Cory Doctorow
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!
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If you'd like an essay-formatted version of this thread to read or share, here's a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
https://pluralistic.net/2024/12/17/dastar-dly-deeds/#roast-in-piss-sonny-bono
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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*.
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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:
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Cory Doctorow
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.
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Cory Doctorow
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):
https://web.law.duke.edu/cspd/publicdomainday/2019/
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Cory Doctorow
Every year since, they've celebrated a new bumper crop. Last year, we got Mickey Mouse!
https://pluralistic.net/2023/12/15/mouse-liberation-front/#free-mickey
In addition to numerous other works - by Woolf, Hemingway, Doyle, Christie, Proust, Hesse, Milne, DuBois, Frost, Chaplin, Escher, and more:
https://pluralistic.net/2023/12/20/em-oh-you-ess-ee/#sexytimes
Now, 2024 was a fantastic year for the public domain, but - as you'll see in the 2025 edition of the Public Domain Day post - 2025 is *even better*:
https://web.law.duke.edu/cspd/publicdomainday/2025/
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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:
https://en.wikipedia.org/wiki/Mickey_Mouse_(film_series)#1929
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.
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Cory Doctorow
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...
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Cory Doctorow
> ...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.
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Cory Doctorow
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!
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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.
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Cory Doctorow
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).
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Cory Doctorow
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!).
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Cory Doctorow
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:
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Cory Doctorow
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."
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Cory Doctorow
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.
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Cory Doctorow
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*.
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Cory Doctorow
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.
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Cory Doctorow
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).
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Cory Doctorow
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*.
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Cory Doctorow
This 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, 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.
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Cory Doctorow
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.
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Cory Doctorow
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:
https://onlinebooks.library.upenn.edu/cce/
eof/
Emeritus Prof Christopher May
After 25 years research & analysing intellectual property I concluded the form with the highest likely social benefit was the trademark for exactly the reasons you suggest.... other forms had some advantages & disadvantages (sometimes more of the latter), but for the most part TMs were in my view a social good (not above miss-use of course)
jcriecke
@pluralistic nearly my whole damn life. is a sea change. praying that congress doesn't extend copyright backwards again.
翠星石
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