In the intellectual property world,
2019 is a special year. For the first time in 20 years, copyrighted works have
resumed entering the public domain en masse due to the expiration of their
copyright term. This means as of January 1, all works originally published in
1923 are now in the public domain.
Works stopped
entering the public domain in 1998 due to the passage of a law that year which extended
the copyright term of works created before 1978 by an additional 20 years. So, works
that would have entered the public domain in 1999 remained under copyright
protection until this year.
Here’s a brief copyright
history lesson. Under the United States Copyright Act of 1909, copyrighted
works were entitled to an initial 28-year term from the date of publication and
a second renewal term of an additional 28 years. So, in total, a work could be
protected by copyright for up to 56 years. However, a work would enter the
public domain if it lacked a proper copyright notice, e.g., © Dirk Vanover
2019, or if it wasn’t renewed.
The 1976 Copyright
Act changed the duration of copyright terms for works created before 1978 (the
year the Act went into effect) to 75 years from the date of publication, more
or less. In 1998, the Copyright Term Extension Act, aka the Sonny Bono Act, aka
the Mickey Mouse Act, changed the length of copyright terms again by adding an
additional 20 years to the term—95 years from the date of publication.
Works created by a
single author and protected by the 1909 Act enter the public domain
piecemeal—as their copyright terms expire. This is why works created in 1923
are now in the public domain after 95 years. However, works created by a single
author after 1978 are protected for the life of the author plus 70 years and
enter the public domain all at once.[1]
I’m bringing this
up for two reasons. First, it’s great that works are entering the public domain
again. Even though works published in 1923 or after may have already entered
the public domain, it can be difficult to determine. As mentioned above, there
are only two other ways for a work to have entered the public domain previously
– either the work lacked or had an improper copyright notice, or it wasn’t
renewed after its initial 28-year term. To be certain a work is in the public domain
would require research, which can be lengthy, costly, and indeterminate.
Second, I often
see people discussing online whether such-and-such golden age superhero is in
the public domain. As might be evident from what I’ve written above,
determining this can be tricky. If the work was created in 1923 or earlier,
which really isn’t applicable because not many superheroes existed back then,
now it is in the public domain—at least those original aspects introduced in
that work. For any other work, it is safest to assume it is protected by copyright.
Otherwise, you’ll have to determine if the work fell into the public domain due
to a lack of copyright notice or if it wasn’t renewed. Furthermore, even if a
work has entered the public domain, only that specific work itself is in the
public domain. So, if you want to utilize the character in a new work, you’d be
limited to just those elements of the character introduced in the work that is
in the public domain. (See my post about Sherlock Holmes here for a further
explanation).
Overall, it is good news for everyone that previously
copyrighted works are now entering the public domain again. However, if you
want to use a character you believe to be in the public domain, you should
proceed with caution and make sure you’re in the clear before you create a new
work. Otherwise, you could expose yourself to a possible copyright infringement
lawsuit.
[1] However,
corporate works and works made for hire are still a fixed term of 95 years from
publication or 120 years from creation, whichever is shorter.
