The public domain grows

January 2, 2021

On New Year’s 2021, books, music and films published in 1925 entered the public domain, free for anyone to copy, quote at length, mash up, whatever you like. Jennifer Jenkins at Duke Law’s Center for the Study of the Public Domain provides a rundown of what’s been set free and why it matters. Highlights in literature include Mrs. Dalloway, The Great Gatsby, and Kafka’s The Trial in the original German. An English translation of The Trial, however, won’t be public domain until 2033, and the Franz Kafka cartoon rock opera that got teenage me into Kafka will stay copyrighted until 2096.

1925 was a good year for books, as it happens. People still want to read this stuff. There’s even a prequel to The Great Gatsby, timed by its author Michael Farris Smith to come out this week, now that you can, well, do that.

In other years, though, one can imagine these events yielding a collective shrug. The media newly available for free use is three generations old. Unless you’re studying history, how much from the 1920s really speaks to you? Years ago, I bought a copy of Sinclair Lewis’s Main Street (1920), mostly because I thought it was cool to have a book that didn’t have a copyright notice. It still sits on my shelf, pristine and unread.

These days, anything that was new and culturally relevant to us growing up might as well be copyrighted forever; it’ll only expire long after we’re dead. But it wasn’t always like this.

This state of affairs, with culture under lock and key, is far from how copyright in the United States was first envisioned. Any monopolies on use were to be “for limited Times,” designed to “promote the Progress of Science and useful Arts” (US Constitution, sec. 8). The end goal was to get more stuff into the public domain, not to curtail derivative forms of creativity for generations at a time. I’m not going to idealize the Constitution as some kind of perfect document, since, gestures broadly at Electoral College and Senate. But the founders got this one right! Letting people tell other people, “No, you can’t perform my song, adapt my story, etc.,” with the force of law behind them, is an unacceptable restriction on speech, unless the time and scope of the restriction is truly limited.

That originally meant 14-year copyright terms, renewable for another 14 years through explicit registration with the copyright office, for a total of 28 years max. Under that system, works from 1992 would be coming into the public domain now. Jurassic Park would be public domain. “Smells Like Teen Spirit” would be public domain. Can you imagine how much creativity would blossom if everything from the 1980s were free to use already, with more and more 90s culture joining it each year?

The 28 year limit was increased in 1831 and in 1909 to a maximum term of 56 years, a doubling, but still within the span of a normal human life. Then things got out of hand.

In the United States, again, copyright was always a bargain designed to benefit the public. We let authors (and realistically, in most cases, the publishers financing them), control what was done with their work for a limited time so that more stuff got published, passed through its copyright term, and then became free for all to enjoy.

In Europe, however, a toxic idea was emerging: copyright as an inherent “moral right” of the author. It wasn’t about public benefit at all, but a romantic view that authors were somehow special and, just for their own sake, deserved to control what the public did with their published work.

It’s worth pointing out that the understanding of how creativity works, here, is pure fantasy. Creative works don’t spring fully formed from their authors’ heads, absolutely original. They’re always the result of mimicry, adaptation and recombination of what came before. Shakespeare’s Romeo and Juliet copied heavily from Arthur Brooke’s Romeus and Juliet published 30 years prior, which would make the Bard a pirate under current European law. (Compare to Michael Farris Smith having to wait 95 years to riff on The Great Gatsby.) The novelist Jonathan Lethem, in his essay “The Ecstasy of Influence,” cites many 20th century examples of artistic cribbing which were never challenged, from Nabokov to Bob Dylan to Burroughs to Disney.

Nevertheless, starting in the late 19th century, European countries began joining the Berne Convention, a treaty that reflected this extreme and totalitarian view of copyright. In signatory countries, works wouldn’t enter the public domain for 50 years after the death of the author — at least. Also, the requirement to register a work with the copyright office or even include a copyright notice was eliminated. Now, if you scribbled a note on a napkin, it was copyrighted.

The United States resisted this insanity for an impressively long time. It was in 1976 under mounting international pressure that Congress finally implemented requirements of the Berne Convention. Copyrights still in effect were lengthened retroactively, so that nothing entered the public domain between 1977 and 1997. Then, under intense lobbying from The Walt Disney Company to keep Mickey Mouse copyrighted, Congress extended copyrights again in 1998, blocking any work from entering the public domain between 1998 and 2019. (If retroactive extensions sound unconstitutional to you based on the “limited Times” language, I agree, but the Supreme Court sadly didn’t.)

So let me refine what I said earlier: This year’s batch of public domain works aren’t just worth celebrating because of their continued cultural relevance, but because if you’re under 44, this is only the 5th time any works have entered the public domain ever in your life.

Pushing back

It’s also worth celebrating acts of resistance to this culture of endless copyright, or as Lethem argues copyright should be called, “usemonopoly.”

Everyone loves Wikipedia, the easiest starting point for learning about virtually anything. And on Wikipedia, all content is under a Creative Commons license that allows unlimited sharing and reuse subject to certain terms: sort of a pseudo-public domain. That spirit of creating a common good has drawn the many contributors who’ve made the site successful.

Musicians on Bandcamp and other sites can license their music Creative Commons, and one of my favorite songwriters, John Vanderslice, has quietly done so (scroll down to the “some rights reserved” at the bottom of any release). It may not be a coincidence that Vanderslice has a number of monthly Patreon supporters. With new ways for fans to support artists directly, are restrictions on noncommercial copying still needed at all?

And one that surprised me: Tom Lehrer, the satirical songwriter active in the 1950s and 1960s, released all his lyrics and sheet music into the public domain. Ironically, one of his few non-original pieces was my introduction to him, and maybe yours too. In high school chemistry class, I heard his song “The Elements,” written in 1959 and set to the tune of “Major-General’s Song” from The Pirates of Penzance (1879). By Lehrer’s time the source material was not copyrighted, but under today’s law, it would have been. Lehrer, unlike Walt Disney, is fair-minded enough in his old age to let people build on his work, as he built on others’ before him.

These are powerful rejoinders to the message that we need extreme and long-lasting copying restrictions to spawn creative work. It’s a form of resistance that’s more needed than ever now that we all have copying machines in our pockets. Maybe by normalizing these acts of open licensing and public-domain dedications, we can build a culture that rejects out of control usemonopolies — and demands Congress cut the laws back to size, restoring a vibrant public domain.

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