One day, will Batman belong to everyone?
Everything eventually becomes public domain, after all. Shakespeare doesn’t get royalties when a high school drama club butchers The Tempest, but if they wanted to put on Hamilton, they’d owe Lin-Manuel Miranda money. The difference is, the newer work is under copyright and the older one isn’t. Work that isn’t under copyright is in the public domain, meaning anyone is free to do whatever they like with it — you can do a version of The Tempest where everyone has their dick out if you want.
This is a great thing — it means classic literature can be published cheaply and distributed freely. It means no-budget filmmakers have a wealth of material to adapt for nothing (and when someone does a big-budget version, like Steven Spielberg’s 2005 War of the Worlds, enterprising thinkers get to jump on it and bring out low-budget straight-to-DVD adaptations starring Jake Busey). Most Disney features are based on public domain fairy tales (just with added songs and adorable snowmen), and it’s certainly possible that, if 1843’s A Christmas Carol was still under copyright, Charles Dickens’ estate might not have authorized the Muppets version, the best film ever made.
“The principal way a work of authorship enters the public domain is through the expiration of the copyright term,” says Pamela Samuelson of the Berkeley Center for Law & Technology. “Under U.S. copyright law, copyright terms were initially 28 years, renewable for another 28 years by registering a renewal claim. These terms were extended in 1976 and again in 1998 — at this point, works created before 1925 are in the public domain.”
Creators can also explicitly make their work public domain, and until 1989, if you forgot to include copyright information, it was public by default. This is what happened with the original 1968 Night of the Living Dead, which was mistakenly released without a copyright notice after a last-minute title-change from Night of the Flesh-Eaters. There are enough similar oddities out there that Night of the Living Dead is just one of hundreds of films available on Voleflix, a public domain version of Netflix, alongside such gems as 1954’s The Fast & The Furious (nothing to do with Vin Diesel) and Howard Hawks’ His Girl Friday.
“I’d seen various ‘The 23 Best Public Domain Movies Ever’ articles and browsed archive.org, so I knew there was good stuff out there, but had to combine and cross-check various sources to get together a decent list,” says Matt Round, who created Voleflix. “Most of the movies are very old, but there are some real gems in there. There’s so much good film noir that I considered doing ‘Noirflix.’ The 1940s Superman cartoons influenced a lot of more recent animation, and the CGI-free stunts by Harold Lloyd and Buster Keaton are still impressive. Lapsed copyright renewals and notice technicalities put a lot of films into the public domain, but we’ll only see modern movies doing the same if owners voluntarily give up their rights. So you can freely watch an animated wartime Superman, but don’t hold your breath waiting for Henry Cavill to turn up on Voleflix.”
With movies, it can get really complicated, as a film in the public domain might also include material that isn’t — if the soundtrack contains copyrighted songs, for instance, even though the film itself is in the public domain, selling it would be in breach of copyright. Plus, the rules surrounding music entering the public domain are different to those with film, so while under current U.S. law Star Wars will enter the public domain in 2072, John Williams’ score will remain under copyright until 75 years after his death.
There’s also the fact that beloved characters don’t always stem from just one work. When Batman becomes public domain, for instance, it’ll happen bit by bit — villains, gadgets and various story elements were filled out over decades of publication. Some of the later Sherlock Holmes books are still under copyright in the U.S., which led to an unsuccessful appeal by Sir Arthur Conan Doyle’s estate that, as every story added detail and nuance to the character, he couldn’t be in the public domain until all of Doyle’s stories were (even though the last ones are really, really shitty). While elements introduced in these later stories remain under copyright, as soon as any single work’s copyright expires, it’s everyone’s.
But as stated earlier, currently, everything created before January 1st, 1925, is public domain, and every January 1st, another year’s worth of material joins it — in 2021, it happens to The Great Gatsby, published in April 1925. Next year, if you want to publish your own version of The Great Gatsby where every sentence ends with “and everyone had their dick out,” you can. In 2022, we all get to go hog-wild printing and selling our own versions of Ernest Hemingway’s The Sun Also Rises, and so on.
So here’s the biggie: Mickey Mouse made his first appearance in 1928’s Steamboat Willie, which enters the public domain in 2023. Does this mean it’s a free-for-all and everyone gets to make millions opening up their own Mickey Mouse theme parks?
You will not be shocked to learn that, no, it doesn’t. Disney saw this coming — in fact, the 1998 copyright extension (also known as the Sonny Bono Copyright Term Extension Act) was nicknamed the Mickey Mouse Protection Act in some circles.
“Some characters are claimed through trademark law as well as copyright,” says Samuelson. “The expiration of copyright doesn’t affect trademark rights, so anyone who is doing a derivative work has got to be careful about trademarks.” Trademark law is focused on protecting consumers from confusion about the origins of something, and isn’t affected by copyright expiring. Mickey Mouse is registered as a trademark, and as long as Disney keeps using him, they can renew their trademark indefinitely. The Tarzan books are in the public domain, but the name Tarzan itself is trademarked, so you still need permission from Edgar Rice Burroughs’ estate to do anything with the character. Even after 2023, if you made your own Mickey Mouse cartoons, Disney can (and indeed, almost certainly will — this, remember, is the $140 billion company that went after an elementary school for $250 because they showed the kids a Lion King DVD) argue that you’re infringing on their trademark. And they definitely will if you do the dick-out thing.
Trademark law doesn’t completely negate copyright expiring, though: It can’t be applied to everything, as characters are only trademarkable if they have “a secondary meaning” and “may also serve to identify the creator.” This includes “corporate authorship,” which obviously applies where the big-eared rodent is concerned. So, when Steamboat Willie goes public domain, it probably won’t, in real terms, change much: the only version of Mickey you can do anything with is the weird-eyed, gloveless one from that particular cartoon, and you can bet Disney will have a lot of lawyers on the case making sure nobody goes too far.
In short, there’s a huge amount of amazing stuff in the public domain — centuries of stories and characters free to anyone — but we’ll all be long dead before Chewbacca belongs to the world in the same way as Cinderella.