What Does It Mean When Art Is Public Domain?

Every year on January 1, a new batch of movies, books, songs, and other works of art enters the public domain, meaning they're free to use and repurpose. (In 2024, after 95 years of copyright, we got the original Mickey Mouse cartoon, 'Steamboat Willy'.) Learn how public domain and copyright law intersect to encourage artists in this episode of BrainStuff, based on this article: https://people.howstuffworks.com/what-does-public-domain-mean.htm

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Episode Transcript

Speaker 1 (00:01):
Welcome to Brainstuff, a production of iHeartRadio, Hey brain Stuff,
Lauren Vogelbaum Here. Lots of people celebrate on January first
in the standard Gregorian calendar. It's the first day of
the new year, a chance for new beginnings, a new
chapter in our story, if you will. But that can

(00:24):
become quite literal for people who celebrate public Domain Day.
Every year. On January first, a trove of creative works
copyrighted about a century ago in America enter the public domain.
That basically means that these works could now be shared, performed, reused, repurposed,

(00:44):
or sampled without having to obtain permission from the copyright
holder or pay anything for using the work. Although copyright
law helps protect artists' intellectual property and that they are
the only ones who can make money off of it,
a public domain and that after enough time has passed,
other artists are able to draw from the collective imagination

(01:05):
of our society and build on it. Twenty twenty four
is actually a banner year for public domain because it's
the year that Disney's Steamboat Willie cartoon featuring the first
appearances of Mickey and Minnie Mouse, became free for use.
The cartoon debuted in nineteen twenty eight. That's ninety five
years ago. It was originally supposed to enter the public

(01:28):
domain in nineteen eighty four after a fifty six year
copyright term, but Disney and a bunch of other large
creative companies lobbied Congress to extend that term for twenty years,
and Congress did twice. But its term is finally up.
This doesn't mean that you can now create a new

(01:49):
work with Mickey and try to pass it off as
being from Disney, and it doesn't mean that you can
use versions of these characters from later works that are
still under copyright. For example, Mickey from the Sorcerer's Apprentice
segment in Fantasia is still off limits until that film's
turns up in another decade or so, but the steamboat

(02:11):
designs of these buddies are now up for grabs. In
addition to Steamboat Willie, lots of other films, books, plays,
and musical compositions from nineteen twenty eight are now fair game,
including Buster Keaton's film The Cameraman, D H. Lawrence's novel
Lady Chatterley's Lover, Robert Frost's poetry collection West running Brook,

(02:32):
A Milns House at Pooh Corner, which introduces the character Tigger,
the original German version of Bertold Brex and Kurt Weile's
play The Threepenny Opera, which is where the song Mac
the Knife comes from, and songs like when You're Smiling
and I Want to Be Loved by You. When I
say songs here, I mean just the written composition. There's

(02:55):
a different copyright law for sound recordings. As of now,
those enter the public domain a full one hundred years
after their publication, so in twenty twenty four we're getting
recordings from nineteen twenty three. This is due to the
fact that copyright law for audio recordings used to be
handled on a state and local basis, leading to a
lot of messy confusion, which the national government tried to

(03:19):
correct with the Copyright Act of nineteen seventy six and
the Music Modernization Act of twenty eighteen, which is when
we landed on the current one hundred year term. It's
going to change in twenty forty seven, but that's a
different episode. To grasp what public domain means, it helps
to understand what copyrights are and why they exist in

(03:43):
the US. The public policy behind copyright and patent protection
actually originates in the Article one, Section eight, Clause eight
of the Constitution, commonly known as the Intellectual Property Clause,
which grants Congress the power a quote to promote the
progress of science and useful arts by securing, for limited
times to authors and inventors the exclusive right of their

(04:05):
respective writings and discoveries. The purpose of copyright law is
to encourage and incentivize writers and inventors to keep creating
new works by giving them exclusive rights to their works.
This means giving them exclusive rights for a limited time
and distinguishing between intellectual property and other types of property

(04:27):
such as houses or other things that consumers can own.
For the article. This episode is based on How Stuff Works.
Spoke with Esteon to a professor of law at West
Virginia University School of Law who is taught courses in copyright,
trademark and patent law. He explained about intellectual property quote

(04:47):
with music, it's particularly easy to understand because of digital transfer.
If I'm listening to a Taylor Swift song, does that
stop you from listening to a Taylor Swift song? No?
But if I'm enjoying my house, you can't enjoy this
same house because there's only one house. We have to
create a system to protect intellectual property that's different from

(05:08):
real property and moveable personal property. Two continued. For Taylor
Swift to create a song, it's very expensive, right, but
she has to put in the effort and time to
make the recording. But then I can make an MP
three of it and send it off to the world. Similarly,
it costs drug companies hundreds of millions of dollars in

(05:29):
R and D costs, as well as going through the
FDA approval process to bring a drug to market. If
a second drug company could simply copy the drug, no
firm would ever invest in creating a drug in the
first place. Patents play a role to allow companies to
recuperate their initial investments while making a profit by limiting competition.

(05:51):
So without copyright protection to ensure that Taylor Swift gets
paid for her songs, it would be harder for her
to earn a living as a performer. Who knows she
might even still be working at our father's Christmas tree farm. Similarly,
without patent protection for drugs, which lasts for twenty years
after a drugs invention in the US, a life saving

(06:12):
and life changing medications might not be developed here. Two said,
as a society, we say that we want more Taylor
Swift songs. So what we're going to do is give
her that protection so that she could make putting out
songs her life's work. One important thing about copyrights is

(06:32):
that they not only protect the original work, but restrict
other's ability to create derivative works that are based upon it,
even if they're in other media. So if you've written
a book, I couldn't make a movie based on it
unless you gave me permission. Also, while a copyright for
a particular book or film mixpire, the creator may still

(06:54):
hold rights to the characters, as with Sorcerer's Apprentice Mickey
and other exclusions of a too. Two said, there's something
called the sena fair doctrine, which means that there are
stock characters present in every story, like the comic relief
character who's a bubbling buffoon. Right, that's fair game to

(07:14):
use if you've got to copyright on Harry Potter. Does
that mean that all boy wizards are copyrighted or all
stories with a wizard in it? No, But the closer
you get to a boy wizard who fights an evil
wizard that has seven lives. That looks a little bit closer,
and if that boy wizard goes to Hogwarts, okay, that
clearly is the expression that's protected. Originally, copyrights were relatively

(07:40):
short in duration. The Copyright Act of seventeen ninety, for example,
gave copyright owners control over their works for fourteen years,
with an opportunity to renew for another fourteen But over time,
the number of years that the work can be protected
has increased, giving creators more time to profit from having
a monopoly over their work. In nineteen ninety eight, Congress

(08:05):
passed the Sonny Bono Copyright Term Extension Act, named after
the late singer and songwriter turned politician. This allowed for
an author's copyright to last for the person's lifetime plus
seventy years, while copyrights held by corporations last one hundred
and twenty years after creation or ninety five years after publication,

(08:26):
whichever comes sooner. Some argue that this length of time
is stifling to the creativity of new artists, and point
to the tendency of companies like Disney to profit vastly
off of works already in the public domain, like Hans
Christian Andersen's The Little Mermaid, published in eighteen thirty seven,
or The Snow Queen, which was the inspiration for Frozen,

(08:47):
published in eighteen forty four. Because just as copyrights encourage
people to be creative, so does the public domain. An
imaginative person can write a sequel or prequel to a
classic novel using the same characters as the original, or
they can do mashups of the classics, such as inserting
Mary Shelley's Frankenstein's Monster into a Jane Austen story, or

(09:11):
put a version of Frankenstein's Monster into an original work,
as happened in the recent film Poor Things. Though to note,
if someone merely alters or adds to the original work,
they can only seek copyright protection for the new material,
not the entire piece. Once a copyright expires, that creative

(09:31):
work is available for free to anyone who wants to perform, publish,
or broadcast it. That's a big benefit to society because
community theaters can show movies for free, and youth orchestras
can perform music without paying licensing fees. Similarly, publishers can
put out new editions of classic novels with new illustrations

(09:53):
or annotations, and online archives can offer public domain books
in their entirety for free to the public. However, all
of this is assuming that a copy of the working
question has survived the long waiting period for it to
come into the public domain. Last year, two classic films,
the vampire movie London After Midnight, which starred Lon Cheney,

(10:16):
and The Way of All Flesh, for which Emil Jennings
got the best actor Oscar both came up for free use,
but as far as we know, no one will get
a chance to use them or screen them because they've
been lost. Only still photos shot during filming remain from
London After Midnight, and just a few fragments of film
remain from the Way of All Flesh. This ties into

(10:39):
one of the arguments for shortening that copyright term. The
physical media that films and music used to be recorded
on are fragile, and sometimes copyright law prevents them from
being restored and thus archive before they literally disintegrate. Today's

(11:00):
episode is based on the article what does it mean
when a book, movie your song enters the public Domain
on HowStuffWorks dot com written by Patrick J. Kiger. Brain
Stuff is production of iHeartRadio in partnership with HowStuffWorks dot
Com and is produced by Tyler Klang. Four more podcasts
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