1 00:00:00,080 --> 00:00:06,360 Speaker 1: M Welcome to the Bloomberg Law Podcast. I'm June Grosso. 2 00:00:06,760 --> 00:00:09,440 Speaker 1: Every day we bring you insight an analysis into the 3 00:00:09,480 --> 00:00:12,000 Speaker 1: most important legal news of the day. You can find 4 00:00:12,039 --> 00:00:15,280 Speaker 1: more episodes of the Bloomberg Law Podcast on Apple podcast, 5 00:00:15,520 --> 00:00:19,840 Speaker 1: SoundCloud and on Bloomberg dot com slash podcasts. It wasn't 6 00:00:19,880 --> 00:00:23,360 Speaker 1: noticeable like a ball dropping in Times square, but this 7 00:00:23,400 --> 00:00:27,319 Speaker 1: new year, an unprecedented number of books, films, art and 8 00:00:27,440 --> 00:00:42,360 Speaker 1: music entered the public domain, from the cerebral igor Stravinsky's 9 00:00:42,479 --> 00:00:49,680 Speaker 1: Artet for Wind Instruments to the danceable Charleston from cecil 10 00:00:49,680 --> 00:00:54,000 Speaker 1: By to Mills, The Ten Commandments to Charlie Chaplin's The Pilgrim, 11 00:00:54,040 --> 00:00:57,600 Speaker 1: from Agatha Christie's The Murder on the Links to George 12 00:00:57,600 --> 00:01:02,320 Speaker 1: Bernard Shaw's play St. Joan. Works published in ninety three 13 00:01:02,560 --> 00:01:07,319 Speaker 1: lost their copyright protection. That means you're now free to republish, remake, 14 00:01:07,480 --> 00:01:11,560 Speaker 1: or revise them without asking permission or paying. Joining me 15 00:01:11,600 --> 00:01:15,560 Speaker 1: to discuss what's sometimes called public domain day is intellectual 16 00:01:15,600 --> 00:01:20,200 Speaker 1: property Attorney Terence ross a partner Captain nu Chuen Rosenman. So, Terry, 17 00:01:20,240 --> 00:01:22,200 Speaker 1: what are some of your favorites that rang in the 18 00:01:22,240 --> 00:01:25,640 Speaker 1: new year by entering the public domain. This year we 19 00:01:25,680 --> 00:01:28,880 Speaker 1: had come into the public domain the cartoon character Felix 20 00:01:28,920 --> 00:01:32,759 Speaker 1: the cat Bamby. The cartoon character Bamby, who was originally 21 00:01:32,800 --> 00:01:35,279 Speaker 1: in an illustrated book, is now in the public domain. 22 00:01:35,560 --> 00:01:38,760 Speaker 1: George Bernard Shaw's great play St. Joe is now in 23 00:01:38,760 --> 00:01:43,760 Speaker 1: the public domain. To really fabulous Agatha Christie novels, both 24 00:01:43,760 --> 00:01:47,960 Speaker 1: featuring her detective Hercules perrow a Murder of Roger Ackroyd, 25 00:01:47,960 --> 00:01:50,160 Speaker 1: one of the most acclaimed of her novels, and my 26 00:01:50,200 --> 00:01:53,440 Speaker 1: personal favorite, Murder on the Links are now both in 27 00:01:53,440 --> 00:01:56,960 Speaker 1: the public domain, and every single year we will see 28 00:01:57,040 --> 00:01:59,480 Speaker 1: new ones coming to the public domain. On January one, 29 00:02:00,520 --> 00:02:04,000 Speaker 1: works published or performed the first time in nineteen twenty 30 00:02:04,040 --> 00:02:07,680 Speaker 1: four will come into the public domain next January one. 31 00:02:07,800 --> 00:02:12,760 Speaker 1: January one, works that were published in ninety five will 32 00:02:12,760 --> 00:02:17,600 Speaker 1: come into the public domain on January one, etcetera, etcetera, etcetera. 33 00:02:18,040 --> 00:02:21,560 Speaker 1: Explain why a year's worth of works from nineteen twenty 34 00:02:21,600 --> 00:02:25,840 Speaker 1: three lost their copyrights this year well June. About twenty 35 00:02:25,960 --> 00:02:29,519 Speaker 1: years ago, in Congress pass what came to be known 36 00:02:29,560 --> 00:02:34,080 Speaker 1: as the Sunny Bono Copyright Term Extension Act of nine 37 00:02:34,200 --> 00:02:39,040 Speaker 1: copyrights and older works were essentially extended for twenty years. 38 00:02:39,120 --> 00:02:41,360 Speaker 1: And I won't bore you with the math, but what 39 00:02:41,480 --> 00:02:45,480 Speaker 1: it meant in practice was that any work that was 40 00:02:45,600 --> 00:02:51,160 Speaker 1: published and copyrighted prior to January one, two thousand three, 41 00:02:51,440 --> 00:02:55,080 Speaker 1: was in the public domain. However, any work that was 42 00:02:55,160 --> 00:03:01,080 Speaker 1: published after January one, nineteen twenty three remained under copyright 43 00:03:01,560 --> 00:03:05,360 Speaker 1: and essentially had a twenty year extra lease on its 44 00:03:05,400 --> 00:03:10,840 Speaker 1: copyright life. That twenty years is up as of January 45 00:03:10,880 --> 00:03:14,200 Speaker 1: one of the new year two thousand nineteen, and so 46 00:03:14,360 --> 00:03:18,040 Speaker 1: we see a large number of works published during the 47 00:03:18,120 --> 00:03:22,320 Speaker 1: year nineteen twenty three coming into the public domain for 48 00:03:22,400 --> 00:03:25,080 Speaker 1: the first time that arguably should have come out in 49 00:03:25,080 --> 00:03:28,639 Speaker 1: the public domain twenty years ago, now finally getting into 50 00:03:28,680 --> 00:03:31,760 Speaker 1: the public domain and becoming free and available for use. 51 00:03:32,000 --> 00:03:35,120 Speaker 1: Since it's called the Sunny Bono Law, I assume it 52 00:03:35,160 --> 00:03:38,400 Speaker 1: has something to do with California and Hollywood. Explain what 53 00:03:38,520 --> 00:03:41,640 Speaker 1: happened there? Why did they decide to go against the 54 00:03:41,680 --> 00:03:44,240 Speaker 1: idea of you know what copyright is for in the 55 00:03:44,280 --> 00:03:49,560 Speaker 1: public domain and extend them. The genesis of this Copyright 56 00:03:49,720 --> 00:03:53,240 Speaker 1: Term Extension Act was a problem that the Walt Disney 57 00:03:53,320 --> 00:03:57,720 Speaker 1: Company had Mickey Mouse as a cartoon character. First appeared 58 00:03:58,080 --> 00:04:03,200 Speaker 1: in the year in a short film called Steamboat Willie, 59 00:04:03,920 --> 00:04:08,320 Speaker 1: and the copyright on that character of Mickey Mouse was 60 00:04:08,400 --> 00:04:12,480 Speaker 1: coming do so Walt Disney, not waiting till the last minute, 61 00:04:12,840 --> 00:04:16,919 Speaker 1: decided to start a campaign in Congress to gain a 62 00:04:17,040 --> 00:04:21,080 Speaker 1: twenty year extension not just for the Mickey Mouse copyright, 63 00:04:21,320 --> 00:04:25,400 Speaker 1: but for all early twentieth century copyrights. Now, at that time, 64 00:04:26,640 --> 00:04:30,040 Speaker 1: you may recall, Sonny Bono had been elected to Congress 65 00:04:30,080 --> 00:04:34,440 Speaker 1: as a Republican Congressman from the Palm Springs area of California, 66 00:04:34,640 --> 00:04:38,880 Speaker 1: and by chance he was the chairman of the Intellectual 67 00:04:38,960 --> 00:04:43,280 Speaker 1: Property sub Committee in the House of Representatives. When this 68 00:04:43,480 --> 00:04:46,760 Speaker 1: bill was first introduced, and during the course of the 69 00:04:46,800 --> 00:04:50,479 Speaker 1: proceedings by which it was enacted into law, Sonny Bono 70 00:04:50,560 --> 00:04:53,040 Speaker 1: was killed in the skiing accident, and the name of 71 00:04:53,240 --> 00:04:57,279 Speaker 1: the act was quickly changed from the rather mundane sounding 72 00:04:57,320 --> 00:04:59,960 Speaker 1: Copyright Term Extension Act to the Sunny Bono Memorial Copy 73 00:05:00,240 --> 00:05:02,920 Speaker 1: Term Extension Act. He was a big proponent of it, 74 00:05:03,200 --> 00:05:06,800 Speaker 1: but the genesis of the whole issue is really this 75 00:05:07,000 --> 00:05:11,040 Speaker 1: need to protect Mickey Mouse. But the benefit of that 76 00:05:11,080 --> 00:05:15,880 Speaker 1: copyright term extension was extended to all works published after 77 00:05:16,920 --> 00:05:21,120 Speaker 1: essentially buying them an extra twenty years of copyright protection. Now, 78 00:05:21,200 --> 00:05:25,000 Speaker 1: let's talk about what this means. Can you remake Let's 79 00:05:25,000 --> 00:05:28,560 Speaker 1: take The Ten Commandments. Can you remake your own version 80 00:05:28,560 --> 00:05:33,320 Speaker 1: of the film? Absolutely. One of the movies that is 81 00:05:33,360 --> 00:05:36,480 Speaker 1: now in the public domain is Cecil B. De Mill's 82 00:05:36,680 --> 00:05:41,520 Speaker 1: epic silent film The Ten Commandments. This movie received an 83 00:05:41,520 --> 00:05:45,920 Speaker 1: extra twenty years of protection. Now that protection has expired 84 00:05:46,200 --> 00:05:48,600 Speaker 1: and it's out there in the public domain, anyone is 85 00:05:48,640 --> 00:05:51,200 Speaker 1: free to use it, to use the characters in it, 86 00:05:51,600 --> 00:05:56,360 Speaker 1: to use the situations the plot. As you know, there 87 00:05:56,400 --> 00:05:59,120 Speaker 1: is no dialogue because it was a silent movie. We'll 88 00:05:59,160 --> 00:06:01,600 Speaker 1: only see sid lent movies coming out for the first 89 00:06:01,600 --> 00:06:04,400 Speaker 1: three or four years, and then we will start seeing 90 00:06:04,480 --> 00:06:07,640 Speaker 1: the early talkie movies, like The Jazz Singer with Al 91 00:06:07,720 --> 00:06:12,480 Speaker 1: Joelson coming into the public domain in two thousand six 92 00:06:12,600 --> 00:06:16,600 Speaker 1: or twenty seven. So, Terry, suppose you take one of 93 00:06:16,640 --> 00:06:20,120 Speaker 1: these and you add something new to it. Will that 94 00:06:20,320 --> 00:06:24,240 Speaker 1: new part have a copyright? It can have a copyright 95 00:06:24,480 --> 00:06:27,400 Speaker 1: that would be referred to as a derivative work, but 96 00:06:27,720 --> 00:06:33,560 Speaker 1: the copyright would only extend to whatever new material was 97 00:06:33,680 --> 00:06:37,880 Speaker 1: added onto the original. If you added a brand new 98 00:06:37,960 --> 00:06:40,960 Speaker 1: character to the Ten commandments who was not in the 99 00:06:41,000 --> 00:06:44,720 Speaker 1: original and is not a historical figure, that character could 100 00:06:44,720 --> 00:06:49,279 Speaker 1: obtain copyright protection. Some people have expressed fears that losing 101 00:06:49,279 --> 00:06:54,120 Speaker 1: copyright protections will lead to inferior editions with typos, for example, 102 00:06:54,520 --> 00:06:58,000 Speaker 1: or derivative works that damage the integrity of the original, 103 00:06:58,160 --> 00:07:01,640 Speaker 1: or even use them in commercial for beers or cars. 104 00:07:02,160 --> 00:07:05,480 Speaker 1: There's certainly a risk that you will see these sorts 105 00:07:05,520 --> 00:07:09,120 Speaker 1: of uses. The key point here is that copyright is 106 00:07:09,480 --> 00:07:12,000 Speaker 1: a right extended in the Constitution of the United States. 107 00:07:12,000 --> 00:07:15,119 Speaker 1: It's a very different than trademark law in that sense. 108 00:07:15,120 --> 00:07:19,000 Speaker 1: It's a constitutionally based right, and the Constitution says that 109 00:07:19,040 --> 00:07:23,360 Speaker 1: Congress makes end copyrights to works for a limited duration. 110 00:07:23,960 --> 00:07:28,760 Speaker 1: So copyrights cannot, under the Constitution be perpetual or even 111 00:07:28,800 --> 00:07:31,880 Speaker 1: approached such a long period of time that pragmatically they 112 00:07:31,920 --> 00:07:35,000 Speaker 1: are perpetual, and so there has to be an ending 113 00:07:35,400 --> 00:07:38,880 Speaker 1: um to copyright protection. There's the famous story about um. 114 00:07:38,960 --> 00:07:42,160 Speaker 1: During the nineteen o nine revisions to the Copyright Act, 115 00:07:42,440 --> 00:07:47,000 Speaker 1: Mark Twain testified on behalf of lengthening the copyright term, 116 00:07:47,200 --> 00:07:49,520 Speaker 1: and he was asked by one of the senators, well, 117 00:07:49,520 --> 00:07:52,440 Speaker 1: how long do you think a copyright should last? And 118 00:07:52,520 --> 00:07:54,840 Speaker 1: he famously said, I think it should last through the 119 00:07:54,880 --> 00:07:57,160 Speaker 1: lives of my children, but not into the lives of 120 00:07:57,160 --> 00:08:01,000 Speaker 1: my grandchildren, and and that has often got did policy 121 00:08:01,040 --> 00:08:04,400 Speaker 1: makers that there should be this limited term based in 122 00:08:04,520 --> 00:08:08,160 Speaker 1: some form upon the life of the author. The problem 123 00:08:08,200 --> 00:08:12,280 Speaker 1: we have in modern society is that authors are often 124 00:08:12,440 --> 00:08:15,920 Speaker 1: corporate in nature, and people see a lot less reason 125 00:08:16,280 --> 00:08:20,240 Speaker 1: to be giving away these extensions to corporations such as 126 00:08:20,240 --> 00:08:23,720 Speaker 1: the Walt Disney Company as opposed to a Mark Twain. 127 00:08:24,120 --> 00:08:27,600 Speaker 1: But that's why we see this risk that there is 128 00:08:27,640 --> 00:08:31,880 Speaker 1: going to be unapproved copies going forward, and that's going 129 00:08:31,920 --> 00:08:34,520 Speaker 1: to be allowed by the law, unauthorized unapproved copies. The 130 00:08:34,559 --> 00:08:37,960 Speaker 1: benefit society is that those works will be a lot cheaper. 131 00:08:38,120 --> 00:08:41,079 Speaker 1: If you look at the works of Shakespeare or Charles Dickens, 132 00:08:41,120 --> 00:08:42,960 Speaker 1: both of which are in the public domain for a 133 00:08:43,000 --> 00:08:46,440 Speaker 1: long time now, um they are relatively inexpensive to buy 134 00:08:46,720 --> 00:08:49,760 Speaker 1: at a Barnes and Noble or online in Amazon. If 135 00:08:49,760 --> 00:08:52,800 Speaker 1: you look at copyright it works, you're always paying a premium. 136 00:08:52,880 --> 00:08:55,720 Speaker 1: And as these works come out into the public domain, 137 00:08:56,040 --> 00:08:58,240 Speaker 1: the cost for them to be owned by the public 138 00:08:58,400 --> 00:09:01,280 Speaker 1: will come down dramatically. And the judgment has been made 139 00:09:01,320 --> 00:09:06,040 Speaker 1: by Congress that that trade off lower cost for acquisition 140 00:09:06,080 --> 00:09:09,920 Speaker 1: of the works by the public versus perhaps some inaccuracies, 141 00:09:09,960 --> 00:09:14,800 Speaker 1: perhaps some vulgar derivative works, that that is a tradeoff 142 00:09:14,880 --> 00:09:17,319 Speaker 1: that the Congress is willing to accept. And I guess 143 00:09:17,360 --> 00:09:20,400 Speaker 1: when you look back you mentioned Charles Dickens and Shakespeare. 144 00:09:20,760 --> 00:09:23,640 Speaker 1: There have been derivative works and they haven't done damaged 145 00:09:23,720 --> 00:09:27,160 Speaker 1: to the originals. Well, that's true. There was a famous 146 00:09:27,160 --> 00:09:30,080 Speaker 1: one recently what is commonly referred to as a mashup 147 00:09:30,480 --> 00:09:34,040 Speaker 1: in which a classic work is given some new touch, 148 00:09:34,200 --> 00:09:37,360 Speaker 1: and it was Pride and Prejudice um with the appearance 149 00:09:37,400 --> 00:09:39,920 Speaker 1: of zombies. And Pride and Prejudice has been in the 150 00:09:39,960 --> 00:09:43,560 Speaker 1: public domain for quite some time, and there were some 151 00:09:43,760 --> 00:09:47,559 Speaker 1: criticism of that at the time, that it took a 152 00:09:47,600 --> 00:09:50,760 Speaker 1: classic piece of English literature and reduced it in a 153 00:09:50,840 --> 00:09:53,760 Speaker 1: vulgar way. However, there was also a lot of very 154 00:09:53,760 --> 00:09:58,920 Speaker 1: positive criticism that came out about that, the creativity of 155 00:09:58,960 --> 00:10:04,000 Speaker 1: introducing zombie into Victorian novel. There are films that are 156 00:10:04,200 --> 00:10:06,600 Speaker 1: more recent that are talking films which are in the 157 00:10:06,600 --> 00:10:10,040 Speaker 1: public domain, like It's a Wonderful Life? How did that 158 00:10:10,160 --> 00:10:12,920 Speaker 1: end up in the public domain? So it's a Wonderful 159 00:10:13,040 --> 00:10:16,760 Speaker 1: Life story is very complicated from a copyright point of view. 160 00:10:17,360 --> 00:10:20,640 Speaker 1: It was at the time it was released under the 161 00:10:20,760 --> 00:10:24,720 Speaker 1: nine nine Copyright Act, which provided for an initial copyright 162 00:10:24,800 --> 00:10:27,200 Speaker 1: term of twenty eight years plus a renewal of twenty 163 00:10:27,200 --> 00:10:31,280 Speaker 1: eight years. Whoever had the rights at the time of 164 00:10:31,360 --> 00:10:36,640 Speaker 1: renewal failed to properly renew the copyright, and therefore was 165 00:10:36,720 --> 00:10:40,480 Speaker 1: asserted that it had come out into the public domain 166 00:10:40,760 --> 00:10:43,640 Speaker 1: as a result of legislation. Subsequent to that point in time, 167 00:10:43,880 --> 00:10:48,160 Speaker 1: there was the opportunity for such works to repair their 168 00:10:48,160 --> 00:10:51,839 Speaker 1: renewal problems, and the owner of the copyright in its 169 00:10:51,840 --> 00:10:55,560 Speaker 1: Wonderful Life purportedly undertook to do that and began to 170 00:10:55,679 --> 00:10:59,600 Speaker 1: assert copyright ownership again. So that's why for a period 171 00:10:59,600 --> 00:11:02,600 Speaker 1: of time seemed like everybody at Christmas time was running 172 00:11:02,800 --> 00:11:06,720 Speaker 1: It's a Wonderful Life on television every channel without any consistency. 173 00:11:06,960 --> 00:11:09,760 Speaker 1: You once again now only see it being run on 174 00:11:09,760 --> 00:11:13,360 Speaker 1: one authorized channel. And apparently it was not a big 175 00:11:13,440 --> 00:11:15,439 Speaker 1: hit when it first came out, but when it went 176 00:11:15,440 --> 00:11:17,760 Speaker 1: into the public domain it became a big hit. So 177 00:11:17,800 --> 00:11:21,240 Speaker 1: who knows what we'll see going forward. That's Terence Ross, 178 00:11:21,280 --> 00:11:26,000 Speaker 1: a partner at Captain Uten Rosenman. Thanks for listening to 179 00:11:26,000 --> 00:11:29,320 Speaker 1: the Bloomberg Law Podcast. You can subscribe and listen to 180 00:11:29,360 --> 00:11:33,120 Speaker 1: the show on Apple Podcasts, SoundCloud, and on bloomberg dot 181 00:11:33,120 --> 00:11:37,600 Speaker 1: com slash podcast. I'm June Brosso. This is Bloomberg