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Data / Open Source / Tech Culture

Wellspring of Creativity: Why Public Domain Matters

This year a flood of books, music and film created in 1927 enters the public domain, giving artists a chance to create and remix, and archivists the ability copy and store content for the ages.
Jan 29th, 2023 6:00am by
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Earlier this month, hundreds of thousands of creative works entered the public domain.

“They were supposed to go into the public domain in 2003, after being copyrighted for 75 years,” notes a web page from Duke’s Center for the Study of the Public Domain. “But before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years.”

It’s an issue that many people and organizations care deeply about — and over 200 people showed up Thursday for a virtual celebration. The Internet Archive promised appearances by “historians, librarians, academics, activists and other leaders from the open world, including additional sponsoring organizations Library Futures, SPARC, Authors Alliance, Public Knowledge, and the Duke Center for the Study of the Public Domain.”

In the U.S., when a copyright is granted to a creative work, such as a song, movie or book, the creator of that work has the exclusive right to do what they want with the work. The idea is that copyright gives the owner a chance to profit from the work for a set period of time, currently 95 years. This year, all works created before Jan. 1, 1928, have entered the public domain.

This means, according to the Duke Center, that songs released in 1927 are “now free for anyone to copy, perform, record, adapt, or interpolate into their own song” at no cost (Though recordings of those songs are still covered under a different copyright). Public domain films, songs, and publications are now all free to share and to copy — “without permission or fee… Community theaters can screen the films. Youth orchestras can perform the music publicly, without paying licensing fees.”

This year’s virtual celebration began with guitarist Erik Yates from the Bay Area bluegrass band Hot Buttered Rum singing newly-liberated songs like “The Best Things In Life are Free.”

“Ain’t that the truth,” Yates said at the end of the song.

What We Can Do Now

Yates’ performance is just one example of how we the people can begin enjoying the new status of public domain works. Later I asked film preservationist Rob Byrne what we can do with films from 1927 now that they’re also in the public domain. “You can do anything you want!” Byrne replied. “Let’s say you own a copy of a film that’s in the public domain — then you could exhibit it and ask for money if you want to. You can remix it. You can use clips and materials out of it. You can post it on the internet as is. It’s free! No strings attached!”

This includes everything from Fritz Lang’s pioneering science fiction film Metropolis to the epic pie fight in Laurel and Hardy’s Battle of the Century:

The Internet Archive even celebrated with a Public Domain Day Remix Contest, offering cash prizes for the best short films created from their various collections from 1927. All the entries were scheduled to be screened Friday at their headquarters in San Francisco at a special celebratory 1927-themed party. And public domain activists were also wearing celebratory costumes at Thursday’s virtual event.

Jennie Rose Halperin, director of the advocacy group Library Futures, celebrates 1927's public domain works

Jennie Rose Halperin, director of the advocacy group Library Futures, celebrates 1927’s public domain works.

Brewster Kahle and Jamie Joyce from Internet Archive - breakout room.png

Brewster Kahle and Jamie Joyce from Internet Archive.

Books and periodicals from 1927 have also lost their copyright — including several notable works of fiction. “You’re free to reimagine the characters, the events, the settings, the imagery — and use them in your own stories, plays, movies,” said Jennifer Jenkins, a clinical law professor at Duke University (and head of its Center for the Study of the Public Domain).

For example, the character of Sherlock Holmes is now finally in the public domain, “So mystery fans, start your engines. You can write your Sherlock Holmes stories!”

Jenkins likened public domain to a kind of muse, calling it a “wellspring for creativity.” Or, as Duke’s public domain center puts it, “future authors can legally build on the past — reimagining the books, making them into films, adapting the songs and movies… Everyone can build on them, remake them, present new versions of them, or use them for education or simply enjoyment.”

The center also cites Karyn A. Temple, former United States Register of Copyrights, who called public domain “the next stage of life” for copyrighted work, that “provides authors the inspiration and raw material to create something new.”

This process is always happening all around us. In 2021 the New York Times noted that there are now multiple graphic novels and illustrated editions of F. Scott Fitzgerald’s The Great Gatbsy — not to mention derivative works like Michael Farris Smith’s novel Nick and more elaborate reimaginings like The Gay Gatsby and The Great Gatsby Undead.

“Are all of these new works critically acclaimed or something rights holders would approve of? No,” Duke’s center explains. “But they are still part of our culture, and time will tell whether they will be rewarded in the marketplace or have enduring appeal.”

The Duke center’s webpage suggests another possibility: reimagining past works “in a corrective way” to address their use of racial stereotypes and slurs.

“The public domain is a repository of our history — a record of all of our culture, not just the parts we like… it is precisely because the works are no longer subject to control by their copyright holders that both their beauty and their ugliness can be freely explored by today’s scholars and citizens; the owner can no longer insist on presenting only a bowdlerized, cleaned-up version that hides important aspects of the original.”

Precious Preservation

But public domain status does more than allow creators to make new derivative works. It’s also crucial for preserving existing works. Sites like Internet Archive, Google Books, and the New York Public Library can now make these works available online, which Duke’s center says “helps enable access to cultural materials that might otherwise be lost to history.”

At Thursday’s event, Jenkins pointed out that the vast majority of works from 1927 are currently “out of circulation — but now that they’re public domain they can be archived and made available in more formats. Or, as Duke’s center puts it, “anyone can rescue them from obscurity and make them available, where we can all discover, enjoy, and breathe new life into them.”

It’s too late for some works — like the 1927 thriller London After Midnight, now apparently lost forever. “Only 15% of the films created before 1930 survive at all,” film preservationist Byrne told the virtual audience “More than 80% are lost — gone forever — without a single frame remaining.”

The Duke center’s site explains that many silent films “were destroyed or discarded to clear up storage space or melted down for the silver contained in their substrate. Films that were not destroyed were allowed to decay.” And they also point out that despite some allowances in copyright law, still “old films have disintegrated, rotting in their cans, while preservationists eagerly waited for them to enter the public domain so that they could legally digitize them.”

A 2013 report from the Library of Congress stresses this as a crucial advantage of allowing film copyrights to lapse. “Once they fell into the public domain, prints were acquired by entrepreneurs who preserved them in the course of commercial exploitation.” In short: “the public domain status of some independently produced films encouraged their survival.”

It’s for this reason that Duke’s center is now applauding our new “access to our cultural heritage — access to materials that might otherwise be forgotten… Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print.” (In 2021 the New York Times even noted “the Great Gatsby glut” — new editions from four different publishers of the 1925 novel after its copyright finally expired.)

But this is clearly better than the alternative. Duke notes that Metropolis actually entered the public domain in 1955 — but then returned to copyrighted status under new legislation passed in 1996. And from then on, “For the vast majority—probably 99% — of works from 1927, no copyright holder financially benefited from continued copyright. Yet they remained off limits, for no good reason.

And it’s sad to think of the countless creative works that ended up in the worst-case scenario: by the time they entered the public domain, they’d already ceased to exist.

It’s outcomes like this that public domain advocates are fervently hoping to avoid.

Film poster via Wikipedia - Laurel and Hardy movie Battle of the Century


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