Public Domain Day 2019

For the last few years, I have written posts on January 1st talking about art, books, films and music that would have entered the public domain if those copyright terms had not been extended. Mainly due a corporation trying to protect the rights to a cartoon mouse, for an entire generation in the United States, no new material has fallen into the public domain. The fact that new material is FINALLY entering the public domain this year is a big deal and from here on out, every year, new works will fall into the public domain on a yearly basis.

The Public Domain belongs to the the people. The works contained within it are a part of our history and culture. When works fall into the public domain, many of these works suddenly reappear or are transformed into new art forms. So dig in; let’s see what’s in there, shall we? This is truly something to celebrate.

From Duke Law School’s Center for the Study of the Public Domain:

January 1, 2019 is (finally) Public Domain Day: Works from 1923 are open to all!

For the first time in over 20 years, on January 1, 2019, published works will enter the US public domain.1 Works from 1923 will be free for all to use and build upon, without permission or fee. They include dramatic films such as The Ten Commandments, and comedies featuring Charlie Chaplin, Buster Keaton, and Harold Lloyd. There are literary works by Robert Frost, Aldous Huxley, and Edith Wharton, the “Charleston” song, and more. And remember, this has not happened for over 20 years. Why? Works from 1923 were set to go into the public domain in 1999, after a 75-year copyright term. But in 1998 Congress hit a two-decade pause button and extended their copyright term for 20 years, giving works published between 1923 and 1977 an expanded term of 95 years.2

But now the drought is over. How will people celebrate this trove of cultural material? Google Books will offer the full text of books from that year, instead of showing only snippet views or authorized previews. The Internet Archive will add books, movies, music, and more to its online library. Community theaters are planning screenings of the films. Students will be free to adapt and publicly perform the music. Because these works are in the public domain, anyone can make them available, where you can rediscover and enjoy them. (Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print—see herehere, and here.) In addition, the expiration of copyright means that you’re free to use these materials, for education, for research, or for creative endeavors—whether it’s translating the books, making your own versions of the films, or building new music based on old classics.

Here are some of the works that will be entering the public domain in 2019. A fuller (but still partial) listing of over a thousand works that we have researched can be found here.

Films

  • Safety Last!, directed by Fred C. Newmeyer and Sam Taylor, featuring Harold Lloyd
  • The Ten Commandments, directed by Cecil B. DeMille
  • The Pilgrim, directed by Charlie Chaplin
  • Our Hospitality, directed by Buster Keaton and John G. Blystone
  • The Covered Wagon, directed by James Cruze
  • Scaramouche, directed by Rex Ingram

Books

  • Edgar Rice Burroughs, Tarzan and the Golden Lion
  • Agatha Christie, The Murder on the Links
  • Winston S. Churchill, The World Crisis
  • e.e. cummings, Tulips and Chimneys
  • Robert Frost, New Hampshire
  • Kahlil Gibran, The Prophet
  • Aldous Huxley, Antic Hay
  • D.H. Lawrence, Kangaroo
  • Bertrand and Dora Russell, The Prospects of Industrial Civilization
  • Carl Sandberg, Rootabaga Pigeons
  • Edith Wharton, A Son at the Front
  • P.G. Wodehouse, works including The Inimitable Jeeves and Leave it to Psmith
  • Viginia Woolf, Jacob’s Room

Music

  • Yes! We Have No Bananas, w.&m. Frank Silver & Irving Cohn
  • Charleston, w.&m. Cecil Mack & James P. Johnson
  • London Calling! (musical), by Noel Coward
  • Who’s Sorry Now, w. Bert Kalmar & Harry Ruby, m. Ted Snyder
  • Songs by “Jelly Roll” Morton including Grandpa’s SpellsThe Pearls, and Wolverine Blues (w. Benjamin F. Spikes & John C. Spikes; m. Ferd “Jelly Roll” Morton)
  • Works by Bela Bartok including the Violin Sonata No. 1 and the Violin Sonata No. 2
  • Tin Roof Blues, m. Leon Roppolo, Paul Mares, George Brunies, Mel Stitzel, & Benny Pollack
(There were also compositions from 1923 by other well-known artists including Louis Armstrong, Irving Berlin, George Gershwin, WC Handy, Oscar Hammerstein, Gustav Holst, Al Jolson, Jerome Kern, and John Phillip Sousa; though their most famous works were from other years.)

Of course, 1923 was a long time ago. (Under the 56-year copyright term that existed until 1978, we could be seeing works from 1962 enter the public domain in 2019.) Unfortunately, the fact that works from 1923 are legally available does not mean they are actually available. Many of these works are lost entirely or literally disintegrating (as with old films and recordings), evidence of what long copyright terms do to the conservation of cultural artifacts. For the works that have survived, however, their long-awaited entry into the public domain is still something to celebrate.

Technically, many works from 1923 may already have entered the public domain decades ago because the copyright owners did not comply with the “formalities” that used to be necessary for copyright protection. Back then, your work went into the public domain if you did not include a copyright notice—e.g. “Copyright 1923 Charlie Chaplin”—when publishing it, or if you did not renew the copyright after 28 years. Current copyright law no longer has these requirements. But, even though those works might technically be in the public domain, as a practical matter the public often has to assume they’re still copyrighted (or risk a lawsuit) because the relevant copyright information is difficult or impossible to find—older records can be fragmentary, confused, or lost. That’s why January 1, 2019 is so significant. On that date, the public will know that works published in 1923 are free for public use without tedious or inconclusive research.

For example, in 2019, we will know that Robert Frost’s famous poem “Stopping by Woods on a Snowy Evening” is in the public domain because copyright over the collection containing the poem, New Hampshire, will lapse. (It’s possible that the poem might have entered the public domain earlier because it was first published in a magazine and that earlier copyright was not renewed on time—see discussion thread here—but we can be confident that its copyright has expired in 2019.) Frost’s estate has used copyright law to strictly control uses of his works. Eric Whitacre, who composed the incredible Virtual Choir works, discovered this the hard way when he wrote a piece in memory of a couple who had died within weeks of each other after being married over fifty years. The piece was commissioned by the couple’s daughter, whose favorite poem was “Stopping By Woods on a Snowy Evening.” Whitacre wrote a choral work based on the poem, and it was so well-received that other conductors began asking him for the work. He writes:

After a LONG legal battle (many letters, many representatives), the estate of Robert Frost and their publisher, Henry Holt Inc., sternly and formally forbid me from using the poem for publication or performance… I was crushed. The piece was dead, and would sit under my bed for the next 37 years because of some ridiculous ruling by heirs and lawyers.

(Eventually he asked the poet Charles Anthony Silvestri to write new words for the music that had been set to Frost’s poem, you can see the Virtual Choir performance of that composition here and read his full story here; note that Frost’s lawyers were mistaken about when the copyright ends, as indicated above, it lapses in 2019, if it hasn’t already.) Beginning in 2019, the next Whitacre won’t face this frustration, and anyone may use this powerful poem in their own creations.

Note that copyright law has a way of introducing complexities into any analysis. There are some familiar works that appear to be from 1923, but are not in fact entering the public domain in 2019 because of publication details. One is Felix Salten’s Bambi, A Life in the Woods, the basis for Disney’s famous movie. Salten first published it in Germany without a copyright notice in 1923, then republished it with a compliant copyright notice in 1926. When Disney (of all companies) claimed that Bambi was in the public domain, a court disagreed, holding that because the initial 1923 publication was in Germany, the failure to include a copyright notice did not put the book into the US public domain. The 1926 publication was valid, so the book’s copyright expires after 95 years in 2022.3 (The court’s full opinion is here.) Also, while the copyrights in several Jelly Roll Morton songs lapse in 2019, his famous “King Porter Stomp” was not copyrighted until 1924 (even though it was recorded in 1923), so it is not entering the public domain until 2020.

In an abundance of caution, our list above only includes works where we were actually able to track down the notice and renewal data suggesting that they are indeed still in-copyright until 2019. We’ve also compiled—to the best of our research capabilities—a fuller spreadsheet showing other renewed works from 1923. You can find it here. But we want to emphasize that this is only a partial collection; many more works are entering the public domain as well, but we could not find the legal minutia to confirm their copyright status.

It’s a Wonderful Public Domain. . . . What happens when works enter the public domain? Sometimes, wonderful things. The 1947 film It’s A Wonderful Life entered the public domain in 1975 because its copyright was not properly renewed after the first 28-year term. The film had been a flop on release, but thanks to its public domain status, it became a holiday classic. Why? Because TV networks were free to show it over and over again during the holidays, making the film immensely popular. But then copyright law reentered the picture. . . . In 1993, the film’s original copyright holder, capitalizing on a recent Supreme Court case, reasserted copyright based on its ownership of the film’s musical score and the short story on which the film was based (the film itself is still in the public domain). Ironically, a film that only became a success because of its public domain status was pulled back into copyright.

What Could Have Been

Works from 1923 are finally entering the public domain, after a 95-year copyright term. However, under the laws that were in effect until 1978, thousands of works from 1962 would be entering the public domain this year. They range from the books A Wrinkle in Time and The Guns of August, to the film Lawrence of Arabia and the song Blowin’ in the Wind, and much more. Have a look at some of the others. In fact, since copyright used to come in renewable terms of 28 years, and 85% of authors did not renew, 85% of the works from 1990 might be entering the public domain! Imagine what the great libraries of the world—or just internet hobbyists—could do: digitizing those holdings, making them available for education and research, for pleasure and for creative reuse.

Want to learn more about the public domain? Here is the legal background on how we got our current copyright terms (including summaries of recent court cases), why the public domain matters, and answers to Frequently Asked Questions. You can also read James Boyle’s book The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008)—naturally, you can read the full text of The Public Domain online at no cost and you are free to copy and redistribute it for non-commercial purposes. You can also read “In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day,” an article by Center Director Jennifer Jenkins revealing the promise and the limits of various attempts to reverse the erosion of the public domain, and a short article in the Huffington Post celebrating a previous Public Domain Day.


1 No published works have entered our public domain since 1998. However, a small subset of works—unpublished works that were not registered with the Copyright Office before 1978—have been entering the public domain after a life plus 70 copyright term. But, because these works were never published, potential users are much less likely to encounter them. In addition, it is difficult to determine whether works were “published” for copyright purposes. Therefore, this site focuses on the thousands of published works that are finally entering the public domain.

2 Works published between 1923 and 1977 had to meet certain requirements to be eligible for the 95-year term—they all had to be published with a copyright notice, and works from 1923–1963 also had to have their copyrights renewed after the initial 28-year term.

3 Foreign works from 1923 are still copyrighted in the US until 2019 if 1) they complied with US notice and renewal formalities, 2) they were published in the US within 30 days of publication abroad, or 3) if neither of these are true, they were still copyrighted in their home country as of 1/1/96. Note that the copyright term for older works is different in other countries: in the EU, works from authors who died in 1948 will go into the public domain in 2019 after a life plus 70 year term, and in Canada, works of authors who died in 1968 will enter the public domain after a life plus 50 year term.


Special thanks to our tireless and talented research maven and website guru Balfour Smith for building this site and compiling the list of works from 1923.

Ebook Evangelist’s note: This article reprinted from Public Domain Day 2019 by Duke Law School’s Center for the Study of the Public Domain. This article licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.

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