On January 1 of every year, a batch of creative works fall out of copyright and become available for anyone to freely copy, transform, and combine.1
Welcome to Public Domain Day 2023.
At least this is how the system is supposed to work. Up until a few years ago, Congress, pushed by Disney and other huge media companies, regularly changed intellectual property laws to extend copyright protections and negate anything coming to the public domain.
Following a twenty-year hiatus that ended in 2019, a new crop of works has entered the U.S. public domain each year on January 1. In 2023, this will include all works first published in 1927. Note that works remain protected until the end of the calendar year. That’s why Disney’s Steamboat Willie won’t enter the public domain until January 1, 2024, even though the film is set to celebrate its 95th birthday in 2023.
Of course, that doesn’t mean that the character of Mickey Mouse will become creative fair game next year. The more recognizable modern versions of the mouse remain firmly in the hands of the Disney corporation due to the fact that he (it?) has evolved and changed over time.
The principle that characters which evolve over time don’t enter the public domain all at once was established by the 2014 opinion in Klinger v. Conan Doyle Estate, Ltd. The Klinger case arose because the Arthur Conan Doyle estate tried to claim that Doyle’s Sherlock Holmes character would stay out of the public domain so long as any individual work depicting the character remained protected. But the Seventh Circuit rejected that view.
Instead, the court ruled that a copyrighted character begins to fall into the public domain when the first published story featuring that character enters the public domain. At this point, “story elements—including characters covered by the expired copyright—become fair game for follow-on authors.”
Which means that in 2024, Steamboat Willie, and the character portrayed in that film, becomes available for anyone to distribute, adapt, remix, and use without paying Disney. Or waiting for a call from their lawyers. Just don’t touch the warmer, more family-friendly versions that came later.
In addition to Sherlock Holmes entering the public domain (finally), there are many other interesting cultural artifacts that will join him on the first. Including ground breaking motion pictures like “The Jazz Singer” and “Metropolis”, the first appearances of the Hardy Boys, books by Ernest Hemingway and Virginia Wolff, and the classic songs “Me And My Shadow”, “My Blue Heaven“, “Ol’ Man River“, and “‘S Wonderful”.
Oh, and “(I Scream You Scream, We All Scream for) Ice Cream“. Like anyone ever asked permission before singing that one.
Anyway, the article linked above has a long list of the materials included in 2023’s Public Domain Day, along with more information about how copyright works in the US. And how it often doesn’t work the way it was originally intended.
Copyright, and the related topics of public domain, fair use, and Creative Commons, is something I wish we would discuss more with students in school. They need to understand both their rights when using and reusing copyrighted materials, as well as how their own original work is also protected by copyright.2
It’s a complex subject but using Public Domain Day during the first few school days of the new year would be a great starting point.
The graphic at the top is a teaser poster for an upcoming horror film featuring Winnie the Pooh. Since the first collection of stories featuring the original character were part of Public Domain Day 2022, that movie became possible. For better or worse.
1. All credit for that phrase to Kirby Ferguson, whose video series Everything is a Remix has taught me much about copyright, fair use, and how all culture is derived from what has come before.
2. Of course, when it comes to copyright, many of their teachers have much to learn as well.