The copyright clock keeps ticking
For many Americans, this is the first Monday and work day of 2022.
For The Legal Genealogist, it’s the third day of 1926.
No, that’s not a typo. I really do mean 1926.
The year that books like Ernest Hemingway’s The Sun Also Rises and A.A. Milne’s Winnie the Pooh and Agatha Christie’s The Murder of Roger Ackroyd and T. E. Lawrence’s The Seven Pillars of Wisdom were published.1
The year that “Bye Bye Black Bird” and “Someone To Watch Over Me” were first available as sheet music.2
The year that films like The Son of the Sheik (starring Rudolph Valentino) and The Temptress (starring Greta Garbo) were first released.3
And because that’s the year they all were released to the public, they are now all — without exception — free of copyright restrictions. On 1 January 2022, along with thousands and thousands of other books, sheet music, films, photos and more, they entered the public domain in the United States.
A whole year’s worth of materials, wonderfully free for all of us to use in our research, our blogs, our presentations, our publications without having to try to find the copyright owner and secure permission. Remember, that’s what public domain means: when copyright expires and a work goes into the public domain, we’re allowed to use it freely, any way we want, for any purpose (with some limits4), without needing permission from or payment to the creator of the work.5
This really is a Big Deal — and it really shouldn’t have been one.
Because of the way the copyright law works, providing protection only for a set number of years, copyrights should have expired every year and we should have been getting a whole year’s worth of materials released into the public domain every year. But that copyright clock stopped ticking in 1998.
There’s a whole long backstory as to why it stopped ticking, and it was basically because the Disney people didn’t want the film where Mickey Mouse made his debut, Steamboat Willie, to become public domain. The copyright statute was changed to add 20 years of protection to all then-copyrighted works — and it provided that the copyright clock would stop, dead, on anything then-copyrighted and wouldn’t start to run again until 12:00.01 a.m. 1 January 2019.6
At that point, the statute said, after those additional 20 years, for most things, the clock would start moving again and, as it ticked over into 2019, the law said we should get an entire year’s worth of published works — everything legally published in the United States during 1923 — transferred into the public domain.7
Of course, since copyright law is a matter of statute, and any statute can always be amended, at any time up until midnight on 31 December 2018 — “the end of the calendar year in which (copyrights) would otherwise expire” — Congress could still have bollixed this up. So, as 2018 drew to a close, all of us who watch copyright issues held our collective breath.
And — somehow, astonishingly — Congress didn’t manage to foul it up. On 1 January 2019, thousands and thousands of items passed from copyright-protected status into the public domain. And we could all then say that the public domain included “everything legally published in the United States before 1924” (instead of the “before 1923” we’d been saying for 20 years).8
And then we started worrying. Because, of course, since copyright law is a matter of statute, and any statute can always be amended…9 Yeah, as of 1 January 2020, we were supposed to get another year’s worth of goodies. But — ulp — Congress could still foul it up.
Amazingly enough, as that year drew to an end, the clock kept right on ticking and, as of 1 January 2020, we began saying that copyright had expired for works published before 1925. Then, as of 1 January 2021, we began saying that copyright had expired for works published before 1926.
And — may miracles never cease — Congress didn’t manage to foul it up last year either. In copyright terms, 1926 finally got here. As of 1 January 2022, we can now say that copyright has expired for works published before 1927. And on 1 January 2023, we can include works published before 1928. And so on.10
For now, at least, the copyright clock is still ticking…
Cite/link to this post: Judy G. Russell, “Welcome to 1926!,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 3 Jan 2022).
SOURCES
- “Public Domain Day 2022,” Center for the Study of the Public Domain, Duke Law School (https://web.law.duke.edu/cspd/ : accessed 3 Jan 2022). ↩
- Ibid. ↩
- Ibid. ↩
- Just as one example, I really wouldn’t use a photo of a living person without that person’s permission, even a photo that’s out of copyright, on a pornography website. Just sayin’… ↩
- See generally Judy G. Russell, “Where is the public domain?,” The Legal Genealogist, posted 21 Dec 2015 (https://www.legalgenealogist.com/blog : accessed 3 Jan 2022). ↩
- See generally Glenn Fleishman, “For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain,” Smithsonian Magazine, January 2019 online issue (https://www.smithsonianmag.com/ : accessed 3 Jan 2022). ↩
- See generally 17 U.S.C. §305 (“All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire”). ↩
- See Judy G. Russell, “Welcome to 1923!,” The Legal Genealogist, posted 2 Jan 2019 (https://www.legalgenealogist.com/blog : accessed 3 Jan 2022). ↩
- I did say that, right? It really can happen… ↩
- Unless of course Congress changes its mind. I did mention that, right? So keep your fingers crossed… and your eyes on Congress. ↩
It’s like a new birthday present each year. I have no idea why Disney has such a fixation on keeping “Steamboat Willie” protected under copyright. Looking at it today, it’s pretty lame, even though it is of some historical interest. Perhaps Disney just wants to keep the Mickey Mouse images protected. I remember here in Florida perhaps twenty years ago that a woman made MM sweatshirts and sold them at a flea market. Disney got wind of it and sent a whole team of police and WD people to the flea market. The sweatshirts were confiscated and the woman was arrested. She was “vigorously” prosecuted by Disney and ended up paying thousands. (Why not a warning and a small fine, except that Disney wanted to make an example of the woman?) I understand the stance, but it soured me on anything Disney.
It isn’t necessary to use an axe when a scalpel will suffice, but hey… whaddaweknow? My sincere hope is that Congress is too distracted by … um … other things … to focus on this any time soon. Or ever.
I think that Steamboat Willy falls into the public domain again in 2024. What do you think that the House of Mouse do?
I suspect nothing, this time. The image of Steamboat Willie has been trademarked (which doesn’t expire as long as it’s being used) and the film itself is so very dated now that the economic value of the copyright is greatly diminished. In addition, of course, there doesn’t appear to be the slightest political will in Congress towards extending copyright terms.
Yet Disney let’s China freely fake stuff for sale all around Asia … with only mild complaint because they want their movies and real sales to continue. I saw many knock-offs for sale when I lived in Japan, and Tokyo Disney is filled with Chinese tourists.
The point of the blog post is not to bash Disney but to celebrate the newly-released materials.
Does this only apply to books published in the United States? (Winnie the Pooh, for example, was published in the U.K.)
Correct — only works published (and in fact legally published, rather than pirate-published) in the United States. Other countries have different terms, some shorter, some longer.
Under the heading of “It Depends” … not EVERYTHING published in 1926 entered the public domain on 1 Jan 2022 because a lot of it was already there. In the United States, copyright laws used to require the creator/author to dot the “i”s and cross the “t”s at the time of publication, and again 28 years later in order to keep the copyright valid.
Of course, as you have written, Judy, the great thing to celebrate now is that there is no longer any uncertainty about whether something from published in 1926 in the United States (with permission) is public domain in the United States or not. (Great thing for everyone but intellectual property attorneys.)
As your informative post implies – in 2018 books published in the U.S. prior to 1923 were in the public domain. Since then – one year has been added on January 1st for each of 2019, 2020, 2021 and 2022 respectively – so that books published prior to 1927 are now (2022) in the public domain.
I understand that in 2018 books published in the U.S. between 1923 and 1963 that did not have a copyright renewal – were also in the public domain. Has this 1923 through 1963 copyright renewal period also changed since 2018 ? – For example – does the U.S. copyright renewal period now (2022) apply to a shorter period 1927 through 1963 ?
No, those are dates set by statute, so they don’t shift. See https://guides.library.cornell.edu/copyright/publicdomain
this was an interesting read …… as always…