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mostlysignssomeportents · 1 year

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2023's public domain is a banger

40 years ago, giant entertainment companies embarked on a slow-moving act of arson. The fuel for this arson was copyright term extension (making copyrights last longer), including retrospective copyright term extensions that took works out of the public domain and put them back into copyright for decades. Vast swathes of culture became off-limits, pseudo-property with absentee landlords, with much of it crumbling into dust.

After 55-75 years, only 2% of works have any commercial value. After 75 years, it declines further. No wonder that so much of our cultural heritage is now orphan works, with no known proprietor. Extending copyright on all works – not just those whose proprietors sought out extensions – incinerated whole libraries full of works, permanently.

But on January 1, 2019, the bonfire was extinguished. That was the day that items created in 1923 entered the US public domain: DeMille's Ten Commandments, Chaplain's Pilgrim, Burroughs' Tarzan and the Golden Lion, Woolf's Jacob's Room, Coward's London Calling and 1,000+ more works:

https://web.law.duke.edu/cspd/publicdomainday/2019/

Many of those newly liberated works were forgotten, partly due to their great age, but also because no one knew who they belonged to (Congress abolished the requirement to register copyrights in 1976), so no one could revive or reissue them while they were still in the popular imagination, depriving them of new leases on life.

2019 was the starting gun on a new public domain, giving the public new treasures to share and enjoy, and giving the long-dead creators of the Roaring Twenties a new chance at posterity. Each new year since has seen a richer, more full public domain. 2021 was a great year, featuring some DuBois, Dos Pasos, Huxley, Duke Ellington, Fats Waller, Bessie Smith and Sydney Bechet:

https://pluralistic.net/2020/12/16/fraught-superpowers/#public-domain-day

In just 12 days, the public domain will welcome another year's worth of works back into our shared commons. As ever, Jennifer Jenkins of Duke's Center for the Public Domain have painstaking researched highlights from the coming year's entrants:

https://web.law.duke.edu/cspd/publicdomainday/2023/

On the literary front, we have Virginia Woolf's To The Lighthouse, AA Milne's Now We Are Six, Hemingway's Men Without Women, Faulkner's Mosquitoes, Christie's The Big Four, Wharton's Twilight Sleep, Hesse's Steppenwolf (in German), Kafka's Amerika (in German), and Proust's Le Temps retrouvé (in French).

We also get all of Sherlock Holmes, finally wrestling control back from the copyright trolls who control the Arthur Conan Doyle estate. This is a firm of rent-seeking bullies who have abused the court process to extract menaces money from living creators, including rent on works that were unambiguously in the public domain.

The estate's sleaziest trick is claiming that while many Sherlock Holmes stories were in the public domain, certain elements of Holmes's personality were developed in later stories that were still in copyright, and therefore any Sherlock story that contained those elements was a copyright violation. Infamously, the Doyle Estate went after the creators of the Enola Holmes series, claiming a copyright over Sherlock stories in which Holmes was "capable of friendship," "expressed emotion," or "respected women." This is a nonsensical theory, based on the idea that these character traits are copyrightable. They are not:

https://web.law.duke.edu/cspd/publicdomainday/2023/#fn6text

The Doyle Estate's shakedown racket took a serious body-blow in 2013, when Les Klinger – a lawyer, author and prominent Sherlockian – prevailed in court, with the judge ruling that new works based on public domain Sherlock stories were not infringing, even if some Sherlock stories remained in copyright. The estate appealed and lost again, and Klinger was awarded costs. They tried to take the case to the Supreme Court and got laughed out of the building.

But as the Enola Holmes example shows, you can't keep a copyright troll down: the Doyle estate kept making up imaginary copyright laws in a desperate, grasping bid to wring more money out of living, working creators. That's gonna be a lot harder after Jan 1, when The Case-Book of Sherlock Holmes enters the public domain, meaning that every Sherlock story will be out of copyright.

One fun note about Klinger's landmark win over the Doyle estate: he took an amazing victory lap, commissioning an anthology of new unauthorized Holmes stories in 2016 called "Echoes of Sherlock Holmes":

https://www.simonandschuster.com/books/Echoes-of-Sherlock-Holmes/Laurie-R-King/Sherlock-Holmes/9781681775463

I wrote a short story for it, "Sherlock Holmes and the Case of the Extraordinary Rendition," which was based on previously unpublished Snowden leaks.

https://esl-bits.net/ESL.English.Listening.Short.Stories/Rendition/01/default.html

I got access to the full Snowden trove thanks to Laura Poitras, who jointly commissioned the story from me for inclusion in the companion book for "Astro noise : a survival guide for living under total surveillance," her show at the Whitney:

https://www.si.edu/object/siris_sil_1060502

I also reported out the leaks the story was based on in a companion piece:

https://memex.craphound.com/2016/02/02/exclusive-snowden-intelligence-docs-reveal-uk-spooks-malware-checklist/

Jan 1, 2023 will also be a fine day for film in the public domain, with Metropolis, The Jazz Singer, and Laurel and Hardy's Battle of the Century entering the commons. Also notable: Wings, winner of the first-ever best picture Academy Award; The Lodger, Hitchcock's first thriller; and FW "Nosferatu" Mirnau's Sunrise.

However most of the movies that enter the public domain next week will never be seen again. They are "lost pictures," and every known copy of them expired before their copyrights did. 1927 saw the first synchronized dialog film (The Jazz Singer). As talkies took over the big screen, studios all but gave up on preserving silent films, which were printed on delicate stock that needed careful tending. Today, 75% of all silent films are lost to history.

But some films from this era do survive, and they are now in the public domain. This is true irrespective of whether they were restored at a later date. Restoration does not create a new copyright. "The Supreme Court has made clear that 'the sine qua non of copyright is originality.'"

https://www.law.cornell.edu/supremecourt/text/499/340

There's some great music entering the public domain next year! "The Best Things In Life Are Free"; "I Scream, You Scream, We All Scream for Ice-Cream"; "Puttin' On the Ritz"; "'S Wonderful"; "Ol' Man River"; "My Blue Heaven" and "Mississippi Mud."

It's a banger of a year for jazz and blues, too. We get Bessie Smith's "Back Water Blues," "Preaching the Blues," and "Foolish Man Blues." We get Louis Armstrong's "Potato Head Blues" and "Gully Low Blues." We get Jelly Roll Morton's "Billy Goat Stomp," "Hyena Stomp," and "Jungle Blues." And we get Duke Ellington's "Black and Tan Fantasy" and "East St. Louis Toodle-O."

Note that these are just the compositions. No new sound recordings come into the public domain in 2023, but on January 1, 2024, all of 1923's recordings will enter the public domain, with more recordings coming in every year thereafter.

We're only a few years into the newly reopened public domain, but it's already bearing fruit. The Great Gatsby entered the public domain in 2021, triggering a rush of beautiful new editions and fresh scholarship:

https://www.nytimes.com/2021/01/14/books/the-great-gatsby-public-domain.html

These new editions were varied and wonderful. Beehive Books produced a stunning edition, illustrated by the Balbusso Twins, with a new introduction by Wellesley's Prof William Cain:

https://beehivebooks.com/shop/gatsby

And Planet Money released a fabulous, free audiobook edition:

https://pluralistic.net/2021/01/18/peak-indifference/#gatsby

Last year saw the liberation of Winnie the Pooh, unleashing a wild and wonderful array of remixes, including a horror film ("Blood and Honey") and also innumerable, lovely illustrations and poems, created by living, working creators for contemporary audiences.

As Jenkins notes, many of the works that enter the public domain next week display and promote "racial slurs and demeaning stereotypes." The fact that these works are now in the public domain means that creators can "grapple with and reimagine them, including in a corrective way." They can do this without having to go to the Supreme Court, unlike the Alice Randall, whose "Wind Done Gone" retold "Gone With the Wind" from the enslaved characters' perspective:

https://en.wikipedia.org/wiki/The_Wind_Done_Gone

After all this, you'd think that countries around the world would have learned their lesson on copyright term extension, but you'd be wrong. In Canada, Justin Trudeau caved to Donald Trump and retroactively expanded copyright terms by 20 years, as part of USMCA, the successor to NAFTA. Trudeau ignored teachers, professors, librarians and the Minister of Justice, who said that copyright extension should require "a modest registration requirement" – so 20 years of copyright will be tacked onto all works, including those with no owners:

https://www.michaelgeist.ca/2022/04/the-canadian-government-makes-its-choice-implementation-of-copyright-term-extension-without-mitigating-against-the-harms/

Other countries followed Canada's disastrous lead: New Zealand "agreed to extend its copyright term as a concession in trade agreements, even though this would cost around $55m [NZ dollars] annually without any compelling evidence that it would provide a public benefit":

https://www.newsroom.co.nz/nz-agrees-to-mickey-mouse-copyright-law

Wrapping up her annual post, Jenkins writes of a "melancholy" that "comes from the unnecessary losses that our current system causes—the vast majority of works that no longer retain commercial value and are not otherwise available, yet we lock them all up to provide exclusivity to a tiny minority.

"Those works which, remember, constitute part of our collective culture, are simply off limits for use without fear of legal liability. Since most of them are 'orphan works' (where the copyright owner cannot be found) we could not get permission from a rights holder even if we wanted to. And many of those works do not survive that long cultural winter."

[Image ID: A montage of works that enter the public domain on Jan 1, 2023.]

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