Happy Public Domain Day!
The public domain continues to roar back after decades in a coma.
On January 1, 2019 something extraordinary happened. For the first time since 1998, the American public domain got bigger.
What happened in 1998? Congress — led by Rep Sonny Bono — extended the copyright on all works by 20 years. Works that had already been in the public domain went back into copyright. Works that were in copyright got an extra 20 years. The public domain…froze.
This was a wanton, destructive act. The vast majority of works that the Sonny Bono Act covered were out-of-print and orphaned, with no known owner. Putting them back into copyright for 20 years prevented their reproduction, guaranteeing that many would vanish from the historical record altogether.
As to the minuscule fraction of works covered by the Act that were still commercially viable: the creators of those works had accepted the copyright bargain of life plus 50 years. Giving them more copyright on works they’d already produced could not provide an incentive to make anything more. All it did was transfer value from the public domain into a vanishing number of largely ultra-wealthy corporate private hands.
As to living, working creators: those who’d made new works based on public domain materials that went back into copyright found themselves suddenly on the wrong side of copyright. Their creative labor was now illegal. Any working, living creator that contemplated making a new work based on material from the once-public-domain was now faced with tracking down an elusive (or possibly nonexistent) rightsholder, paying lawyers to negotiate a license, and subjecting their work to the editorial judgments of the heirs of long-dead creators.
The Sonny Bono Act is often called the Mickey Mouse Act, a recognition of the extraordinary blood and treasure that Disney spilled to attain retroactive copyright extension. This extension ensured that Steamboat Willie — and subsequent Mickey Mouse cartoons, followed by other Disney products — would remain Disney’s for another two decades.
(Actually, there are a lot of copyright historians who believe that Steamboat Willie was already in the public domain due to technical defects in its copyright registration, but no one could afford to fund a lawsuit to find out for sure.)
(What’s more: Steamboat Willie is a mashup of Buster Keaton’s Steamboat Bill, Jr, relying heavily on the kind of fair use permissiveness that the company would later devote its legal might to extinguishing.)
As the years ticked by towards January 1, 2019 — the day that the public domain would reopen, welcoming in the tattered remains of the creative treasures of 1923 — the people who cared about this stuff grew increasingly anxious. Would Disney stage another full court press to extend copyright again, putting even more of our shared cultural legacy in harm’s way to preserve its privilege?
But January 1, 2019 arrived without any further copyright extensions (in the US, anyway — Justin Trudeau let Donald Trump con him into a 20-year retrospective copyright extension in Canada). And on January 25, 2019, hundreds of us gathered at the Internet Archive in San Francisco to ring in the new, old year. I gave the keynote. I think it’s one of my best-ever talks, despite a little bobble in the middle:
https://www.youtube.com/watch?v=fAUneJpB2vo
Jan 1, 2019 was just the beginning. Every year since, there’s been a fresh crop of works entering the public domain, and each year’s harvest is larger than the previous one’s, as the achingly slow advance of the public domain crawls toward the modern era and its superior preservation practices.
January 1, 2022, was the best-ever day for the public domain since Sonny Bono put it on ice in the previous millennium! As ever, this year’s crop has been lovingly catalogued and contexualized by Jennifer Jenkins and James Boyle from the Duke Center for the Public Domain.
https://web.law.duke.edu/cspd/publicdomainday/2022/
Jenkins and Boyle have been doing these January 1 roundups for more than a decade, long before the public domain came back in 2019, cataloging what we would have gotten, save for the Disney/Sonny Bono conspiracy of 1998. These older reports were necessarily melancholic, a requiem for our stolen commons.
But since 2019, the Public Domain Day reports have been triumphant, a summing up of the vast storehouses that materials that anyone may access, enjoy, remix and republish. For example, this year, a whopping 400,000 sound recordings from 1926 entered the public domain!
1926 was also a fine year for films, with performances from Harold Lloyd, Greta Garbo, and Buster “Steamboat Bill, Jr” Keaton — the man whose movie Disney took in 1923 for Steamboat Willie, and whose oeuvre Disney put behind a paywall for 20 years in 1998.
On the literary side, we see the public domain debuts of Hemingway’s “Sun Also Rises,” Langston Hughes’s “Weary Blues,” Dorothy Parker’s “Enough Rope,” Felix Salten’s “Bambi” and — wait for it — AA Milne’s “Winnie the Pooh”!
The liberation of the Poohverse is quite a watershed. Pooh’s lifetime earnings are $80.3B, most of which accrued to Disney, its corporate acquirer (Pooh is tied with Mickey Mouse for total historical earnings). Disney has already showed a willingness to play dirty when comes to Pooh. In 2002, the company was fined for illegally destroying 40 boxes of evidence that showed it had shortchanged the Milne estate:
https://www.foxnews.com/story/walt-disney-co-fined-for-destroying-evidence-in-winnie-the-pooh-case
If Disney wants to retain its control over Pooh, it has options. Copyright trolls claiming to own the rights to Sherlock Holmes, Tarzan, Buck Rogers and Zorro have pioneered a legal playbook to lay claim over the public domain.
This copyfraud depends on a mix of trademark claims:
https://law.justia.com/cases/federal/district-courts/FSupp/712/353/1475694/
Obscure copyright hair-splitting:
And out-and-out lies:
https://www.sffaudio.com/conan-and-new-zealands-new-copyright-law-vs-broken-sea/
These tactics are primarily effective at scaring off commercial rivals. Dedicated fans — especially dedicated fans with law degrees and free time on their hands — can defeat them:
https://blog.jipel.law.nyu.edu/2020/12/sherlock-holmes-and-the-case-of-the-copyrightable-character/
When that happens, beautiful things follow:
http://pegasusbooks.com/books/echoes-of-sherlock-holmes-9781681772257-hardcover
But Disney is no ordinary adversary — its a monopolist whose access to the capital markets has allowed it to buy up an appreciable fraction of our contemporary culture. In three years, Steamboat Willie will enter the public domain. As Jenkins wrote to me, how Disney handles Pooh might be a clue to what they’ll do about Mickey.
It’s all kind of messy. Pooh’s entered the public domain, as have E. H. Shepard’s classic illustrations — but Tigger will stay in copyright for two more years. Meanwhile, Disney has trademark rights for “Winnie the Pooh” on every conceivable product or service — but, bizarrely, Disney also let the trademarks lapse for all the original drawings of the Pooh characters!
Which is all to say: there’s never been a better time for someone (else) to edit an anthology of unauthorized Winnie the Pooh stories.
Of course, Pooh’s not the only Disney acquisition that entered the public domain on Jan 1: you may have noted Bambi’s presence on the list. The Bambi that’s entering the PD comes to us from Felix Salten’s novel which was banned by the Nazis as an allegory for Europe’s treatment of Jews. That Bambi is a bizarre, dark novel for adults, and it’s long overdue for an excellent English translation.
The well-known works now in the PD aren’t limited to stuff that Disney plundered. There’s songs like “Bye, Bye Blackbird” and “Gentlemen Prefer Blondes,” and many, many more. They’re catalogued here:
https://onlinebooks.library.upenn.edu/cce/to1949.html#y1926
As is their tradition, Jenkins and Boyle also give us a look at the parallel universe in which Sonny Bono hadn’t locked up the public domain. In that universe, we’d be getting quite a crop of amazing new public domain works, from Heinlein’s “The Moon is a Harsh Mistress” to Herbert’s “Dune.”
Meanwhile, our European cousins’ public domain just accepted the works of every author who died in 1951, from William Randolf Hearst to Sinclair Lewis to Ludwig Wittgenstein. Canadians are getting Dianne Arbus, Louis Armstrong, Coco Chanel, Ub Iwerks, Ogden Nash, Bill “AA” W and other creators who died in 1971.
Cory Doctorow (craphound.com) is a science fiction author, activist, and blogger. He has a podcast, a newsletter, a Twitter feed, a Mastodon feed, and a Tumblr feed. He was born in Canada, became a British citizen and now lives in Burbank, California. His latest nonfiction book is How to Destroy Surveillance Capitalism. His latest novel for adults is Attack Surface. His latest short story collection is Radicalized. His latest picture book is Poesy the Monster Slayer. His latest YA novel is Pirate Cinema. His latest graphic novel is In Real Life. His forthcoming books include The Shakedown (with Rebecca Giblin), a book about artistic labor market and excessive buyer power; Red Team Blues, a noir thriller about cryptocurrency, corruption and money-laundering (Tor, 2023); and The Lost Cause, a utopian post-GND novel about truth and reconciliation with white nationalist militias (Tor, 2023).
