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    Your Public Domain Report for 2018

    Hey gang! It's time for Public Domain Day again, where we list all of the music, film, books, and other pieces of art leaving copyright today. And here's that list again, just like last year:

    Nothing. Nothing at all.

    Happy New Year.

    Although the Framers of the Constitution only gave Congress power to grant copyrights and patents "for a limited time," repeated extensions have made sure that nothing has entered the public domain in the United States since January 1, 1979. Today makes nearly forty years since that happened.

    Copyright in this country had a 28-year maximum back during the George Washington administration. By the 20th century that had become a very reasonable 6 years. Then the 1976 Copyright Act and the 1998 Digital Millennium Copyright Act  ensured that big media company's like Disney and Sony got to keep their intellectual property out of the public domain forever.

    The big news is that the public domain clock is due to unfreeze in exactly one year, on January 1, 2019, unless Congress extends copyright terms again. Left to their own devices, Congress will certainly do that. But they haven't written that law yet, and there's time to lobby. Call your senators and representatives this year, and tell them not to extend copyright any more.

    In the meantime, as every year, I have to write a post about what would be entering public domain today. What are we missing?

    If Not for the Digital Millennium Copyright Act:

    Today is the day Casablanca should enter the public domain. Actually, under the law when it was made, it should have become public domain in 1999. The 1976 extension delayed that until today, but that apparently was still not enough. We'll always have Paris, if by "always" we mean "never."

    This is also the day the public would get the rights to Bambi, Flying Tigers with John Wayne, Now, Voyager, The Palm Beach Story, Across the Pacific, Andy Hardy's Double Life, The Courtship of Andy Hardy, noir classic The Glass Key and horror favorite Cat People, musical For Me and My Gal, In Which We Serve, the original live-action The Jungle BookMrs. Miniver, Orson Welles's Magnificent Ambersons, Lon Chaney in The Mummy's Tomb, My Sister Eileen, My Favorite Blonde, The Pride of the Yankees, The Road to Morocco, Saboteur, The Talk of the Town, This Gun's for Hire, To Be or Not to Be, Tortilla Flat, Woman of the Year with Tracy and Hepburn, and James Cagney in Yankee Doodle Dandy. Ronald Reagan's finest work as an actor, Kings Row, would become public domain today. So would George Gershwin's classic Christmas musical Holiday Inn (which I will spend part of this New Year's Day watching, as usual), and all the songs in it, including "White Christmas."

    Unlike the last few New Year's Days, today would not see many major cartoon characters enter the public domain, mostly because those classic characters would be in the public domain already. The big exception is Tweety Bird. Thought you say a puddy tat? Not for another twenty years.

    Most of the great Golden Age comic-book heroes would also be in the public domain already, but today they would be joined by various classic sidekicks (like Wonder Woman's pal Etta Candy, villains (such as Two-Face and Shade), and minor colleagues: Guardian, Metallo, Mr. Terrific,  Kid Eternity, Mary Marvel, Robotman, and Wildcat.

    But on the science fiction front, Asimov's Three Laws of Robotics would become free to use today.

    In literature, Albert Camus's The Stranger should become public domain today, as should his Myth of Sisyphus. C.S. Lewis also has a fiction/non-fiction double-header, with his Preface to Paradise Lost and his classic Screwtape Letters. Raymond Chandler's The High Window and Ellery Queen's Calamity Town should leave copyright today. So should Heinlein's Beyond This Horizon, Steinbeck's The Moon is Down, O'Neill's A Touch of the Poet  and Jean Anouilh's Antigone. We could also look forward to Eliot's Little Gidding, Wallace Stevens's Parts of the World, and Langston Hughes's Shakespeare in Harlem.

    In the world of music, "White Christmas" is the big headline. But Duke Ellington classics "C-Jam Blues" and "Don't Get Around Much Anymore" would enter public domain, too, as would Cole Porter's "You'd Be So Nice to Come Home To." Other ontributions to the great American songbook by Johhny Mercer, Irving Berlin, George Gershwin, Frank Loesser, Johnny Mercer, Jerome Kern, Mack Gordon, and Johnny Burke would become free for all to use. And there would be plenty of classical music, too: Copland's Fanfare for the Common Man and works by Britten, Barber, Schoenberg, Kachuturian, and those crazy Russians Stravinsky, Shostakovich, and Prokofiev.

    Not the richest year overall, since most of the West was pretty busy doing other things in 1942, but still a pretty respectable haul. Still, we'll have to wait until 2038 for those works, and longer if Congress passes another extension in the next 12 months.

    If not for the 1976 Copyright Act:

    A mother lode of classic movies were scheduled to enter public domain today, under the law at the time they were made: West Side Story, Breakfast at Tiffany's, La Dolce Vita, Judgement at Nuremberg, The Children's Hour, Last Year at Marienbad and The Hustler. Copyright was also originally set to expire on One Hundred and One Dalmatians, The Absent-Minded Professor, The Guns of Navarone, Elvis Presley in Blue Hawaii, Splendor in the Grass, The Parent Trap, Babes in Toyland, Divorce Italian Style, El Cid with Charlton Heston, Five Minutes to Live, Flower Drum Song, Gidget Goes Hawaiian, King of Kings, The Misfits, Mysterious Island, The Roman Spring of Mrs. Stone, Raisin in the Sun, Town Without Pity, Voyage to the Bottom of the Sea, and last but not least, Kurosawa's Yojimbo.

    Joseph Heller's classic novel Catch-22 should enter public domain today, as should fiction by Kurt Vonnegut, Gabriel Garcia Marquez, Agatha Christie, Stanislaw Lem, J.G. Ballard, Patricia Highsmith, Poul Anderson, Brian Aldiss, Margaret Lawrence, H.P. Lovecraft, August Derleth, Theodore Sturgeon, Iris Murdoch, Evelyn Waugh, and Harold Robbins. Let's not forget Walker Percy's The Moviegoer, Muriel Spark's Prime of Miss Jean Brodie, Nobel laureate V.S. Naipaul's A House for Mister Biswas, John Le Carre's fiction debut A Call for the Dead, and, oh yes, J.D. Salinger's Franny and Zooey.

    James and the Giant Peach should enter public domain today, but what would happen if a beloved children's story became public domain? So should Beckett's Happy Days, Genet's The Screens, and Tennessee Williams's Night of the Iguana. And let's not leave out three important and influential non-fiction works: Fanon's Wretched of the Earth, Marshall McLuhan's Gutenberg Galaxy, and Janes Jacobs's classic The Death and Life of Great American Cities.

    It should be a great year music, with tunes by Sinatra, Elvis, Judy Collins, John Coltrane, Chuck Berry, Judy Garland, Roy Orbison, Dizzy Gillespie, Johnny Cash, Count Basie, Sun Ra (and his Arkestra), Patsy Cline, Rachmaninoff, Miles Davis, Dave Brubeck, Johnny Mercer, Henry Mancini, and Willie Nelson becoming publicly available.

    But all of those works will stay firmly in the hands of Sony, Disney, Time Warner, etc., until at least 2057. Someone needs another 39 years of royalties from Moon River, apparently.

    What will become public a year from today:

    But let's keep our eye on the prize. The current law is not changed (and you should expect Congress and the lobbying industry to try), works first publishes in 1923 will become public domain in the US next January 1. The public-domain clock, which has been stuck in place since January 1, 1979, is set to come unstuck. (Yes, this means that everything published in 1922 is public domain but nothing published in 1923 is, and it has been that way for 39 years now.)

    If we can keep the lobbyists at bay, Robert Frost's "Stopping by the Woods on a Snowy Evening," the one that ends "And miles to go before I sleep," will leave copyright next New Year's Day. So will Wallace Stevens's "Thirteen Ways of Looking at a Blackbird" and "Emperor of Ice-Cream." Likewise, Yeats's collection The Cat and the Moon, and various poems by Cummings, Djuna Barnes, St. Vincent Millay, Edward Arlington Robinson, Vachel Lindsay, and William Carlos Williams.

    Jean Toomer's Cane is due to become public, and Hemingway's first chapbook Three Stories and Ten Poems. Willa Cather's A Lost Lady; Tarzan and the Golden Lion; Kahlil Gibran's The Prophet; Brecht's In the Jungle of Cities; Agatha Christie's Murder on the Links. Works by Joseph Conrad, H.G. Wells, P.G. Wodehouse, D.H. Lawrence, Virginia Woolf, Jean Cocteau. Beloved Czech classic the Good Soldier Svejk. Classic silent films by Harold Lloyd, Buster Keaton, and Charlie Chaplin. Works that are classic, and already almost a century old; works that are forgotten, but cannot be republished and rediscovered because it's been so long that the copyright owners can no longer be found and so there's an, ahem, Catch-22: you can't republish the work without paying for permission, but you can't find the person you need to pay.

    We can begin a return to copyright sanity in one short year, if we just keep our lawmakers from being crazy.

    Whose woods these are I think I know:

    They'll likely keep them private, though.


    "everything published in 1922 is public domain but nothing published in 1923 is"--a work published in 1923 is still under copyright only if there was a valid copyright to begin with (was there a copyright notice?), and only if the copyright was renewed when the first copyright term approached its end.  With a lot of twentieth-century culture,those are big "ifs."  I am a big fan of B pictures, and I enjoy the fact that I can watch Roger Corman's Little Shop of Horrors (1960) for free on the internet. 

    Except that the various copyright extension laws have allowed heirs to regain copyright of works that hand entered the public domain. The classic example is It's a Wonderful Life, which became a classic precisely because Frank Capra didn't bother renewing its copyright and so every TV station in the land would show it, without paying rights, every Christmas. But you haven't seen that saturation-bombing in years, because the rights have been re-claimed, re-privatizing the movie.

    I wonder what these copyright extensions do to media company valuations?  Disney is buying all of the studio assets of 21st Century Fox.  How much of the Fox film library is only owned because we no longer place works in the public domain? Disney's business strategy at the moment is to buy content to form the backbone of a rival streaming service to Netflix.  Yes, 99% of the useful content for such an endeavor is going to be newer stuff that large swathes of the contemporary audience wants to see right now, but owning a century of film and music when Netflix owns only what it can create right now is a huge advantage.

    I think this is a big part of the economics involved. And the backlist is more than 1% of the value, especially when you remember that all of that content is already paid for. Making money off Casablanca and Gone with the Wind is pure rent-seeking now: there's no more investment to make, there are no risks involved, and a monopoly preventing competition.

    You're going to make much of your annual revenue from the Avengers and whatever, but it takes hundreds of millions of dollars to make each of those movies, and there's a risk. Making money off the back catalog is a smaller part of the business, but it is pure profit.

    Not 100% profit, actors and their estates have for decades received compensation from old material.  For many of them and their surviving family members the income is a big help.

    SAG/AFTRA and residuals:

    SAG was able to win rights for actors through its first commercials contract in 1953, residual payments for television reruns in 1952 and, in 1960, after a strike, residuals for films shown on television. With the implementation of the Pension and Health Plan, won in the 1960 negotiation, and residual gains, SAG's role in filling the studio system void and finding the means to empower its members was well on its way.

    Residuals are compensation paid to performers for use of a theatrical motion picture or television program beyond the use covered by initial compensation. For TV work, residuals begin once a show starts re-airing or is released to video/DVD, pay television, broadcast TV, basic cable, or new media. For film work, residuals begin once the movie appears on video/DVD, basic cable and free or pay television, or new media.

    Models like this are going to be more common in the future as selling our "Intellectual Property" is what more and more of us do for a living. As robots do everything else.

    Intellectual Property Law is the major growth area in law.

    In the Fine Art field, those of us who are known to have been in the field for a long time are starting to see more and more queries from agents looking to collect residuals or commissions for people who are heirs to copyright for images of artwork.Or heirs that are due royalties from areas where they have enacted resale laws where when artwork is resold, the artist or his heirs get a commission. Like in California, or France. 

    It is clearly a growth field, too. They are so aggressively looking to find heirs that it is clear that they are working on commission from a database of uncollected funds. Some of them are even acting like nasty debt collectors; example: sending out a huge bill to an antique dealer who uses an image on Instagram or on a promotional postcard, seeing if they will just pay it, along the lines of you never know, they could have the money to pay and might pay without questioning.

    Big picture, when things like the latter happen, some get their knickers all in a twist about "fair use" fears, how it is going to get worse and worse. I suspect, though, the way we are going on that is that if your efforts improve the "owner's" chances of "going viral", your use will be welcome.  Along the lines of: the NYTimes is not going to complain about me reposting 3 paragraphs on dagblog if my postings have the ability to get more people addicted to reading the NYTimes. You just have to know how to play the game of the future. If your intent is personal profit from another's work, that's where you will run into trouble. Yeah there are confusing lines sometimes, i.e., did that antique dealer's use of the artist's picture improve the value of the artist's brand more than his own? That's the way it goes.

    Here's an example, a clip from a recent email I got, how ridiculously deep and long ago they dig, looking for a needle in a haystack. This goes to Dr. Cleveland's point: if the heirs don't care enough to pay attention, why is this not public domain:

    Dear Sir or Madam,

    I am writing to you from the Artists' Collecting Society (ACS) in London, an organisation that represents artists for their intellectual property rights.

    As I am sure you are aware, Artist's Resale Right (ARR) is a European intellectual property right that entitles artists to a royalty payment when their work sells on the secondary market. The estates of deceased artists have been entitled to this royalty since 2012 in the UK. Over the past five years, £3,956 in ARR has been collected from sales of the [artist's] work, which has been passed on to us and which I believe the Estate of [artist's widow....]  is now entitled to.

    I understand that [deceased corporate president.] arranged the transfer of papers relating to [artist] from the Estate of [artist's widow] to the Smithsonian's Archives of American Art in 1985, based on evidence from their website [link to page]. I, therefore, wondered if the [corporation] had any information on [artist's widow's] Estate that might help me contact them so we can organise the transfer of the ARR royalties?

    What she found was the name of the deceased owner of the corporation arranging a donation in 1985, a single day of work decades ago, when he was not in business for the corporation but working for another, actually just helping one customer of many with cleaning up an estate. What I found outrageous is that she would be expecting someone to help them for free, to spend time digging into records out of the goodness of their heart. As if this is about scholarship and truth and justice and not profit.

    Is one thing to have an unclaimed funds entity, it is another to have an organization so aggressively working to deliver those funds.

    P.S. Here is the current main similar U.S. entity

    their website Your Work. Your Worth. Experience the benefits of becoming an ARS member artist.

    They act as aggressive collection agents. And suffice it to say they don't do that for free. It's: sign with us, we'll get ya some of that dough you're finally entitled to.

    Okay, fine. But that depends on the contract. And are actors in older movies covered by the 1960 deal? Do Ingrid Bergman's heirs get a piece of Casablanca?

    I have a family member who sometimes gets residual checks, and part of the system is that they shrink as the production ages. Every time an episode of Seinfeld is shown, the participants' residual is only half of its last residual, until it gets incredibly minuscule. The older, the cheaper to show.

    And even so, the cut you give people from residuals is a small percentage of the gravy you get from reselling old material over and over again.

    My grandfather received residuals for music projects all his life. Most of his work was done between 1945-1980.  While it was good for him and provided significant individual income (and while he got a better deal than contemporary musicians get) you always got the sense that it was significant money to him but not to the people paying him.

    I mean, I think we both agree that one of the valuable things about intellectual or creative properties is the long tail. Revenue diminishes over time but can go on for a very long time and costs diminish faster, even if not entirely.

    At a certain point it definitely is rent-seeking.  A long time ago I reported on a guy who was trying to wrest control of Jack Keroauc's literary estate away from the childhood friend that the author had put in charge. The guy was just trying to get his hands on a money-making machine, fueled cy creativity he had no claim to.

    Art can be an amazing machine.

    That your grandfather's residual checks may not have been "significant" money to those who wrote them,  doesn't mean they were given willingly. The corporate big shots had to be dragged and kicking to pay anything.

    Yep!  He was part of a musician's union that was more powerful during his day and it made his retirement possible.

    I think the long tail is a great thing, and I generally think it is to the benefit of good art. I think long tails commercially benefit some of the best work, and make it more attractive to invest in good work.

    But the lengths get excessive. Copyright is now at a 95-year term. The next extension will put it over a century. That's getting crazy.

    There's also a story where a lot of Kafka's materials, letters and journals and apparently even unpublished fiction, were until this decade in the control of completely random heirs: his friend Max Brod's secretary's children, who had the right to publish those works or keep them from publication, and who had to be sued by the State of Israel to get them into an archive. The case was settled in 2012. Kafka died in 1924. 


    I'm with you.  While I have no problem with Scottie Fitzgerald making much of her living as the steward of F Scott's work, literary estates and creative states in general should not become perpetual foundations with ownership of the creative works as their main assets.  If drugs can go off patent to the benefit of all, so can old novels and movies.

    Another 'creative rights' case for you.

    Robert Ludlum's estate (Jason Bourne, etc) has apparent for years been under the tight control of lawyers, not his surviving family.  This according to discussions with Ken Kearns, MD. I met Kearns around 2011, Kearns was a relative and RL's personal physician, he wrote a book on RL and the odd circumstances surrounding his death. 

    One of RL sons, John, the younger of two, died mysteriously shortly after his fathers also mysterious death in 2001. John (upper 40s age) was reported to be actively asking questions about where the huge streams of money were going from his deceased Dad's work. Kearns said the money was controlled by a legal firm.

    I met Kearns as well, when he was shopping that book around... He has some interesting ideas, certainly.  Not sure I believe a word of them, though.

    Seemed believable Naples would rein in any idea that a world famous writer was murdered in their tony enclave, perhaps affecting the investigation. It is in Florida.

    Or that people close to a more creative than business savvy old man might try to increase their share of the immense money stream from his work, by any means available.

    I think you're onto something...

    Just sharing a link from my email

    Happy Public Domain Day! Works by Magritte and 9 Other Artists Are Now Copyright-Free

    Happy Public Domain Day 2018! Here are 10 artists whose work is leaving copyright (although not in the United States).

    By Allison Meier @, 2 days ago

    Welcome to 2018! January 1 means it’s time to celebrate Public Domain Day. As is Hyperallergic tradition, we’re celebrating the visual artists whose work is entering the public domain this year.

    However what works are coming out of copyright depends on the country. In the United States, the Copyright Term Extension Act dictates that no published work will be part of the public domain until 2019 (and even then, there’s the potential for an extension). Duke Law School’s Center for the Study of the Public Domain explains that “[in] addition to lengthening the term, Congress also changed the law so that every creative work is automatically copyrighted, even if the author does nothing.” The map below visualizes copyright terms around the world: [....]

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