Everybody's Libraries

1923 was a big year for novelty songs.   We’ve already noted “Barney Google”, one of the hits of the year.  On Twitter, Bill Higgins, who recalls his mother singing that song when he was young, reminded me of an even bigger novelty hit, “Yes! We Have No Bananas”.  The rapid expansion of radio broadcasting quickly put the the song into the ears of listeners across the country and beyond, and its sheet music reportedly sold 2 million copies within 3 months of its initial publication. Copyrighted in 1923, and renewed in 1950, the song will join the public domain 24 days from now.

What may not be recalled so much today is how much of the tune echoed earlier tunes by other writers. But many listeners of the time would have known, especially if they’d seen writer and musicologist Sigmund Spaeth perform.  His routine “New Tunes for Old”, a mixture of music and comedy similar in some ways to later routines by Victor Borge and Peter Schickele, had as its signature piece “Hallelujah, Bananas!”.  In it, Spaeth showed how the chorus to “Yes! We Have No Bananas” could be stitched together (with a bit of tugging of the rhythms and keys) almost entirely from bits of Handel’s Messiah, the Scottish folk-tune “My Bonnie”, the operatic aria “I Dreamt I Dwelt in Marble Halls”, John Fletcher’s “Seeing Nellie Home”, and Cole Porter‘s 1919 hit “An Old-Fashioned Garden”.

How much of this resemblance was deliberate recycling, and how much was just coincidence?  At least some of it was deliberate; in particular, the “old fashioned to-mah-to” phrase in “Bananas” is sung to the melodic motif of Porter’s “Old Fashioned Garden”, and an article about the song that appeared in the June 14, 1923 issue of Variety says that Porter’s publisher granted permission for that bit. On the other hand, Spaeth admits in The Common Sense of Music (1924) that the melodic phrase used for both “oh bring back my Bonnie to me” and “we have no bananas today” is a common melodic ending used in many songs.

With a limited number of tones in the western scale, and a limited number of common chord progressions, patterns, and basic rhythms, pretty much every song reuses elements from other songs.  If the “Bananas” chorus could be completely derived from one previous work, one could make a credible argument for plagiarism, but having to quote five different works to reconstruct (most of) the chorus supports the argument that the chorus is mostly an original melange of generic musical patterns that live in the public domain.  Indeed, after Spaeth became famous from his performances and books, he was frequently called as an expert witness to make arguments of that sort in court cases alleging musical plagiarism

If someone had brought such a plagiarism suit against “Yes! We Have No Bananas”, it would have also helped that the songs Spaeth cites in his routine (other than the licensed “Old Fashioned Garden”) were legally in the public domain as well.  Handel’s Hallelujah Chorus premiered in the 18th century; the “My Bonnie” melody is a traditional folk tune; “Marble Halls” dates from 1843; and “Seeing Nellie Home” is from the 1850s.  Since US copyright terms in 1923 ran a maximum of 56 years, copyrights to any of these works had expired well before “Bananas” came out.  If the 95-year maximum terms that now apply to 1923’s songs applied then, though, Silver and Cohn might have had more reason to be cautious in their composing.

Much of this article is based on what I learned from Gary A. Rosen’s book Unfair to Genius (2012) as well as Sigmund Spaeth’s Words and Music (1926).  I thank Kip Williams and Bill Higgins for pointing me towards these sources.  This song’s calendar entry goes out to the folks at Making Light, where the song and its predecessors were discussed some years back.  If you’d like to make your own requests or dedications, you can leave them as a blog comment or contact me.

2019 update: Link to sheet music of “Yes! We Have No Bananas”, now in the US public domain, courtesy of the University of Maine.

“Barney Google, with the goo-goo-googly eyes,
Barney Google bet his horse would win the prize.
When the horses ran that day, Spark Plug ran the other way!
Barney Google, with the goo-goo-googly eyes!”

Several novelty songs introduced in 1923 have been remembered long afterwards.  The one quoted above is “Barney Google”,  written by Billy Rose (whose other songwriting credits include “Me and My Shadow” and “Does Your Chewing Gum Lose its Flavor on the Bedpost Overnight?”) and Con Conrad.  The song’s registration with the Copyright Office calls it a “fox-trot”, the foxtrot being one of the most popular dances of the time. (The dance would stay popular up to the early days of rock’n’roll– the label on a 1953 single record for “Rock Around the Clock” describes it as a “novelty foxtrot” . But I digress.)

Originally performed by Eddie Cantor, “Barney Google” was also adopted by vaudeville acts like Olsen and Johnson, and other singers.  It was still recognizable enough by the 1970s to be adapted for TV commercials I recall seeing on Saturday mornings for a brand of sweetened peanut butter (“Koogle, with the koo-koo-koogly eyes!”)

Copyrighted in 1923, and renewed in 1950, the song will join the public domain 26 days from now.  It’s based on a comic strip whose beginnings are already in the public domain, and which is still running.

Barney’s comic strip was originally titled Take Barney Google, F’rinstance.  It began in 1919 in the Chicago Herald Examiner, but got a much wider distribution after King Features began syndicating it later that year.  It got even more popular with the introduction of Barney’s horse, Spark Plug, in 1922.  So when the “Barney Google” song came out the following year, listeners were already familiar with the characters in it.  Barney would also appear in numerous silent films and cartoons in the 1920s and 1930s.  In the 1930s, he met a hillbilly named Snuffy Smith, who would eventually take over the comic strip.  (It’s now titled “Barney Google and Snuffy Smith”, though when I read it in the papers as a kid, “Snuffy Smith” was in much bigger lettering, and I wondered who Barney Google was, since I never saw him in the strip. He’s reportedly made cameo appearances more recently.)

The early years of Barney Google’s strip are in the public domain, though you may have difficulty finding good copies.  For the most part, newspapers and the comic strips that appeared in them were considered ephemeral, and copyright renewal was very rare.  But after the success of Blondie and Superman, which both began in the 1930s, and the ongoing popularity of Disney’s characters, comics were increasingly seen as valuable intellectual property, and started to be renewed regularly.  A large number of periodicals in my periodical renewals inventory that renewed from the very first issue are comic books.

It’s a bit tricky to identify the point at which Barney Google’s strips stop being public domain and start having active copyright. You’ll search in vain for his name in book, periodical, or artwork renewal sections of the Catalog of Copyright Entries.  The first active copyright renewal covering the Barney Google strips, as far as I can tell, doesn’t mention his name at all.  It’s the renewal for the May 4, 1933 issue of King Features Comic Weekly, one of a set of periodicals from King Features that I have a hard time finding in any libraries.  It appears to have existed solely for distribution to newspapers, copyright protection, or both.  From what I can tell, the King Features weeklies included a copy of every comic strip, newspaper column, or other feature that King Features distributed.  Registering an issue with the Copyright Office would register the copyrights for the features it included.  And renewing the issue would also renew the copyrights to those features.

Those renewals also mean that any newspaper from May 1933 and onward running any of those renewed King Features comic strips still has some copyrighted material in it, even if there was no renewal for the newspaper itself or any of its other contents.  That may complicate cultural initiatives to put newspapers from that era online.  Later today, we’ll be releasing the draft of a guide for determining the copyright status of serials, which discusses some of the relevant issues (including that of syndicated features). I’ll have a special post on that shortly.  (Update: It’s out now.) And I’ll also discuss newspaper copyrights more in tomorrow’s calendar entry.

2019 update: Link to piano-vocal score for “Barney Google”, now in the US public domain, courtesy of the University of Maine. The cover features an illustration of Barney and his horse by Billy DeBeck, creator of the comic strip.  (And it turns out the first line of the chorus goes “…with his goo-goo-googly eyes”, not “…with the goo-goo-googly eyes”, as I’d written above.)

In yesterday’s post, I linked to a law review article that cited a court decision as “755 F.3d 496”.  That’s a kind of citation that pops up a lot both in law review articles, and in court decisions and briefings themselves.  It’s a reference to a decision as published in the third series of the Federal Reporter, volume 755, page 496.  The Federal Reporter isn’t a government publication, though– it’s a serial issued by the private firm of West Publishing, now a part of Thomson Reuters.  And it’s copyrighted.

In fact, it’s pretty emphatically copyrighted, like many other law reporters from private publishers.  If you look at the inventory I’ve compiled of early 20th-century serials with renewed copyrights, you’ll see that a lot of the serials with renewals all the way back to 1923 are law reporters or related legal publications.  West Publishing was particularly thorough with its renewals; for 1923, it renewed both initial issues of the Federal Reporter published shortly after the court decisions they cover, and “permanent edition” volumes, published a little bit later, that had updated and corrected copies of the ruling texts and accompanying notes.

It’s not surprising that West, and other legal publishers reporting on other jurisdictions, would be so assertive about copyright: If you publish something that’s a “must-have” for law firms, libraries, and other serious legal professionals, you can charge a lot of money for it.  Pricing for Westlaw, Thomson Reuters’ online database that includes the Federal Reporter, is hard to find, but third parties note that it can easily run well over $100 per month per user.  If I wanted instead to buy print copies of the Federal Reporter, the purchase options the publisher offers to me include buying individual volumes at $890 apiece, or buying the whole series as far back as 1993 for the low, low price of just over $30,000.  And this pricing reflects a time when readers have more choices than they have in the past for getting court decisions.  Nowadays, you can enter a recent federal case citation or a set of parties into Google or another search engine and have a pretty good chance of finding copies of the court’s rulings and decisions online.  In 1923, there was no Google, and most people had few or no options for obtaining authoritative copies of many court rulings or other laws other than through a private publisher’s law reporter.

This level of monopolization and pricing for law reporters may seem odd, given their contents.  By long-standing custom, the law is public domain in the United States.  Section 105 of US copyright law explicitly states “Copyright protection under this title is not available for any work of the United States Government“, and that includes the official rulings and opinions of the federal courts covered in the Federal Reporter.  So what can the publishers claim copyright on?

Historically, the answer has been “whatever they can get away with”.  That was a lot, even as late as the early days of the Web, when there were intense struggles to make the law freely available online.  Gary Wolf’s article “Who Owns the Law?”, published in Wired in 1994, gives us a detailed,  dark picture of the situation then.  Online access to much of the law was controlled by a duopoly of West and Lexis-Nexis (the latter now a part of RELX).  West claimed (and still claims) copyright to the summary headnotes and other annotations it added to cases.  That seems fairly reasonable in itself, as it can represent substantial original creative work.  But since those notes are interleaved with the issuances of the court in the reporters, it can be difficult for a lay person to determine what’s public domain and what’s not– and it also means that people can’t simply mass-digitize the reporters and put the page images online, like has been done for millions of completely public-domain books.   Hence, HathiTrust’s openly accessible run of the Federal Reporter as of today stops at volume 281, the last permanent-edition volume published in 1922.

But West went further than just claiming copyright on its annotations.  It also claimed copyright on its editing of the decision texts (including incorporating corrections as they were issued), and even on the page numbering system it used for the decisions.  As Wolf’s article notes, in the 1980s, the 8th Circuit supported West’s claims over its page numbering, which effectively gave it a monopoly as long as the court system used citations based on that page numbering system.  (West would later license the numbering system to Lexis-Nexis, but no one else had a license in the early 1990s.)

The situation would improve not long after Wolf’s article was published.  That same year, Hyperlaw sued West over its claims to copyright over its page numbering and edited versions of court decisions.  In 1998, the 2nd Circuit issued two rulings (158 F.3d 674 and 158 F.3d 693) that struck down West’s more expansive copyright claims.  As quoted by the Association of Research Libraries, the court ruled that “all of West’s alterations to judicial opinions involve the addition and arrangement of facts, or the rearrangement of data already included in the opinions, and therefore any creativity in these elements of West’s case reports lies in West’s selection and arrangement of this information. In light of accepted legal conventions and other external constraining factors, West’s choices on selection and arrangement can reasonably be viewed as obvious, typical, and lacking even minimal creativity.”  On that basis, the Second Circuit denied copyright protections to them, and to their page numbering system.  (A detailed contemporary analysis of the case, published after the district court ruled but before the appeals court did, can be found in Peter Thottam’s 1998 article, “Matthew Bender v. West Publishing”, published in the Berkeley Technology Law Journal.)

Since then, it’s become much easier to find court opinions online, including those derived from the Federal Reporter and other law reporters, complete with page number citations, but stripped of any external annotations.  And even those annotations may not always be copyrighted.  A recent decision by the 11th Circuit notes that when annotations are “an inextricable part of the official codification” of the law, they might not qualify for copyright protection.  In Georgia, an annotated code was declared to be the official version of state law, and Georgia asserted a copyright over it based on the annotations.  (Ironically, those annotations were made by Matthew Bender and Co., the same firm that challenged West’s expansive copyright claims to its law reporters.)  After Georgia sued Public.resource.org, an organization that digitized the complete annotated code, the appeals court ruled that “no valid copyright interest can be asserted in any part” of the annotated code.  (There’s a nice summary of this case and some related ongoing legal actions at the website of the Electronic Frontier Foundation, which is representing Public.resource.org.)

Could this ruling serve as a precedent to open up other annotated publications, such as, for instance, annotated court decisions, if they were effectively the official records of those decisions?  I can’t say for sure, or whether that would apply to older volumes of the Federal Reporter, since I’m not a lawyer and don’t have deep knowledge of how that publication was treated back in the 1920s.  But I find it an interesting question to consider.  In the meantime, we’ll have some more Federal Reporter volumes entering the public domain the long way, via expiration of their copyright terms, 27 days from now.

I say above that “there was no Google” in 1923.  Strictly speaking, there was a Google then: not the search and advertising company we know today, but another Google that was the brand of a media franchise that continues to this day.  It’s partly in the public domain now, and more of it will be in the public domain next month.  I’ll talk more about it, and the challenges in determining which parts are in the public domain, in tomorrow’s calendar entry.

2019 update: Link to the full run of The Federal Reporter through 1923, now in the US public domain, at HathiTrust and the Internet Archive via The Online Books Page.

As I noted in yesterday’s post, under US copyright law we sometimes get early works by long-lived authors in our public domain earlier than most other countries do. But we also often have to wait longer for authors’ late works.  Today I consider the case of Sir Arthur Conan Doyle, and his most famous creation, the ingenious detective Sherlock Holmes.

Like some of the other authors I’ve mentioned to date, Sir Arthur had a long writing career, and published writings on a variety of subjects.  He wrote in support of British actions in the South African War (commonly cited as the reason for the knighthood awarded to him in 1902).  Late in his career, he also wrote surprisingly credulously on alleged visitations of fairies, based on suspiciously composed photographs eventually admitted by their creators to be fakes.  Today, though, he’s best known for Holmes, who made his debut in A Study in Scarlet (1887), and appeared in a wildly popular series of stories that ran until the author got tired of him and killed him off in “The Adventure of the Final Problem” (1893).

It didn’t stick, though.  Public demand for more Holmes stories led the author to publish another Holmes novel in 1901 (but set before his plunge over the Reichenbach Falls), The Hound of the Baskervilles.  By 1903, Conan Doyle gave in and brought Holmes back to life in “The Adventure of the Empty House”, one of the more famous early examples of retroactive continuity now common in comics and other long-running entertainment series.  Conan Doyle would continue to publish Holmes stories, at a somewhat slower pace than before, through 1927, the same year the last ones were collected in The Case-Book of Sherlock Holmes.

Conan Doyle died in 1930, so his published works entered the public domain in the UK and many other countries in 1981, after 50 years had passed from his death.  In 2001, they entered the public domain under “life + 70 years” regimes (which the UK and many other countries had adopted in the interval).  But while early Holmes stories have been in the public domain in the United States for a long time, his last stories are still under copyright here.  Their copyright terms start with their first publication, though, and the last stories were published in magazines before they were published in the Case-Book.  In particular, “The Adventure of the Creeping Man” was published in the March 1923 issues of both the Strand Magazine and Hearst’s International.  The author’s children renewed the copyright to the story in 1950, and copyrights were also routinely renewed for Hearst’s issues.  US copyrights for the story, and for the other content in the 1923 issues of Hearst’s, will end 28 days from today.

The character of Sherlock Holmes was well-established in his early stories, and many Holmes fans consider the later Case-Book stories relatively minor.  That hasn’t stopped the Conan Doyle estate from claiming proprietary rights over Holmes stories generally, though, based on its US copyrights to the last few stories.  When the estate tried to block an anthology of new Holmes stories that Leslie Klinger planned to publish, unless he got permission and paid a fee, Klinger sued for a declaratory judgment that he did not need any such permission.  In 2014, the 7th Circuit agreed with him, noting that Klinger was not proposing to reuse elements introduced in the late stories, and that the “the alterations [in those stories] do not revive the expired copyrights on the original characters”.  In a later ruling, the same court awarded Klinger attorney’s fees from the estate,  calling their practices “a form of extortion” and saying “It’s time the estate, in its own self-interest, changed its business model”.

A more detailed legal analysis of the case can be found in Jessica L. Malekos Smith’s article “Sherlock Holmes & the Case of the Contested Copyright” (2016).  That article refers to the initial ruling I’ve linked above under the citation “755 F.3d 496”.  That notation, cryptic as it may appear to laypeople, refers to a commonly cited legal source that has had its own copyright controversies, and that also includes material that will soon be added to the public domain.  I’ll talk about it more in tomorrow’s calendar entry.

2019 update: Link to full text (with illustrations by Frederic Dorr Steele) of “The Creeping Man” as published in the March 1923 issue of Hearst’s International, now in the US public domain, courtesy of HathiTrust.

Few authors have had as longstanding an influence on their genres as Agatha Christie.  In her more than half-century career writing detective fiction, she established (and then often went on to break) many of the expectations of the English “whodunit” puzzle story.  Her novels continue to be adapted for movies and television (recent examples being 2017’s Murder on the Orient Express and 2018’s Ordeal by Innocence), and their fingerprints are all over many crime novels to this day.  (For instance, Anthony Horowitz’s best-selling 2016 novel Magpie Murders, which I read while traveling last week, very explicitly both imitates and reacts to Christie’s style.)

Christie died in 1976, less than 50 years ago, so her works are still under copyright in most countries.  But her career was long enough that her early work has started to enter the public domain in the United States. That’s because the United States used fixed copyright terms, rather than terms based on the author’s lifetime, until the 1970s.  Christie’s first published novel, The Mysterious Affair at Styles, introduced what may be her most famous character, Hercule Poirot.  The novel entered the public domain in the United States in 1996.  In 1998, it was joined there by The Secret Adversary (1922), which introduced the detective couple Tommy and Tuppence.  (Copies of both novels are online.)

1998 was also the year that the US Congress passed the Sonny Bono Copyright Term Extension Act, which extended most copyrights for 20 years and froze the US public domain for published works– until the end of this year.  29 days from now, though, we should see more Christie works entering the public domain here, including The Murder on the Links, in which Hercule Poirot returns to solve a murder mystery in France.  The Murder on the Links was published in both the US and the UK in 1923, and its copyright was renewed in the US in 1950.  That copyright, like other 1923 copyrights still in force, is set to expire here at the end of this year.

Another English author’s famous detective also made his debut in 1923: Dorothy L. Sayers’ Lord Peter Wimsey.  Unlike The Murder on the Links, his debut novel, Whose Body? will not be entering the US public domain this coming January.  But that’s because it’s already in the public domain here (at least in its first edition), and has been since 1951, as I found out some years ago after a little detective work of my own.

How did this happen?  Under the copyright system used in the US in 1923, copyrights were initially secured for a 28-year term, and then had to be renewed in their 28th year to remain in effect.  A 1923 copyright, then, needed to be renewed in either 1950 or 1951 to get another term. (Initially that term was 28 more years, but was later extended to 47 more years, and further extended to 67 more years with the 1998 copyright term extension noted above).  Later changes in copyright law (which I’ll discuss further in later calendar entries) exempted many works first published outside the US from the renewal requirement.  However, when reading Barbara Reynolds’ biography Dorothy L. Sayers: Her Life and Soul, I found out that due to publisher delays, Whose Body? had come out first in the United States, before Sayers’ British publisher issued it.  So if its copyright wasn’t renewed, it was no longer in effect here.

A search through the US Copyright Office’s Catalog of Copyright Entries confirmed that no renewal had been filed for the book. So I digitized it and contributed it to my wife’s Celebration of Women Writers website, where you can read it today (if you’re in the US, or a country whose copyright terms last for 60 years or less from the author’s death).

In less than a month, American readers will have more mysteries to read online, share, or adapt– and not just from Christie (or Sayers).  Tomorrow’s advent calendar entry will feature another famous detective whose stories are all in the public domain almost everywhere in the world, but not quite all there in the US, and note one of the copyright battles that situation sparked.

2019 update: Link to The Murder on the Links, now in the US public domain, courtesy Project Gutenberg.

Today marks the start of the Christian season of Advent in my church, four Sundays before Christmas. It’s an important time of the year for vocal music, as choirs both sacred and secular rehearse and perform Christmas-related music in services and concerts.  We like singing public domain classics– those have stood the test of time and are often well-known to our audiences, and we can copy scores cheaply and don’t have to worry about performance rights or royalties.  We also like to sing newer copyrighted works– those can be fresh and exciting, and can often be easily found in print and in recordings.  Older works still under copyright, though, can often fade into obscurity, even when they’re by creators who were once well-known.

Today’s Public Domain Day advent calendar entry falls into that category.   Though Frances McCollin had a long career in Philadelphia, where I’ve lived and sung for nearly 20 years, I don’t recall hearing of her before doing research for this calendar. Blind from an early age, she took a synesthetic approach to music, according to her biography Frances McCollin: Her Life and Music (1990), associating various keys with different colors and moods.  She published nearly 100 pieces of music, and her works have been performed by groups that include the Philadelphia Orchestra and the Warsaw Symphony.  The library where I work has some of her papers in its special collections; the Free Library of Philadelphia has others. Some of her early public domain music is now freely available online, such as “The Singing Leaves” (1918).  And some of it is still performed today. I’ve found online a sample of a recent recording by Canada’s Elektra Women’s Choir of her arrangement of “In the Bleak Midwinter” for women’s voices.  (McCollin died in 1960, so most of her published work is in the public domain in Canada. I’m not sure of the US copyright status of this particular composition.)

I had a much harder time, however finding traces of another Christmas vocal piece she was known for in her day, a children’s chorale setting of “‘Twas the Night Before Christmas”.  Based on the famous poem by Clement Clarke Moore (which, published 100 years earlier, had been in the public domain for her to adapt), her cantata was copyrighted in 1923, and renewed in 1950.  That copyright persists to this day, as the piece has faded into obscurity.  But 30 days from now, the work will enter the public domain in the US, and anyone interested in it can digitize it, make copies, perform it, or create new works based on it, without having to find a rightsholder to ask permission or pay royalties.

As Public Domain Day approaches, I’m looking forward to seeing familiar works join the public domain in the US, like the perennial international best-seller featured in yesterday’s calendar post.  But for every work like that, there are many more works that are less well-known, on all kinds of topics of interest, by people who lived all over, including in one’s own hometown.   They may have been largely out of sight for years, but their entry into the public domain gives them a new opportunity to be discovered, enjoyed, and shared by anyone.

If you know of any other works that will be coming into the public domain this January you’d like to share, I’d love to hear about them.  I’ll post about another one tomorrow.