What Does it Mean When a Book, Movie or Song Enters the Public Domain?

If you're a book publisher who wants to put out a new edition of Ernest Hemingway's short-story collection "Men Without Women," a filmmaker who wants to shoot a remake of Fritz Lang's classic science-fiction film "Metropolis" or a blues musician who wants to record a new version of Bessie Smith's "Preaching the Blues" or Ira and George Gershwin's "Funny Face," Jan. 1, 2023, was a momentous occasion.

That's the date when creative works copyrighted in 1927 entered the public domain in the U.S., which basically means that they can now be shared, performed, reused, repurposed or sampled without the user having to obtain permission from the copyright holder or pay anything for using the work, as this 2023 Voice of America story details.

"We have a robust public domain which people can work from, freely, because the works no longer are protected," explains Tomas Lipinski, professor in the University of Wisconsin-Milwaukee School of Information Studies and an expert on copyright law.

In addition to works that are no longer protected due to copyright expiration, public domain also includes works for which the creator never sought a copyright, and others that weren't deemed sufficiently creative or original to be entitled to protection, Lipinski says.

A vast assortment of 1927 books, movies and musical compositions have now entered the public domain according to Duke University's Center for the Study of the Public Domain. A list of notable works compiled by the center includes novels such as Virginia Woolf's "To the Lighthouse," Thornton Wilder's "The Bridge of San Luis Rey," Agatha Christie's "The Big Four" and Franz Kafka's "Amerika."

But one of the most attention-getting entries on the list is Arthur Conan Doyle's "The Case-Book of Sherlock Holmes." The final collection of Sherlock stories figured in a June 2020 lawsuit filed by the Conan Doyle Estate, Ltd. against Netflix and others over the film "Enola Holmes," which alleged that the movie and the Nancy Springer novels upon which it was based had used new character traits that Doyle had added to Sherlock Holmes in those last stories. The case was settled in December 2020, according to The Hollywood Reporter.

Films newly entering the public domain include the original version of "The Jazz Singer," and director Cecil B. DeMille's "The King of Kings." Musical works include the song "(I Scream You Scream, We All Scream for) Ice Cream," by Howard Johnson, Billy Moll and Robert A. King, as well as the original 1927 version of Irving Berlin's "Puttin' on the Ritz" (whose lyrics he rewrote in 1946 for the film "Blue Skies," according to SecondHandSongs).

What Does a Copyright Mean?

To grasp what public domain means, it helps to understand what copyrights are and why they exist, according to S. Sean Tu, a professor of law at West Virginia University School of Law, who has taught courses in copyright, trademark and patent law.

Tu notes that in the U.S., the public policy behind copyright and patent protection actually originates in the Article I, Section 8 Clause 8 of the Constitution, commonly known as the Intellectual Property Clause, which grants Congress 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."

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, according to Tu. That means giving them exclusive rights for a limited time and distinguishing between intellectual property and other types of property, such as houses or other things that consumers own.

"With music, it's particularly easy to understand, because of digital transfer," Tu says. "If I'm listening to a Taylor Swift song, does that stop you from listening to a Taylor Swift song? No." In contrast, "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 is different from real property and chattel (the legal term for moveable personal property)."

"For Taylor Swift to create a song, it's very expensive, right?" Tu continues. "She has to put in the effort and time to make the recording. But then I can make an mp3 of it and send it off to the world. Similarly, it costs drug companies hundreds of millions of dollars in R&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."

Without copyright protection to ensure that 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 her father's Christmas tree farm.) Similarly, without patent protection, which lasts for 20 years after a drug's invention, we may not get the life-saving drugs available in the U.S.

"As a society, we say that we want more Taylor Swift songs," Tu says. "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 that they not only protect the original work but restrict others' ability to create derivative works that are based upon it, even if they are in other media. "If somebody says, 'Well, you wrote the book, I'm going to make a movie that's very similar to the book," I can say, no, stop that."

Also, while a copyright for a particular book or film may expire, the creator may still hold rights to the characters, if they appear in subsequent works that still remain under copyright. The "Steamboat Willie" version of Mickey Mouse, which is set to go into public domain in 2024, might be fair game, "but you certainly couldn't copy the 'Fantasia' version of Mickey," Tu says. "The 'Fantasia' version of Mickey came out much later."

What Is the Scène à Faire Doctrine?

"There's something called the Scène à Faire doctrine, which means that there are stock characters present in every story, like the comic relief character who's a bumbling buffoon, right?" Tu says. "That's fair game to use, as long as you don't describe him or her in enough terms that breathes life into the character itself. If you've got a 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 short in duration — the Copyright Act of 1790, for example, gave copyright owners control over their works for 14 years, with an opportunity to renew for another 14, according to the Association of Research Libraries. But over time, the number of years that a work would be protected have been increased, giving creators more time to profit from having a monopoly over their work.

In 1998, Congress 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 70 years, while copyrights held by corporations last 120 years after creation or 95 years after publication, whichever comes sooner, according to Cornell Law School's Legal Information Institute. For a funny-but-serious argument on why Congress may have gone too far in extending copyrights, Tu recommends this excerpt from the TV series "Adam Ruins Everything."

What You're Allowed To Do with Works in the Public Domain

Once a copyright expires, a creative work is available for free to anyone who wants to read, watch or listen to it. As the Center for the Study of the Public Domain points out on its website, 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, and online archives can offer public-domain books in their entirety for free.

And just as copyrights encourage people to be creative, so does the public domain, Lipinski explains. 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" monster into an Edgar Allan Poe short story. Or they can alter or add to the original work — though if they do, they can only seek copyright protection for the new material, not the entire book, he notes.

"Copyrights expire because a copyright is a limited monopoly under the law," Lipinski explains in an email. "The purpose of copyright is to benefit society, not reward authors alone. Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975): 'The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.'" Allowing works to go into the public domain does this as well.

Now That's Interesting

Two classic films — the vampire film "London After Midnight," which starred Lon Chaney, and "The Way of All Flesh," for which Emil Jannings got the best actor Oscar — are entering public domain this year, but you probably won't get a chance to see them, because they've been lost. As the Center for the Study of the Public Domain notes, only still photos shot during filming remain from "London After Midnight," and just a few fragments such as this one remain from "The Way of All Flesh."