This year, New Year’s Day brought more than resolutions, football games and hangovers: on January 1st, thousands 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 works first published in 1924 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 Thomas Mann’s The Magic Mountain, E.M. Forster’s A Passage to India, Herman Melville’s Billy Budd, Sailor, Pablo Neruda’s Twenty Love Poems and a Song of Despair, Mark Twain’s Autobiography, H.G. Wells’s The Dream and The Story of a Great Schoolmaster, Edgar Rice Burroughs’s Tarzan and the Ant Men and The Land That Time Forgot, A. A. Milne’s When We Were Very Young, Agatha Christie’s The Man in the Brown Suit and Poirot Investigates, Esther Shephard’s Paul Bunyan, Leon Trotsky’s Literature and Revolution, and W.E.B. Du Bois’s The Gift of Black Folk.
Some of the musical compositions (note – not the audio recordings) now in the public domain are George and Ira Gershwin’s musical Lady, Be Good!, Irving Berlin’s Lazy and What’ll I Do, George Gershwin’s Rhapsody in Blue, and Al Jolson’s California, Here I Come.
Films now in the public domain include Fatty Arbuckle’s Stupid, But Brave, D.W. Griffith’s America and Isn’t Life Wonderful, Buster Keaton’s Sherlock, Jr. and The Navigator, Harold Lloyd’s Girl Shy and Hot Water, and Raoul Walsh’s The Thief of Baghdad.
Other works that may now be freely copied include Eugene O’Neill’s Desire Under the Elms, Paul Klee’s Asiatic God, Carnival in the Mountains, and Flower Garden, Georgia O’Keeffe’s Flower Abstraction, Edward Hopper’s New York Pavements, Wassily Kandinsky’s Contrasting Sounds, Joan Miró’s The Trap, The Harlequin’s Carnival and Head of a Catalan Peasant, Man Ray’s Ingres’s Violin, and three stories from Conan Doyle’s The Case-Book of Sherlock Holmes (The Adventure of the Sussex Vampire, The Adventure of the Three Garridebs, and The Adventure of the Illustrious Client).
You’ll still need to be careful when reproducing and distributing these works (or works based on these works), though, since they may still be protected in countries other than the US. Also, newer derivative works of the 1924 originals are likely still protected.
If you want 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 Joel Muniz on Unsplash
