you won’t catch me watching Winnie the Pooh: Blood and Honey.

Read more about copyright:

  • Getting Permission: Using & Licensing Copyright-Protected Materials Online & Off by Attorney Richard Stim| print 
  • Mine!: How the Hidden Rules of Ownership Control Our Lives by Michael Heller | print / Libby