Good site: PD56, copyrights that should have lapsed but didn’t

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In one of his comments, frequent Beat commenter Jason A. Quest linked to his websitePD56 | works that should have become Public Domain after 56 years, and people who are interested in copyright should check it out. It lists works created more than 56 years ago that should, in theory be in the public domain now but aren’t Copyright law was originally 56 years: 28 years plus an optional 28 year extension. Of course, thanks to the Sonny Bono law and Walt Disney, copyright has now been extended to periods of up to 120 years. (Trademark, it should be noted, is perpetual as long as its defended.) Quest isn’t a copylefter, he takes a middle ground:

Copyright should be honored, for all the reasons the Constitution says: to promote the creation of new works by rewarding those who make them.  But it should also expire.  Extending an existing copyright serves no purpose but to enrich the holder, at the expense of our public culture.  So here’s what needs to happen: let copyrights expire when they were originally going to expire.  Roll back the retroactive extensions and give us back a 56-year copyright.  Then maybe the public will be more sympathetic to creators’ legitimate complaints about piracy of thenew things they’re producing.


Quest’s examples are quirky, paintings, plays and of course, cartoon characters such as Mickey Mouse, who, it is often noted, prompted much of the extension legislation as Disney faced anxiety over the ticking clock since Mickey’s 1928 debut. Although Mickey the character is a cipher, he’s a powerful symbol:

If Mickey had entered the Public Domain at the end of 1984 like he was supposed to, it would have allowed other people to use the character in their own cartoons, comics, etc.  But they wouldn’t be able to use the name “Mickey Mouse” (a trademark of the Walt Disney Company) anywhere on the packaging or promotional materials for it, and they wouldn’t be able to use the distinctive likeness of the character (also a registered trademark) for that either.  They’d effectively have to keep his presence in the story a secret, or risk the legal might of one of the most powerful media conglomerates ever.


The creators of the original 56 year copyright term probably didn’t foresee the immense amounts of money to be made from licensing and branding, they also didn’t foresee the ubiquity of internet piracy or collage culture. As long as big media has their way, it very likely that very little of value is going to go out of copyright in any practical way for a looong time.

Comments

  1. I’m in favor of extending copyright for the full life of the author or their spouse, or until their youngest child reaches 25, whichever is later. Allow copyright to enrich (literally and metaphorically) the creator and to provide for their family. Life + 70 or 90 is just absurd. By that point, any copyrights still worth any money have been sold off to corporations anyway (or the author’s estate has become one, frequently divorced from any actual family connection).

    If Disney wants to bribe Congress into giving them a perpetual copyright on Mickey Mouse alone, fine. Right now they’re holding back public enjoyment of decades of not just their own profitable material, but also smaller, forgotten works waiting to be rediscovered. And considering how much Disney’s brand was built not just on the Mouse, but their adaptations of public domain fairy tales, myths, and legends, they’re a bunch of fucking hypocrites.

    Public Domain hasn’t stopped anyone being able to turn a profit on Sherlock Holmes, it just allows more people to.

  2. Small factual correction: Copyright law in the US was not originally 28 years plus a 28 year extension; that was set up by the 1909 law (which is why it’s being applied to these works as the law in place when these works were created.) The law set down in 1790 created a 14 year term with a 14 year extension, for a total of 28 years.

  3. Nat is correct: the term started with 14 years, and required the living creator to renew it for another 14. (Because what does a dead person need copyrights for?) Since then, the length of the term has crept up, a notch at a time: 28+14 (in 1831), 28+28 (1909), 75 or life+50 (1976), 95 or life+70 or 120 for corporate copyrights (1998). A corporate work created today could be under copyright until A.D. 2134. Which seems a little excessive to me.

  4. Synsidar says:

    Simply from a commercial standpoint, ownership of a trademark is as important as ownership of a copyright. Nothing can prevent anyone from writing all the stories about a copyrighted property that he wants to; the problem is profiting from them without ownership. Some Tarzan stories are in the public domain now, but without rights to the Tarzan trademark, profiting from them is difficult, and people will see a different vine-swinger as derivative.

    Recently, a small Australian company was prevented from marketing a Superman Workout fitness program because DC objected to the use of Superman. DC lost at the administrative stage but won in the Australian courts.

    If someone doesn’t control the trademark for a property, he needs to think about why he wants to use the property.

    SRS

  5. Glenn Simpson says:

    @Alexa – if the copyright period is limited, wouldn’t that make the properties less attractive to those corporations, reducing the creator’s ability to profit from them by selling them?

    Wouldn’t that also result in ONLY the creator being able to produce something with the creation for the period you describe, because nobody else would want to buy it and use it for the limited time it would be allowed?

  6. The ability to make a derivative work without being sued would be the key advantage of it being in the Public Domain. Not all properties are protected by trademarks, so if I wanted to make a movie based on an under-appreciated book published in the 1920s – under the original title, or another one; faithfully adapting it, or just borrowing the plot – I could safely do that … if not for the Mickey Mouse Copyright Act.

    But it isn’t just about being able to profit. For example, if 1984 wasn’t under copyright, it would be free for everyone to read, just like Hamlet, The Pilgrim’s Progress, and Tom Sawyer. In that scenario everyone (but Orwell’s descendants) profits.

  7. @Glenn, you don’t need to pose that as a hypothetical question. What Alexa is describing is simply a shorter variation on how copyrights actually work in most of the world. (They’ve been experiencing term expansion lately too.) When the maximum term of a US copyright was 56 years (i.e. before the mid 1970s) there were all sorts of companies buying those works from their creators. So to answer your question: No. :)

    While shorter copyrights might make any individual work less valuable to a corporation, it would increase the demand for new copyrighted works to take their place, increasing the overall opportunity for creators in the process. Maybe fewer big deals, but more smaller ones. And imagine if DC and Marvel needed to keep coming up with new characters and stories instead of recycling the same ones in perpetuity. ;)

  8. >>When the maximum term of a US copyright was 56 years (i.e. before the mid 1970s) there were all sorts of companies buying those works from their creators. So to answer your question: No. :)

    Well, that’s a rather snide dismisal of a serious question. When copyright lasted 56 years, how many were buying 54 year old copyrights? Those are ones of limited use. Now consider the 93 year old childless novelist who might like to sell of his copyrights for money to take care of himself in her last couple years; how valuable are they to any company who knows they could lose what they paid for at any moment? Copyright length beyond the life of the creator does indeed have value to the creator.

    “While shorter copyrights might make any individual work less valuable to a corporation, it would increase the demand for new copyrighted works to take their place,”

    Would it? Or would it merely discourage new creation because creators would have to compete in the marketplace with works that could be had for free?

    “Alexa: And considering how much Disney’s brand was built not just on the Mouse, but their adaptations of public domain fairy tales, myths, and legends, they’re a bunch of fucking hypocrites.”

    Have they ever said that nothing should be in the public domain? If not, that doesn’t make them hypocrites. Most (not all) of the PD works they exploited would’ve been in the public domain even under today’s rules, and they both licensed enough properties and created enough new properties that they wouldn’t have been willing to license the rights if there had been a rightsholder. (I even suspect that in some cases they would’ve been happier to, as they could’ve negotiated exclusive rights and not be faced with the sort of cheap ride-along versions that appear whenever they use PD material.)

  9. Discredit where due: Irving Berlin’s parasites have also been big in eternalizing copyright. (This doesn’t change my feelings toward Sonny Bono or the rapacious PD-eating Disney lawyers a bit.)

  10. Glenn Simpson says:

    @Jason A. Quest – that’s an interesting example considering that new characters rarely succeed in the market. Sounds like eventually DC would lose exclusive rights to Superman, and nothing else they did would be popular because everybody just wants more Superman, which they can get anywhere (to over-exaggerate to make the point).

    But yes, it sounds like an endless stream of stuff being thrown against to wall to see what would stick (to a greater degree than we have now).

  11. @Glenn: You’re overlooking the importance of marketing. New characters don’t succeed because the established media companies don’t need them to succeed: they have Superman and Spider-Man. If the copyrights to those characters were definitely going to expire soon, you can be sure that Warner and Disney would be putting serious effort into developing and promoting new characters, rather than spinning the illusion-of-change wheel ’round and ’round and rehashing the same old stories.

    In the early days of National and Timely and their peers, there was a focus on “the new sensational find”, because they didn’t have any cash cows to milk. With expiring copyrights, DC and Marvel would be back to that kind of creative energy, and I think the readers would benefit. That’s why they call it the “Golden Age”: because things were fresh and new.

  12. Expiring copyrights would not take away the rights of Marvel and DC to continue using their characters as developed and would not take away their trademarks.

  13. Glenn Simpson says:

    @Jason – I would disagree that new characters fail because their parent company fails to market them properly. They fail because they don’t bring anything truly new to the situation, and in a world where Superman, Batman, Spider-Man, etc. already exist, there’s not much new to bring to the table. It’s the consumers who decide whether something is worth their time, no amount of marketing is going to change that. So what would more likely happen is DC would just go under if they lost exclusive rights to Superman and Batman, who at least provided the “cash cow” to enable the other characters to at least be seen.

  14. Glenn Simpson says:

    @Nat – then what are we talking about? Why does anybody care if nothing could change?

  15. Synsidar says:

    @Jason – I would disagree that new characters fail because their parent company fails to market them properly. They fail because they don’t bring anything truly new to the situation, and in a world where Superman, Batman, Spider-Man, etc. already exist, there’s not much new to bring to the table.

    If someone wants to write about a fantastic situation, with characters using powers to fight a threat to a world, a system, or a universe, he has the option of writing SF and, more specifically, super-science SF. A writer can do practically anything in that subgenre that he would want to do in a superhero story; the major differences are that the characters don’t wear costumes, and there are rationales provided for the powers and the threats.

    But the audiences are different, because the concepts presented in the stories are at least as important as the characters, and when a writer’s explored a concept sufficiently, he’s done with it.

    The audiences for formula fiction romances are different from the markets for SF and fantasy stories, which are different from the market for superhero stories. The main reason that the market for superhero comics is so small compared to others is probably the insistence on using serial characters, not the potential of the characters used in standalone stories.

    SRS

  16. @Nat, if someone asks an alarmist question about what things would be like if we did X, when X is what we previously did for decades, it really doesn’t deserve a more in-depth answer than “go look at history”.

    We know that copyright terms of only 56 years wouldn’t stifle creation of new works, because from 1909 thru 1976 copyright terms of only 56 years didn’t stifle creation of new works. In fact, it was a remarkably creative period in all sorts of media. Copyright helped that, by making it possible for people to make a living from their creativity. But the expiration of copyrights also helped, by keeping a fire under them to keep at it.

  17. “It’s the consumers who decide whether something is worth their time, no amount of marketing is going to change that.”

    Marketing alone can’t make something successful, but media companies collectively spend billions of dollars a year on it, so I’m finding it hard to buy the notion that it doesn’t make a difference.

  18. “Why does anybody care if nothing could change?”

    Things would change. Let’s look at Superman as a hypothetical example. If the character was PD, anyone could make a film or comic with him in it. Only Warner could use the trademarks, but with enough care, someone with good enough lawyers could pull it off. Call it something other than “Superman”, of course. Change the costume and logo. Then take all of the character and story elements that are (in this scenario) in the Public Domain the things that make the character interesting and compelling, and make the best damn Last Survivor Of A Doomed Planet Who Can Fly And Bend Steel film or comic or TV show or stage musical or whatever they can.

    Maybe it would be successful, maybe it wouldn’t. If it was, it would mean that Warner had competition in making LSOADPWCFABS stories. Consider: some people love Warner’s latest LSOADPWCFABS movie; some people hate it. Likewise with the comics. If the character was PD, they’d have a choice of which LSOADPWCFABS movie or comic to spend their money on. That’s a win for the public. It’d only be disastrous for Warner if Warner was a poor steward for the franchise.

    Before anyone resumes sounding the FUD alarm about this, consider that this is already essentially the same situation as every work that really is in the Public Domain. There are a dozen film adaptations of Romeo and Juliet. There are a few different takes on Sherlock Holmes out there as we speak. Peter Pan went PD a few years ago, and there are now people competing to make better Peter Pan sequels and adaptations than the other guys. That’s more creative work, not less. This is what happens when copyrights expire, and it’s good for the public. It’s good for our shared culture.

    And again to keep the hysteria in check: What I’m proposing isn’t going to happen. Congress is never going to roll back copyrights to 56 years, so don’t get your underoos all twisted up over it. What I’m trying to do with PD56 is to raise awareness of how much is withheld from the Public Domain by these effectively-perpetual copyrights. So that next time big media writes a copyright extension for Congress to approve, maybe the public will say “hold on…..”

  19. Don Murphy says:

    The poster who indicated that Trademarks (ala Tarzan) perpetuate copyright protection are wrong. Tarzan is in the public domain in the United States and all case law indicates that you can do anything you want with it, Trademark or not. Ditto John Carter.

  20. patrick ford says:

    The character Tarzan is in PD. The name Tarzan is protected by the Trademark. You can’t really do “anything you want with Tarzan.” One thing you can’t do is publish a comic book called Tarzan. You also could not sell Tarzan tee-shirts or lunch boxes.
    Anyone could publish a Tarzan comic book and they could use the name Tarzan inside the comic book, but they could not call that comic book TARZAN.

  21. Synsidar says:

    Call it something other than “Superman”, of course. Change the costume and logo. Then take all of the character and story elements that are (in this scenario) in the Public Domain the things that make the character interesting and compelling, and make the best damn Last Survivor Of A Doomed Planet Who Can Fly. . .

    But genre fiction writers routinely do that. If someone wants to write a story about a private investigator working in Las Vegas, he doesn’t have to exhaustively research p.i. novels to avoid repeating details; he can just go ahead and write, trusting that his details will be different from the details in others’ stories, even if investigators working in Vegas resemble each other in some respects. The differences outweigh the similarities.

    With Superman, constructing a similar situation for a hero to be in without duplicating Superman’s details would be trivially easy. If the writer wanted to construct a superhero universe, coming up with names and powers for the other heroes (and villains) that avoided the appearance of being derivative would probably be harder than just creating the world’s premier superhero.

    If copyright appears to be an important issue re superheroes, it’s because they have so few important aspects that, to an observer, the similarities outweigh the differences. If writers were to write the Marvel heroes as genre fiction characters in standalone stories and, independently of each other, gave the heroes real-life occupations, interests, acquaintances, and had them age, within a few years, the characters would be radically different from their pre-broadening selves.

    SRS

  22. @Jason: It seems as though you either didn’t bother to read the question, didn’t understand the question, or didn’t think through your answer before your dismissal of it. What Alexa was describing was not the copyright term I’ve recalled seeing anywhere in the world, ever – a copyright that can end at any instant due to the death of the creator. Every copyright law I can recall having seen included at least some minimum term.

    You claim to want people to look at history, but then you put forth
    “We know that copyright terms of only 56 years wouldn’t stifle creation of new works, because from 1909 thru 1976 copyright terms of only 56 years didn’t stifle creation of new works. In fact, it was a remarkably creative period in all sorts of media. Copyright helped that, by making it possible for people to make a living from their creativity. But the expiration of copyrights also helped, by keeping a fire under them to keep at it.”
    So are you seriously arguing that since the 1976 extensions, there has been a decrease in creative material being made available in the US? Because you’re going to have to come up with some very convincing figures to make that claim. From this angle, it sure looks as though there’s been strong growth in new material being made available. More books being produced, more comics, more TV, more music, more just-about-everything-but-newspapers.

    (I also find the losing-the-copyright-on-Superman-will-force-DC-to-come-up-with-new-things logic a bit narrow; even if we accept that to be true, woudn’t being able to use Superman discourage non-DC creators from coming up with something new instead?)

  23. HsssH says:

    “even if we accept that to be true, woudn’t being able to use Superman discourage non-DC creators from coming up with something new instead?”

    I think creative people can be divided mostly in two parts: those who can “upgrade” the basic idea and those who can come up with basic idea.

    I don’t think that world would be a worse place if we had less Superman clones. After all these creators aren’t creating new characters, they are pretty much taking established property and putting a big enough spin on it to not get into trouble. So why not let them use real deal? After all thats what they want to do – their take on Superman.

    On the other hand Saga would still be here since creators aren’t really interested in making another comic book book about another Superman version.

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