Hiltzik: New Year’s bounty from our devious copyright system

It’s perfectly clear that Sherlock Holmes sent his nemesis, Professor Moriarty, to his death in his 1893 story “The Final Problem,” but the fictional detective lived it for even longer—nemesis: the complexities of copyright law.

On Sunday, the last of the Sherlock Holmes stories written by Arthur Conan Doyle goes into the public domain. The expiration of copyright on the last stories published by Conan Doyle in the 1927 volume “The Case-Book of Sherlock Holmes” resulted in Holmes and Dr. Conan Doyle mansion.

“The copyright arguments are gone,” says Jennifer Jenkins, director of the Duke University Center for Public Domain Research. Every year at about this time, Jenkins puts out a list of classic and simply popular creative works that are in the public domain on New Year’s Day in the United States.

Public interest in copyright legislation is scattered; A grassroots revolt by copyright users seems unlikely.

— Copyright expert Jessica Litman (1994)

This year’s list includes works published in 1927 and therefore subject to final copyright expiration by 2023.

As usual, this is a treasure chest. Literary works include Virginia Woolf’s “To the Lighthouse,Willa Cather’s “Death Comes for the Archbishop”, William Faulkner’s second novel “Mosquitos” (his first novel “Soldier’s Pay” became public domain in 2022), and the first Hardy Boys mystery “The Tower Treasure” with the pseudonym Franklin W. dixon

1927 films in the public domain include the silent classics “Metropolis”, “Wings” (first best picture Academy Award winner), “The Lodger” (Alfred Hitchcock’s first thriller), and “The Jazz Singer.” Al Jolson speech that effectively disables silent movies. Also on the list is the early Laurel and Hardy classic “The Battle of the Century,” featuring the pie fight that made pie fights a staple of the movie.

Music compositions (notes and lyrics only) include “The Best Things in Life Are Free”, “I Scream, You Scream, We All Scream for Ice Cream”. “Puttin’ on the Ritz” by Irving Berlin and “Black and Tan Fantasy” by Duke Ellington.

With the expiration of copyright, these works become “free for everyone to copy, share, and develop on,” Jenkins says.

It may be gratifying that classic works are released into the public domain on January 1 each year, but it also serves to highlight the stupidity and greed of our devious copyright system.

Calculating copyright protection period can be a complex process, depending not only on when works were created and published, but also when their creators died, whether they were officially registered for copyright, and the form of the works.

Musical compositions copyrighted in 1927 will become public domain in 2023, but recordings of later songs will not. Silent films from 1927 are released due to copyright, but title cards or accompanying music added later are not required.

Frequent convention changes in copyright rules and duration are often responsible for the confusion. The argument for extending copyright terms has always been an incentive for extensions to give creators or their heirs a lot more time to raise revenue and thus keep the creative juices flowing, and who can object to that?

However, as Jenkins and other copyright experts point out, only a very small fraction of published creative work generates revenue for more than a few short years.

The urge to extend copyright comes almost entirely from corporate initiatives intent on slashing maximum revenue from creative franchises.

In 1998, Walt Disney Co. pushed for enactment of the Copyright Extension Act, 1998 federal law known as the Sonny Bono Act, after its chief backer in Congress. The law sets the copyright period as the life of the author plus 70 years, or 95 years after publication for work done for hire.

However, the 95-year period after his death is unlikely to be an incentive for any living artist or writer. However, it was a bounty for Disney, which at the time was facing the expiration of rights to the earliest movies featuring Mickey Mouse and the impending cessation of the copyright tap.

Thanks to the extension, the rights to “Steamboat Willie”, the first Mickey Mouse cartoon, will not expire until January 1, 2024, assuming Congress does not re-extend the copyright.

Whether the rules in their current form serve the public interest is open to question. Consider the tight control exercised by the mansion of Reverend Martin Luther King Jr., often with children, over his speeches and writings, such as his “I Have a Dream” speech at the Lincoln Memorial on August 28, 1963.

When copyright expert Arlen W. Langvardt tracked down the copyright status of the speech in 2015, the speech was eligible for copyright protection through 2019 (a 28-year term and a 28-year renewal if the owner applies). Congress later extended the duration of the copyright to the creator’s lifetime plus 70 years.

But that was for works published in 1978 or later. For works before 1978, such as Nutuk, the old provisions, excluding renewal rights, were extended for 19 years. Another act of congress gave these artifacts another 20 years of protection.

That’s why “I Have A Dream”‘s copyright won’t expire until 2058, nearly a century after King delivered it to a large crowd at the Lincoln Memorial and countless television audiences. (Federal courts have ruled that making the speech public does not invalidate the copyright rights King himself exercised.)

Meanwhile, the King family has mastered the myriad uses of ancestral speech and writing. As I reported earlier, filmmaker Ava DuVernay put rewritten and paraphrased lines in the mouth of the actor who played King in her film “Selma,” which chronicles her role in the 1965 protests in support of the Voting Rights Act.

DuVernay did not use King’s real words because the movie rights were sold to Steven Spielberg for an unfinished project. Furthermore, he said that taking the rights from the King family would involve giving them a voice in how King was portrayed and restricting their own artistic choices.

The uncertainty of copyright law was a factor in the Conan Doyle estate’s long struggle with creative artists looking to get Holmes and Watson into new work. The estate has argued in lawsuits that it retains the rights to the characters as long as any of Conan Doyle’s novels or stories remain under copyright.

Thanks to the efforts of Leslie S. Klinger, Westwood attorney and leading authority on all things Sherlockian, this controversy was settled out of court. However, the possibility of a successful alleged infringement remained a lingering threat.

“The Conan Doyle mansion is trying to keep its money,” Klinger told me in 2014 after a major ruling against the property. “They like to say it’s about quality control and they’ve kept some bullshit out of the market. But there’s so much bullshit that it’s a little late to worry about quality control.

Anyway, now that the last Holmes stories written by Conan Doyle have lost their legal shield, the characters of Holmes and Watson will unquestionably belong to the public.

In some cases, extending copyright protection works against the survival of creative works. This is most evident in silent films.

Beginning in 1927 with “The Jazz Singer” (which will be in the public domain on January 1), filmmaking almost completely abandoned the silent film archives when sound films began to dominate.

“Studios apparently thought – wrongly – that silent films had no enduring commercial or cultural value,” Jenkins says. “Our legacy of silent films is that all these reels and boxes have been melted down and destroyed or discarded or simply left to rot because of their silver content, and the nitrate base of these films is prone to degradation, even spontaneous combustion.” According to the Library of Congress’s estimate, about 75% of American silent films are assumed to be lost forever.

It is conceivable that the possibility of profiting from copyrighted silent files might have encouraged studios and other rights holders to take a better look at them, but the reverse was true, in part because many of the works had no identifiable rights holders.

All that is known about them is Something may be copyrighted. That’s enough to deter film archives and conservationists from working with them for fear of being accused of infringement.

“Works that are already on the verge of disintegration and likely not appealing to copyright holders are still too risky for most archival facilities to be restored or even exhibited,” Jenkins’ headquarters said in a presentation to the Copyright Office in 2005. Some archives even set rules that only works known to be in the public domain can be made available for viewing or restoration.

The Center recommended that the Copyright Office establish guidelines for bona fide searches for copyright holders, a public record for publishing new uses intended to give fair notice to putative rights holders, and immunity for restorers or exhibitors if no one comes forward after an appropriate break. But nothing came of these suggestions.

A handful of notable silents have been the focus of global detective work to piece together original copies—the holy grail for film historians. One is “Metropolis”, where full-length copies of the original were found in archives in Argentina and New Zealand in 2008 and 2010.

Paramount Pictures conducted a global hard-hitting search for cuts of “Wings,” produced in 1927, until they found a digitally restoreable copy in their vault for the film’s 85th anniversary and the studio’s own centennial. But “Wings,” the Motion Picture Academy’s first best picture winner, has long been a collector’s dream.

Then there’s the cake fight from “The Battle of the Century,” another long-grieved treasure brought together by the discovery of amateur film collector Jon Mirsalis, who was stunned to find the cake fight sequence in a film archive he bought.

The film was added to the Library of Congress’s National Film Registry in 2020 and has been called “a striking example of detective work.” [and luck] Required to find and preserve movies from the silent period. It can be viewed on YouTube today; I challenge everyone to watch it without laughing out loud, no matter how grumpy or grumpy.

Since most people are unaware of how copyright affects their intellectual property rights, copyright laws tend to favor commercial interests. “Public interest in copyright legislation is scattered; A grassroots revolt by copyright users in 1994, copyright expert Jessica Litman, seems unlikely.

This may be changing. Digital technologies, inaccessible to the average individual in 1994, now make perfect copies of literary and artistic works accessible to anyone with a computer. In fact, copies that might violate someone’s copyright are always produced only as a result of downloading an ebook from the web or reading it online.

As I noted recently, the move from physical books to ebooks, along with other digital capabilities, has increased risks for publishers looking to protect their and their authors’ intellectual property interests. It can also bring home copyright issues. The battle over copyrights won’t end anytime soon.

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