Copyright Advocacy: Between Never and Forever
Open Book Lot Photo
Photo by Patrick Tomasso

The year 2019 was a windfall for dramatists skilled at adapting works, as a large number of classics finally enter the public domain. Some of you may want to adapt works from other genres, e.g., Kahlil Gibran’s The Prophet, or Agatha Christie’s The Murder on Roger Ackroyd. Others may choose to adapt by simply updating something like George Bernard Shaw’s Saint Joan with contemporary edifice. 

The public domain has been described as “the place we quarry the building blocks of our culture.” Dramatists looking to mine the public domain for inspiration can use keywords like “public domain” and “2019” in their search engines. You might be inspired by Aldous Huxley’s Antic Hay, Virginia Woolf’s Mrs. Dalloway in Bond Street, or one of the many other works freely available for uses, good and bad.

Some of the works that entered the public domain in 2019, such as Harold Lloyd’s Safety Last and the classic Yes! We Have No Bananas, have been protected since 1923. This 96-year wait exhibits how quirky copyright law can be in this regard, especially with some parties staunchly advocating for ever-longer terms while others argue that copyright should exist only as long as profits from an initial distribution. 

The Guild is uniquely situated in its view of copyright protection. Dramatists both profit from an extended copyright term (extending those royalty payments), and benefit from free use of material in a robust public domain. 

From the dawn of time until relatively recently, authors’ control over their writings was questionable, at best. Our copyright laws come from, not surprisingly, England, initially existing as a mere right to publish (to “copy” using the Gutenberg Press). It was a right belonging to publishers under the Press Act of 1662. From a free-thinking perspective, the trade-off was pervasively sinister, with the government granting exclusive distribution rights to the Stationers’ Company (a guild of printers) in exchange for government-style censorship of all published works by those publishers. 

As the Press Act approached time for renewal, intellectual giants of the day, including John Milton and John Locke, criticized the publishers’ monopoly and control, using their political influence to defeat the renewal in 1694. Without the Press Act, publishers were unable to predict which works were worth the expense of distribution in a consistently changing landscape. Any publication might lose money based on completely unknown variables, such as how many competitors were producing the same work, at what quality, and in what region. Without the predictability of some exclusive ownership of the rights to reproduce and distribute works of literature, the risk was too costly. 

Beleaguered by this chaos, publishers eventually cooperated with authors, essentially conceding that the creators of the work were the true lifeblood of an entire industry. The new bill, passed in 1710, gave exclusive ownership of the writings to authors, and the publishers to whom the authors licensed their works. Predominantly springing from Locke’s theory that individual ownership of property derives from that individual’s labor (published in his “Second Treatise” of 1689), this was the first time that authors’ ownership of their writings was codified in law. 

Because the new bill was passed during the reign of Queen Anne, it was and is called the Statute of Anne. It offered a fourteen-year license to the author (and properly authorized publishers), with a potential fourteen-year renewal term. After this maximum time of 28 years, the works fell into the public domain. 

Guild members familiar with our history will see a clear parallel between Enlightenment-era authors and U.S. dramatists of the 20th century, as the Guild was born from concern over ownership and control of dramatic works—products of the dramatists’ labor—as against those who controlled the means of distribution—theater and motion picture producers.

At the time the Guild was formed, the U.S. was under the Copyright Act of 1909 which offered an initial 28-year term and 28-year renewal term, a total of 56 years. With the Copyright Act of 1976, things get tricky. While we know that works published in the U.S. prior to 1923 are in the public domain, works published between 1923 and 1978 might still be protected, depending on whether e.g., they were renewed properly, published after 1963, published in that space of time between passage of the 1976 Act (in 1976) and its enactment (1978). See Eric Basart’s excellent article, “Don’t Steal This Book – Adapt It!” from The Dramatist, July/August 2007. 

When the United States joined the Berne Convention, it harmonized its term to last for the lifetime of the author plus 50 years. However, this was a minimum amount of time under that Convention, with countries like Germany enforcing copyright for lifetime of the author plus 70 years. 

This created an imbalance for U.S. authors. Member nations of the Berne Convention agree to treat each author according to the laws of that author’s nation’s laws. Therefore, a German author would enjoy copyright protection in the U.S. for her lifetime plus 70 years, while a U.S. author’s work was only protected for his life plus 50 years. 

In reaction to this imbalance, Congress passed the Copyright Term Extension Act (the “Act”), extending the term of copyright to the author’s life plus 70 years. Those in favor of the Act called it the Sonny Bono Act in honor of the musician turned-politician, a sponsor of the bill who died before passage. They argue that the act “ensured adequate copyright protection for American works in foreign nations.” Some of the bill’s supporters advocated for much longer terms, such as Jack Valenti of the MPAA who was famously quoted as suggesting that copyright “last forever less one day.” 

Opponents to the Act noted that many supporters were not singer-songwriters sitting in a field, but media behemoths, such as the NFL, the NBA, Viacom, and noted miner of the public domain, Disney. They referred to the Act as the Mickey Mouse Protection Act, describing it as a windfall for publishers who could sit on works of exhausted profit, hoping that some new person would finally break down and pay a license fee to adapt some time-honored gem, such as Noel Coward’s London Calling—among those works entering the public domain in 2019. 

Ultimately, smaller and independent publishers sued the federal government, stating that the Act’s 20-year extension violated the U.S. Constitution’s directive that protection of works in the sciences and useful arts be “secured for limited times.” In this case, Eldred v. Ashcroft, the Supreme Court determined that 20 additional years was still a limited time, well within the intent of the Constitution. 

James Boyle described the public domain as the holes that are an integral component to the cheese itself. Regardless of how long you believe copyright should last, the time has come for some great works to enter the public domain, D.H. Lawrence’s The Fox and Cecil B. DeMille’s The Ten Commandments among them. It’s time to make some cheese.