January 1, 2023 was Public Domain Day, the day each year when copyrights expire and new works enter the public domain. The “Progress Clause” of the U.S. Constitution established the legal basis for federal copyright law, and it did so in order to encourage the progress of our society, to incentivize the creation of new works that would eventually enrich the public domain and be accessible to everyone. So each work entering the public domain is an example of how that purpose continues to be fulfilled.
Under the copyright laws in effect at the time, works created in 1928 would have entered the public domain 20 years ago, when the duration of copyright was 75 years. However, Congress revised the Copyright Act to extend the copyright term for an additional 20 years. So now, after 95 years, those works entered the public domain this year, on January 1, 2023. They include such noteworthy literary texts as Virginia Woolf's To the Lighthouse, Thornton Wilder's The Bridge of San Luis Rey, Willa Cather's Death Comes for the Archbishop, Edith Wharton's Twilight Sleep, Herbert Asbury's The Gangs of New York, and all of Arthur Conan Doyle's Sherlock Holmes mysteries, as well as Alfred A. Cohn's The Jazz Singer, the first feature length film with sound and dialogue. Musical compositions that have just entered the public domain include "Funny Face" and "'S Wonderful" by Ira and George Gershwin (from the musical Funny Face), "Ol' Man River" by Oscar Hammerstein II and Jerome Kern (from the musical Show Boat), and Irving Berlin's "Puttin' on the Ritz," along with jazz standards "Potato Head Blues" and "Gully Low Blues" by Louis Armstrong and "Black and Tan Fantasy" by Duke Ellington.
The public is now free to build upon these works, including dramatists who wish to adapt them for the stage, without having to worry about securing any rights. That said, there are always caveats in terms of what, when and how works enter the public domain. For example, the original text of Herbert Asbury's The Gangs of New York is now in the public domain, but Martin Scorsese's 2002 film adaptation is still under copyright. Similarly, certain musical compositions have entered the public domain but many recordings of those compositions, by various recording artists, are still firmly under copyright. And a work may be in the public domain in the U.S. but still be protected in certain foreign territories.
Even if a work is still protected by copyright, the public still has a right of “fair use”, to use copyrighted works under certain circumstances. Given these complexities, then, it is advisable that you consult with an attorney to help you clarify a work’s copyright status and your right to adapt it or incorporate such material into your own work.
Please direct any questions you have to our Business Affairs department. They can also offer members any of the many past articles and seminars on the subjects of copyright, public domain, and fair use.