Public domain, where there is life after copyright

For nearly four decades, United Airlines licensed George Gershwin's "Rhapsody in Blue" to be its musical identity. In 2020, however, Gershwin's jazzy classical classic fell out of the friendly skies – and landed in the public domain.

Which means, when the copyright expires, anyone is free to use and build upon that work. "No fees, no licenses, no tracking down the person who owns it, no permission," said Jennifer Jenkins, director of the Center for the Study of the Public Domain at Duke University Law School.

She said there are a lot of famous works that don't belong to their creators anymore – films like Charlie Chaplin's "The Circus," and Fritz Lang's "Metropolis," books like Ernest Hemingway's "The Sun Also Rises," and characters like Peter Pan, Dracula and Frankenstein. They're all now owned by us, the public, free for anyone to use to create something fresh.

Jenkins said, "The public domain doesn't represent the death of copyright. It's just the second part of copyright's life cycle."

The concept of putting an expiration date on intellectual property was something the founding fathers actually put in the U.S. Constitution, "...to promote the progress of science and the useful arts." They left it to Congress, however, to decide just how long copyright terms should last.

According to Jenkins, "If copyright lasted forever, it would be very difficult for a lot of creators to make the works they want to make without worrying about being in the crosshairs of a copyright lawsuit."

F. Scott Fitzgerald's "The Great Gatsby" was published in 1925. Anyone who wanted to use elements of the novel, whether it be Robert Redford or Leonardo DiCaprio, had to get permission from the Fitzgerald Estate, which held the copyright for 95 years.

Blake Hazard admits that's a long time, but doesn't think it's too long. "Then, that's my personal opinion, and I'm obviously biased," said Hazard, who is Fitzgerald's great-granddaughter, and a trustee of his estate.

When "Gatsby" finally entered the public domain in 2021, she watched as a slew of Gatsby-esque projects were waiting at the starting line, including the novels "Nick," a prequel by Michael Farris Smith; and "Beautiful Little Fools" by Jillian Cantor, and "The Chosen and the Beautiful" by Nghi Vo, which each retell the story of "Gatsby" through different characters.

"I always hope there'll be some faithfulness, but we don't have any control over it," said Hazard. "So, we just have to kind of embrace that."

She's just been invited to a new post-copyright adaptation of her great-grandfather's work – a "Great Gatsby" musical which opens on Broadway this month. "I hope it's good!" she laughed.

The show's writer, Kait Kerrigan, said, "We didn't want to do something that was wildly different from the novel. We wanted to add perspective and layers to the novel."

The director Marc Bruni said, "Any group of artists is going to distill down a story through their own lens."

The truth is, most works aren't lucky enough to be economically viable for as long as F. Scott Fitzgerald's, or Ernest Hemingway's, or even Walt Disney's.

This year, "Steamboat Willie," which unleashed two of the most lucrative rodents in history, entered the public domain. To be clear, though, don't go using the modern Mickey or Minnie, because they're still under copyright; it's only the version as they first appeared that's fair game.

Still, as soon as those first copyrights expired, we got this: a Mickey slasher film, "Mickey's Mouse Trap."  The same thing happened when A.A Milne's Winnie-the-Pooh entered the public domain: The very non-G-rated "Winnie-the-Pooh: Blood and Honey." 

• "Steamboat Willie" horror film announced as Mickey Mouse enters public domain (Variety)
• Trailer for Mickey Mouse slasher film drops on same day "Steamboat Willie" character enters public domain (Hollywood Reporter)

It's those kinds of re-imaginations that many estates fear.

Sherlock Holmes is one of the most recognized literary characters from the 19th century, but Sir Arthur Conan Doyle's estate began to see its copyrights begin to expire in the 1980s. Nevertheless, the Conan Doyle estate kept seeking licensing fees, arguing that since some of the later Sherlock Holmes stories were still under copyright, they should own the rights to all the characters still.

Author Les Klinger, one of the leading scholars on Sherlock Holmes, said, "At some point, enough is enough."

In 2013 Klinger was about to publish an adaptation of the supposedly copyright-free detective, titled "In the Company of Sherlock Holmes," when this happened: "The estate contacted that publisher and said, 'You need a license,'" said Klinger. "And we said to the publisher, 'No, you don't.' We just thought it was wrong, absolutely wrong, and it made us very angry."

So, Klinger filed a civil suit in Federal Court … and he won. "They didn't give up easily," he said. "They were trying to squeeze all the juice out of these lemons that they could right up until they've run out of copyright."

• Sherlock Holmes and the Case of the Public Domain (The Gotham)

Duke University's Jennifer Jenkins said, "Copyright gives rights to creators and their descendants that provide incentives to create. But the public domain really is the soil for future creativity."

There are surely more copyright clashes ahead. Characters like Bugs Bunny, Superman and Batman will all find themselves out of copyright protection soon enough.

Even Luke Skywalker will eventually find himself in the public domain, too, sometime around 2073. That sure seems like a galaxy far, far way.

      
For more info:

• Jennifer Jenkins, director, Center for the Study of the Public Domain, Duke University
• Public Domain Day (January 1): New works added in 2024
• The Estate of F. Scott Fitzgerald
• "The Great Gatsby" at the Broadway Theatre, New York City | Ticket info
• "Sherlockian" Leslie Klinger

     
Story produced by Mark Hudspeth. Editor: Ed Givnish. 

In:
• public domain
• Mickey Mouse
• The Great Gatsby
• copyright

Lee Cowan

Lee Cowan is an Emmy award winning journalist serving as a national correspondent and substitute anchor for "CBS Sunday Morning."

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