Happy Public Domain Day 2023!

January 1, 2023 marked the fifth Public Domain Day in recent memory, and the excitement has continued this year. In past posts, I have discussed the history of this day in the U.S., some common public domain questions , and notable entrants into the public domain. On January 1 of this year, copyright-protected works from 1927 entered the public domain in the United States, joining previous favorites such as the first Winnie the Pooh book by A. A. Milne, hundreds of thousands of sound recordings, and Fitzgerald’s The Great Gatsby.

In 2023, the public domain expands to include works such as the last Sherlock Holmes stories by Conan Doyle, the second Winnie the Pooh book by A. A. Milne, and classics by Agatha Christie, William Faulkner, Ernest Hemingway, Franz Kafka, Thornton Wilder, and Virginia Woolf. In 2023, the first “talkie” film The Jazz Singer enters the public domain, as do film classics such as Metropolis. Fans of early musicals and popular music will be glad to learn that compositions such as Puttin’ on the Ritz, ‘S Wonderful, Ol’ Man River, and (I Scream You Scream, We All Scream for) Ice Cream are now in the public domain. As always, the caveat to this list is that only the original work from 1927 is in the public domain. Later adaptations or uses may still be copyright-protected – for example, a scholarly commentary on Woolf’s writings, a translation of Kafka to English, a sound recording of Ol’ Man River, or a film adaptation of Sherlock Holmes, all may have their own copyright protection that has not yet ended.

Each year, Duke Law’s Center for the Study of the Public Domain puts out a comprehensive and thoughtful commentary on the works entering the public domain and copyright policy in this area in general. Strikingly, the Center for the Study of the Public Domain questions whether such a long term of copyright (the term of copyright protection was most recently extended for 20 years, in 1988) actually serves the purpose of copyright: providing exclusive rights to authors to exploit their creative works, so that these authors are incentivized to continue their creative output and create new works. There are some extremely famous works for which the copyright owners are doubtless still making a profit – the owners of Winnie the Pooh and Sherlock Holmes are great examples. However, the Center for the Study of the Public Domain writes:

For the vast majority—probably 99%—of works from 1927, no copyright holder financially benefited from continued copyright. Yet they remained off limits, for no good reason. (A Congressional Research Service report indicated that only around 2% of copyrights between 55 and 75 years old retain commercial value. After 75 years, that percentage is even lower. In fact, most older works are “orphan works,” where the copyright owner cannot be found at all.)

There are significant benefits to works entering the public domain, as well. The New York Times notes that the entry of The Great Gatsby in 2021 led to a flourishing of scholarly commentary, publications of new editions, and the creation of new works such as graphic novels, animations, and audiobooks based on the original. Given the large and well-funded owners of copyrighted material who are trying to retain and even extend the duration of copyright protection, the state of US copyright law as it comes to the term of protection is not likely to change any time soon, but it is interesting to think about whether the benefit to authors of a long copyright term outweighs the harm to the general public, who are prevented from freely using and adapting those works.

Public Domain Day 2023 is still to be celebrated. As I have written before, copyright is not just the realm of the artist. Every business creates or uses works that could be protected by copyright, from software code to written manuals to product photographs to commercials. Small businesses and entrepreneurs in particular often use, adapt, and rely on works that have already been created to further their business goals. An understanding of the public domain gives entrepreneurs access to an ever-expanding catalog of creative works, while avoiding conflict with rightsholders.

Interested in more Public Domain Day content? More works entering the public domain in the US, together with some interesting historical commentary, are listed at Duke Law’s Center for the Study of the Public Domain. The Public Domain Review also has a more international look at what works are entering the public domain in countries across the world. Those who also operate across the border in Canada may be interested to read about Canada’s recent extension of its copyright term by 20 years, a move which has been criticized by some scholars.