Every year around this time we celebrate the arrival of a new class of works to the public domain, as their 95-year term of protection expires. And every year I feel the need to be Debbie Downer and remind everyone that, yes, it’s wonderful to finally gain full access and reuse rights to works that are almost a century old, but this is a pretty sad haul compared to what could have entered the public domain under copyright laws in effect as recently as 1998. Now that we’ve had a few days to celebrate Betty Boop, Nancy Drew, Sam Spade, and all the 1930 works and characters set free under current law, I’d like to pause and mourn the public domains that could have been.
First, there’s the public domain we’d have if not for the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), which added 20 years to what had previously been a 75-year duration of copyright. If not for the CTEA, we’d be welcoming works from 1950 into the public domain this year, instead of works from 1930. And 1950 would be only the latest installment of works published between 1931 and 1950 that would have joined the public domain every year since 1998. Did you notice that the public domain was basically stagnant from 1998 to 2019? That was the 20 year windfall to copyright owners, granted at the public’s expense. That’s 10,000+ movies, the entire “classic era” of science fiction, the golden age of jazz compositions from Duke Ellington’s “It Don’t Mean a Thing” to Thelonious Monk’s “Monk’s Mood,” and untold thousands of other novels, photographs, songs, and other works, all locked up by copyright thanks in part to the expansion in the CTEA.
The Sonny Bono extension is fairly well-known, at least among likely readers of this newsletter, but an even greater tragedy befell the public domain in the preceding decades: we abandoned the requirement of copyright renewal. From the very first US Copyright Act of 1790 all the way into the 1980s, a work would join the public domain after an initial term unless its owner could be bothered to file renewal paperwork with the government. As a result, many works moved into the public domain long before their maximum possible term of protection. Studies show that the vast majority of copyrights were not renewed, leading to a de facto copyright term of 28 years for 85% of works.
By definition these would mostly be works that are no longer in commerce—nobody’s going to forget to renew Titanic or Sgt. Pepper. But that’s the point: works whose copyrights are no longer benefiting their owners should become free to the public so that anyone else who is interested in the work can freely copy, share, and adapt it. Prominent copyright scholars including William Landes and Richard Posner, Christopher Sprigman, and William Patry have all argued that the balance of copyright would be improved by bringing back renewal.
So, as we celebrate the arrival of the class of 2026 into the public domain, spare a thought for the hundreds of thousands of works that would have joined them if not for a series of legislative mistakes in the late 20th Century. There’s nothing natural or inevitable about 95 years of copyright protection; creators from William Shakespeare to Joni Mitchell thrived under shorter terms.