Let It Go

Copyright Law, Disney, and You!
written by Director of Dramaturgy Kate Farrington


U.S. copyright law is dumb.

I’m sorry—that was reductive. U.S. copyright law is a labyrinthine muddle resulting from some pretty impressive corporate and dynastic maneuvering.

Did you know that very few U.S. books, plays, music, films, etc, have entered what is known as the public domain (meaning their copyright has expired) in decades? The specifics are complex (and fascinating) but the gist is that in the last few decades the “goal post” for when works should come into the public domain keeps shifting.

When The Pearl considers a play for production, one of the questions we ask is whether the play is in the public domain or not. If, for example, we’d like to produce an Arthur Miller play we have to factor in asking permission of the estate and paying a certain percentage in royalties. And we have to be careful of sneaky fellas like George Bernard Shaw. He started writing in the 1890s when copyright laws were pretty nonexistent—then, when those laws kicked in in the 20th century he re-wrote some of his early plays just enough to copyright them and make a little money. A theatre company has to be careful not to use the re-written version if you aren’t paying for it!

For most of the 20th century the average copyright length was 56 years—an original copyright length of 28 years from the date of registration (in the case of books and plays, publication), with an option to renew for another 28 if you wanted. But in 1976 that changed to an automatic 50 year copyright from the death of the author. Then in 1998 the copyright was extended to be 75 years from the death of the author.

Oof. With me so far?

Good, because we’re coming to the twist! In 1998 new legislation also stipulated that anything copyrighted between 1923 and 1998 would stay copyrighted for 95 years from date of registration.

These extensions, particularly the 1998 twist had less to do with the grandchildren of authors coming out of the woodwork to protect their family fortune and a lot more to do with corporations. The Washington Post wrote an interesting piece about this a few years ago. Mickey Mouse was trademarked in 1928, and it’s not a coincidence that Disney was a vocal proponent of the 1998 extension. Under current law, they control the Mickey Mouse image for another 6 years.

But that 95 year “grandfathering in” rule is a bit of a pain. In most Western countries (who also use the death of the author plus75 years rule but not the Twist) there’s a yearly influx of new public domain works—every January 1, a whole new world of art, music, and literature become widely accessible for free public use.

This year, works whose authors died in 1945 are now available for public use in most European countries. In what I have to say I find a disconcerting twist of fate, both Mein Kampf and Diary of a Young Girl are now in the public domain.

But not here. Very little has come into the US public domain in decades. Duke University actually publishes a yearly list of what would have come into the public domain if our copyright laws were still in their pre 1976 state. It’s a fascinating list.

Assuming the legislation doesn’t change again, 2019 (which exceeds the 1923 plus 95 years rule) will be the first year in my lifetime that will see a number of U.S. works come out from under copyright. But that might be a big assumption. I don’t know if you’ve noticed, but Disney hasn’t exactly become LESS territorial about Mickey Mouse.

Look, I love me some copyright laws. Artists, inventors, and authors worked tirelessly throughout the 19th century to protect their work and the work of their peers (including playwrights like George Bernard Shaw and Dion Boucicault), and I’m glad they did. They deserve to enjoy the fruits of their labors before anyone else does. But I’m also pretty fond of easy access to great works of art for the most people—and the idea that so much of the great work of the 20th century will be tied up for another century? Not sure who that really benefits.

It just seems kinda dumb . . .