This year, New Year’s Day brought more than resolutions, football games and hangovers: on January 1st, an unprecedented number of works previously protected by copyright entered the public domain.
The 1998 Sonny Bono Copyright Term Extension Act added an additional 20 years to existing copyrights, so although works first published in 1922 entered the public domain in 1998, it is only now that works first published in 1923 are entering the public domain.
Once a work becomes part of the public domain, anyone can reproduce it or create derivative works based on it, and then sell those reproductions or derivative works.
These public domain works can, therefore, be circulated online, adapted by theater and film producers, photocopied for students, covered by musicians, and converted into new media, all without the need to obtain permissions or pay royalties.
Books that have now entered the public domain include Miguel de Cervantes’ Don Quixote, Kahlil Gibran’s The Prophet, Alexandre Dumas’s The Three Musketeers, Sigmund Freud’s The Ego and the Id, and Agatha Christie’s The Murder on The Links.
Numerous musical works by Irving Berlin, George Gershwin, Oscar Hammerstein, Al Jolson, Bela Bartok, Jelly Roll Morton, and Louis Armstrong have now entered the public domain as well.
Other works that may now be freely copied include Robert Frost’s Stopping by Woods on a Snowy Evening, Charlie Chaplin’s The Pilgrim, Rin Tin Tin’s third movie, Where the North Begins, Constantin Brâncuși’s Bird in Space and Henri Matisse’s Odalisque With Raised Arms.
If you desire to reproduce a work that has not yet entered the public domain, you will still need to either obtain permission from the copyright owner, pay for a compulsory license (in the case of music) or rely on the doctrine of fair use.
According to the copyright statute, at least the following four factors must be considered when determining whether copying is a fair use:
1. The nature of the original work;
2. The nature and purpose of the use, including whether it is for commercial use or for nonprofit educational purposes and whether the use is “transformative” (adding something new);
3. The amount and substantiality of the portion used in relation to the original work as a whole; and
4. The effect the copying would have on the market for, or value of, the original work.
As you can see, there are no “bright line” rules defining fair use. Rather, a court must weigh various factors on a case-by-case basis. Even the courts have difficulty coming to agreement on whether a use is a fair one.
Please feel free to contact us if you’re in doubt as to whether a work is in the public domain or whether your copying of someone else’s work – or their copying of your work – is likely to be found a fair use or an infringement.
Photo by Todd Poirier on Unsplash
