Zander Walker, MJLST Staffer
It’s 2019 and copyrighted works are finally returning to the public domain for the first time in over twenty years. The copyright term was extended in 1976 and 1998 to yield a total term of life of the author plus 70 years for works created after 1978 (with notable exceptions to this rule for certain categories of works), or 95 years from publication for certain works published before 1978. The second term extension in 1998 was created by the Copyright Term Extension Act (“CTEA”) and resulted in an additional 20 years of copyright term. The CTEA is known somewhat derisively as the “Mickey Mouse Act” because of Disney’s lobbying efforts during the 1990’s to extend copyright term.
This years’ crop of new public domain entries hail from 1923, a time when cloche hats, art deco, and prohibition were all the rage. I have compiled some “highlights” below:
- “The Charleston”: For the unfamiliar, “The Charleston” is a song written to accompany a particular dance that was, confusingly, also known as the Charleston. The dance was relatively simple, repetitive, and meant for mass appeal, making it not too unlike more modern song/dance combinations like the Y.M.C.A., the Macarena, that horse thing from Gangnam Style, the Hokey Pokey, or the Harlem Shake.
- The Pilgrim: a silent film made by Charlie Chaplin about a convict that pretends to be a southern minister. It’s tough to find reviews of The Pilgrim made by legitimate critics, but it has an IMDB user rating of 7.4 (the same as 2018’s Aquaman, for what that’s worth). One review I did manage to find characterized The Pilgrim as “Chaplin when he isn’t swinging for the fences.”
- The Ten Commandments: not to be confused with the famous and highly-grossing 1956 version of the film, Cecil B. DeMille’s 1923 version of The Ten Commandments was a silent film and one of the first films shot on technicolor. In a way, DeMille had already committed it to the public domain—after he was done filming, he buried the set in the Guadalupe desert.
- Tarzan and the Golden Lion: a lesser known story about Edgar Rice Burroughs’ classic Tarzan character, in which Tarzan raises a lion and hunts for lost gold. This is not the first of Tarzan’s works to enter the public domain, as the first Tarzan book was published in 1912 and has been in the public domain for over 30 years. However, Edgar Rice Burroughs created the eponymous Edgar Rice Burroughs, Inc., which continues to hold rights to his works, including trademarks on the Tarzan characters. For works that have entered the public domain, Edgar Rice Burroughs, Inc. has been rather successful in using trademark as a vehicle to prevent use of the Tarzan characters in new works. See, e.g., Edgar Rice Burroughs, Inc. v. Manns Theatres, 195 USPQ 159 (C.D. Cal. 1976).
Edgar Rice Burroughs, Inc.’s protection of the Tarzan characters raises a relevant point. It is very likely that Disney was far more concerned about its copyright in the valuable Mickey Mouse character than in the film containing the first appearance of Mickey Mouse (Steamboat Willie) when it lobbied Congress to extend copyright term. Further, a significant number of intellectual property commentators predict that Disney will continue to protect their Micky Mouse character through trademark when its copyright protection expires, citing Tarzan as a proof-of-concept.
Though copyright term length is perhaps most criticized in the context of traditional works of authorship like books, movies, or plays, it has ramifications on a number of more recent categories of work. For example, computer software is protected under copyright, meaning that Windows 98, which has been unsupported by Microsoft since 2006, can be protected by copyright until at least 2094. Likewise, the original 2007 Apple iOS is eligible for copyright protection through at least 2102. Recent litigation involving read-only memory (ROM) files of older video games highlights a tension between software archivists, who often perceive themselves as responding to a market failure, and copyright holders that is exacerbated by an overly-lengthy copyright term.
The short list of newly public domain works I compiled should really hit this point home—the works themselves have almost no commercial value in 2019. “The Charleston” is just as likely to become the next hit song as is “Greensleeves.” Lesser known works from Chaplin, DeMille, and Burroughs are going to have no higher commercial value in 2019 than they did the previous year. In fact, the only really valuable thing on that list is the Tarzan character, which is likely protected through trademark. What, then, was the point of the CTEA?