The Promise of the Public Domain

Today is Public Domain Day! January 1st is Public Domain Day in the United States. This year, materials published in the U.S. in 1925 are now in the public domain.

The public domain is an integral part of how copyright functions in the U.S. The Constitution states:

The congress shall have the power … to promote the progress of science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

U.S. copyright law seeks to balance the rights of users and creators of content. Authors and creators of copyrighted materials are given certain protections and benefits for their creative works for a limited time. After this period ends, then the rest of society can make use of the works in the public domain. The public domain is different from other allowances (fair use, teaching exemptions, etc.) for users of copyrighted materials. Once a work is in the public domain, it can be used freely, without restrictions. The free use of works, which is the promise of the public domain, is intended to inspire the creation of new copyrightable works.

Materials in the United States fall into the public domain every day due to a failure to follow the necessary formalities or requirements. Some formalities changed over time, so other materials fell into the public domain as a result of those changes. Some creators put work into the public domain voluntarily. This day marks when content falls into the public domain due to the expiration of copyright term. The commemoration of this day is particularly important because, as Jennifer Jenkins of the Center for the Study of the Public Domain points out, content from 1925 should have gone into the public domain in 2001, after a copyright term of 75 years. But, in 1998, the U.S. Congress hit a 20-year pause button and extended the copyright term to 95 years, so these materials didn’t start entering the public domain due to expiration until 2019.

Many institutions like the HathiTrust and New York Public Library, have done difficult and extensive research to determine what works in their collections are in the public domain. The Center for the Study of the Public Domain, Internet Archive and other institutions provide information on content that will enter the public domain in the U.S. every year. This year works by Cora “Lovie” Austin, Buster Keaton, Agatha Christie and many others will go into the public domain. Lovie Austin’s Jealous Hearted Blues was recorded by the famous blues singer, Ma Rainey (subject of a 2020 Netflix film, based on a play by August Wilson). Ma Rainey, and other performers of the era, wrote, performed, and recorded many albums and received only a fraction of the profits of the sales of those recordings. With Jealous Hearted Blues, Rainey could not secure copyright in what Rainey added to the composition and sound recording (neither of which Rainey had rights in), which is the performance (performance is one of the exclusive rights reserved for the rights holder) of the song. Even in an instance where an artist did hold copyright, record labels and recording studios often took advantage of musicians and performers. Rainey was savvy, and while she was keenly aware of the money she could have been making in the recording studio, she sacrificed that money for the money she could make for herself on tours. Still, what if she had been paid what she was due? What if her performance of a work entitled her to a copyright? What if she received full benefits of the copyrights she did own? It is too late for performers like Ma Rainey, but as copyright term continues to expire on the content they made famous, is there a way the public domain can help artists and musicians? Can anything be done to change what happened in the past?

During the lively (virtual) Internet Archive celebration of the public domain,  two scholars invested in social justice and greater protections for artists from marginalized backgrounds offered some thoughts on what could be considered justice in copyright. Lateef Mtima, professor of law at Howard University School of Law, and founder and director of the Institute for Intellectual Property and Social Justice and Kevin Greene, chair and professor at Southwestern Law School in Los Angeles discussed that wrongs from the past cannot be changed, but they should be discussed and explained with context. Professor Greene commented about ways to help today’s musicians, particularly African-American and Latino hip-hop artists. Greene explained that this genre of artists has pioneering performers and musicians who likely need to be informed of their rights under the termination of transfer provision of U.S. copyright law. Termination of transfer allows artists and their estates to end what might have been predatory copyright transfer contracts and regain their copyright. Greene posited that helping artists navigate this provision could be a way to mitigate the wrongs of the past. Professor Mtima suggested closing the digital divide for equitable access to the Internet and making the items in the public domain as widely and openly available as possible. Mtima noted that the public domain’s purpose in the generation of creativity can be fulfilled and used to address and correct injustice by making sure new and upcoming artists can access and be inspired by art and music from the past.

There is a wealth of public domain content available in cultural heritage institutions and libraries across the U.S.  Many institutions, including Yale, are finding ways to research and liberate their public domain content.  Unveiling this information will provide  tremendous contributions to the public domain. It will go a long way to help current and future artists spur creativity, creative inquiry, and innovation, thus fulfilling the promise of the public domain.

Image collage of works that are in the public domain as of 2021

Center for the Study of the Public Domain https://web.law.duke.edu/cspd/publicdomainday/2021/

By Sandra Aya Enimil, Copyright Librarian and Contracting Specialist, Yale Library

The information presented on the Conversations on Copyright blog is intended for educational and informational purposes only and should not be construed as legal advice. The Copyright Librarian and Contracting Specialist does not act as legal counsel to the university or any members of the university community.

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