If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
In 1976, Congress set fire to the country's libraries; in 1998, they did it again. Today, in 2024, the flames have died down, and out of the ashes a new public domain is growing. Happy Public Domain Day 2025 to all who celebrate!
For most of US history, copyright was something you had to ask for. To copyright a work, you'd send a copy to the Library of Congress and they'd issue you a copyright. Not only did that let you display a copyright mark on your work – so people would know they weren't allowed to copy it without your permission – but if anyone wanted to figure out who to ask in order to get permission to copy or adapt a work, they could just go look up the paperwork at the LoC.
In 1976, Congress amended the Copyright Act to eliminate the "formality" of copyright registration. Now, all creative works of human authorship were copyrighted "at the moment of fixation" – the instant you drew, typed, wrote, filmed, or recorded them. From a toddler's nursery-school finger-painting to a graffiti mural on a subway car, every creative act suddenly became an article of property.
But whose property? That was on you to figure out, before you could copy, publish, perform, or preserve the work, because without registration, permissions had to start with a scavenger hunt for the person who could grant it. Congress simultaneously enacted a massive expansion of property rights, while abolishing the title registry that spelled out who owned what. As though this wasn't enough, Congress reached back in time and plopped an extra 20 years' onto the copyrights of existing works, even ones whose authors were unknown and unlocatable.
For the next 20 years, creative workers, archivists, educators and fans struggled in the face of this regime of unknowable property rights. After decades of well-documented problems, Congress acted again: they made it worse.
In 1998, Congress passed the Sonny Bono Copyright Act, AKA the Mickey Mouse Preservation Act, AKA the Copyright Term Extension Act. The 1998 Act tacked another 20 years onto copyright terms, but not just for works that were still in copyright. At the insistence of Disney, Congress actually yanked works out of the public domain – works that had been anthologized, adapted and re-issued – and put them back into copyright for two more decades. Copyright stretched to the century-plus "life plus 70 years" term. Nothing entered the public domain for the next 20 years.
So many of my comrades in the fight for the public domain were certain that this would happen again in 2018. In 2010, e-book inventor and Project Gutenberg founder Michael S Hart and I got into a friendly email argument because he was positive that in 2018, Congress would set fire to the public domain again. When I insisted that there was no way this could happen given the public bitterness over the 1998 Act, he told me I was being naive, but said he hoped that I was right.
Michael didn't live to see it, but in 2019, the public domain opened again. It was an incredible day:
No one has done a better job of chronicling the fortunes of our fragile, beautiful, bounteous public domain than Jennifer Jenkins and James Boyle of Duke University's Center for the Study of the Public Domain. Every year from 2010-2019, Boyle and Jenkins chronicled the works that weren't entering the public domain because of the 1998 Act, making sure we knew what had been stolen from our cultural commons. In so many cases, these works disappeared before their copyrights expired, for example, the majority of silent films are lost forever.
Then, in 2019, Jenkins and Boyle got to start cataloging the works that were entering the public domain, most of them from 1923 (copyright is complicated, so not everything that entered the public domain in 2019 was from that year):
So what's entering the public domain this year? Well, for one thing, there's more of the stuff from last year, which makes sense: if Hemingway's first books entered the PD last year, then this year, we'll the books he wrote next (and this will continue every year until we catch up with Hemingway's tragic death).
There are some big hits from our returning champions, like Woolf's To the Lighthouse and A Farewell to Arms from Hemingway. Jenkins and Boyle call particular attention to one book: Faulkner's The Sound and the Fury, its title taken from a public domain work by Shakespeare. As they write, Faulkner spoke eloquently about the nature of posterity and culture:
[Humanity] is immortal, not because he alone among creatures has an inexhaustible voice, but because he has a soul, a spirit capable of compassion and sacrifice and endurance…The poet’s voice need not merely be the record of man, it can be one of the props, the pillars to help him endure and prevail.
The main attraction on last year's Public Domain Day was the entry of Steamboat Willie – the first Mickey Mouse cartoon – into the public domain. This year, we're getting a dozen new Mickey cartoons, including the first Mickey talkie:
Those 12 shorts represent a kind of creative explosion for the Disney Studios. Those early Mickey cartoons were, each and every one, a hybrid of new copyrighted works and the public domain. The backbone of each Mickey short was a beloved, public domain song, with Mickey's motion synched to the beat (animators came to call this "mickey mousing"). In 1929, there was a huge crop of public domain music that anyone could use this way:
Blue Danube, Pop Goes the Weasel, Yankee Doodle, Here We Go Round the Mulberry Bush, Ach Du Lieber Augustin, Listen to the Mocking Bird, A-Hunting We Will Go, Dixie, The Girl I Left Behind Me, a tune known as the snake charmer song, Coming Thru the Rye, Mary Had a Little Lamb, Auld Lang Syne, Aloha ‘Oe, Turkey in the Straw, My Bonnie Lies Over the Ocean, Habanera and Toreador Song from Carmen, Lizst’s Hungarian Rhapsody No. 2, and Goodnight, Ladies.
These were recent compositions, songs that were written and popularized in the lifetimes of the parents and grandparents who took their kids to the movies to see Mickey shorts like "The Barn Dance," "The Opry House" and "The Jazz Fool." The ability to plunder this music at will was key to the success of Mickey Mouse and Disney. Think of all the Mickeys and Disneys we've lost by locking up the public domain for the past half-century!
This year, we're getting some outstanding new old music for our public domain. The complexities of copyright terms mean that compositions from 1929 are entering the public domain, but we're only getting recordings from 1924. 1924's outstanding recordings include:
George Gershwin performing Rhapsody in Blue, Jelly Roll Morton playing Shreveport Stomp, and an early recording from contralto and civil rights icon Marian Anderson, who is famous for her 1939 performance to an integrated audience of over 75,000 people at the Lincoln Memorial. Anderson’s 1924 recording is of the spiritual Nobody Knows the Trouble I’ve Seen.
While the compositions include Singin' in the Rain, Ain't Misbehavin', An American in Paris, Bolero, (What Did I Do to Be So) Black and Blue, Tiptoe Through the Tulips, Happy Days Are Here Again, What Is This Thing Called, Love?, Am I Blue? and many, many more.
On the art front, we're getting Salvador Dali's earliest surrealist masterpieces, like Illumined Pleasures, The Accommodations of Desire, and The Great Masturbator. Dali's contemporaries are not so lucky: after a century, the early history of the works of Magritte are so muddy that it's impossible to say whether they are in or out of copyright.
But there's plenty of art with clearer provenance that we can welcome into the public domain this year, most notably, Popeye and Tintin. As the first Popeye and Tintin comics go PD, so too do those characters.
The idea that a fictional character can have a copyright separate from the stories they appear in is relatively new, and it's weird and very stupid. Courts have found that the Batmobile is a copyrightable character (Batman won't enter the public domain until 2035).
Copyright for characters is such a muddy, gross, weird idea. The clearest example of how stupid this gets comes from Sherlock Holmes, whose canon spans many years. The Doyle estate – a rent-seeking copyright troll – claimed that Holmes wouldn't enter the public domain until every Holmes story was in the public domain (that's this year, incidentally!).
This didn't fly, so their next gambit was to claim copyright over those aspects of Holmes's character that were developed later in the stories. For example, they claimed that Holmes didn't show compassion until the later stories, and, on that basis, sued the creators of the Enola Holmes TV show for depicting a gender-swapped Sherlock who wasn't a total dick:
As the Enola lawyers pointed out in their briefs, this was tantamount to a copyright over emotions: "Copyright law does not allow the ownership of generic concepts like warmth, kindness, empathy, or respect, even as expressed by a public domain character – which, of course, belongs to the public, not plaintiff."
When Mickey entered the public domain last year, Jenkins did an excellent deep dive into which aspects of Mickey's character and design emerged when:
https://web.law.duke.edu/cspd/mickey/
Jenkins uses this year's entry of Tintin and Popeye into the public domain to further explore the subject of proprietary characters.
Even though copyright extends to characters, it only covers the "copyrightable" parts of those characters. As the Enola lawyers wrote, the generic character traits (their age, emotional vibe, etc) are not protected. Neither is anything "trivial" or "minuscule" – for example, if a cartoonist makes a minor alteration to the way a character's pupils or eyes are drawn, that's a minor detail, not a copyrightable element.
The biggest impediment to using public domain characters isn't copyright, it's trademark. Trademark is very different from copyright: foundationally, trademark is the right to protect your customers from being deceived by your competitors. Coke can use trademark to stop Pepsi from selling its sugary drinks in Coke cans – not because it owns the word "Coke" or the Coke logo, but because it has been deputized to protect Coke drinkers from being tricked into buying not-Coke, thinking that they're getting the true Black Waters of American Imperialism.
Companies claim trademarks over cartoon characters all the time, and license those trademarks on food, clothing, toys, and more (remember Popeye candy cigarettes?).
Indeed, Hearst Holdings claims a trademark over Popeye in many traditional categories, like cartoons, amusement parks, ads and clothes. They're also in the midst of applying for a Popeye NFT trademark (lol).
Does that mean you can't use Popeye in any of those ways? Nope! All you need to do is prominently mention that your use of Popeye is unofficial, not associated with Hearst, and dispel any chance of confusion. A unanimous Supreme Court decision (in Dastar) affirm your right to do so. You can also use Popeye in the title of your unauthorized Popeye comic, thanks to a case called Rogers v Grimaldi.
This all applies to Tintin, too – a big deal, given that Tintin is managed by a notorious copyright bully who delights in cruelly terrorizing fan artists. Tintin is joined in the public domain by Buck Rogers, another old-timey character whose owners are scumbag rent-seekers.
Congress buried the public domain alive in 1976, and dumped a load of gravel over its grave in 1998, but miraculously, we've managed to exhume the PD, and it has been revived and is showing signs of rude health.
2024 saw the blockbuster film adaptation of Wicked, based on the public domain Oz books. It also saw the publication of James, a celebrated retelling of Twain's Huck Finn from the perspective of Huck's enslaved sidekick.
This is completely normal. It's how art was made since time immemorial. The 40 year experiment in life without a public domain is at an end, and not a minute too soon.
You can piece together a complete-as-possible list of 2025's public domain (including the Marx Brothers' Cocoanuts, Disney's Skeleton Dance, and Del Ruth's Gold Diggers of Broadway) here:
Indie Comics Review: The Orphan King #1
@AWaveBlueWorld #TheOrphanKing @TylerChinTanner @Jamesboyle @AndrewDalhouse @1MoreSingleton #DCComicsNews #SupportIndieComics
Review: The Orphan King #1
[Editor’s Note: This review may contain spoilers]
Publisher: A Wave Blue World
Writer: Tyler Chin-Tanner
Artist: James Boyle
Colors: Andrew Dalhouse
Letters: Pete Carlsson
Reviewed by: Seth Singleton
Summary
The Orphan King #1 introduces the question of whether kings are born or made. Prince Kaidan is the son of a king. His blood ensures he will take the throne once…
For some, just a joke, and for other it’s serious business. The Philly Tarot is a deck that doesn’t take itself too seriously in regards to imagery, but at the same time is all business. It’s a full 78 card fully illustrated rider waite deck in the same style and coloration, but it’s all original images from artist James Boyle. This deck serves as both functional and humorous, with local icons to the Philly area.
I'm at the end of my tour for my new book, the international bestseller Enshittification. My last two stops are CCC in Hamburg, Dec 27-30 and the Tattered Cover in Denver (Jan 22). Hope to see you!
In 1998, Congress committed an act of mass cultural erasure, extending copyright by 20 years, including for existing works (including ones that were already in the public domain), and for 20 years, virtually nothing entered the US public domain.
But then, on January 1, 2019, the public domain reopened. A crop of works from 1923 entered the public domain, to great fanfare – though honestly, precious few of those works were still known (that's what happens when you lock up 50 year old works for 20 years, ensuring they don't circulate, or get reissued or reworked). Sure, I sang Yes, We Have No Bananas along with everyone else, but the most important aspect of the Grand Reopening of the Public Domain was the works that were to come:
https://www.youtube.com/watch?v=Z2ryWm0bziE
The mid/late-1920s were extraordinarily fecund, culturally speaking. A surprising volume of creative work from that era remains in our consciousness, and so, every January 1, we have been treated to a fresh delivery of gifts from the past, works that are free and open and ours to claim and copy and use and remix.
No one chronicles this better than Jennifer Jenkins and James Boyle, the dynamic duo of copyright scholars who run Duke's Center for the Public Domain. During the 20 year public domain drought, Jenkins and Boyle kept the flame of hope, publishing an annual roundup of all the works that would have entered the public domain, but for Congress's act of wanton cultural vandalism. But starting in 2019, these yearly reports were transformed – no longer are they laments for the past we're losing; today, they are celebrations of the past that's showering down around us.
2024 marked another turning point for the public domain: that was the year that the first Mickey Mouse cartoons entered the public domain:
Does that mean that Mickey Mouse is in the public domain? Well, it's complicated. Really complicated. To a first approximation, the aspects of Mickey that were present in those early cartoons enterted the public domain that year, while other, later aspects of his character design (e.g. the big white gloves) wouldn't enter the public domain until later. But that's not the whole story, because not every aspect of character design is even copyrightable, so some later refinements to The Mouse were immediately public. This is such a chewy subject that Jenkins devoted a whole separate (and brilliant) article to it:
You see, Jenkins is a generationally brilliant legal communicator, much sought after for her commentary of these abstract matters. You may have heard her giving her characteristically charming, crisp and clear commentaries on NPR's Planet Money:
She and Boyle have produced some of the best copyright textbooks – from popular explainers to the definitive casebooks for classroom use – in circulation today, and they release these as free, shareable, open-access works:
There are some spectacular works that are being freed on January 1:
Dashiell Hammett's Maltese Falcon
Agatha Christie's Murder at the Vicarage (Miss Marple's debut)
The first four Nancy Drew books
The first Dick and Jane book
TS Eliot's Ash Wednesday
Olaf Stapledon's Last and First Men
Sigmund Freud's Civilization and Its Discontents (in German)
Somerset Maugham's Cakes and Ale
Bertrand Russell's The Conquest of Happiness
That's just a small selection from thousands of books.
Things are pretty amazing on the film side too: we're getting Academy Award winners like All Quiet on the Western Front, another Marx Brothers movie (Animal Crackers); the debut film appearance of two of the Three Stooges (Soup To Nuts); a Gary Cooper/Marlene Dietrich vehicle (Morocco); Garbo's first talkie (Anna Christie); John Wayne's big break (The Big Trail); a Hitchcock (Murder!); Jean Harlow's debut (Hell's Angels, directed by Howard Hughes); and so, so many more.
Then there's music. On the composition side, there's some great Gershwins (I Got Rhythm, I've Got a Crush on You, Embraceable You). There's Hoagy Carmichael's Georgia On My Mind. There's Dream a Little Dream of Me, Sunny Side of the Street, Livin' in the Sunlight, Lovin' in the Moonlight, Just a Gigolo; and a Sousa march, The Royal Welch Fusiliers.
There's also some banger recordings: Marian Anderson's Nobody Knows the Trouble I've Seen; Bessie Smith and Louis Armstrong's St Louis Blues; Clarence Williams’ Blue Five's Everybody Loves My Baby (but My Baby Don't Love Nobody but Me); Louis Armstrong's If I Lose, Let me Lose; and (again) so many more!
On top of that, there's a bunch of 2D art, including a Mondrian, a Klee, and a ton more work from 1930, which means a lot of Deco, Constructivism, and Neoplasticism. As a collagist, I find this very exciting:
As with previous editions, Jenkins and Boyle use this year's public domain report as a jumping-off point to explain some of the gnarlier aspects of copyright law. This year's casus belli is the bizarre copyright status of Betty Boop.
On January 1, the first Betty Boop cartoon, Dizzy Dishes, will enter the public domain. But there are many aspects of Betty Boop that are already in the public domain, because the copyright on many later Boop cartoons was never renewed – until 1976, copyright holders were required to file some paperwork at fixed intervals to extend the copyright on their works. While the Fleischer studio (where Betty Boop was created) renewed the copyright on Dizzy Dishes, there were many other shorts that entered the public domain years ago.
That means that all the aspects of Betty Boop that were developed for Dizzy Dishes are about to enter the public domain. But also, all the aspects of Betty Boop from those non-renewed shorts are already in the public domain. But some of the remaining aspects of Betty Boop's character design – those developed in subsequent shorts that were also renewed – are also in the public domain, because they aren't copyrightable in the first place, because they're "generic," or "trivial," constitute "minuscule variations," or be so standard or indispensable that as to be a "scène à faire."
On top of that, there are aspects of the Betty Boop design that may be in copyright, but no one is sure who they belong to, because a lot of the paperwork establishing title to those copyrights vanished during the various times when the Fleischer studio and its archives changed hands.
But we're not done yet! Just because some later aspects of the Betty Boop character design are still in copyright, it doesn't follow that you aren't allowed to use them! US Copyright law has a broad set "limitations and exceptions," including fair use, and if your usage fits into one of these exceptions, you are allowed to reproduce, adapt, display and perform copyrighted works without permission from the copyright holder – even (especially) if the copyright holder objects.
And finally, on top of all of this, there's trademark, which is often lumped in with copyright as part of an incoherent, messy category we call "intellectual property." But trademark is absolutely unlike copyright in virtually every way. Unlike copyright, trademarks don't automatically expire. Trademarks remain in force for so long as they are used in commerce (which is why a group of cheeky ex-Twitter lawyers are trying to get the rights to the Twitter trademarks that Musk abandoned when he rebranded the company as "X"):
But also, trademark exists to prevent marketplace confusion, which means that you're allowed to use trademarks in ways that don't lead to consumers being misled about the origin of goods or services. Even the Supreme Court has (repeatedly) upheld the principle that trademark can't be used as a backdoor to extend copyright.
That's important, because the current Betty Boop license-holders have been sending out baseless legal threats claiming that their trademarks over Betty Boop mean that she's not going into the public domain. They're not the only ones, either! This is a routine, petty scam perpetrated by marketing companies that have scooped up the (usually confused and difficult-to-verify) title to cultural icons and then gone into business extracting rent from people and businesses who want to make new works with them. Scammers in this mold energetically send out bullshit legal threats on behalf of the estates of Charlie Chaplin, Alfred Hitchcock, and Herge, salting their threats with nonsense about different terms of copyright in the UK and elsewhere.
As Jenkins and Boyle point out, the thing that copyright expiration get us is clarity. When the heroic lawyer and Sherlockian Les Klinger succesfully wrestled the Sherlock Holmes rights out of the Doyle estate, he did us all a solid:
But "wait until Les gets angry enough to spend five years in court" isn't a scalable solution to the scourge of copyfraud. It's only through the unambiguous expiry of copyright that we can all get clarity on which parts of our culture are free for all to use.
Now, that being said, copyright's limitations and exceptions are also hugely important, because there are plenty of beneficial uses that arise long before a work enters the public domain. To take just one example: for the past week, the song in top rotation on my music player has been the newly (officially) released Fatboy Slim track Satisfaction Skank, a mashup of Slim's giant hit Rockefeller Skank and the Rolling Stones' even bigger hit (I Can't Get No) Satisfaction:
https://www.youtube.com/watch?v=_c_V3oPCe-s
This track is one of Fatboy Slim's all-time crowd-pleasers, the song he would bust out during live shows to get everyone on the dance-floor. But for more than 20 years, the track has been exclusive to his live shows – despite multiple overtures, Fatboy Slim couldn't get the Rolling Stones to respond to his attempts to license Satisfaction for an official release.
That changed when – without explanation – the Rolling Stones reached out the Slim and offered to license the rights, even giving him access to the masters:
https://www.bbc.com/news/articles/c2dzre3z96go
This is a happy ending, but it's also a rarity. For every track like this – where the rightsholders decide to grant permission, even if it takes decades – there are thousands more that can't be officially released. This serves no one's interests – not musicians, not fans. The irony is that in the golden age of sampling, everyone operated from the presumption that sampling was fair use. High profile lawsuits and gunshy labels killed that presumption, and today, sampling remains a gigantic, ugly mess:
Which is all to say that the ongoing growth of the public domain, after its 20-year coma, is a most welcome experience – but if you think the public domain is great, wait'll you see what fair use can do for creativity!
If you'd like an essay-formatted version of this post to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
