Amidst the clinking of champagne glasses at midnight on January 1, 2019, copyrights will experience a mass expiration for the first time in 20 years. Anyone will be free to use, display, perform, or remix works from 1923 which are scheduled to enter the public domain twenty years after their 1922-published cousins.
The U.S. Constitution only allows copyright protection to exist “for a limited time,” meaning that all copyrights must expire. Over the years, artists and corporations lobbied Congress to pass copyright term extensions. As pre-1978 works were expiring under the 1976 Copyright Act’s scheme, Congress passed the 1997 Sonny Bono Copyright Act, extending copyright term by 20 years and creating a nexus around the year 1923. While 1922’s works, such as “Twittering Machine” by Swiss German painter Paul Klee (shown above) entered the public domain in 1997, another twenty years passed before 1923’s works now follow suit.
During the copyright period, an artist may obtain the economic benefit of their work through publishing, displaying, or licensing. Even years after first publication, a vigorous licensing campaign can allow new generations to experience and take inspiration from artistic work. For example, John Denver’s estate recently made a massive push and brought the country legends’ signature song “Take Me Home, Country Roads” to a variety of diverse new media. By its nature, copyright does not allow anyone to use “Take Me Home, Country Roads” without the estate’s permission, but for the appropriate licensing fee, the song appeared in movies and video games, including “Alien: Covenant,” “Diary of a Wimpy Kid: The Long Haul,” and most recently, Bethesda Softworks’ “Fallout 76.”
Many argue that copyright stifles creativity because not all artists can afford the licensing fees. However, the public domain, a collection of works for which they are no copyright protections, is free for all to use and remix. Disney built its empire in part by making use of public domain works for its movies, including 1967’s “Jungle Book” and its 2016 live-action remake. Both movies follow the raised-by-wolves man-cub Mowgli, the black panther Bagheera, the snake Kaa, the bear Baloo, and the fearsome tiger Shere Khan. However, Disney cannot stop Netflix and Warner Brother’s 2018 “Mowgli: Legend of the Jungle,” which makes use of the same characters and general plot. Both “Jungle Book” and “Mowgli” are based on the same 1894 public domain book by English author Rudyard Kipling.
While pre-1923 works are well known and used time and again in new ways, post-1923 works are only set to enter the public domain now. It is unclear what, if any, works will be used or refreshed as a result of the 1923 copyright expiration. However, artists should rest assured that their individual spins and improvements will receive copyright protection for many years.
WHIPgroup is leading counsel for U.S. and international technology companies. We specialize in patent and trademark law.
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