Category Archives: Public Domain

China’s Controversial Court Rulings on AI Output—and How It May Affect People in the US

Posted April 3, 2025

these AI-generated images were found to be copyrightable by courts in China

The copyrightability of AI-generated works is a hotly debated issue. We recently blogged about the first US appellate court decision on the copyrightability of AI-generated works. In Part I of this blog post, we examine the five decisions handed down by Chinese courts so far on the copyrightability question over AI-generated works.

We believe ours is the first attempt to examine these five cases together. These copyrightability cases, individually, are receiving lots of attention in Chinese media. The general public in China has very pro-copyright and pro-enforcement sentiment nowadays. This may explain why courts have issued decisions that largely sided with the creators of AI-generated works; according to some judges in China, their job is to issue rulings that fit with the expectations of the plaintiff, the defendant, and the public.

These AI copyrightability cases are barely ever discussed together as congruent jurisprudence, because, like with most legal questions, courts in China rarely need to pay attention to precedents. Only since 2010 are courts in China required to follow certain Supreme People’s Court’s decisions. None of the cases discussed below are precedential.

These decisions, then, are just one-off incidents—barely impactful in terms of damages born by the defendants or precedential effects for future cases to be decided in China. The deadline for appeal has long passed for all five cases, and the decisions are final for the parties involved. But for people in the US, one big question is whether these Chinese courts’ non-precedential decisions could potentially be upheld and enforced by US courts. We consider this question in Part II, below.

Part I, Chinese Courts’ Copyrightability Holdings

China’s judicial system seems to be moving really fast. While most countries are still slowly working toward articulating their stance on AI-generated works, courts in China have already released multiple opinions addressing AI, both in terms of training and copyrightability of AI output. Researching these cases is challenging, however, because there is no single unified database for court opinions in China.

In Beijing Feilin Law v. Baidu, the Beijing IP Court issued an appellate decision in 2020 partially upholding and partially overturning the lower Beijing Internet Court’s 2019 decision. Many refer to this case as the first case in China dealing with computer-generated works, because part of the dispute was centered on whether some computer-generated charts were copyrightable. In reaching the decision that the computer-generated charts are not copyrightable, the appellate court reasoned:

Although there are differences in the graphics, shapes, and the data represented, these differences resulted from choices in data selection, software, or graphics. The graphics used are common shapes in data analysis like bar charts, pie charts, and line graphs, which do not reflect the originality of Feilin Law Firm’s expressions. While Feilin Law Firm claims to have manually enhanced the lines and colors of these graphics, no evidence has been provided to support this assertion.

The court still managed to award Feiling Law Firm damages based on the right of integrity, because when Baidu reposted Feilin’s article, Baidu deleted more than 20% of the article. The damages awarded was 1,000 rmb plus 560 rmb in reasonable fees (totaling about $216 USD—peanuts to Baidu, which is valued at $34.5 billion USD). Overall, because the court refused copyright to the computer-generated charts, we are tempted to infer that human authorship is necessary for a computer-generated work to be copyrightable in China, very similar to the rule in the US.

At first glance, a second case, Tencent v. Shanghai Yingxun, confirms the assumption that human authorship is necessary for copyright protection for AI-generated works in China. However, the ruling is not entirely straightforward once we examine more closely the court’s reasoning on what constitutes the original human authorship needed for copyright protection:

The article was created through (1) data training, (2) prompting and article generation, (3) AI-enabled editing and (4) AI-enabled publication. In this process, the Plaintiff’s team members had to make selection and determination on the cleaning and inputting of data, prompt engineering, the selection of article template and language corpus, and the training of the editor function. The key difference between the creative process in this case and what we commonly see with other human creative processes is that the original human choices are made prior to when the article was written in terms of what data to use, what theme to focus on, and what style and tone to adopt. This court holds that such asynchronicity is caused by the technology. … If we consider the two-minutes it took for the article to be generated to be the entire creative process, then no human authorship was involved; however, Plaintiff determined how the program was run, and the article was generated in a way that was determined by both how Plaintiff intended that program to work and how the program functions based on its technical characteristics. If we see the two-minutes it took to generate the article as the creative process, we are in effect taking the machine to be the author of the article, which does not match our understanding of reality or justice. … We do not need to investigate if the originality of the article stems from the contributions by the program’s developer, because the developer has already agreed in a contract that the Plaintiff holds copyright to anything created by the program.

This case resulted in 1,775 rmb (around $245 USD) fees and damages awarded against the Defendant; the impact is minimal on the parties directly involved. Even though the opinion affirmed the necessity of human authorship, the reasoning behind it is in direct opposition to the US Copyright Office’s position on the lack of copyrightability for AI-generated works. Whereas a consensus is forming in the US that AI outputs are beyond the controls of humans, that prompt engineering does not lead to foreseeable outputs, and that AI-generated works are categorically uncopyrightable, China seems to be leaning towards an unsustainable position that any human input at all during the prompting stage could lend copyright protection to an unpredictable AI output.

In late 2023, for the first time ever in the world, a court got to determine whether a user owns copyright to an entirely AI-generated image in the case of Li Yunkai v. Liu Yuanchun. The Plaintiff in this case was a lawyer by profession; he also created visual art using text-to-image generative AI on the side. The Beijing Internet Court reasoned:

As to whether images generated using artificial intelligence reflect the author’s individualized expressions, it requires case-by-case determination. Generally speaking, when people use models like Stable Diffusion to generate images, the more their requests differ from other users and the more specific and clear the descriptions for the image and composition, the more the author’s individualized expressions will be reflected in the final image. In this case, the image exhibits identifiable differences from prior works. On the one hand, the plaintiff did not personally draw the lines or even fully instruct the Stable Diffusion model on how to draw particular lines and colors, it can be said that the lines and colors that form the images were essentially “drawn” by the Stable Diffusion model, which is quite different from how people traditionally use brushes or drawing software. However, the plaintiff designed the female character and its presentation via prompts, and set the layout and composition by changing image parameters, reflecting the plaintiff’s choices and arrangements. On the other hand, after obtaining the first image by initially inputting prompt words and setting related parameters, the plaintiff continued to add prompt words and modify parameters, continually adjusting and correcting the image until the final image was achieved. This adjustment and correction process reflected the plaintiff’s aesthetic choices and personal judgment.

Essentially, the court granted copyright to AI output based on prompt engineering alone. The Defendant was ordered to pay the Plaintiff 500 rmb (around $69 USD) for removing the copyright notice as well as distributing the infringing image online without permission. The Plaintiff accepted the court’s holding, but refused to take any money from the Defendant, saying money was not what he was seeking. The decision is criticized by some Chinese scholars for granting copyright to wholly AI-generated images, potentially leading to an oversaturation of AI-generated images, further marginalizing human authors. There remain strong proponents in China that advocate for a bright line rule—that AI-generated images are never copyrightable.

With the previous two cases in mind, it should not come as a surprise that, in 2024, the Plaintiff in Lin Chen v. Hangzhou Gaosi Membrane Technology was able to assert his copyright in an AI-generated image when he used both Midjourney and Photoshop to manipulate the image. The court examined the contract terms between Midjourney and Plaintiff, as well as looked at the prompt-author’s activity log and creative process, before reaching the conclusion that the AI output was copyrightable. The court reasoned that the work was copyrightable because the Plaintiff had creative control over the output and the output embodied the author’s intended original expressions, and socially-speaking, allowing prompt-authors to be copyright holders to their AI output would encourage more creative activities that utilized AI. The key facts related to the creative process are as follows:

The plaintiff began designing the image using Midjourney GAI. Initially, Plaintiff entered the following prompts: “On the Huangpu River” “at night” “there is a string of large and small hearts” “floating in the water” “lights” “advanced” “reflection” “details” “ realistic” “4k ” “no people” “High environment/Canon E0S 5Diii” and Midjourney generated four images with heart-shaped balloon. The Plaintiff continued to engineer prompts, such as inputting “there are multiple red love balloons”“there is a huge red love balloon” “lying on the water” “half soaked in water” “rose petals composed of love” “only half of the surface of the water” to manipulate the size, number, shape, and position of the balloons. When the output was unsatisfactory, the Plaintiff took the image to Photoshop, changing the shape of the balloon, and reimported the resulting image back into Midjourney for further tweaking. After that, the Plaintiff took the image to Photoshop once again before finalizing the design on 2023/2/14 at 23:40.

In this case, beyond copyright infringement through unauthorized distribution, the removal of copyright notice was also found to be infringing on the Plaintiff’s right to integrity. The Defendant was ordered to pay 1,000 rmb in damages and 9,000rmb in reasonable fees (totalling around $1383 USD). Interestingly, the Defendant was only held liable for reposting the image, but not found infringing for creating a 3D submerged-heart statue based on the infringing 2D image. Some people—including the Plaintiff—argue that this result is only due to mistakes made in the copyright registration process, that the Plaintiff failed to register 3D rendition of his 2D design. Although, a more compelling reading of the opinion would be that copyright for a half-heart design is thin, and people are free to make different renditions based on the same half-submerged heart idea.

Similar to the reasoning provided in the Li Yunkai case, this February, the court in Wang v Wuhan Technology Company (The link takes you to the court’s official report; full opinion for this case could not be found as of 3/20/2025) determined that the Plaintiff’s AI-generated work was entitled to copyright protection because the Plaintiff could foresee and control the resulting image to a certain extent, and the prompts Plaintiff inputted into the AI system embodied his unique human expressions which directly correlated to the final AI-generated image. Defendant was ordered to pay 4,000 rmb (around $553 USD) for their infringement.

As we mentioned at the beginning, these cases are not precedential in China, despite being final. If the general societal sentiment in China continues to lean towards AI-artists receiving copyright protection for their works, any new rulings would likely come out similarly—granting copyright to AI-generated works. Until inevitably, the Chinese courts must re-examine their flawed reasoning, when stockpiling happens, when AI companies stop assigning “copyright” to users of their AI models, when human authors start to lose jobs en masse, and when the judges can’t figure out if an AI-artist should be held liable for a copyright-infringing AI-generated image when all the artist has done was providing some simple text-prompts.

Part II, Will US Courts Grant Copyright Protection to Foreign AI Works?

Looking beyond China, the UK, Ireland, South Africa and Ukraine all have adopted laws that specifically grant copyright to computer-generated works. In this part, we discuss whether copyright granted in foreign jurisdictions will be upheld by US courts.

*the 9th Circuit did not challenge the French court’s decision that the photo on the right had a copyright separate from the elements taken from Picasso’s original image on the left*

There are two main questions US courts may need to consider regarding foreign AI-generated works: (1) whether to apply foreign law to determine the copyrightability of foreign AI-generated works, and (2) whether to enforce foreign judgments that upheld AI-generated work as copyrightable and unlicensed use infringing.

First, will US courts defer to foreign law when determining whether AI-generated work created in a foreign jurisdiction is copyrightable? We think it unlikely.

The issue raises what is known as a “choice of law” question. The answer in the copyright context depends on how US law incorporates obligations under international treaties such as the Berne Convention, as well as common law principles that are more generally applicable. Itar-Tass Russian News Agency v. Russian Kurier, Inc. (2d Cir. 1998) is among the most cited cases to decide this issue under the current Copyright Act. In Itar-Tass, when deciding whether to apply US law or foreign law, the court distinguished between the question of copyright ownership and the question of copyright infringement. For copyright ownership of a foreign work, the Second Circuit applied foreign law.

For infringement issues, Itar-Tass states that “the governing conflicts principle is usually lex loci delicti. . . . We have implicitly adopted that approach to infringement claims, applying United States copyright law to a work that was unprotected in its country of origin.” (citing to Hasbro Bradley, Inc. v. Sparkle Toys, Inc., (2d Cir.1985). The distinction between ownership and infringement is not arbitrary. The infringement question addresses the scope of copyright protection, whereas the ownership question addresses who gets to enjoy that protection. It is well established that the US does not grant additional protection to foreign works compared to US works: for example, in the US, a foreign copyright holder would not be able to point to foreign laws to request moral rights for his work (see Fahmy v. Jay-Z (9th Cir. 2018)).

Because the United States has joined the Berne Convention and implemented it in US Copyright Law, U.S. courts must give the same protection to foreign works as to US works, and this deference to foreign copyright includes a presumption of the foreign copyrights’ validity. However, the presumption of validity is different from a copyright being in fact valid under US copyright law: a defendant can always challenge a registered, presumptively valid, copyright. As discussed in Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (9th Cir. 2022), “[equal treatment] simply means that foreign copyright holders are subject to the same U.S. copyright law analysis as domestic copyright holders… [I]t does not mean we can change the rules of the game simply because foreign copyright law is implicated.” Whether an AI-generated work is copyrightable similarly would have to be equally subject to review under US copyright law, regardless of whether it was created in the US or a foreign jurisdiction.

Many cases have followed this principle that US law will be applied when determining questions of originality and copyrightability. In Molnarova v. Swamp Witches (S.D. OH 2023), a case brought by Slovakian artists, the district court explained “Although [Plaintiff] is correct in asserting that Slovakia law applies to the question whether she owns a copyright in the Tumblerone, the question of who owns a copyright is distinct from what protection that copyright provides. The latter is governed by United States law, more specifically the Copyright Act. In other words, even if Slovakia offers copyright protections to the Tumblerone as alleged by Plaintiff, she must still show that the Tumblerone is protectable under United States copyright law.” (citing to a series of other cases in agreement.)

One notable outlier to this rule is TeamLab v. Museum of Dream Space (C.D. CA 2023), where the court applied Japanese law in deciding whether the works in question were copyrightable. The TeamLab court essentially only required valid copyrights in Japan for the works to automatically enjoy copyright protection in the US. Because the works were “creatively produced expressions” eligible for copyright in Japan, the court accepted the works as protected by valid copyrights in the US as well, without explicitly scrutinizing the works under US law. The Teamlab court’s confusion likely arose out of the court’s conviction that applying US law would have led it to the same conclusion (—e.g., with language like “in both Japanese and U.S. copyright law, a work need not be novel to be original” and “Under both Japanese and U.S. law, Plaintiff retains a copyright”).

Even if a court were to follow Teamlab and apply foreign law on the question of copyrightability, a US court may still very likely interpret Chinese law to grant no copyright to AI-generated works. On paper at least, China only grants copyright to “fruits of intelligence” (Art. III, Copyright Act) which so far has been interpreted to mean human intelligence and human authorship. Especially when so many Chinese legal scholars do not believe AI-generated works contain enough “human intelligence” to warrant copyright, it is likely a US court will determine AI-generated works are uncopyrightable under Chinese copyright law. In any case, defendants in US courts would almost always want to challenge the validity of copyrights given to AI-generated works.

Let’s now move on to the second question: Will plaintiffs be able to enforce foreign copyright judgments in the US? We believe there’s a possibility that opinions issued by foreign courts granting AI-generated works copyright protection will be enforceable in the US, but jurisprudence seems unsettled in this area.

We have written about one case addressing this issue before: when the Plaintiff in Sicre de Fontbrune v. Wofsy (9th Cir. 2016) sought to enforce a foreign judgment on copyright infringement, the Ninth Circuit did not second guess the French court’s decision on copyrightability, even though the work at issue was a faithful 2D scan of an existing work, lacking originality and thus uncopyrightable under US law. The defendant did not request the Ninth Circuit to reexamine the copyrightability issue. Had the defendant raised the argument that the photograph in question did not meet the originality requirement under French law—or under US law, maybe the Ninth Circuit would have done its own copyrightability analysis. We cannot be sure how the case would have played out had the question been raised.

In a similar case brought to the Second Circuit, SARL Louis Feraud Int’l v. Viewfinder (2nd Cir. 2007), the circuit court explained that courts rarely refuse to enforce foreign judgments unless they are “inherently vicious, wicked or immoral, and shocking to the prevailing moral sense.” The circuit court reasoned that “if the sole reason that Viewfinder’s conduct would be permitted under United States copyright law is that plaintiffs’ dress designs are not copyrightable in the United States, the French Judgment would not appear to be repugnant. However, without further development of the record, we cannot reach any conclusions as to whether Viewfinder’s conduct would fall within the protection of the fair use doctrine.”

Essentially, the circuit court made the distinction between copyright protection (which is an economic right fabricated by Congress that does not implicate morality or public policy) and fair use, which is an embodiment of a First Amendment right that represents strong public policy concerns. When SARL was remanded to the district court, the French judgment was not enforced. In reaching its decision to not enforce the foreign judgment, the district court did not address the copyrightability issue (that fashion design is uncopyrightable in the US), but entirely based its decision on a fair use analysis rooted in US copyright law, in accordance with the circuit court’s instructions.

Notably, the circuit court in SARL referred to the relevant state statute, N.Y. C.P.L.R. § 5304(b)(4) (and New York’s adoption of the Uniform Foreign-Country Money Judgments Recognition Act) as the basis for its decision. There is no federal law regulating the enforcement of foreign judgments, and the US is not a party to any international treaty that requires US courts to enforce foreign judgments. (Compare the situation to how the Berne Convention obligates US courts to provide copyright protection to foreign works.) Most states have similar laws about enforcement of foreign monetary judgements, though there are some important differences. Depending on the applicable state laws, US courts can sometimes substantively review foreign judgments, like when the SARL court relied on fair use under US law. A defendant should have a fair use defense ready if a US court is considering enforcing a foreign copyright infringement ruling.

Even if courts were to enforce the opinions issued by Chinese courts, the good news is that Chinese courts typically award limited damages to the plaintiffs (because AI works are cheap to generate). Also important to remember is that foreign courts only address infringing acts in their jurisdictions, so this is not an issue for parties without an overseas presence. US courts also take procedural due process into account when deciding whether to enforce a foreign judgment; it would be farfetched to worry that US courts will enforce foreign judgments entered against entirely unsuspecting US defendants.

Public Domain Day—A Diversion to Sound Recordings

Posted December 29, 2024

Image of 78 RPM disc on Victor player — 78 RPM disc on Victor player (photo © Eric Harbeson)

Happy Public Domain Day!

Every January 1st the United States adds a new crop of works to its public domain. Though the term of copyright is very long, the Constitution provides that it must—eventually—end. This transition is arguably the most important moment in the life of a creative work, excepting only its initial creation. The end goal of copyright in the first place is to encourage the creation of new works, and the public domain is the shared pool out of which those new works may be freely forged. For a great explainer about the value of the public domain, check out the annual Public Domain Day post by our friends at the Center for the Study of the Public Domain! In this post, we thought we would do something a little different from our normal fare and spend some time talking about sound recordings, which only started entering the public domain in the last few years.

As a general rule, works published prior to 1978 have a maximum copyright term of 95 years. Thus (because copyright terms run through the end of the calendar year) on January 1 all works first published in 1929 will be free to use. Well, almost all works. From a copyright perspective, sound recordings are a bit different in several ways, and one way is they are subject to somewhat longer protection. The discrepancy illustrates the curious space sound recordings occupy in US copyright law.

The history of why sound recordings are treated differently is very interesting. It is also too involved to do it justice in a blog post. For thorough treatments of the subject, check out the fascinating articles by Bruce Epperson and Zvi S. Rosen. Each goes into depth on the legal conflicts that arose as artists, scholars, inventors, and policymakers struggled to understand and form policy around the emergence of two new media—sound recordings and piano rolls—that were unlike anything previously known in history.

In short, federal copyright law has only protected sound recordings since February 15, 1972, which was the effective date of the Sound Recordings Act of 1971. Recordings made since that date have been subject to the same laws as any other copyrightable work from the moment they were fixed. However, the Act was not retroactive, so recordings fixed before that date were excluded from federal protection. The Copyright Act of 1976, which completely revised U.S. copyright law, preserved that dichotomy: recordings fixed after 1972 were included; pre-1972 recordings were not.

Though pre-1972 recordings were not protected by federal law, states were free to protect them. States protected pre-1972 recordings perpetually through their common law (as though they unpublished works, which prior to the 1976 act were also protected by state common law), with most states then codifying that protection in criminal statutes. Though state protection was in theory perpetual, the 1976 Act nonetheless put a time limit on that protection—all state protection for pre-1972 recordings was to be preempted and cease in 2047 (75 years after the Sound Recordings Act). The Copyright Term Extension Act later extended that date by 20 years. Thus, all pre-1972 recordings, regardless of how old they were, would remain under state protection until 2067. Had the situation not changed, by the time any domestic recordings entered the public domain, the oldest recording would have been more than 200 years old!

The cabining of pre-1972 recordings was narrowed in 1994, when the Uruguay Round Agreements Act (URAA) took effect. The URAA amended the Copyright Act to provide retroactive copyright to foreign works that had entered the public domain due to failure to non-compliance with formalities, lack of national eligibility, or because they were pre-1972 recordings. This Act inspired the case of Golan v. Holder, which challenged (and eventually affirmed) Congress’s ability to remove works from the public domain. Among other things, the URAA brought pre-1972 foreign recordings (which were not actually in the public domain) under federal copyright. Meanwhile, domestic pre-1972 recordings remained under the exclusive care of the states, with a true public domain only in the distant future.

One result of leaving protection to the states was variations in treatment among the states. The term of protection is one good example. Most states protected recordings for the maximum term permitted by Congress; however, some states cut off protection earlier. One notable example is Colorado, which protected recordings only for 56 years—significantly shorter than in other states (Colorado was also one of only two states to refer to that protection as “copyright”). There were also differences in the nature of the protection. All but two states (Indiana and Vermont) enacted criminal statutes codifying protection; only one state (California) also codified civil penalties. Some states had exceptions for non-commercial use, or for libraries, or both; some had neither. Only one state (New York) had established a common law fair use doctrine for sound recordings, and none had codified the doctrine in a statute.

This resulted in some strange paradoxes in the law, with often sharp disparities. One such result was that recordings and the underlying musical composition they embodied might have different terms of protection. As one typical example, the sheet music for George M. Cohan’s 1917 song, “Over There,” entered the public domain at the end of 1992; however, Nora Bayes’s recording of the same song from the same year would have been protected in most states until 2067. Another example of disparity resulted from differences in federal and state treatment of public performances. Because no state explicitly provided exclusive rights to public performances, for example, no license was needed to publicly play the sound recording of Marvin Gaye’s 1971 hit, “What’s Going On,” but a license was required to play his recording of “Let’s Get It On,” recorded only two years later (licenses were still required for performance of the underlying musical works).

	Musical Composition	Sound Recording
What’s Going On? (1971)	License required	No license required
Let’s Get It On (1973)	License required	License required

Licensing public performance of Marvin Gaye works before the Music Modernization Act.

The situation was unnecessarily complicated, and was frustrating to nearly everyone involved. Recording artists and labels disliked the disparity in performance rights between pre- and post-1972 recordings. Public interest groups, such as librarians and archivists, disliked the lack of uniformity and the only sporadic limitations and exceptions. The issue came to a head when Mark Volman and Howard Kaylan (aka Flo & Eddie), of The Turtles, brought a series of lawsuits attempting to establish that a public performance right existed under the common law of the states (though none had codified one). The failure of those lawsuits in part led to Congress’s passing the Music Modernization Act (MMA) of 2018, which, among other things, finally brought all pre-1972 recordings under federal law.

However, the MMA did not simply apply the existing federal copyright law to pre-1972 sound recordings. Instead, Congress opted to create a parallel statute, which looks very similar to the “normal” copyright laws but in fact comprises an independent scheme. The distinction is evident in the term of protection. Unlike other copyrightable works from the era, which are treated uniformly, the length of the term for sound recordings varies depending on the year of first publication. Recordings published between 1923 and 1946 are protected for 100 years, and recordings published between 1947 and 1956 are protected for 110 years from the date of publication. The recordings that are protected the longest—unpublished recordings—are ironically the ones that are the most threatened by extended protection. Those recordings will remain locked until 2067, regardless of their fixation date.

In addition to establishing limited terms and giving pre-1972 recordings some parity with post-1972 recordings as far as the public performance right, the MMA established that most important copyright limitations and exceptions—especially the fair use and first sale doctrines and the library and teaching exceptions—all apply to pre-1972 recordings. It also tried some new things! It established a mechanism for making noncommercial use of a recording that isn’t being commercially exploited—maybe testing the waters of orphan works legislation. It also expanded the Section 108(h) “last 20 years” exception for libraries to apply to all pre-1972 recordings, regardless of publication status.

There were many questions the MMA left open. For example, prior to the MMA, each state had their own definition of who the default owner of a sound recording was. Congress preserved the confusing and sometimes contradictory patchwork, leaving the state definitions in place. As a result, when ownership has not been established by contract—as is often the case, for example, with archival recordings—the ownership will need to be determined by courts. Congress also left in question the relationship between the MMA and pre-1972 foreign recordings, especially as to whether the MMA’s noncommercial use mechanism applies. Since Congress did not create criminal penalties under the MMA, there is also some question as to whether they left in place the state criminal statutes. But Congress did establish, very firmly, that all sound recordings should no longer be protected for at least another half-century.

Which brings us back to the public domain. As of January 1, most works first published in 1929 will be in the public domain in the USA. 1929 was an important year for sound recordings. It was the last year cylinder recordings were produced. It was the year the last recording studio switched from acoustic to electrical recording techniques (though most had switched a few years earlier). Because of the MMA, those recordings will enter the public domain in the near future, but as a result of the strange history of sound recordings copyright, it will not happen this year. Americans will have to wait five more years for the complete works from those eras to finish entering the public domain.

But thanks to the MMA, published recordings from 1924 are entering the public domain, which would otherwise not be! The class of 1924 includes several important recordings, including the very first recordings of George Gershwin’s Rhapsody in Blue, Al Jolson’s “California Here I Come,” and Isham Jones’s “It Had To Be You.” Despite sound recordings trailing other classes of works by a few years, the 2025 Public Domain Day is a good day for sound recordings enthusiasts!

Copyright Office Issues Opinion Letter on Copyright in AI-Generated Images

Posted March 8, 2023

In late February, the Copyright Office issued a letter revoking a copyright registration it had previously granted artist Kristina Kashtanova for a comic that used images generated using Midjourney, a generative AI program that creates images in response to user prompts. While this may seem minor, or simply another data point in the ongoing fight about copyright protection for AI-generated works, the determination is quite significant: it comes at a moment when AI-generated art has captured public attention, and moreover shows the Copyright Office’s thoughts on the important question of whether an artist who relies on a program like Midjourney can obtain copyright protection for an original compilation of AI-generated works. In today’s post, we explain the Copyright Office letter, contextualize it within the growing debate over AI and copyright, and share our thoughts on what all of this might mean for authors who write to be read.

Copyright and Human Authorship

As technology has advanced to allow the creation of works without the direct involvement of a human, courts have grappled with whether these creations are entitled to copyright protection. In the late 19th century, the Supreme Court established that copyright was intended to protect the products of human labors and creativity, creating the “human authorship” requirement. In an early case on the topic, the Court held that a photograph was copyrightable despite the fact that a camera literally created the image, since photographs were “representatives of original intellectual conceptions of the author.” It cautioned, however, that when it came to creations resulting from processes that were “merely mechanical,” lacking “novelty, invention, or originality” by a human author, such hypothetical works might be beyond the scope of copyright protection.

This principle was tested in the 2010s: in 2011, an Indonesian crested macaque monkey named Naruto seized a photographer’s camera and took hundreds of images of himself. The photographer, David Slater, shared some of these images online, which promptly went viral. Several websites posted these images as well, prompting Slater to assert that he owned the copyright in the images and request their removal. The Wikimedia Foundation, which had uploaded the image to Wikimedia Commons, a repository of public domain and free license content, argued that the image was a part of the public domain due to the lack of a human creator. Several years later, Slater published a book of nature photographs which included Naruto’s selfie. Then, in 2015, the People for the Ethical Treatment of Animals (PETA) filed a lawsuit in the Northern District of California on Naruto’s behalf, asserting that the macaque owned the copyright in the image and requesting damages. The district court judge held that Naruto could not own the copyright in the image due to copyright’s human authorship requirement. However, the judge did indicate that Congress might be free to do away with the human authorship requirement and permit copyright ownership by animals, suggesting that the requirement was not a constitutional one, but indicating that it was beyond the power of the judiciary to decide. The Ninth Circuit Court of Appeals later affirmed the district court’s ruling.

Currently, the Copyright Office is defending a lawsuit in the D.C. district court brought by AI system developer, Dr. Stephen Thaylor, regarding the constitutionality of copyright law’s human authorship requirement. Thaylor argues that the Copyright Act does not forbid treating AI systems as “authors” for the purpose of copyright law, and contends that the human authorship principle is unsupported by contemporary case law. While it seems unlikely that Thaylor will prevail on this argument, the case will at the very least generate new attention about the human authorship requirement and how it fits into creation in the digital age.

The Creativity Requirement and Zarya of the Dawn

Kashtanova’s assertion of copyright ownership in her comic, Zarya of the Dawn, is in many ways similar to the photographer David Slater’s claim that he owned the copyright in Naruto’s selfie. In each case, the Copyright Office indicated that when a work is not the product of human authorship, a human may not claim copyright in that work (the latest compendium of Copyright Office practices lists “a photograph taken by a monkey” as an example of work that is not entitled to copyright protection since it does not meet the human authorship requirement).

Kashtanova’s attorney had argued that Midjourney served “merely as an assistive tool,” and that Kashtanova should be considered the work’s author. But the Office likened Midjourney to a “merely mechanical process” lacking “novelty, invention, or originality” by a human creator, quoting the Supreme Court’s warning about the limits of copyright protection in the 19th century case discussed earlier in this post. And it was not only the human authorship requirement that made Zarya of the Dawn beyond the scope of copyright protection, but also copyright’s creativity requirement: for a work to be copyrightable, it must possess at least a “modicum” of creativity, a very low bar that rarely forecloses copyright protection for works of human authorship.

The Office explained that Midjourney generates images in response to user prompts, “text commands entered in one of Midjourney’s channels.” But these are not “specific instructions” for generating an image, rather input data that Midjourney compares to its training data before generating an image. The Office also argued that these images lack human authorship because the process is “unpredictable” and “not controlled by the user.” In other words, the “creativity” in these images comes not from the human entering prompts, but from the interaction between the prompt and Midjourney’s training data. This makes it different from a tool like a camera over which a user exercises total control—there is little to no unpredictability when we use digital cameras to photograph the world around us, rather all creative choices come from the human using the device.

The Office also noted that this opinion was not necessarily the final world on AI-generated images, as “other [generative] AI offerings” might operate differently, such that the creativity and human authorship requirements could be met. Kashtanova argued that minor edits she had made to the images were sufficiently creative to give her copyright ownership in the work as a whole. While the Office disagreed in this specific case (the before and after images demonstrating the editing were nearly identical), it did leave this possibility intact for future cases. Moreover, the Office granted Kashtanova ownership in the comic’s text, which she alone had written, as well as copyright ownership in the compilation of Midjourney-generated images. Compilations of uncopyrightable subject matter can sometimes be protected by copyright, because both the human authorship and creativity requirements are met when a human selects and arranges the material. The copyright owner does not own a copyright in the material itself, but in the original compilation they have created.

What Does this Mean for Authors?

The Copyright Office’s denial of registration in the Midjourney-generated images has important implications for the public domain and authors’ abilities to use new forms of technology as assistive tools in the creation of their works. But the Office’s action also leaves some open questions about the copyright status of images generated by Midjourney and similar systems. One possibility is—as was asserted by Wikimedia in the case of Naruto’s selfie—these images are a part of the public domain. Were that to be the case, it could be a boon for artists and creators. Recall that once a work is in the public domain, it becomes free for all to use without fear of copyright infringement. The case of the monkey selfie is further instructive here, as the owner of the camera in that case did not prevail on claiming his own copyright in Naruto’s selfie. By the same token, it is unlikely that the creators of Midjourney could claim a copyright in images like those used by Kashtova, despite their role in creating and making available the “assistive tool.”

If AI systems could be used to generate infinite public domain content—whether through text-based systems like ChatGPT or image-generating systems like Midjourney—this would greatly expand public domain content. The public domain can be a boon for creators, as they are free to do anything they wish with this material. On the other hand, some have expressed fear that, should all AI-produced works be considered a part of the public domain, these public domain works could compete with works produced by human authors. It is also important to remember the practical economic realities of systems like Midjourney. Whether or not the Copyright Office and other policymakers determine that AI-generated content is a part of the public domain, the creators of those systems could employ other means to assert ownership or forbid onward uses of the content created by these systems. Contractual override, the employment of so-called “digital locks” like DRM, or other legal and technical mechanisms could conceivably limit authors’ ability to use AI-generated works the way they might use more traditional public domain materials.

‘Negotiating with the Dead’

Posted January 30, 2023

This is a guest post by Meera Nair, PhD, Copyright Specialist for the Northern Alberta Institute of Technology (NAIT), commenting on the recent extension of copyright term in Canada. It was originally published at https://fairduty.wordpress.com/2023/01/10/negotiating-with-the-dead/.

When it became evident that our copyright term was to be extended by twenty years, with no measures to mitigate the excess damage wrought by such action, Margaret Atwood’s book of this title kept returning to mind. A foray into the relationships that exist between writers and writing, a book where the word copyright did not feature among those ruminations, the title nonetheless feels apt for the days ahead.

Works of long-since-dead authors will now—in the best of situations—literally become objects of negotiation. This is purportedly to the benefit of those authors’ heirs, whereas on balance the true beneficiaries will be international publishing conglomerates and collective societies. In the worst of situations though, works will simply fade away with no surviving copy to emerge seventy years after their authors’ deaths. Those authors will be forgotten, and the public domain will remain poorer.

Atwood has been a prominent advocate for a stronger scope of protection in the name of copyright, famously remembered for her characterization of exceptions as expropriation and theft during a Standing Committee Meeting of the Department of Canadian Heritage in 1996. Two decades later, when she gave the 2016 CLC Kreisel Lecture at the University of Alberta, fair dealing was called out by name. Nonetheless, that lecture was a delight to listen to, grounded as it was on Atwood’s own experiences of being a Canadian writer.

It is her life that lies at the foundation of Negotiating, which took form through the Empson Lectures at the University of Cambridge in 2000. The combination of literature, literary criticism, book history, and history itself, written as only Margaret Atwood can, makes for compelling reading. In this book she comes perhaps closest to answering an age-old question about writing: what does it mean to write? There is no neat and tidy answer; at the very least it is blood, sweat, and tears amid negotiations between oneself, the society of the living, but also that of the dead.

To be sure, financial wherewithal is relevant to any impetus to write. Money appears approximately three times among the 74 reasons for writing taken “from the words of writers themselves (xx-xxii).” Yet, perhaps unintentionally, Atwood lays bare why copyright was not, nor ever will be, a broad determinant of success (either literary or material) for Canadian writers and publishers. From identifying the limitations of the Canadian publishing sector in the early to mid-twentieth century (to say there was disinterest in Canadian authors is putting it mildly), to stripping away the facades of originality and individuality (which underpin copyright’s structure of rights) in literary endeavor, there is much here to remind us that Canada’s phenomenal success in developing literary talent (see here and here) has occurred despite copyright, not because of it.

After borrowing the book repeatedly from the Edmonton Public Library, I had to buy it. Or rather, I had to buy it in the original form. Because what I had borrowed was a book titled On Writers and Writing, by Margaret Atwood, identified as a Canadian reprint of her earlier work, Negotiating with the Dead.

My preference was to buy Negotiating; in the peculiarities of my own mind, somehow it felt more authentic. As it turned out though, my instincts were correct. The two books are not the same. The difference lies, not in Atwood’s words, but in the representation of what copyright is. While both books specify the copyright as belonging to O.W. Toad (the name of Atwood’s enterprise), similarity ends there.

In Negotiating, published by The Press Syndicate of The University of Cambridge, readers are told: “This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press (emphasis mine).”

There it is. A clear indication that statutory exceptions exist and are relevant; meaning that some reproduction might not require permission. Whereas in Writers, published by Emblem (an imprint of McClelland & Stewart, a division of Random House of Canada Limited, a Penguin Random House Company), readers are told that permission is always needed for even a particle copied:

“All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without the prior written consent of the publisher – or, in the case of photocopying or other reprographic copying, a license from the Canadian Copyright Licensing Agency – is an infringement of the copyright law (emphasis mine).”

Despite what a publisher might prefer, Canada’s Copyright Act permits unauthorized uses of insubstantial parts of a work and unauthorized uses of substantial parts which comport with fair dealing or other exceptions. As the Supreme Court (with unanimity) stated in 2004, “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright (para 48).” And yet, willful misinformation is standard fare among books issued in Canada.

Given the stunting of our public domain by term extension, fair dealing is even more important now as it provides some allowance of use of older, protected, material. But even a large and liberal interpretation of fair dealing, as required by our Supreme Court, is no substitute for a vibrant public domain.

With the Act expected to undergo change this year, Canada could still introduce a system of registration associated to a longer term of copyright. Owners of works which continue to be commercially successful fifty years after an author’s death, will likely choose to register and thus receive the additional twenty years of protection. Whereas works that did not have such longevity with respect to commercialization, and works that were never intended for revenue generation, would likely not be registered and thus would enter the public domain without the twenty year delay. Such a system was recommended by a former Industry Committee to uphold our obligations under CUSMA, ensure that commercial works which may benefit by a longer term are able to capture that gain, and continue to grow the public domain.

The difficulty is to convey to current Canadian lawmakers the importance of the public domain. Too often, its intangibility has meant that the public domain is perceived as being of lesser value. That an author’s work is not protected somehow deems it and the author as being unworthy. Even the way older works are spoken of, that they have “fallen into the public domain,” carries an aura of degradation familiar to the plight of “fallen women.” Whereas the public domain is precisely the opposite; it enables new works to emerge. As Jessica Litman wrote in The Public Domain (1990):

To say that every new work is in some sense based on the works that preceded it is such a truism that it has long been a cliche, invoked but not examined. … The public domain should be understood not as the realm of material undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use (966-968).

That this truism went unexamined and unarticulated is a testament to the difficulty of capturing the intricacy of the relationships between old works and new authors. Margaret Atwood not only undertook such an exploration but also elegantly articulated the journey that underlies every literary endeavor.

It is only fitting then that Margaret Atwood should have the last words:

… All writers must go from now to once upon a time; all must go from here to there; all must descend to where the stories are kept; all must take care not to be captured and held immobile by the past. And all must commit acts of larceny, or else of reclamation, depending how you look at it. The dead may guard the treasure, but it’s useless treasure unless it can be brought back into the land of the living and allowed to enter time once more – which means to enter the realm of audience, the realm of readers, the realm of change (p.178).

Public Domain Day 2023: Welcoming Works from 1927 to the Public Domain

Posted January 5, 2023

*Montage courtesy of the* Center for the Public Domain

Literary aficionados and copyright buffs alike have something to celebrate as we welcome 2023: A new batch of literary works published in 1927 entered the public domain on January 1st, when the copyrights in those works expired. The public domain refers to the commons of creative expression that is not protected by copyright. When a work enters the public domain, anyone may do anything they want with that work, including activities that were formerly the “exclusive right” of the copyright holder like copying, sharing, translating, or adapting the work.

Some of the more recognizable books entering the public domain this year include:

Virginia Woolf’s To the Lighthouse
William Faulkner’s Mosquitoes
Agatha Christie’s The Big Four
Edith Wharton’s Twilight Sleep
Herbert Asbury’s The Gangs of New York (the original 1927 publication)
Franklin W. Dixon’s (a pseudonym) The Tower Treasure (the first Hardy Boys book)

Literary works can be a part of the public domain for reasons other than the expiration of copyright—such as when a work is created by the government—but copyright expiration is the major way that literary works become a part of the public domain. Copyright owners of works first published in the United States in 1927 needed to renew that work’s copyright in order to extend the original 28-year copyright term. Initially, the renewal term also lasted for 28 years, but over time the renewal term was extended to give the copyright holder an additional 67 years of copyright protection, for a total term of 95 years. This means that works that were first published in the United States in 1927—provided they were published with a copyright notice, were properly registered, and had their copyright renewed—were protected through the end of 2022.

Once in the public domain, works can be made freely available online. Organizations that have digitized text of these books, like Internet Archive, Google Books, and HathiTrust, can now open up unrestricted access to the full text of these works. HathiTrust alone has opened up full access to more than 40,000 titles originally published in 1927. This increased access provides richer historical context for scholarly research and opportunities for students to supplement and deepen their understanding of assigned texts. And authors who care about the long-term availability of their works may also have reason to look forward to their works eventually entering the public domain: A 2013 study found that in most cases, public domain works are actually more available to readers than all but the most recently published works.

What’s more, public domain works can be adapted into new works of authorship, or “derivative works,” including by adapting printed books into audio books or by adapting classic books into interactive forms like video games. And the public domain provides opportunities to freely translate works to enrich our understanding of those works and help fill the gap in works available to readers in their native language.

Copyright Term, Disney, and “Steamboat Willie”

Posted May 25, 2022

Authors Alliance thanks our research assistant, Derek Chipman, for researching and authoring this blog post.

Copyright and Disney are in the news again with the recently proposed Copyright Clause Restoration Act, legislation which would reduce the length of copyright protection as 2024, when the iconic character Mickey Mouse will enter the public domain, approaches. The bill, proposed by Senator Josh Hawley, would reduce the term of new copyrights to 56 years from its current duration—the life of the work’s author plus an additional 70 years for most works—and would apply this change retroactively to entertainment companies with over $150 billion in market capitalization (currently around 70 companies). Senator Hawley has specifically targeted Disney with his bill as according to his website and statements to the press. This blog post will provide a brief history of Disney’s relation to copyright term extensions and the public domain to contextualize the latest copyright term debate.

The first short cartoon featuring Mickey Mouse, “Steamboat Willie,” was released on November 18, 1928, becoming a hit and launching Walt Disney Studio on its path to becoming an industry juggernaut. While not the first cartoon to use sound, “Steamboat Willie” was exceptionally creative with its music and sound effects, premiering only a year after Al Jolson’s The Jazz Singer. “Steamboat Willie” took three months to complete with an estimated budget of $4,986 and was an immediate hit with audiences following its premiere in New York.

At the time of Mickey’s debut, copyright law protected a work for up to 56 years under the Copyright Act of 1908. Under this law, copyright protection was for an initial term of 28 years, with an option to renew for another 28 years, meaning that the cartoon short would have entered the public domain no later than 1984. However, in 1976, Congress passed a new Copyright Act which extended the term of copyright for a period of 50 years after the death of the author with a maximum of 75 years for pre-existing works, pushing Steamboat Willie’s entry into the public domain until 2003. Then, in 1998, the Sonny Bono Copyright Term Extension Act was passed, extending the copyright term once again and keeping “Steam Boat Willie” from entering the public domain until January 1, 2024, almost 96 years after its debut. Disney lobbied heavily for the 1976 extension and the 1998 extension. In fact, the 1998 extension became derisively known as the “Mickey Mouse Protection Act” due to Disney’s heavy lobbying. With a public more interested in copyright law, it seems unlikely that Disney will successfully push for another extension.

Why did Disney push for these extensions? Copyright allows Disney to control access to these original cartoons and designs. Once it has entered the public domain, “Steam Boat Willie” will be free for the public to use in new works and distribute as they see fit. However, it is important to note that later designs of the characters would still be copyrighted until their terms end. It is also important to note that while the copyright protections for the characters would end, trademark protections on the character still exist (for a rundown on the differences between trademark and copyright, check out 2020 our blog post on the topic).

“Steamboat Willie” entering the public domain will enrich and benefit the public at large as authors and creators create derivative works and new imaginings of the work. Disney itself makes various use of public domain works in some of its most popular films: Frozen and The Little Mermaid are based on Hans Christian Andersen stories from the late 19^th century, The Lion King is a reimagining of Shakespeare’s Hamlet, and numerous others are based on folktales and myths. Incredibly, “Steamboat Willie” itself made use of the public domain: one of the film’s songs was set to the tune of “Turkey in the Straw,” which was already in the public domain at the time. Disney’s reliance on the public domain and simultaneous efforts to expand the scope of copyright protection are remarkable, demonstrating how the public domain can be a potent tool for creators while the long scope of copyright protection can be a strong limitation on add-on creation.

While the latest Copyright Extension bill may in reality have more to do with topics outside of copyright, shortening the length of copyright protection could positively impact cultural exchange by allowing culturally iconic and historically important works and characters like Mickey Mouse to enter the public domain sooner than nearly a century after their debut. While the bill is unlikely to pass, having been criticized by some as inaccurate and potentially unconstitutional, its introduction is itself notable, and has the potential to bring attention to the need for carefully considering the limits of copyright protection.

The Public Domain and New Translations

Posted January 31, 2022

As we round out January and the celebration of new works entering the public domain this year, Authors Alliance is pleased to bring you this post on a specific type of derivative work based on a work in the public domain: new translations of familiar stories. We are grateful to Authors Alliance’s research assistant, Derek Chipman, for authoring this post.

Public Domain

Earlier this month, we celebrated the latest trove of literary works entering the public domain, including Austrian author Felix Salten’s Bambi, a Life in the Woods. Written in German in 1923 and published in English translation in 1928, this celebrated coming-of-age nature novel, the basis for the popular Disney film, is now free for authors to use in any way they wish. However, it is important to note that translations are considered derivative works which are subject to copyright protection in their own right—while the original German Language text is now in the public domain, the 1928 English translation by Whittaker Chambers will not enter the public domain until 2024, since it was published two years after the original German. Similarly, the 1942 Disney film is also a derivative work with its own term of copyright protection and will not enter the public domain until 2037, including characters unique to the film adaptation like Flower the skunk. For more information about the public domain and derivative works, see our post on the topic from last year.

Translations and Copyright

So, what does all of this mean for authors and the public at large? It means that they can now freely access and download the original German text, but will have to provide their own translation or wait for a non-copyrighted translation in their preferred language if they wish to use the text in a language other than German. However, authors are still free to use the ideas and themes of the textual work, as these types of information are not protected by copyright. This also means that publishers will no longer have to pay the copyright holder when publishing a new translation of Bambi, a Life in the Woods, potentially increasing access to the work. For instance, this year, Jack Zipes has provided the first new available English translation since 1928 entitled The Original Bambi. Now, other translators can also translate the German original into English, or whichever language they choose, without having to obtain permission.

Why is This Important?

Translations of literary works enable these works to reach a wider audience and expose cultural works from different languages to readers. Different translations also lead to different interpretations of a work, and this can add cultural value to the work by situating a work in our time, like a recent new translation of Beowulf beginning with “Bro!” In the case of Bambi, Zipes claims that his new version affords the reader a translation closer to the original German, which many readers may find surprisingly more violent and dark than the original Chambers translation. Zipes states that his knowledge of Austrian German captures the dark and existential nuance of Salten’s language in the original work and that the 1928 translation contained errors that contributed to the “later misinterpretation of the Disney film.” However, at least one critic still prefers the 1928 translation, showing that different translations provide readers with more options to enjoy public domain works. New translations can add something new to the work and contribute to our cultural commons, complicating our understanding of existing literary works. Now that Bambi, a Life in the Woods freely roams the public domain, we hope our readers explore it to find new sources of inspiration.

Public Domain Day 2022: Welcoming Works from 1926 to the Public Domain

Posted January 4, 2022

Literary aficionados and copyright buffs alike have something to celebrate as we welcome 2022: A new batch of works published in 1926 entered the public domain on January 1st. In copyright, the public domain is the commons of material that is not protected by copyright. When a work enters the public domain, anyone may do anything they want with the work, including activities that were formerly the “exclusive right” of the copyright holder like copying, sharing, and adapting the work.

Some of the more recognizable books entering the public domain this year include:

Ernest Hemingway’s The Sun Also Rises
A.A. Milne’s Winnie-the-Pooh
Langston Hughes’s The Weary Blues
Dorothy Parker’s Enough Rope
William Faulkner’s Soldiers’ Pay
Felix Salten’s Bambi

Copyright owners of works first published in the United States in 1926 needed to renew the work’s copyright in order to extend the original 28-year copyright term. Initially, the renewal term also lasted for 28 years, but over time the renewal term was extended to give the copyright holder an additional 67 years, for a total term of 95 years. This means that works that were first published in the United States in 1926—provided they were published with a copyright notice, were properly registered, and had their copyright renewed—are protected through the end of 2021.

Once in the public domain, works can be made freely available. Organizations that have digitized text of these books, like Internet Archive, Google Books, and HathiTrust, can now open up unrestricted access to the full text of these works. HathiTrust alone will open up full access to more than 35,000 titles originally published in 1926. This increased access provides richer historical context for scholarly research and opportunities for students to supplement and deepen their understanding of assigned texts. And authors who care about the long-term availability of their works may also have reason to look forward to their works eventually entering the public domain: A 2013 study found that in most cases, public domain works are actually more available to readers than all but the most recently published works.

What’s more, public domain works can be adapted into new works of authorship, or “derivative works,” including by adapting printed books into audio books or by adapting classic books into interactive forms like video games. And the public domain provides opportunities to freely translate works to help fill the gap in works available to readers in their native language.

The Public Domain and New Derivative Works

Posted January 12, 2021

Montage of book and film covers of works entering the public domain — Montage courtesy of the Center for the Study of the Public Domain

Earlier this month, we celebrated the new batch of literary works entering the public domain, and shared with you some common ways that works enter the public domain. Once a work is in the public domain, authors and the public at large can make any use of it in any way they wish, including uses that were formerly the exclusive right of the copyright holder. One such right is the right to prepare derivative works based on the public domain work. Derivative works are new works which build off of pre-existing works, such as translations or theatrical adaptations. Today, we will discuss new uses that can be made of works that have fallen into the public domain using examples from popular films and literature.

The Great Gatsby in 2021

One of the most well-known literary works to enter the public domain this year is F. Scott Fitzgerald’s The Great Gatsby. Now, authors are free to create new works drawing on the characters, plot, and expression from Fitzgerald’s original without fear of copyright liability. Since it is no longer subject to copyright protection or restrictions on its use, the text can also be read or downloaded for free online.

One new derivative work based on The Great Gatsby and published just this month is Michael Farris Smith’s Nick, a new prequel. Nick imagines Nick Carroway’s life prior to his time at West Egg, explores Nick’s trauma, and describes a stay in New Orleans after World War I. While the Fitzgerald Trust, which controls the rights to Fitzgerald’s works under copyright, has been selective in granting licenses to prepare derivative works based on Gatsby in the past, it can no longer “try and safeguard the text, to guide certain projects and try to avoid unfortunate ones.” For instance, one recently licensed derivative work of Gatsby was a graphic novel published in June 2020. Fitzgerald Trustee Blake Hazard “was closely involved with the graphic novel” and selected the illustrator herself. Now, anyone is free to use Gatsby as a building block for add-on creation like graphic novels without permission from the Fitzgerald Trust. And we are sure to see new derivative works emerge in the coming months and years: trade publishers are planning new hardcover editions, and fans have recently called for a Muppet version of the novel (though we note that this is complicated by the fact that Disney controls the copyright in the Muppets).

Derivative Works in Popular Culture

Derivative works based on works that have entered the public domain are nothing new. Shakespeare’s plays—which have always existed in the public domain, since their publication predated the first copyright law—have inspired a multitude of beloved derivative works, from films Ten Things I Hate About You (The Taming of the Shrew) and She’s the Man (Twelfth Night) to Ray Bradbury’s Something Wicked this Way Comes (Macbeth), and has inspired numerous loose retellings such as Brave New World (The Tempest) and even Disney’s The Lion King (Hamlet).

In fact, derivative works based on public domain works will themselves eventually enter the public domain once their copyrights expire, enabling the creation of new derivative works based on now-public domain derivative works. For example, the musical and film, West Side Story, is a derivative work based on Shakespeare’s Romeo and Juliet, a play which itself drew heavily on Ovid’s Pyramus and Thisbe, such that Romeo and Juliet too could be considered a derivative work. Both Romeo and Juliet and Pyramus and Thisbe were published prior to the passage of the first copyright law, but this example illustrates how derivative works based on public domain works can lead to the evolution of popular stories over time. In this way, creating derivative works based on works in the public domain fosters the development of culture and knowledge—a core purpose of copyright law.

Reaching New Audiences with Derivative Works

Derivative works can also enable the original work to reach new audiences. Shakespeare’s plays can be daunting for contemporary readers, using unfamiliar language and conventions. But the multitude of derivative works based on Shakespeare plays brings the stories to audiences who may not be interested in reading the original works, enhancing access to the stories in the process.

It may surprise you to learn that Disney—colossal and vocal defender of copyright protection—has for decades taken advantage of the public domain to produce some of its most popular and successful films. In the 90s, Disney co-produced with Jim Hensen studios two Muppets movies based on public domain books: A Muppet Treasure Island and A Muppet Christmas Carol, based on out-of-copyright works by Robert Louis Stevenson and Charles Dickens respectively. The list goes on—Snow White, Cinderella, and Sleeping Beauty are all based on Grimms’ Fairy Tales; The Little Mermaid is based on a Hans Christian Andersen story, as is the more recent Frozen—a retelling of Andersen’s The Snow Queen. In general, the Disney adaptations made these stories more palatable for children, such as changing the ending of The Little Mermaid from one in which “[Ariel’s] heart is broken when her prince marries someone else” and ultimately sacrifices herself rather than killing the prince, as Ursula demands, to the happily-ever-after ending we know today.

In this way, new derivative works based on public domain works can enable the original work to reach new audiences. Public domain texts can be made freely available online for anyone to read, enhancing access to those texts for those without access to the print editions. Translations are derivative works which allow public domain texts to reach audiences who lack fluency in the work’s original language, and a wide variety of adaptations—from abridged versions for less advanced readers to so-called critical editions for college students—can help the work reach readers of different demographics.

The possibilities for add-on creation to works that have entered the public domain are endless. We encourage our members and readers to explore the public domain and discover new sources of inspiration!

Public Domain Day 2021: Paths to the Public Domain

Posted January 5, 2021

Last week, we celebrated a new batch of works from 1925 entering the public domain. In copyright, the public domain is the commons of material that is not protected by copyright. When a work enters the public domain, anyone may do anything they want with the work, including activities that were formerly the “exclusive right” of the copyright holder like making copies of, sharing, and adapting the work.

Some people mistakenly think that the “public domain” means anything that is publicly available. This is wrong: The public domain has nothing to do with what is readily available for public consumption. Just because a work is freely available on the internet, for example, doesn’t mean the work is in the public domain. Under today’s copyright laws, copyright protection is automatic. This means, for example, that a photographer could take and upload a photograph to a publicly accessible website, and—despite its public availability online—unauthorized uses of the photograph may be infringing, unless the use is otherwise allowed under an exception to copyright.

Just how do works become a part of the public domain? In this post, we’ll share some of the ways in which works enter the public domain or simply exist as a part of the public domain because of the limits of copyright.

Copyright Expiration

One way that works become a part of the public domain is the expiration of their copyright protection. Copyright protects works for a limited time and after that, the copyright expires and works fall into the public domain. Under U.S. copyright law, as of 2021, all works first published in the United States in 1925 or earlier are now in the public domain due to copyright expiration. Copyright law has changed over time and the term of copyright is now calculated based on the life of the author. Under today’s copyright laws, works created by an individual author today won’t enter the public domain until 70 years after the author’s death.

It can be devilishly difficult to determine whether a work’s copyright has expired. For example, while works first published in the United States in 1925 or earlier are in the public domain, unpublished works created prior to 1925 may not be. We recommend Peter Hirtle’s Copyright Term and the Public Domain in the United States and Berkeley Law’s “Is it in the Public Domain?” Handbook to help you evaluate a work’s copyright status.

Failure to Comply With Formalities

While 2021 brings certainty that works first published in the United States in 1925 are in the public domain, changes in copyright duration and renewal requirements during the 20th century mean that works first published in the United States between 1926 and March 1, 1989 could also be in the public domain because their copyrights were not renewed or because the copyright owner failed to comply with other “formalities” that used to be required for copyright protection. These formalities included requirements that the copyright owner register her work with the Copyright Office and mark the work with a copyright notice upon publication. Analysis from the New York Public Library revealed that approximately 75% of copyrights for books were not renewed between 1923-1964, meaning roughly 480,000 books from this period are most likely in the public domain.

Under today’s copyright laws, authors of new published works are no longer required to comply with any formalities to be eligible for copyright protection, though there are significant benefits to doing so.

Uncopyrightable Subject Matter

Copyright law is not unlimited. There are certain things that are seen as fundamental building blocks of creativity and authorship and are therefore simply not protected by copyright, entering the public domain automatically.

An important category of things that are not copyrightable are facts—even if those facts are obscure or were difficult to collect. For instance, suppose that a historian spent several years reviewing field reports and compiling an exact, day-by-day chronology of military actions during the Vietnam War. Even though the historian expended significant time and resources to create this chronology, the facts themselves would be free for anyone to use. That said, the way that the facts are expressed—such as how they are articulated in an article or a book—is copyrightable. The lack of copyright protection for facts is central to copyright law: Even “asserted truths,” or information presented as factual which later turns out to be untrue, are part of the public domain.

Ideas, themes, and scènes à faire are categories of expression that are also outside of copyright protection. These concepts are closely related, and the overarching justification for excluding them from copyright protection is that they are simply too general and standard to a particular genre or convention for an individual creator to be granted a temporary monopoly on them. Here again, though copying the words used to express the idea or theme could constitute infringement, the similarity of general ideas, themes, or other elements of a work which are standard in the treatment of a given topic cannot form the basis of an infringement claim. For more on ideas, themes, and scènes à faire, check out our post on uncopyrightable subject matter for fiction writers.

Other Exclusions

The U.S. Copyright Office provides information about additional types of works and subject matter that do not qualify for copyright protection, including names, titles, and short phrases; typeface, fonts, and lettering; blank forms; and familiar symbols and designs. It is worth noting that other areas of intellectual property, such as patent or trademark law, could provide protection for categories that are not eligible for copyright protection.

The Copyright Act provides that works created by the United States federal government are never eligible for copyright protection, though this rule does not apply to works created by U.S. state governments or foreign governments. And under the government edicts doctrine, judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy.

The U.S. Copyright Office also reminds potential registrants that works that “lack human authorship” are uncopyrightable, using as an example “a photograph taken by a monkey.” Sound familiar?

Abandonment / No Rights Reserved

In theory, a copyright owner can voluntarily abandon her copyright prior to the expiration of the work’s copyright term by engaging in an overt act reflecting the intent to relinquish her rights. Abandoned works then become part of the public domain, free from copyright and available for anyone to use.

Creative Commons offers a “No Rights Reserved” tool for copyright owners who wish to waive copyright interests in their works and thereby place them as completely as possible in the public domain. And recently, satirist Tom Lehrer added a statement to his website granting permission to the public to download and reuse his lyrics, noting that they “should be treated as though they were in the public domain.” That said, a scholarly article by Dave Fagundes and Aaron Perzanowski criticizes the current state of the law surrounding copyright abandonment. The authors assert that the lack of a clear, reliable way to abandon copyright frustrates authors who wish to abandon their copyrights, and the practical effectiveness of abandonment is undermined by the lack of a broadly accessible record of abandoned works.