Law:

A bliz­zard of copy­right ex­pi­ra­tions • 1923: a pub­lic do­main sam­pler

Smithsonian Magazine - - Contents -

“WI think I”— HOSE WO ODS THESE ARE , whoa! We can’t quote any more of Robert Frost’s “Stop­ping by Woods on a Snowy Evening,” be­cause it is still un­der copy­right as this mag­a­zine goes to press. But come Jan­uary 1, 2019, we, you, and ev­ery­one in Amer­ica will be able to quote it at length on any plat­form.

At mid­night on New Year’s Eve, all works first pub­lished in the United States in 1923 will en­ter the pub­lic do­main. It has been 21 years since the last mass ex­pi­ra­tion of copy­right in the U.S.

That del­uge of works in­cludes not just “Stop­ping by Woods on a Snowy Evening,” which ap­peared first in the New Re­pub­lic in 1923, but hun­dreds of thou­sands of books, mu­si­cal com­po­si­tions, paint­ings, poems, pho­to­graphs and films. Af­ter Jan­uary 1, any record la­bel can is­sue a dub­step ver­sion of the 1923 hit “Yes! We Have No Ba­nanas,” any mid­dle school can pro­duce Theodore Pratt’s stage adap­ta­tion of The Pic­ture of Do­rian Gray, and any his­to­rian can pub­lish Win­ston Churchill’s The World Cri­sis with her own ex­ten­sive an­no­ta­tions. Any artist can cre­ate and sell a fem­i­nist re­sponse to Mar­cel Duchamp’s sem­i­nal Dadaist piece, The Large Glass (The Bride Stripped Bare by Her Bach­e­lors, Even) and any film­maker can re­make Ce­cil B. DeMille’s orig­i­nal The Ten Com­mand­ments and post it on YouTube.

“The pub­lic do­main has been frozen in time for 20 years, and we’re reach­ing the 20-year thaw,” says Jen- nifer Jenk­ins, di­rec­tor of Duke Law School’s Cen­ter for the Study of the Pub­lic Do­main. The re­lease is un­prece­dented, and its im­pact on cul­ture and creativ­ity could be huge. We have never seen such a mass en­try into the pub­lic do­main in the dig­i­tal age. The last one—in 1998, when 1922 slipped its copy­right bond—pre­dated Google. “We have short­changed a gen­er­a­tion,” said Brew­ster Kahle, founder of the In­ter­net Archive. “The 20th cen­tury is largely miss­ing from the in­ter­net.”

For aca­demics fear­ful of quot­ing from copy­righted texts, teach­ers who may be vi­o­lat­ing the law with ev­ery pho­to­copy, and mod­ern-day artists in search of in­spi­ra­tion, the event is a cause for cel­e­bra­tion. For those who dread see­ing Frost’s im­mor­tal ode to win­ter used in an ad for snow tires, “Pub­lic Do­main Day,” as it is some­times known, will be less joy­ful. De­spite that, even fierce ad­vo­cates for copy­right agree that, af­ter 95 years, it is time to re­lease these works. “There comes a point when a cre­ative work be­longs to his­tory as much as to its au­thor and her heirs,” said Mary Rasen­berger, ex­ec­u­tive di­rec­tor of the Au­thors Guild.

WE CAN BLAME MICKEY MOUSE for the long wait. In 1998, Dis­ney was one of the loud­est in a choir of cor­po­rate voices ad­vo­cat­ing for longer copy­right pro­tec­tions. At the time, all works pub­lished be­fore Jan­uary 1, 1978, were en­ti­tled to copy­right pro­tec­tion for 75 years; all au­thor’s works pub­lished on or

af­ter that date were un­der copy­right for the life­time of the cre­ator, plus 50 years. Steam­boat Willie, fea­tur­ing Mickey Mouse’s first ap­pear­ance on screen, in 1928, was set to en­ter the pub­lic do­main in 2004. At the urg­ing of Dis­ney and oth­ers, Congress passed the Sonny Bono Copy­right Term Ex­ten­sion Act, named for the late singer, song­writer and Cal­i­for­nia rep­re­sen­ta­tive, ad­ding 20 years to the copy­right term. Mickey would be pro­tected un­til 2024—and no copy­righted work would en­ter the pub­lic do­main again un­til 2019, cre­at­ing a bizarre 20-year hia­tus be­tween the re­lease of works from 1922 and those from 1923.

This hole in his­tory was ac­ci­den­tal, but it oc­curred at a re­mark­able mo­ment. The nov­el­ist Willa Cather called 1922 the year “the world broke in two,” the start of a great lit­er­ary, artis­tic and cul­tural up­heaval. In 1922, Ulysses by James Joyce and T.S. Eliot’s “The Waste Land” were pub­lished, and the Har­lem Re­nais­sance blos­somed with the ar­rival of Claude McKay’s poetry in Har­lem Shad­ows. For two decades those works have been in the pub­lic do­main, en­abling artists, crit­ics and oth­ers to bur­nish that no­table year to a high gloss in our his­tor­i­cal mem­ory. In com­par­i­son, 1923 can feel dull.

But that was the year Noël Cow­ard staged his first mu­si­cal, the hit Lon­don Call­ing!, and Jean Toomer came out with his break­through novel about African-Amer­i­can life, Cane. Be­cause ac­cess to these and other works from the year has been lim­ited, our un­der­stand­ing of the tu­mul­tuous 1920s is skewed. That will be­gin to change Jan­uary 1, when dig­i­tal com­pen­dia such as the In­ter­net Archive, Google Books and HathiTrust will make tens of thou­sands of books avail­able, with more to fol­low. They and oth­ers will also add heaps of news­pa­pers, mag­a­zines, movies and other ma­te­ri­als.

Much the same will hap­pen ev­ery Jan­uary 1 un­til 2073, re­veal­ing long-over­looked works from the Har­lem Re­nais­sance, the Great De­pres­sion, World War II and be­yond. (Af­ter 2073, works pub­lished by au­thors who died seven decades ear- lier will ex­pire each year.) “We’re go­ing to open these time cap­sules on a yearly ba­sis . . . and po­ten­tially have our un­der­stand­ing of that year and all the con­tents change,” said Paul Saint-Amour, a pro­fes­sor of English at the Univer­sity of Penn­syl­va­nia and ed­i­tor of Mod­ernism and Copy­right.

“We can’t pre­dict what uses peo­ple are go­ing to make of the work we make avail­able,” said Mike Fur­lough, ex­ec­u­tive di­rec­tor of HathiTrust. “And that’s what makes that so ex­cit­ing,”

“TWO ROADS DI­VERGED in a wood, and I— / I took the one less trav­eled by, / And that has made all the dif­fer­ence.” How re­fresh­ing it is to quote freely from an­other iconic Robert Frost poem, “The Road Not Taken,” pub­lished in his poetry col­lec­tion Moun­tain In­ter­val in 1916. Its copy­right ex­pired in 1992 and that has made all the dif­fer­ence. The poem has in­spired lyrics from Bruce Hornsby, Melissa Etheridge and Ge­orge Strait, and its phrases have been used to sell cars, ca­reers, com­put­ers and count­less dorm room posters that fea­ture the fi­nal lines as an ex­hor­ta­tion to in­di­vid­u­al­ism that the poet likely never in­tended.

On Jan­uary 1, HathiTrust will pub­lish Frost’s col­lec­tion New Hamp­shire, in­clud­ing “Stop­ping by Woods on a Snowy Evening,” on­line and it will fi­nally be avail­able for any­one to adapt. Per­haps no one is more be­mused by that prospect than the com­poser Eric Whi­tacre. In 1999, be­liev­ing the poem had al­ready en­tered the pub­lic do­main (the last-minute copy­right ex­ten­sion pre­vented that), Whi­tacre ac­cepted a com­mis­sion to turn it into a choral piece. Af­ter just two per­for­mances, Whi­tacre said, Frost’s pub­lisher and the Frost es­tate shut him down, re­fus­ing to li­cense the work. Whi­tacre even­tu­ally pro­duced a dif­fer­ent ver­sion of the work, ti­tled “Sleep,” with lyrics writ­ten for it by the poet Charles An­thony Sil­vestri. He is now con­sid­er­ing re­leas­ing the work in its orig­i­nal form. “All I wanted to do,” Whi­tacre said, “is il­lu­mi­nate the orig­i­nal poem with mu­sic.”

Poems, an es­say and the novel A Lost Lady by Willa Cather will en­ter the pub­lic do­main on Jan­uary 1,2019.

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