Public Domain or Not Public Domain? That Is the Question.
by: Rosanne Yang
The first of the year always brings with it a slew of articles about what has entered the public domain as of January 1. This year brings extra anticipation: as you have doubtless read somewhere, this time next year “Mickey Mouse” will acquire that status. That is not exactly true, though, so be wary of using or “borrowing” materials even when you think they may be in the public domain. When determining whether and how much of certain materials can be used – or if you are on the other side and want to maximize your protection and enforcement of your still valuable rights – consider these 4 things:
1. What is the magic date?
During all of 2023, the magic date is 1927. Works from 1927 and earlier are now available for use. It is not enough to be just “vintage” or “old.” Works from January 1, 1928 through December 31, 1977 may or may not be in the public domain – the answer depends on a variety of factors that would need to be researched for that particular work. Works created on or after January 1, 1978 have a very (very) long period of protection, so don’t plan on using those any time soon.
2. What, exactly, is “the work”?
Special care will need to be taken to parse out what exactly is in the public domain where “parts” of it may not yet be in the public domain. Examples include:
a character that has developed over time, like Winnie the Pooh who traces his roots to a publication in 1926 but who over the years came to look very different than those original illustrations
a series of books that was published from 1927 through more current times like the Hardy Boys series
a movie where the film rights expired but the rights in the music track did not, such as what happened with It’s a Wonderful Life
a composition that is performed and recorded later, such as a 2010 recording of a symphony orchestra playing a work by Beethoven
The release into the public domain of the earliest version of a work will not release later versions, installments, or performances, or associated rights that were intermingled. Those can remain very much under the protection of copyright law.
This issue came into sharp focus when the estate of Arthur Conan Doyle sued Netflix and other parties involved in Enola Holmes for violating its copyrights. Though it has since been resolved, at the heart of the dispute was what precisely was free to be taken and modified given that some but not all of the Sherlock Holmes stories were in the public domain. (They have since passed entirely into the public domain…except of course those that were not written by Doyle, which remain under copyright protection.)
3. Where do you intend to display or sell your riff on the old material, and where did the work originate?
The above guardrails apply only to the United States. Other countries provide creators with different protections, which may result in longer protections.
4. Are there affiliated rights?
Owners of older but still valuable properties may have other rights that do not expire with the copyrights. For instance, Disney has gone to some pains to use a moving clip of Steamboat Willie as a trademark for its ongoing content production. So, come next year, it may be fine to show the original 8 minute Steamboat Willie short without paying royalties to Disney but it would be ill-considered to adopt the image of Willie as your trademark or otherwise use it in a source-identifying way.
Trademarks can exist infinitely – as long as the owner of those rights continues to use the rights.
Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.