You may have heard that January 1, 2019, was a very important day for the public domain, but why exactly? Well for starters, it’s important to understand what “public domain” means. According to the Center for the Study of the Public Domain at Duke University, the public domain is “the realm of material —ideas, images, sounds, discoveries, facts, texts—that is unprotected by intellectual property rights and free for all to use or build upon.” This essentially means that when a book, movie, song, or other work is no longer copyrighted, it becomes part of the public domain. This means a researcher can quote the work freely; an artist could adapt the work; and, now that we live in the internet age, the work can be made available for free online.
Until 1998, copyrighted works in the United States passed into the public domain each year. As copyrights legally expired, the works became open to everyone. In 1998, United States copyright laws stated that copyright would expire 75 years after the creation of the work for any works created before 1978. After 1978, the copyright would expire 50 years after the author’s death (the law was changed in the 1970s, but only with concern for future works). Despite this law, no works were released into the public domain from 1998 to 2018. What happened?
This twenty year gap can be explained in just a few words: Mickey Mouse. While Disney was not the only corporate entity fighting to change the copyright law in 1998, they definitely spoke the loudest. Mickey Mouse first appeared on screen in 1928, in the film Steamboat Willie. This film, and by extension the likeness of Mickey Mouse contained within, was set to pass into the public domain in 2004. However, in 1998, after hearing from Disney and other interested companies, Congress passed the Sonny Bono Copyright Term Extension Act. This act extended copyright protections for 70 years after the author’s death, or 95 years for a corporate author. Most importantly, this act included works published before the passage of the act. This meant Steamboat Willie, originally covered by a 75 year copyright, was now given an extra twenty years of protection. Because of this retroactive 20 year extension, no works passed into the public domain for twenty years. The public domain was stuck at 1922.
Finally, the twenty year drought is over. As of January 1, 2019, the works that were published in 1923 have officially passed into the public domain. Surprisingly, many of these works were technically already in the public domain. In 1923, authors had to officially apply for copyright, it wasn’t automatically extended to a work. However, proving that a work was not copyrighted is a very odious process. For this reason, most people who use historic works prefer to wait for the year of creation to officially pass the public domain threshold before using the work.
Modern United States copyright laws are incredibly confusing, but here’s a simple way to think about it. Until 2073, works will pass into the public domain each year based upon their date of publication. In 2020 we will see works from 1924, in 2021 we will release 1925, and so on. After 2073, we will hit the point where the 1978 copyright law began enforcing copyright by death of the author, and releasing materials will become more complicated. But before then, we have a large part of the twentieth century to look forward to exploring.
With the excitement of Public Domain Day at the beginning of January, I began searching through the Ohio History Connection’s catalog, to see what items in our collections may have passed into the public domain this year. Here’s a few works that Ohioans were busy copyrighting in 1923:
Sherwood Anderson was born in 1876 in Camden, Ohio, growing up mostly in the city of Clyde, in Sandusky County. As one of seven children, Anderson was often at work as a child, earning some extra cash. In 1898, Anderson served in the Spanish-American War. He spent a brief period at Wittenberg Academy in Springfield, Ohio, but soon moved to Chicago to work as an advertising writer.
Anderson consistently cycled between marriage and divorce, marrying four women over the course of his life. In 1906, Anderson and his first wife moved back to Ohio, settling in Elyria, where Anderson worked for a paint company. However in 1912, he abandoned his wife and their three children to move back to Chicago and pursue writing full time.
In 1919, Anderson published his best known work, Winesburg, Ohio, based on his childhood in Clyde. He became known as a leader in the world of the short story, receiving many accolades for the style of the short sketches that make up Winesburg, Ohio. Anderson influenced the works of Ernest Hemingway and William Faulkner, even personally encouraging them to approach a publisher.
In 1923, Anderson published Many Marriages, a look at sexual freedom and relationships. Anderson died in 1941, while on a trip to South America with his fourth wife.
Zane Grey was born in Zanesville, Ohio, in Muskingum County in 1872. As he wrote in his novel, Betty Zane, Grey was an ancestor of Ebenezer Zane, well known in Ohio for aiding local trade by creating a rudimentary early road known as Zane’s Trace. Zane Grey grew up playing baseball and earned a scholarship to play at the University of Pennsylvania, where he studied dentistry. After opening his own dental practice in New York, Grey realized he was unhappy and turned to writing.
Grey began by putting pen to paper to chronicle the stories of his ancestors that had been passed down to him throughout his childhood. These were stories of the Ohio frontier, filled with action and excitement. Grey, who eventually moved to California with his wife and children, became well known for writing tales of the American West. These westerns were stand outs in the genre and well sought after by movie producers. By the time of his death in 1939, Grey had published nearly 90 books.
Grey’s two publications of 1923, Wanderer of the Wasteland and Tappan’s Burro, follow his typical style with exciting adventures on the Western frontier. Also in 1923, Grey first published a short piece titled The Vanishing American in Ladies Home Journal. This piece was one of the first public critiques of the treatment of American Indians by the United States. This subject has not disappeared from the public eye, and it will be important for scholars to now have full access to this early take on the topic.
Lillian and Dorothy Gish were born in the 1890s in Springfield, Ohio. They are listed here as an honorable mention, because the Ohio History Connection’s collections do document their story, but do not include the specific works that they produced in 1923.
The sisters were well known actresses during the silent film era in the early twentieth century. In 1920, Lillian became the first woman to ever direct a feature film. That year she directed Remodeling Her Husband, which featured her sister Dorothy. Over the course of their lives, both of the Gish sisters received numerous high profile awards for their work. Dorothy generally preferred comedic roles, while Lillian had a talent for drama. Dorothy passed away in 1968 and Lillian in 1993, a few months shy of 100 years old.
Lillian Gish has a complicated legacy, due to her work with D.W. Griffith. One of her breakout performances was in the film Birth of a Nation. While a box office success, this film included incredibly harmful depictions of African Americans and encouraged a resurgence in the Ku Klux Klan during the late 1910s.
In 1923, Lillian Gish starred in the film The White Sister, and Dorothy Gish starred in Fury and The Bright Shawl. These films have officially passed into the public domain as of January 1, 2019.
So why exactly is it important to end copyright protections on works of art? Why not allow the copyright to extend forever? As Mary Rasenberger of the Authors Guild has said, “There comes a point when a creative work belongs to history as much as to its author and her heirs.” Having full access to a long history of humanity’s works gives us a greater chance to understand ourselves in the past, present, and future. Copyrighted works can be enjoyed and analyzed, but public domain works can be manipulated and given new life.
More simply, the works that are available to us shape the way we remember our past and the cultural touchstones we create in the future. For example, how familiar are you with Sherlock Holmes? It’s likely that you’ve read at least one of Arthur Conan Doyle’s works or seen some sort of film adaptation. How do you picture a typical detective? Perhaps with Holmes’s deerstalker cap? Sherlock Holmes appears again and again in our culture, because he is one of the best written detectives in the public domain. It is easy to remake his story without incurring complicated fees or legal troubles. Agatha Christie’s Hercule Poirot is equally well regarded, but most of the works he appears in are still under copyright restrictions. So our idea of a detective is largely shaped by the works available to us. It really is elementary, my dear reader!
[An important note: even Sherlock Holmes has gotten trapped up by copyright problems. Because Arthur Conan Doyle published a few Holmes works after 1923, these works are still off limits in the United States (all of Sherlock Holmes passed into the public domain in the U.K. in 2000). The 1998 pause in public domain releases left many authors’ works only partially open for so many years.]
So why is the Ohio History Connection Archives & Library still preserving copies of so many works that have passed into the public domain? Won’t these works just be digitized and easily available online? Not necessarily. Sometimes, by the time a work passes into the public domain, it has been long forgotten and cast aside, leaving no original copy left to digitize. For example, one of the only known copies remaining of Dorothy Gish’s film The Bright Shawl, is being preserved by the UCLA Film &Television Archives. Had this institution not saved a copy, and found funding to conserve it, this film would not be available at all, even though it technically is no longer under copyright restrictions.
In addition, original copies of historic works possess something called artifactual value, meaning they have a value to researchers because of their physical form. Most items in an archive have informational value, which means the item’s usefulness is mostly based in its content. So, for example a letter from a Civil War soldier has informational value because it allows researchers to record the details of a battle it describes. Zane Grey’s novels from 1923 have artefactual value, because they can show us what a popular book looked and felt like at the time. This gets us closer to understanding the nuances of the experience of an early reader in a way that reproduced content cannot.
How will you celebrate Public Domain Day? For more on the works now available and the history of the public domain, check out the Center for the Study of the Public Domain right here. Let us know what public domain works you’re enjoying!
