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Writing the Law: Legal Tips for Writers

PUBLIC DOMAIN - GOING PUBLIC

 

 

 

     On January 1, 2019, the doors of Public Domain burst wide-open making works published in 1923 free for all. This means that the copyrights on these works have expired and these materials are now available for education, research or creative endeavors without needing to obtain permission of the copyright owner and incurring a royalty fee.


     Why is this significant?It is significant because for the past 20 years no works have entered the public domain. In 1998, Congress passed the "Sonny Bono Copyright Term Extension Act," named for the late singer-songwriter and ex-husband of Cher, which added an extra 20 years of copyright protection to the term existing under the 1978 copyright statute. This 20-year hiatus on works entering the public domain raised the limit of copyright protection from 75 years to a maximum of 95 years. Disney was one of the loudest proponents of the extension as the 1928 cartoon "Steamboat Willie," which featured Mickey's Mouse's first appearance on the silver screen, was set to head into the public domain in 2004. Under the copyright extension law, Mickey, and Disney, have obtained a reprieve until 2024.


     Why should we care about the influx of materials into the public domain? As it turns out, great works of literature, including those found in the Cannon of English Literature, have lost copyright protection. Novels such as:
          Miguel De Cervantes's "Don Quixote"
          Oscar Wilde's"The Portrait of Dorian Gray"
          Kahlil Gibran's "The Prophet"
          SigmundFreud's "The Id and the Ego"
          James Joyce's"Ulysses"
          Willa Cather's"A Lost Lady"
          Agatha Christie's "Murder on the Links" and "The Murder of Roger Ackroyd"
          Daniel Dafoe's "The Fortunes and Misfortunes of the Famous Moll Flanders"      

 

     Madeline L'Engel's"A Wrinkle in Time" and my personal favorite, Lewis Carroll's "Alice's Adventures in Wonderland; and Through the Lookinglass" have tumbled down the rabbit hole into the public domain.

 

     Pretty horrifying right? Well, the list also includes Robert Frost's epic poem"Stopping by the Woods on a Snowy Evening," Cecil B. DeMille's silent movie"The Ten Commandments," and Woody Guthrie's homage to the great depression,"Blowin' in the Wind".The list is exhaustive and the highlights of 2019 Domain Day can be found at  https://law.duke.edu/cspd/publicdomainday/2019/.

 

     From a commercial standpoint, the change in status renders these valuable pieces of art worthless to their creator's estates. They will no longer generate royalties from film, literary, clothing and tchotchke licensing as well as from the publication of books.  It is now possible to print a "And miles to go before I sleep" t-shirt, produce a rap musical of Dorian Gray, write a screenplay of  "Don Quixote", record an audiobook of "A Wrinkle in Time" or adapt "The Murder of Rodger Ackroyd" into a novel, if inspired to do so, without paying a royalty. But, the true value of these historic works accrues to online publishers such as Google Books, the Internet Archive, https://archive.org, Open Library, https://openlibrary.org, Project Guttenberg, https://www.gutenberg.org, and HathiTrust Digital Library, https://babel.hathitrust.org, which potentially can disseminate thousands of books online for free. Ebookfriendly.com, https://ebookfriendly.com/free-public-domain-books-sources/, provides a list of the top twenty-five site for public domain books to download, in case you're interested in a free read or need inspiration for your next project.

 

     Proponents of the public domain have long argued that the 20-year hiatus created  a wide gap on the internet to access of information about 20thCentury art and restricted the public's ability to study and understand that century. Ironically, just as technology expanded the ease and ability of research, the public domain was locked down. With the release of works into the public domain, unhampered access to scholarship will be affordable for teachers, historians, writers and researchers to translate, annotate, combine, excerpt, adapt and publish online. Films, newsreels and documentaries disintegrating in archives will now be candidates for preservation and public access. Mrs. Smith's third grade class will be able to sing or create a play around Felix Salten's "Bambi".

 

     How does the public domain affect creative writers?During the recent editing of my novel, "The Midnight Call," my editor pointed out several potential instances of copyright infringement because I had included excerpts of poems, songs and writings in my manuscript. She rightfully suggested that I reconsider using these reference unless they were absolutely necessary to the plot, and I was satisfied that the works were in the public domain. Otherwise, I was bound to obtain permission and/or pay a fee. While the following example is specific to my work, the lesson learned is worth sharing with all writers of fiction.

 

     In a somber scene, my pregnant attorney protagonist, Jessie Martin, is attending the funeral of a teenage boy who had been brutally murdered by my protagonist's mentor. She had been summoned to the murder scene by her mentor and later discovered the teenage victim had also been her close friend. Jessie is sitting in the church listening to the reverend recite a passage from W.H. Auden's moving poem, "Funeral Blues".
           Stop all the clocks, cut off the telephone
           Prevent the dogs from barking with a juicy bone
           Silence the piano, and with muffled drum
           Bring out the coffin, let the mourners come.

 

     I thought that the poem fit Jessie's mood and communicated the shock and sadness of the homicide's aftermath to the community. However, after discovering that the poem was written in 1936, it was necessary to determine whether the poem had slipped into the public domain. In addition to the expiration of the copyright term, works can enter the public domain if the owner failed to follow the copyright renewal rules or they dedicated the work to the public. Stanford University provides an amazing searchable database of copyright renewals for books published between 1923 and 1963 at https://exhibits.stanford.edu/copyrightrenewals?forward=home. Works published after 1964 had their copyrights automatically renewed by statute, and as mentioned above, works prior to 1924 are now in the public domain.

 

     Using this database, I confirmed that "Funeral Blues" was not in the public domain, and I located Auden's estate at www.audensociety.org. They maintained a page outlining the procedure for obtaining permission from Random House to quote the poem. Suitably dissuaded by the potential hassle and cost, I deleted the lines and simply indicated that the poem had been read aloud at the funeral. Hopefully, my readers will get the reference.

 

     I had also quoted the "Hush Little Baby" lullaby. Thanks to Google, I confirmed that the nursery rhyme was attributed to Mother Goose, and since her true identity remains a mystery and her rhymes pre-date the 17thCentury, I was in the clear, fortunately.

 

     Without a doubt, determining whether a work is in the public domain can be a tricky issue, however Cornell University has created a detailed chart of the copyright terms, which can be found at https://copyright.cornell.edu/publicdomain. This site also offers resources on copyright basics and how to obtain copyright clearances.

 

     Honestly, copyright and the public domain were the last issues on my mind when I was writing my manuscript, but the lesson will follow me through all of my future projects. Fortunately, resources such as the Cornell and Stanford University websites exist to help writers navigate the often-murky public domain waters and determine if works have gone public. Don't forget to use these handy websites; they're in the public domain.
 

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