January 1, 2022 (a.k.a. New Year’s Day or “Public Domain Day”) welcomed thousands of historical and cultural works from 1926 to the public domain. Among these works are George and Ira Gershwin’s song “Someone to Watch Over Me,” Felix Salten’s novel Bambi, A Life in the Woods, and A. A. Milne’s book Winnie-the-Pooh. But what does it mean for a work to go into the “public domain,” and why is this important?
As discussed in my article An Author’s Rights Go Public, Article 1, Section 8, Clause 8 of the United States Constitution (the “Copyright Clause”) gives Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The exclusive rights held by a copyright author are therefore finite, and authors who may later want to use, adapt, or transform another author’s work will need to carefully consider whether the rights in the original have lapsed and gone into the public domain. In general:
works created as far back as 1978 generally enjoy copyright protection for the duration of the individual author’s life + 70 years after the author’s death (or 70 years after the death of the last surviving author for works created by more than one individual; or for anonymous works, works authored under a pseudonym, and works made for hire, 95 years from the date of publication or 120 years from the date of creation, whichever expires first)
copyright protection in works published or registered before 1927 have expired and fallen into the public domain.
The public domain is an important part of a copyright’s lifecycle, as the author (and the author’s descendants in many cases) have enjoyed exclusive use of, and profit from, the copyrighted work. Once works enter the public domain, they are freely available for use by anyone—this means that bands and orchestras may now perform certain songs without having to pay a licensing fee, authors may adapt classic stories to create and sell new derivative works and “sequels,” and community theaters may freely screen pre-1927 films for any purpose. Many works created pre-1927 are out of circulation and largely lost to history, so the public domain gives creatives and authors a means of breathing new life into classic works and rescuing them from obscurity. After all, as stated above, the Copyright Clause of the Constitution urges the promotion and progress of science and useful arts, and the public domain does just that—giving authors a means of using classic works to create and reimagine new art for all to enjoy.
As a familiar example, A. A. Milne’s book Winnie-the-Pooh, one of the most iconic children’s books of the twentieth century, entered the public domain on January 1, 2022. Everything in the book—the story itself, the illustrations, and the characters Rabbit, Piglet, Owl, Kanga, Roo, Eeyore, Christopher Robin, and even the infamous Heffalumps and Woozles (Tigger will be joining his friends in the public domain in 2024, as he was not introduced until 1928 in the book The House at Pooh Corner)—are all free to use, adapt, and enjoy by all. This means that anyone can create their own stories using these previously copyright-protected characters, and can even make a song, film adaptation, picture, script, or screenplay based entirely on the contents found in A. A. Milne’s 1926 book.
That said, The Mouse looms large, and anyone looking to create their own work based on a previously copyrighted work should be careful not to assume that all iterations of a copyrighted story, character, or song are free to use without limitation. Not so. For example, the Winnie the Pooh character was originally depicted without clothing, and his iconic red shirt was not added until the 1930s. Thus, only the Winnie the Pooh as depicted in A. A. Milne’s 1926 book is in the public domain, and the newer iterations of the character still belong to the copyright holder—who in this case happens to be Disney. In addition, because Tigger was not added to the Hundred Acre Wood gang until 1928, he remains untouchable until Public Domain Day 2024. It’s important to also note that any adaptations or derivative works that are created using public domain materials become whole new copyrighted works in of themselves—although the public domain elements of the new work are freely available for anyone’s use, the new expression of those elements becomes a copyrighted work that will be protected by copyright law for at least 70 years (see above).
Lastly, even though a previously copyrighted work may now be in the public domain, that previous copyright holder may still own the trademark rights in the work’s name or title. Trademarks, unlike copyrights, exist as long as the mark is being used commercially, and therefore have the ability to outlive copyrights in perpetuity (think of a company that owns and commercially exploits goods and services under a handful of trademarks through the years—even as ownership of the company changes hands, the ownership of the trademarks remains in the company itself). For instance, as of the date of this article, Disney collectively owns 19 live registered trademarks in “POOH,” “WINNIE THE POOH,” “POOH & FRIENDS,” and “MY FRIENDS TIGGER & POOH”—these trademarks cover a variety of goods and services ranging from articles of clothing, to distribution of television programs, to amusement and theme park services. Thus, even though the 1926 rendition of Winnie the Pooh may be in the public domain, authors and creators should be careful not to use the name “Winnie the Pooh” in a way that suggests the user is in any way affiliated with Disney or its goods and services. Sounds like an easy task, right?
The United States is slowly catching up to the “new” copyright ownership timeline enumerated in the Copyright Act of 1976 (effective January 1, 1978), which means that come January 1, 2073, all copyrighted works will be protected for the duration we discussed in our first bullet point above. Until then, every year on Public Domain Day, tens of thousands of classic works will instantly be available for public use and enjoyment (within reason). An attorney skilled in copyright and trademark law can assist creatives in navigating these exciting (and somewhat treacherous) waters, for it is important to remember that simply entering the public domain does not give new authors unlimited free reign over previously copyrighted works. Now—let’s get creative!
For more information on this article and this topic, contact Charles Wallace.