The famous 20th Century author and poet T.S. Eliot once famously claimed that “good writers borrow; great writers steal.” While perhaps a clever adage for the budding writer, this philosophy is somewhat of a nightmare for those of us trying to navigate the murky waters of intellectual property law. The business of deciding who owns certain ideas is a tricky one—especially when the technological means and modes of expressing those ideas advance every day.
2019 is a paramount year in the history of American copyright law. It marks the first year that works published after 1923 will begin to enter the public domain on an annual basis. Historically, copyright laws have tended to favor literary estates and media/publishing companies over the general public, granting progressively longer terms of copyright protection.
Initially, works published from 1923-1977 were to be protected under copyright for 56 years. The Copyright Act of 1976, however, extended this coverage to 75 years. This was then followed by the Copyright Term Extension Act of 1998, which pushed protection out to a lengthy 95 years.
As the ball dropped on the night of December 31, 2018, so too did the copyright protections for works published in 1923 as they finally hit their 95-year limit. Works such as Tarzan and the Golden Lion by Edgar Rice Burroughs; Murder on the Linksby Agatha Christie; New Hampshire by Robert Frost; and The Prophet by Kahlil Gibran can now be adapted, reimagined, re-edited, and re-interpreted by the general public without having to secure a copyright license.
Of course, there is always the ongoing concern that allowing everyone creative access to classic works opens the floodgates for a deluge of inferior copies—whether they be campy spinoffs, irreverent parodies, or just poorly executed retellings. Those in favor of more stringent copyright protections argue that open access may only serve to degrade the source material.
But consider the trajectory of L. Frank Baum’s beloved novel, The Wonderful Wizard of Oz. Published in 1900, the novel did not enter the public domain until 1956. Almost 40 years later in 1995, children’s literature scholar Gregory Maguire published a revisionist, satirical version of Baum’s novel entitled Wicked: The Life and Times of the Wicked Witch of the West. This book would go on to be adapted for the stage as the famous musical Wicked. It is currently Broadway’s second highest grossing show of all time, amassing over $1 billion in revenue during its 16-year run.
Perhaps it is also worth looking at the creative shelf life of Sir Arthur Conan Doyle’s famous deductionist detective, Sherlock Holmes. First appearing in print in 1887, Holmes has been portrayed by dozens of actors and has been the inspiration behind multiple films, television series, video games, radio shows, museum exhibits, derivative short stories, and even cartoons.
Admittedly, not every new iteration of Sherlock Holmes bears the artistic merit of the original. But for every failed re-imagining, there’s a good one; an inventive one; a thought-provoking one. Take for example the recent re-imagining of Holmes on the BBC television series Sherlock, a show that has managed to collect a cache of Emmys, BAFTAs, and Golden Globes for its excellent writing, acting, and production.
But even with such a ubiquitous cultural icon like Sherlock Holmes, there are still ongoing copyright debates. Interestingly enough, Doyle’s final collection of Holmes stories, The Case-Book of Sherlock Holmes, contains stories published before and after 1923, straddling the cutoff year for copyright protection. As a result, the very last part of the Sherlock Holmes canon will not enter the public domain until 2022.
In 2013, Conan Doyle’s Estate went to court against Leslie Klinger, an editor attempting to complile and publish an anthology of new Holmes stories. The estate argued that Klinger was committing copyright infringement by using characters from stories still technically protected under copyright law. However, Judge Richard Posner of the Seventh Circuit Court of Appeals ruled that the characters of Holmes and Watson were already in the public domain, and were therefore free to use notwithstanding their appearances in Doyle’s later works.
This ruling is perhaps evidence that the scales are beginning to tip back in favor of the public when it comes to the accessibility and usability of classic works. As we approach the 2020s, we are opening a time capsule of literature that has been largely off limits (creatively speaking) for almost a century. The Roaring Twenties and Post-WWI years produced some of the most talented writers and profound thinkers of the modern era, including Agatha Christie, Virginia Woolf, T.S. Eliot, F. Scott Fitzgerald, Robert Frost, Ernest Hemingway, William Faulkner, Joseph Conrad, and many others. For better or for worse, it will be interesting to see what the public does with the new material up for grabs. The possibilities are quite literally, endless.
If you have any questions regarding intellectual property or copyright infringement, please contact Maurice N. Ross.