The Piglet lived in a very grand house in the middle of a beech-tree, and the beech-tree was in the middle of the forest, and the Piglet lived in the middle of the house. Next to his house was a piece of broken board which had “TRESPASSERS W” on it. When Christopher Robin asked the Piglet what it meant, he said it was his grandfather’s name, and had been in the family for a long time, Christopher Robin said you couldn’t be called Trespassers W, and Piglet said yes, you could, because his grandfather was, and it was short for Trespassers Will, which was short for Trespassers William. And his grandfather had had two names in case he lost one–Trespassers after an uncle, and William after Trespassers.— A. A. Milne, “Winnie-the-Pooh”, now in the US public domain
It’s good to be celebrating another Public Domain Day. It’s especially good this year in the US, where we get an especially rich set of arrivals to the public domain. They include as many as 400,000 sound recordings from the invention of recording through the end of 1922. They also include many thousands of publications from 1926, including classics like Winnie-the-Pooh, quoted above. (See my just-finished public domain countdown for a selection of other interesting works joining the US public domain.) Most other countries have public domain arrivals to celebrate as well. In countries like those in Europe with “life+70 years” copyright terms, those include works of authors who died in 1951, and in countries like Canada that still have “life+50 years” terms, they include works of authors who died in 1971. (Some notable authors who died in those years are featured in the Public Domain Review’s Public Domain Day 2022 article.)
As I’ve thought about Winnie-the-Pooh today, I’ve been drawn back to the quote from it above. Much of Milne’s dry humor in it (and elsewhere in the book) was aimed at older readers, and flew over my head when I first read it as a child. I didn’t know that the “Trespassers W” sign was the remnant of someone trying to claim ownership over the land the characters inhabit. All of the characters in the book, likewise, are completely oblivious to that claim. They freely wander over the Hundred Acre Wood and surrounding countryside without any regard to private property claims. Instead, as seen above, they assume a completely different and absurd reason for the claim-staking sign.
Now that the book is in the public domain, we too can revisit and reuse the setting and characters of the book as we like. But the value of the intellectual property claims related to Winnie-the-Pooh make it important for us to watch our steps carefully. Pooh is one of the most valuable characters in the portfolio of the Walt Disney Company, and this book’s entry to the public domain was delayed 39 years, in part because of Disney’s lobbying of Congress. They still control rights to the designs of Pooh and friends in their animated cartoons (recognizably different from the original designs by Ernest Shepard), to the characters that don’t appear in the 1926 book (including Tigger, who shows up in its sequel), and to trademarks covering all manner of Pooh-related merchandise.
In a blog post at Duke’s Center for the Study of the Public Domain, Jessica Jenkins discusses the rights Disney can still assert over Winnie the Pooh and friends. She also discusses how other rightsholders have wielded control over any use of characters that they claim is “too close” to their own expressions. For instance, the estate of Arthur Conan Doyle got Netflix to make a deal with them for the use of Sherlock Holmes, a character who’s long been in the public domain, over claims that their movie Enola Holmes reused copyrightable aspects of Holmes that only appear in the last few stories that were still under US copyright. The character copyright claims of the estate are dubious, but the estate’s been litigious enough that I could easily see how a filmmaker would prefer to settle with the estate rather than undergo a long and costly lawsuit, even if it were likely to eventually get a favorable ruling.
Similarly, it’s possible that Disney and other rightsholders could chill reuse of public domain works by making legal threats against anything they claim is “too similar” to their own products. Similar concerns over the character Bambi are a reason that new translations of Felix Salten’s original novel are only being released today, when it is finally unquestionably in the public domain in all major global markets. There are arguments to be made that Bambi has already been in the public domain for a few years at least, but due to the complicated litigation history, many have been reluctant to make use of the character until its 1926 US registration expired and made those arguments moot.
As I went walking I saw a sign there— Woody Guthrie, “This Land Is Your Land”, as published on his official website
And on that sign it said “No Trespassing.”
But on the other side it didn’t say nothing.
That side was made for you and me.
What can we do to protect the public’s right to enjoy and reuse what’s rightfully theirs to use, when others want to monopolize them? For one, we can boldly and publicly make full use of the parts of our cultural heritage that are not truly covered by “No Trespassing” claims, the sides that, as the verse above says, were “made for you and me”. We can assert and exercise the right to use the public domain, even in the face of challenges to it. Whether those assertions result in court victories (which blunted even more expansive claims over Sherlock Holmes by the Conan Doyle estate in 2014), or in implicit peace treaties (like the willingness of Guthrie’s rightsholders to liberally license “This Land is Your Land” without admitting to public domain status), our affirmations of the public domain make it safer not only for us to use, but for others to use as well.
Affirming the public domain motivates projects like HathiTrust’s Copyright Review Program, the New York Public Library’s U.S. Copyright History Project, as well as Penn’s Deep Backfile Project for serials that I manage. We’re all trying to make it easier to identify and open access to works newer than 95 years old that are in the public domain (but not obviously so) so that people can feel more secure reproducing and reusing them.
Fair use is important to defend as well. I can quote the verse above from “This Land is Your Land”, despite it not being in the 1945 publication of the song that EFF has convincingly argued is in the public domain, and despite often-repeated folk advice to never quote song lyrics without permission. I’m using a limited portion of the song analytically to help make a point in my argument about public rights, and my use is not likely to substitute for, or hurt the market for, the song itself. (Guthrie’s own words also suggest he’d be happy with my use.) In other words, I’m exercising fair use. And when we exercise fair use, we keep it from atrophying, and preserve it as an “essential part of our political and cultural life”, and an important protection of free expression.
We also may need to work to protect all the sound recordings that just entered the public domain from claims that now have no more validity than the remnants of the sign outside Piglet’s door. Many of the major Internet platforms have mechanisms to automatically flag audio that seems to be derived from commercial recordings, and block them, demonetize them, and impose copyright strikes against the people who post them, Up until now, platforms could generally safely assume that recordings that have ever had a valid copyright claimant always have one. But now there are hundreds of thousands of recordings that once had a claimant, but now belong to the public at large. We need to make sure that platforms recognize and respect those new public rights. If past experience is any guide, public vigilance and outcry over improper takedowns will help ensure that happens.
This Public Domain Day gives us much to celebrate, and to use, in all kinds of educational, entertaining, and creative ways. To make the most of it, we have to resolve and work to protect it from those who would try to monopolize public rights for themselves. While some may still call us “trespassers” when we make full use of public domain, fair use, and other public rights, our will to persist in those uses helps bring the copyright system into a healthier balance, promoting the well-being of creators and audiences alike.