What Could Have Entered the Public Domain on January 1, 2014?

Under the law that existed until 1978 . . . Works from 1957

The books On the Road, Atlas Shrugged, and The Cat in the Hat, the films The Bridge on the River Kwai, Funny Face, and The Prince and the Showgirl, the play Endgame (“Fin de Partie”), and more. . .

Congress Shrugged

Current US law extends copyright for 70 years after the date of the author’s death, and corporate “works-for-hire” are copyrighted for 95 years after publication. But prior to the 1976 Copyright Act (which became effective in 1978), the maximum copyright term was 56 years – an initial term of 28 years, renewable for another 28 years. Under those laws, works published in 1957 would enter the public domain on January 1, 2014, where they would be “free as the air to common use.” (Mouse over any of the links below to see gorgeous cover art from 1957.) Under current copyright law, we’ll have to wait until 2053.¹ And no published works will enter our public domain until 2019. The laws in Canada and the EU are different – thousands of works are entering their public domains on January 1.

Curious George Gets a Term Extension

What books and plays would be entering the public domain if we had the pre-1978 copyright laws? You might recognize some of the titles below.

• Samuel Beckett, Endgame (“Fin de partie”, the original French version)
• Jack Kerouac, On the Road (completed 1951, published 1957)
• Ayn Rand, Atlas Shrugged
• Margret Rey and H.A. Rey, Curious George Gets a Medal
• Dr. Seuss (Theodor Geisel), How the Grinch Stole Christmas and The Cat in the Hat
• Eliot Ness and Oscar Fraley, The Untouchables
• Northrop Frye, Anatomy of Criticism: Four Essays
• Walter Lord, Day of Infamy
• Studs Terkel, Giants of Jazz
• Corbett H. Thigpen and Hervey M. Cleckley, The Three Faces of Eve
• Ian Fleming, From Russia, with Love
• Ann Weldy (as Ann Bannon), Odd Girl Out
• A.E. Van Vogt, Empire of the Atom

You would be free to translate these books into other languages, create Braille or audio versions for visually impaired readers (if you think that publishers wouldn’t object to this, you would be wrong), or adapt them for film. You could read them online or buy cheaper print editions, because others were free to republish them. (Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print – see here, here, and here.) Imagine a digital Library of Alexandria containing all of the world’s books from 1957 and earlier, where, thanks to technology, you can search, link, index, annotate, copy and paste. (Google Books has brought us closer to this reality, but for copyrighted books where there is no separate agreement with the copyright holder, it only shows three short snippets, not the whole book.) Instead of seeing these literary works enter the public domain in 2014, we will have to wait until 2053.

Endgame – “The end is in the beginning and yet you go on. . .”

Think about the movies and television shows from 1957 that would have become available this year. Fans could share clips with friends or incorporate them into fantastic homages. (There are certainly some good candidates.) Local theaters could show the full features. Libraries and archivists would be free to digitize and preserve them. Here are a few of the works that we won’t see in the public domain for another 39 years.

• The Incredible Shrinking Man (Based on Richard Matheson’s 1956 book The Shrinking Man)
• The Bridge on the River Kwai (Best Picture, Best Director (David Lean), Best Actor (Alec Guinness); also starring William Holden, Jack Hawkins and Sessue Hayakawa)
• A Farewell to Arms (Rock Hudson and Jennifer Jones)
• Gunfight at the O.K. Corral (Burt Lancaster and Kirk Douglas)
• 3:10 to Yuma (1957 original starring Glenn Ford and Van Heflin)
• Island in the Sun (James Mason, Joan Fontaine, Dorothy Dandridge, and introducing Harry Belafonte)
• Witness for the Prosecution (Tyrone Power, Marlene Dietrich, Charles Laughton, Elsa Lanchester)
• 12 Angry Men (Henry Fonda, Lee J. Cobb, Jack Klugman, Ed Begley, and more)
• Sweet Smell of Success (Burt Lancaster and Tony Curtis)
• Jailhouse Rock (Elvis Presley)
• The Prince and the Showgirl (Laurence Olivier and Marilyn Monroe)
• Funny Face (Audrey Hepburn and Fred Astaire . . . and Paris as only Hollywood can imagine it)
• An Affair to Remember (Cary Grant and Deborah Kerr . . . and the Empire State Building)
• Nights of Cabiria (written and directed by Federico Fellini and starring Giulietta Masina)
• The Seventh Seal (written and directed by Ingmar Bergman and starring Max von Sydow and Bengt Ekerot)
• What’s Opera, Doc? (Bugs Bunny and Elmer Fudd do Wagner)
• The first episodes of Leave It to Beaver and Perry Mason
• Elvis Presley’s third and final appearance on The Ed Sullivan Show on January 6, 1957 (CBS refused to show his gyrating hips)

These works are famous, so we’re not likely to lose them entirely – the true tragedy is that of forgotten films that are literally disintegrating while preservationists wait for their copyright terms to expire.²

“That’ll Be the Day”. . . in 2053

What 1957 music could you have used without fear of a lawsuit? If you wanted to find guitar tabs or sheet music and freely record your own version of some of the influential music of the 1950s, January 1, 2014, might have been a booming day for you under earlier copyright laws – “ That’ll Be the Day” and “ Peggy Sue” (Buddy Holly, Jerry Allison, and Norman Petty), “ Great Balls of Fire” (Otis Blackwell and Jack Hammer), and “ Wake Up, Little Susie” (Felice and Boudleaux Bryant) would all be available. You could score a short film with Dmitri Shostakovich’s Symphony No. 11 in G minor (Opus 103; subtitled The Year 1905). Or you could stage your own performances of some of Elvis Presley’s hits: “ All Shook Up” (Otis Blackwell and Elvis Presley) and “ Jailhouse Rock” (Jerry Leiber and Mike Stoller). Today, these musical works remain copyrighted until 2053.³

The musical “ West Side Story” (music by Leonard Bernstein, lyrics by Stephen Sondheim, and book by Arthur Laurents) made its Broadway debut in 1957. Would “West Side Story” have been legal if Shakespeare’s Romeo and Juliet was under copyright at the time? Probably not. And, of course, if copyright existed in Shakespeare's time, as Judge Richard Posner observed, “Romeo and Juliet itself would have infringed Arthur Brooke’s The Tragicall Historye of Romeo and Juliet .  . . which in turn would have infringed several earlier Romeo and Juliets, all of which probably would have infringed Ovid’s story of Pyramus and Thisbe.” Artists build upon the past. Creativity depends upon a healthy public domain.

For lovers of fine art, 1957 also featured a wealth of material, including Dali’s “onmouseout=”toolTip()” onmouseover=”toolTip (‘<img src=https://law.duke.edu/images/cspd/art_dali_celestial-ride.jpg” alt=”Art: Painting: Celestial Ride by Salvador Dali (1957)” />Celestial Ride” and “ Music: the Red Orchestra,” Ed Hopper’s “ Western Motel,” and Picasso’s “Las Meninas” set of paintings. This remarkable series of works consists of reinterpretations – remixes, if you will – of Diego Velázquez’s famous painting “Las Meninas”(usually translated as “The Maids of Honor”). Velázquez’s painting became this, and this, and this, and this, and this, and this, and this, and even this. (See some of the 58 works in Picasso’s “Las Meninas” here.) Picasso did not have to track down Velázquez’s heirs and negotiate licensing fees in order to create this oeuvre. He was free to “copy Las Meninas, entirely in good faith” in a way “that would be a detestable Meninas for a traditional painter, but would be my Meninas.”⁴ One masterpiece inspired another. This is what the public domain allows.

Science from 1957 – copyrighted research, still behind paywalls

1957 was a noteworthy year for science: the USSR launched Sputnik 1 and Sputnik 2, IBM released the first FORTRAN compiler, and the UK’s Medical Research Council published an early report linking smoking and lung cancer. There were groundbreaking publications in the fields of superconductivity and astrophysics such as “Theory of Superconductivity” by John Bardeen, L.N. Cooper, and J.R. Schrieffer and “Synthesis of the Elements in Stars (‘B²FH’)” by Geofrey Burbidge, Margaret Burbidge, William Fowler, and Fred Hoyle.

Both of the articles above are copyrighted, but thankfully their publishers have made them available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. Many articles from 1957 remain behind paywalls, including those in major scientific journals such as Science, Nature, and JAMA. Are you interested in a historical perspective on, for example, “Soviet and U.S. Professional and Technical Manpower” or the “Breeding Behavior of Cichlids”? You can’t read those articles unless you pay or subscribe (the first costs US$20 for one day of access; you can purchase the second for US$32).

It’s remarkable to find scientific research from 1957 hidden behind publisher paywalls. True, some older articles – especially those with enduring impact – have been made available on third party websites, though it is often unclear whether this is being done with the consent (or temporary forbearance) of the copyright holder, or simply being provided by enthusiasts who cannot imagine that access to these works is still legally restricted. But this is not a stable solution for providing reliable access to science. Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts. Now, to get these articles from the publisher, you need a credit card or institutional subscription. And the institutional access that many top scientists enjoy is itself not a stable solution – even institutions such as Harvard have considered canceling their subscriptions because they can no longer afford the escalating prices of major journal subscriptions.

Not all scientific publishers work under this kind of copyright scheme. “Open Access” scientific publications, like those of the Public Library of Science, are under Creative Commons licenses, meaning that they can be copied freely from the day they are published.

Works from 1985!

Most of the works highlighted here are famous – that is why we included them. And if that fame meant that the work was still being exploited commercially 28 years after its publication, the rights holders would probably renew the copyright. (This is true for many of the works featured on this page, though even the shorter copyright term exceeds the commercial lifespan of a surprising percentage of successful works.) But we know from empirical studies that 85% of authors did not renew their copyrights (for books, the number is even higher – 93% did not renew), since most works exhaust their commercial value very quickly.

Under the law that existed until 1978 . . . Up to 85% of all copyrighted works from 1985 might have been entering the public domain on January 1, 2014.

That means that all of these examples from 1957 are only the tip of the iceberg. If the pre-1978 laws were still in effect, we could have seen 85% of the works published in 1985 enter the public domain on January 1, 2014. Imagine what that would mean to our archives, our libraries, our schools and our culture. Such works could be digitized, preserved, and made available for education, for research, for future creators. Instead, they will remain under copyright for decades to come, perhaps even into the next century.

Perhaps the most troubling aspect of the current copyright term is that in most cases, the cultural harm is not offset by any benefit to an author or rights holder. Unlike the famous works highlighted here, the vast majority of works from 1957 do not retain commercial value,⁵ but they are presumably off limits to users who do not want to risk a copyright lawsuit. This means that no one is benefiting from continued copyright, while the works remain both commercially unavailable and culturally off limits. The public loses the possibility of meaningful access for no good reason.

You can read more about the current costs associated with orphan works – works that are still presumably under copyright, but with no identifiable or locatable copyright holder – here and here. Importantly, the US Copyright Office has renewed its efforts to find solutions to the orphan works problem.

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1 The copyright term for works published between 1950 and 1963 was extended to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed (which is generally the case with famous works such as those we are highlighting).
     Many works published in 1957 are already in the public domain because the copyright holder did not comply with notice, renewal, or other copyright formalities. However, tracking down this information can be difficult (you can read just one of many illustrative examples collected by the Copyright Office here). Therefore, users often have to presume these works are copyrighted or risk a lawsuit (only works published before 1923 are conclusively in the public domain). You can read more about copyright terms from this excellent chart and from the US Copyright Office’s guide.
     It is also difficult to determine whether foreign works are in the public domain in the U.S. Generally speaking, as a result of international agreements, foreign works published after 1923 are still under copyright in the US as long as one of the following is true: they were published in compliance with US formalities, they were still copyrighted in their home countries as of 1996, or they were then published in the US within 30 days of publication abroad. You can learn more about copyright terms for foreign works from the Copyright Office guide here.

2 The law allows libraries and archives (not preservationists generally) to digitize works during the last 20 years of their copyright term, but only in limited circumstances: the library or archive first has to determine through a “reasonable investigation” that the work is not being commercially exploited and that they cannot obtain another copy of it at a reasonable price.

3 Under the law at the time, these “musical compositions” – the music and lyrics – were subject to copyright, but the particular “sound recordings” embodying the musical compositions were not; federal copyright did not cover sound recordings until 1972. So, for example, the musical composition “Great Balls of Fire” written by Otis Blackwell and Jack Hammer was copyrighted, but not Jerry Lee Lewis’s particular sound recording of that composition.

4 Pablo Picasso as quoted by his close friend Jaume Sabartés in L'atelier de Picasso, a recollection that Sabartés published in 1952.

5 A Congressional Research Service study indicated that only 2% of works between 55 and 75 years old continue to retain commercial value. As explained on this website, many works from 1957 are technically in the public domain, but there is often no way to determine public domain status, so users have to presume that they’re still under copyright.

 

  The Public Domain Day 2014 web pages by Duke University's Center for the Study of the Public Domain are licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.