The copyright clock keeps ticking
For many Americans, this is the first Saturday and second day of 2021.
For The Legal Genealogist, it’s the second day of 1925.
No, that’s not a typo. I really do mean 1925.
The year that books like Theodore Dreiser’s An American Tragedy and F. Scott Fitsgerald’s The Great Gatsby and Franz Kafka’s The Trial and Agatha Christie’s The Secret of Chimneys were published.1
The year that Sweet Georgia Brown and “Yes Sir, That’s My Baby” were first available as sheet music.2
The year that films like “The Merry Widow” and “Stella Dallas” and Buster Keaton’s “Go West” were first released.3
And because that’s the year they all were released to the public, they are now all — without exception — free of copyright restrictions. On 1 January 2021, along with thousands and thousands of other books, sheet music, films, photos and more, they entered the public domain in the United States.
A whole year’s worth of materials, wonderfully free for all of us to use in our research, our blogs, our presentations, our publications without having to try to find the copyright owner and secure permission. Remember, that’s what public domain means: when copyright expires and a work goes into the public domain, we’re allowed to use it freely, any way we want, for any purpose (with some limits4), without needing permission from or payment to the creator of the work.5
This really is a Big Deal — and it really shouldn’t have been one.
Because of the way the copyright law works, providing protection only for a set number of years, copyrights should have expired every year and we should have been getting a whole year’s worth of materials released into the public domain every year. But that copyright clock stopped ticking in 1998.
There’s a whole long backstory as to why it stopped ticking, and it was basically because the Disney people didn’t want the film where Mickey Mouse made his debut, Steamboat Willie, to become public domain. The copyright statute was changed to add 20 years of protection to all then-copyrighted works — and it provided that the copyright clock would stop, dead, on anything then-copyrighted and wouldn’t start to run again until 12:00.01 a.m. 1 January 2019.6
At that point, the statute said, after those additional 20 years, for most things, the clock would start moving again and, as it ticked over into 2019, the law said we should get an entire year’s worth of published works — everything legally published in the United States during 1923 — transferred into the public domain.7
Of course, since copyright law is a matter of statute, and any statute can always be amended, at any time up until midnight on 31 December 2018 — “the end of the calendar year in which (copyrights) would otherwise expire” — Congress could still have bollixed this up. So, as 2018 drew to a close, all of us who watch copyright issues held our collective breath.
And — may miracles never cease — Congress didn’t manage to foul it up. On 1 January 2019, thousands and thousands of items passed from copyright-protected status into the public domain. And we could all then say that anything published before 1924 was in the public domain.8
So we started saying that the public domain included “everything legally published in the United States before 1924” (instead of the “before 1923” we’d been saying for 20 years), and started looking forward to 1 January 2020, when we’d get another year’s worth of goodies.
But then we started worrying. Because, of course, since copyright law is a matter of statute, and any statute can always be amended…9 And — amazingly enough — the clock kept right on ticking and, as of 1 January 2020, we began saying that copyright had expired for works published before 1925.
And — may miracles never cease — Congress didn’t manage to foul it up last year either. In copyright terms, 1925 finally got here. As of 1 January 2021, we can now say that copyright has expired for works published before 1926. And on 1 January 2022, we can include works published before 1927. And so on.10
For now, at least, the copyright clock is still ticking…
Cite/link to this post: Judy G. Russell, “Welcome to 1925!,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 2 Jan 2021).
SOURCES
- “Public Domain Day 2021,” Center for the Study of the Public Domain, Duke Law School (https://web.law.duke.edu/cspd/ : accessed 3 Jan 2021). ↩
- Ibid. ↩
- Ibid. ↩
- Just as one example, I really wouldn’t use a photo of a living person without that person’s permission, even a photo that’s out of copyright, on a pornography website. Just sayin’… ↩
- See generally Judy G. Russell, “Where is the public domain?,” The Legal Genealogist, posted 21 Dec 2015 (https://www.legalgenealogist.com/blog : accessed 4 Jan 2021). ↩
- See generally Glenn Fleishman, “For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain,” Smithsonian Magazine, January 2019 online issue (https://www.smithsonianmag.com/ : accessed 4 Jan 2021). ↩
- See generally 17 U.S.C. §305 (“All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire”). ↩
- See Judy G. Russell, “Welcome to 1923!,” The Legal Genealogist, posted date (https://www.legalgenealogist.com/blog : accessed 4 Jan 2021). ↩
- I did say that, right? It really can happen… ↩
- Unless of course Congress changes its mind. I did mention that, right? So keep your fingers crossed… and your eyes on Congress. ↩
Now, hopefully, I can find all of those wonderful family trees that I just know must have been carefully written by my ancestors prior to 1925!!!!?
These items are out of copyright in the USA but not necessarily anywhere else. E.g. songs by Irving Berlin published before 1926 are public domain in the US but not in the UK where no Irving Berlin work will be out of copyright till 2059, seventy years after his death. Royalties for works from that period are still payable to his estate if perfomed or published in the UK even though he was an American composer and they are out of copyright there.
Copyright is always governed by national laws on top of international treaties. No surprise there, and the reason why the post always says “they entered the public domain in the United States.”
Bryan,
I agree with your general point, but just to nitpick a bit, if a work by an American author/composer is out of copyright due to the process that Judy has explained, UK copyright law will not enforce a longer term of protection than is available in the country of origin (see Section 12(6) of the Copyright Designs and Patents Act 1988). In other words, anything first published by Irving Berlin in the USA prior to 1 Jan 1926 should not be earning royalties in the UK for Berlin’s heirs. In contrast as she was a British writer, Agatha Christie’s The Secret of Chimneys will remain in copyright in the UK until 1 Jan 2047.
Thanks, yes I saw that you were very careful in your article. I remember having to make particular inquiry into a Jerome Kern song: public domain in the US, but because the lyricist died less than 70 years ago still in copyright in the UK. I thought it worth stating because you have an international readership who might jump to the wrong conclusion.
Actually, I think Andy is correct and the country of origin rule will apply. As of 1 Jan 2021 in particular, copyright lasts for the term granted in the country-of-origin or the term granted to UK works, whichever is less. See https://www.gov.uk/guidance/changes-to-copyright-law-after-the-transition-period
Andy’s comment is incorrect. The UK Performing Rights Society does indeed collect fees for works out of copyright in the US if they are still copyright in the UK. Irving Berlin’s rightsholders do earn money from all his songs even those published before 1926 if performed in the UK
I have to agree with Andy. UK law limits copyright for works created outside the UK by someone who, like Berlin, was not a UK national: “Where the country of origin of the work is not the United Kingdom and the author of the work is not a national of the United Kingdom, the duration of copyright is that to which the work is entitled in the country of origin…” The issue with most of Berlin’s work is that it was first published well AFTER 1926.
My practical experience as a performer is that the PRS has collected money from me when I have performed or recorded music out of copyright in the US but still deemed to be in copyright in the UK.
Your practical experience suggests that (a) the item you were performing did not fall within the statutory exclusion or (b) you got ripped off.
The above, of course, assumes that copyright was registered in the UK at some point. There have been cases where copyright was lost early. The Works of Rabindranath Tagore went out of copyright years earlier than they might have done because the Indian rightsholder neglected to ensure renewal of rights.
Perhaps I was ripped off – I’ll check again next time, though when I did before, there was much discussion as to whether fees were payable.