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I'm at the end of my tour for my new book, the international bestseller Enshittification. My last two stops are CCC in Hamburg, Dec 27-30 and the Tattered Cover in Denver (Jan 22). Hope to see you!
In 1998, Congress committed an act of mass cultural erasure, extending copyright by 20 years, including for existing works (including ones that were already in the public domain), and for 20 years, virtually nothing entered the US public domain.
But then, on January 1, 2019, the public domain reopened. A crop of works from 1923 entered the public domain, to great fanfare – though honestly, precious few of those works were still known (that's what happens when you lock up 50 year old works for 20 years, ensuring they don't circulate, or get reissued or reworked). Sure, I sang Yes, We Have No Bananas along with everyone else, but the most important aspect of the Grand Reopening of the Public Domain was the works that were to come:
https://www.youtube.com/watch?v=Z2ryWm0bziE
The mid/late-1920s were extraordinarily fecund, culturally speaking. A surprising volume of creative work from that era remains in our consciousness, and so, every January 1, we have been treated to a fresh delivery of gifts from the past, works that are free and open and ours to claim and copy and use and remix.
No one chronicles this better than Jennifer Jenkins and James Boyle, the dynamic duo of copyright scholars who run Duke's Center for the Public Domain. During the 20 year public domain drought, Jenkins and Boyle kept the flame of hope, publishing an annual roundup of all the works that would have entered the public domain, but for Congress's act of wanton cultural vandalism. But starting in 2019, these yearly reports were transformed – no longer are they laments for the past we're losing; today, they are celebrations of the past that's showering down around us.
2024 marked another turning point for the public domain: that was the year that the first Mickey Mouse cartoons entered the public domain:
Does that mean that Mickey Mouse is in the public domain? Well, it's complicated. Really complicated. To a first approximation, the aspects of Mickey that were present in those early cartoons enterted the public domain that year, while other, later aspects of his character design (e.g. the big white gloves) wouldn't enter the public domain until later. But that's not the whole story, because not every aspect of character design is even copyrightable, so some later refinements to The Mouse were immediately public. This is such a chewy subject that Jenkins devoted a whole separate (and brilliant) article to it:
You see, Jenkins is a generationally brilliant legal communicator, much sought after for her commentary of these abstract matters. You may have heard her giving her characteristically charming, crisp and clear commentaries on NPR's Planet Money:
She and Boyle have produced some of the best copyright textbooks – from popular explainers to the definitive casebooks for classroom use – in circulation today, and they release these as free, shareable, open-access works:
There are some spectacular works that are being freed on January 1:
Dashiell Hammett's Maltese Falcon
Agatha Christie's Murder at the Vicarage (Miss Marple's debut)
The first four Nancy Drew books
The first Dick and Jane book
TS Eliot's Ash Wednesday
Olaf Stapledon's Last and First Men
Sigmund Freud's Civilization and Its Discontents (in German)
Somerset Maugham's Cakes and Ale
Bertrand Russell's The Conquest of Happiness
That's just a small selection from thousands of books.
Things are pretty amazing on the film side too: we're getting Academy Award winners like All Quiet on the Western Front, another Marx Brothers movie (Animal Crackers); the debut film appearance of two of the Three Stooges (Soup To Nuts); a Gary Cooper/Marlene Dietrich vehicle (Morocco); Garbo's first talkie (Anna Christie); John Wayne's big break (The Big Trail); a Hitchcock (Murder!); Jean Harlow's debut (Hell's Angels, directed by Howard Hughes); and so, so many more.
Then there's music. On the composition side, there's some great Gershwins (I Got Rhythm, I've Got a Crush on You, Embraceable You). There's Hoagy Carmichael's Georgia On My Mind. There's Dream a Little Dream of Me, Sunny Side of the Street, Livin' in the Sunlight, Lovin' in the Moonlight, Just a Gigolo; and a Sousa march, The Royal Welch Fusiliers.
There's also some banger recordings: Marian Anderson's Nobody Knows the Trouble I've Seen; Bessie Smith and Louis Armstrong's St Louis Blues; Clarence Williams’ Blue Five's Everybody Loves My Baby (but My Baby Don't Love Nobody but Me); Louis Armstrong's If I Lose, Let me Lose; and (again) so many more!
On top of that, there's a bunch of 2D art, including a Mondrian, a Klee, and a ton more work from 1930, which means a lot of Deco, Constructivism, and Neoplasticism. As a collagist, I find this very exciting:
As with previous editions, Jenkins and Boyle use this year's public domain report as a jumping-off point to explain some of the gnarlier aspects of copyright law. This year's casus belli is the bizarre copyright status of Betty Boop.
On January 1, the first Betty Boop cartoon, Dizzy Dishes, will enter the public domain. But there are many aspects of Betty Boop that are already in the public domain, because the copyright on many later Boop cartoons was never renewed – until 1976, copyright holders were required to file some paperwork at fixed intervals to extend the copyright on their works. While the Fleischer studio (where Betty Boop was created) renewed the copyright on Dizzy Dishes, there were many other shorts that entered the public domain years ago.
That means that all the aspects of Betty Boop that were developed for Dizzy Dishes are about to enter the public domain. But also, all the aspects of Betty Boop from those non-renewed shorts are already in the public domain. But some of the remaining aspects of Betty Boop's character design – those developed in subsequent shorts that were also renewed – are also in the public domain, because they aren't copyrightable in the first place, because they're "generic," or "trivial," constitute "minuscule variations," or be so standard or indispensable that as to be a "scène à faire."
On top of that, there are aspects of the Betty Boop design that may be in copyright, but no one is sure who they belong to, because a lot of the paperwork establishing title to those copyrights vanished during the various times when the Fleischer studio and its archives changed hands.
But we're not done yet! Just because some later aspects of the Betty Boop character design are still in copyright, it doesn't follow that you aren't allowed to use them! US Copyright law has a broad set "limitations and exceptions," including fair use, and if your usage fits into one of these exceptions, you are allowed to reproduce, adapt, display and perform copyrighted works without permission from the copyright holder – even (especially) if the copyright holder objects.
And finally, on top of all of this, there's trademark, which is often lumped in with copyright as part of an incoherent, messy category we call "intellectual property." But trademark is absolutely unlike copyright in virtually every way. Unlike copyright, trademarks don't automatically expire. Trademarks remain in force for so long as they are used in commerce (which is why a group of cheeky ex-Twitter lawyers are trying to get the rights to the Twitter trademarks that Musk abandoned when he rebranded the company as "X"):
But also, trademark exists to prevent marketplace confusion, which means that you're allowed to use trademarks in ways that don't lead to consumers being misled about the origin of goods or services. Even the Supreme Court has (repeatedly) upheld the principle that trademark can't be used as a backdoor to extend copyright.
That's important, because the current Betty Boop license-holders have been sending out baseless legal threats claiming that their trademarks over Betty Boop mean that she's not going into the public domain. They're not the only ones, either! This is a routine, petty scam perpetrated by marketing companies that have scooped up the (usually confused and difficult-to-verify) title to cultural icons and then gone into business extracting rent from people and businesses who want to make new works with them. Scammers in this mold energetically send out bullshit legal threats on behalf of the estates of Charlie Chaplin, Alfred Hitchcock, and Herge, salting their threats with nonsense about different terms of copyright in the UK and elsewhere.
As Jenkins and Boyle point out, the thing that copyright expiration get us is clarity. When the heroic lawyer and Sherlockian Les Klinger succesfully wrestled the Sherlock Holmes rights out of the Doyle estate, he did us all a solid:
But "wait until Les gets angry enough to spend five years in court" isn't a scalable solution to the scourge of copyfraud. It's only through the unambiguous expiry of copyright that we can all get clarity on which parts of our culture are free for all to use.
Now, that being said, copyright's limitations and exceptions are also hugely important, because there are plenty of beneficial uses that arise long before a work enters the public domain. To take just one example: for the past week, the song in top rotation on my music player has been the newly (officially) released Fatboy Slim track Satisfaction Skank, a mashup of Slim's giant hit Rockefeller Skank and the Rolling Stones' even bigger hit (I Can't Get No) Satisfaction:
https://www.youtube.com/watch?v=_c_V3oPCe-s
This track is one of Fatboy Slim's all-time crowd-pleasers, the song he would bust out during live shows to get everyone on the dance-floor. But for more than 20 years, the track has been exclusive to his live shows – despite multiple overtures, Fatboy Slim couldn't get the Rolling Stones to respond to his attempts to license Satisfaction for an official release.
That changed when – without explanation – the Rolling Stones reached out the Slim and offered to license the rights, even giving him access to the masters:
https://www.bbc.com/news/articles/c2dzre3z96go
This is a happy ending, but it's also a rarity. For every track like this – where the rightsholders decide to grant permission, even if it takes decades – there are thousands more that can't be officially released. This serves no one's interests – not musicians, not fans. The irony is that in the golden age of sampling, everyone operated from the presumption that sampling was fair use. High profile lawsuits and gunshy labels killed that presumption, and today, sampling remains a gigantic, ugly mess:
Which is all to say that the ongoing growth of the public domain, after its 20-year coma, is a most welcome experience – but if you think the public domain is great, wait'll you see what fair use can do for creativity!
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
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♫ Kuia, I just shot them, I just blew their heads open,
And I heard them scream in their agony,
Kuiama, she waits there for me.
True blue, you saw it through. ♫
Anya is live and ready to show you everything. Watch her strip, dance, and perform exclusive shows just for you. Interact in real-time and make your fantasies come true.
✓ Live Streaming✓ Interactive Chat✓ Private Shows✓ HD Quality
Anya is LIVE right now
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