Allow Me to Rain on Your Public Domain Parade
I’m sure you’re all very excited about the public domain again becoming a functional institution of American culture. I’m excited, too, but let’s all take a moment to be cranky one last time. Because this new public domain is different. Let’s just say it: it’s diminished.
We now have a copyright system that protects works for the life of the author plus seventy years or ninety-five years for works for hire. Here’s what this means in terms we can all relate to.
Buster Keaton’s film Our Hospitality entered the public domain in 2019. Buster Keaton died in 1966, fifty-three years ago. Buster Keaton had two sons, and both died about a decade ago. Buster Keaton’s granddaughter Camille, best known for starring in the controversial 1978 horror film I Spit on Your Grave, is now seventy-one years old.
Let that sink in. The creator of this new public domain work died over five decades ago, his children died about a decade ago, and his granddaughter is now in her golden years. For plenty of other 1923 works, I’m sure the grandchildren are also now deceased.
The term of copyright is now a weirdly long time.
This epic copyright protection is clearly contrary to the intent of these laws. Copyright is an incentive system intended to foster creation. Covering the life of the author makes sense. A buffer period after that for the creators’ family also makes sense. After that, copyright is no longer an incentive for creators. Instead, it creates inheritances, it creates assets.
I like copyright. It feeds and houses me. It doesn't need to feed and house my great grandchildren, though. https://t.co/eXhVtycMFq— Neil Gaiman (@neilhimself) December 9, 2018
I’ll take a step further than Neil Gaiman on this: I don’t think copyright needs to feed and house our grandchildren, let alone great-grandchildren, nor do I even think our adult offspring should be collecting our royalties.
The previous copyright term was set seventy-five years from the date of publication until the Copyright Term Extension Act was enacted, extending it to ninety-five years. This seems very generous, and if these laws remained, it would be works from 1938, not 1923, now entering the public domain. This would mean we would be receiving works from just prior to World War II, the signpost that begins our modern era. This is when the current world order was constructed. It marks the beginning of the age of American dominance, the baby boom, and the explosion of capitalism and economic growth. The world we live in now was very much forged by World War II.
This era still looms large in our cultural imaginations. Last year’s box office hit Dunkirk was a World War II movie. The critical hit The Imitation Game was about Alan Turing’s World War II code-breaking operation. And untold numbers of books, films, and documentaries have been created in our time about Adolf Hitler, the Nazis, and the Holocaust. We still feel the reverberations of this colossal period.
If we still had the previous public domain regime, works from the forties, a decade of titanic creativity, would be entering the public domain in the near future: George Orwell, Norman Mailer, Albert Camus, Casablanca, Citizen Kane, Goodnight Moon, The Bicycle Thief, Alfred Hitchcock, “The Lottery,” film noir, Arthur Miller, Tennessee Williams, Gaslight. All these are a mere tip of the iceberg.
Alas, it isn’t the works of this time we’ll get free access to for this troubled era in which we could use all the help we can get from the wisdom of our ancestors. Instead, it is the works of the 1920s, a less prolific age and one that simply feels far older than the couple of decades separating it from World War II. It’s a fuzzy era—literally. Photographic prints and films of this era are low resolution and black-and-white. Television didn’t exist. Recorded music was thin, trebly, and scratchy. Films were primitive concoctions that were almost entirely mute. The Jazz Singer, the first “talkie,” didn’t come out until 1927.
But weirdly long copyright it shall be. We’re going to return to the Roaring Twenties, the decade of jazz, the time of Prohibition. Like most of you, it’s a decade I know little about. And perhaps this is its advantage. Rather than revisiting well-known works like 1984 or Casablanca, we’ll be exploring lesser-known works by the likes of Aldous Huxley and Virginia Woolf. We’re all going to receive an education about this now obscure decade, book-ended between two catastrophic wars, a decade that ended in unparalleled economic collapse.
And of course, our journey only begins in the culturally unremarkable year of 1923. Treasures await in the coming years: Brave New World, The Treasure of the Sierra Madre, Virginia Woolf, The Sun Also Rises, The Trial, Upton Sinclair, William Faulkner, The Adventures of Tintin, the early works of Vladimir Nabokov, the prime works of Virginia Woolf. With each year we will be transported back into the imagination of a new year of the 1920s and onward.
One thing we clearly have in common with the 1920s is that this too is a period of flux and uncertainty. And perhaps the events of this period will resonate with our contemporary struggles. Perhaps the sight of blackface in The Jazz Singer will starkly exhibit the casual racism that reigned for most of America’s history. Perhaps the rise of fascism will serve as a warning of the autocratic creep much of the West is experiencing. Perhaps the Depression can remind us of how fortunate we are. Perhaps the New Deal can inspire grand new ideas.
There. We had one last binge of bad humor, and now we can celebrate. The public domain is again a living body of work, a body of work that will grow richer with each passing year, releasing countless classic works back to where they belong: our shared, collective imagination.