Sonny and Cher
1-1-2019: Return of the Prodigal Public Domain
17 U.S.C. section 101 et. seq is the US Copyright Act, a bit of legislation I have seen change and expand over the past 30 years of professional curiosity. In that time, I have seen the growth of the US public domain come to a screeching stop. A magic 20 year extension of copyright protection was added to all extant works as a matter of law in 1998. This meant no new works were added to the public domain body of writings, fine art, films, songs, dance, or photography that we are all free to use as we like, whether they are liberally incorporated into new works or copied wholesale.
- What is the public domain? Works that are not under anyone’s control or ownership are essentially common stock, free to use, remix, and reuse. Thus, a work in the public domain, like Shakespeare’s plays or Mozart’s compositions, can be reproduced and used freely by anyone with or without alteration. It can be adapted to create a new work that itself can be protected by copyright to the extent of the newly composed portions. The public domain spurs new creations, like West Side Story, based on Romeo and Juliet, and even Pride & Prejudice & Zombies.
That was the impact of the Sonny Bono Copyright Term Extension Act (CTEA). Sonny was a California congressman and former pop star and songwriter. Best known as the mustachioed half of “I’ve Got You Babe” duo Sonny & Cher, he was a proponent of extending the time of copyright protection from life of the author plus 50 years to the longer term of life of the author plus 70 years. His skiing accident death turned the bill he proposed into a bit of a memorial statute. So, 20 years was added by fiat to all then existing protected works in 1998 and thus songwriter Sonny had a legacy for his survivors.
- What is copyright? Briefly, in the US, it is the automatic protection for original works of authorship fixed in a tangible medium of expression, or “OWAFTME” as I have nicknamed it. The copyright owner has the exclusive right during the period of protection to authorize copies of that work, including reproductions, adaptations, translations, transformations and derivative works, public performance or displays as the case may be for the kind of work and the exclusive right to license and authorize others to do those things. And that exclusive period of control is now roughly not only for the life of the author but also for that of one generation of their descendants’: life plus 70 years.
After 11:59 pm Monday night, this protective bubble bursts, and there will be works that once again are free for all of us to use as our own: in the public domain. There is still the 20 year extension bubble going forward over more recent works, but now the life plus 70 protected works of those "authors" (the term by which all creators of any work, from choreography to sound recordings are known) will mean works of an author who died in 1948 will be free to use by all as to use as we like as of midnight 1-1-2019. Works made for hire are not gauged by the death of the individual creator but generally have a set 95 years from publication. So 1923 works join the public domain then too, even those works made for hire for a corporation, many of them still in existence. And many publishers and film companies continue on in the same or conglomerated form, exploiting those old cash cows, still in copyright works.
Why did we do it? This 20 year windfall was seen as putting the US on a more even keel with other industrial countries, particularly with Europe, where life plus 70 years was a typical term. But rather than being PROSPECTIVE term for new works, where the idea that copyright is an incentive for creators to make and release new works, the change was made for all works, including those created decades before, whose authors were long cold in the ground and beyond any such coaxing.
The term rules are made more complex by the various extensions of term for the 1909 Act works, a law effective until 1-1-1978. (The current Copyright Act, is known as the 1976 Act. I know: this is The Law, home of obfuscation.) Those 1909-governed works originally had technical rules about publication and notice which caused many works to fall into the public domain on a technicality. Add in the US joining the international Berne Copyright Convention in 1989 and having to reinstate protection to foreign copyright owners who’d lost protection due to those old arcane rules. Copyright law is a complex and fierce, like barrel filled with biting, angry weasels whose tails are tangled.
Perhaps most importantly, these 1923 works were created with the expectation of 28 years protection. If the work was profitable, authors would renew for another 28. It's a myth that the length of the term of copyright provided incentive any of the copyright term extensions for works created arguably before 1-1-78. The laws under which they were created offered no such extensive posthumous protection.
So who was the real recipient of this government largess? Now, this little rat pictured on this page, born in 1928, avoids the public domain until the end of 2023 (1-1-2024). I am sure that is just a coincidence. Without the Sonny Bono term extension, Steamboat Willie Mickey would have entered the public domain after 2003 (1-1-2004), a scant 5 years after the enactment of the CTEA.
Copyright is a bargain: limited time protection and financial and other control in exchange for public disclosure. This quid-pro-quo is to fuel our marketplace of ideas. Over-protection stifles new works as too much control limits the leeway for new works to build upon prior ones. A thriving public domain is one of the ways the regime balances the scales in favor of free expression. I’ll be popping my cork at midnight for the return of that auld friend, the American public domain.