Intellectual Property

Will 1923 Finally Arrive In The U.S. Public Domain, Or Will Mickey Mouse Stir Up More Mischief?

By this time next year, we’ll finally be able to have full access to works that are nearly a century old.

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(Photo by Drew Angerer/Getty Images)

Mark your calendars! On January 1, 2019, some copyrighted works in the United States are finally set to enter the public domain, meaning they will be free for all to use without the permission of the rightholder. I’ve referenced the ridiculousness of the current copyright term before, but now that we’re less than a year away from works actually entering the public domain in the United States after a 20-year hiatus, let’s review why we’ve seen works in virtually every other country in the world in recent years but not the United States.

The international standard for copyright term is the life of the author plus 50 years, which in itself is an extraordinarily long time. Think about it: someone writes a book when he’s 30 and lives for another 50 years; the book wouldn’t enter the public domain until 100 years after the initial publication in most countries. While there are certainly books that withstand the test of time and are perennial favorites, most works in any artistic medium —photographs, film, newspaper articles, etc. — have a relatively limited shelf life; this is even more evident in the digital age where much information and creativity is shared via blog posts and social media messages, which are inherently ephemeral. Nonetheless, with today’s copyright term, they remain locked away, subject to the rights of the rightholder. A long copyright term contributes to the “orphan works” problem where it is difficult, if not impossible, to identify the rightholder and make certain uses of the work because the rightholder may be the author himself, but may also be his heirs, estate, the publisher, or any number of companies or individuals to whom he has transferred his rights. What a mess, having to track down the appropriate rightholder 50 years after the author has died, sometimes 100 years after it was first created.

And yet, in 1998, Congress saw fit to enact the Copyright Term Extension Act (CTEA), extending the duration of copyright an additional 20 years: 70 years after the death of the author. This life plus 70 model is a far cry from the original copyright term in the United States of just 14 years, with the option of a 14-year renewal and an enormous extension from the 28-year, again, with the option of a 28-year renewal, term — for a maximum of 56 years — prior to 1976. With the passage of CTEA (also known as the “Mickey Mouse” extension because it granted Disney an additional 20 years of protection on its friendly mouse; and as well as the Sonny Bono Term Extension because his widow — who filled his seat in the House of Representatives after he died in an accident — told Congress that “Sony wanted the term of copyright protection to last forever”), Congress essentially put a moratorium on any new works entering the public domain for 20 years; anything published in 1923 or later is presumed to be under copyright (though actually figuring out copyright term and public domain status is highly complicated, due to different rules whether a work was published or unpublished, complied with formalities, and other issues; this chart is helpful both in determining copyright status as well as illustrating just how complex it is).

As long as Congress doesn’t enact another extension of copyright term, on January 1, 2019, we’ll finally see some works from 97 years ago enter the public domain in the United States. Mrs. Dalloway by Virginia Woolf; The Fox by D.H. Lawrence; and The Prophet by Kahlil Gibran are just a few of the prominent works created in 1923 and which entered into the public domain years ago in Canada and other jurisdictions with a life plus 50 standard of copyright.

With 2019 fast approaching, many in the copyright space have questioned whether Congress might again extend copyright term. Will rightholders push to lengthen what Justice Breyer called “virtually perpetual” copyright terms? According to an article published in Ars Technica earlier this month, the content industry, including the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), deny any knowledge of legislative proposals to extend term and, at least the RIAA claims “it’s not something we are pursuing.” The Authors Guild even conceded in the same article, “If anything, we would likely support a rollback of a term of life-plus-50 if it were politically feasible.” Without a strong lobbying push by major rightholders, I’m keeping my fingers crossed that by this time next year, we’ll finally be able to have full access to works that are nearly a century old.

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