What Public Domain? Why A Letter Written In 1755 Is Still Covered By US Copyright Law

from the stamping-out-the-public-domain dept

Robert Brauneis notes that the lyrics to “Happy Birthday” were published in 1912 in The Beginners’ Book of Songs and again in 1915 in The Golden Book of Favorite Songs. (The music is much older.) Yet according to the current owners of the presumed copyright in “Happy Birthday,” these early publications were unauthorized. They argue that the first authorized publication of the lyrics to “Happy Birthday” occurred in 1935 and copyright runs from that date. Digitizing either the 1912 or 1915 volumes or singing the lyrics to “Happy Birthday” as found in the books would therefore infringe on the copyright first secured in 1935.

Probably the oldest work still protected by copyright in the U.S. is a letter from John Adams to Nathan Webb written on Sept. 1, 1755. Copyright in the Adams material was transferred to the Massachusetts Historical Society (MHS) in 1956. In that same year the MHS published a microfilm edition of the correspondence and registered the copyright with the Copyright Office. Copyright was renewed in 1984, which means that copyright in the Adams letter will expire on Jan. 1, 2052, almost 300 years after it was written.

An allegedly infringed work reportedly has a title page stating that it was published. Furthermore, the defendants also claim that the work was distributed to more than 55,000 people. Nevertheless, the work is registered as an unpublished work with the Copyright Office. This is because the work was never offered to the public; instead, it was only to senior officials and leaders of the Mormon Church.

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If you ever done any research about the public domain, you've probably come across this awesome chart from my alma mater, Cornell, that tries to explain how you can figure out if something is or is not in the public domain in the US. I've relied on the chart many times (and linked to it a bunch as well). Now, Peter Hirtle, one of the people behind that chart, has an equally fantastic and frustrating article detailing how difficult it is to determine if something is actually in the public domain (and the fact that so little enters the public domain in the US any more). Hirtle kicks it off by recognizing the importance of the public domain, including the fact (often ignored, it seems) that all copyrighted worksenter the public domain at some point. He then goes into a series of seven reasons why it's so incredibly, ridiculously difficult to ever figure out if something is in the public domain.A few years back, we wrote about a fantastic research report that suggested for all of the claims that the song "Happy Birthday" remains covered by copyright, there was a lot of evidence that it was still in the public domain. After all, the music is from the 1800s and the lyrics were published in books starting in 1912. And, of course, as the handy dandy chart notes, works published prior to 1923 aren't supposed to be subject to copyright. But.. it's not always that simple:Yes, you read that right. If you digitized books from 1912, you could infringe on a copyright from 1935. That is not a functional system.But that's not the only crazy case. Hirtle highlights another example of what he believes may be the oldest work still covered by US copyright... and it's from 1755:There are a number of other crazy examples as well. Take, for example, arguments over whether or not a work is "published" or "unpublished." This can matter, especially for older works, since there were different copyright rules depending on the publishing status of the work. But, the definition of "publication" isn't always clear, especially for pre-1978 works (see the example above). And that can create bizarre examples like the one below from an actual court case Similarly, he notes that merely broadcasting a TV show wasn't considered "publishing." So TV shows like the first episode ofdon't have their copyright clock start until nearly a dozen years after it was first broadcast, because that's the first time it was "offered for sale" rather than just broadcast.Reading through all of the examples, it's a great lesson in how screwed up copyright law is today, especially with regards to the public domain -- a sadly neglected part of American culture.

Filed Under: copyright, public domain