LEILA FADEL, HOST:
For the first time in 20 years, on January 1, a flood of books, movies and music enter the public domain. They’re all from 1923 – among the trove, iconic tunes like “The Charleston.”
(SOUNDBITE OF BOB WILSON AND HIS VARSITY RHYTHM BOYS’ “CHARLESTON”)
FADEL: Now it can be used and repurposed without permission. It’s a significant moment for copyright law. And we’ve got Jennifer Jenkins and James Boyle to talk about it. They’re co-directors of Duke University’s Center for the Study of the Public Domain. They argue current copyright protections – in some cases, the life of the author plus an additional 70 years – extend far longer than they should. And Jennifer Jenkins and James Boyle join us now from member station WUNC. Welcome.
JAMES BOYLE: It’s nice to be here.
JENNIFER JENKINS: Thanks so much for having us.
FADEL: So let’s start with what exactly it means for something to enter the public domain. So, for example, what will musicians be able to do with “The Charleston” that they couldn’t before January 1?
BOYLE: They can perform their own versions of it. They can record it. They could turn it into a rap anthem. They could translate it. They could put it into a rock opera. Basically, they will have all the freedoms that we take for granted with something like Shakespeare or Mozart.
FADEL: And when we talk about free, does that mean, like, you don’t have to pay for it? You don’t have to get permission?
BOYLE: That’s exactly right – both of those things. And the main thing is not just that it’s free to consume. But it’s also free to use and to reuse.
FADEL: But what do you say to artists and copyright holders who say, you know, this is to make sure that I profit from what I’ve created here?
JENKINS: I say absolutely. And under a shorter term, you will profit from what you’ve created. You know, the term until 1978 was 28 years with an option to renew for another 28 years. Eighty-five percent of works were not renewed, showing that, during the first 28 years, the copyright holder was able to profit from it until the work was no longer commercially viable.
(SOUNDBITE OF FILM, “THE PILGRIM”)
FADEL: So there are some silent movies in this batch, too – comedies featuring Buster Keaton and Charlie Chaplin. There’s also Cecil B DeMille’s “The Ten Commandments” and “The Hunchback Of Notre Dame,” starring Lon Chaney.
BOYLE: Yes, absolutely. And may I say that your listeners should run, do not walk, to watch those Charlie Chaplin films – to watch “The Pilgrim,” to watch these amazing silent films, which really show us if you’re a lover of physical comedy, you will realize this is where that genre begins. And you will actually see some really incredible stunts which were actually done live by these performers and realize, wow, what a lot of creativity was there and wow, how much we owe to it. People are still building on that creativity. And now they’ll be able to do so legally.
FADEL: So there are lots of great literary works on this list, too, like this from Robert Frost’s “Stopping By Woods On A Snowy Evening.”
(SOUNDBITE OF POEM, “STOPPING BY WOODS ON A SNOWY EVENING”)
ROBERT FROST: The woods are lovely, dark and deep. But I have promises to keep and miles to go before I sleep and miles to go before I sleep.
FADEL: Jennifer, tell us some of your favorites on the list.
JENKINS: Well, you know, you have to like “Tarzan And The Golden Lion.” When it goes into the public domain next year, you could do what some people did with Jane Austen’s public domain works and make it “Tarzan And The Golden Lion And Zombies.”
(LAUGHTER)
JENKINS: I love Virginia Woolf. One of her earlier novels, “Jacob’s Room,” is going into the public domain. Edith Wharton’s very poignant and powerful story about World War I, “A Son At The Front” – that’s also going to the public domain next year.
FADEL: At the top, we heard “The Charleston.” What are some of the other really recognizable tunes from 1923?
JENKINS: Some of the other songs include one of my personal favorites – “Yes! We Have No Bananas.”
(SOUNDBITE OF SONG, “YES! WE HAVE NO BANANAS”)
BILLY JONES: (Singing) We have an old-fashioned tomato, a Long Island potato. But yes, we have no bananas. We have no bananas today.
JENKINS: I love that song because my grandmother used to sing it all the time when I was a kid. And she had a terrible voice. And I inherited that from her. But if you don’t have a terrible voice and you can sing and next year, that means you can record your own version of “Yes! We Have No Bananas” and use it as a soundtrack for your own produce-themed epic.
(SOUNDBITE OF SONG, “YES! WE HAVE NO BANANAS”)
JONES: (Singing) Yes, we have no bananas…
FADEL: James, why has it been 20 years since new material has been released for free use? And what does Sonny Bono have to do with it?
BOYLE: The Term Extension Act was named after Representative Sonny Bono, who tragically met with a skiing accident and died. And his colleagues extended copyright in the Sonny Bono Term Extension Act. And that had the effect of basically hitting the pause button so that no works would go into the public domain for 20 years. We’re now finally at the end of that period of 20 years. And works are once again entering the public domain.
FADEL: So what does it mean going forward? Do we have to wait another 20 years?
BOYLE: Now the conveyor belt has started again. So works will enter the public domain every year. But – and it’s wonderful that “The Charleston” is going to be available. It’s wonderful that “Tarzan” et cetera – but this is just a tiny teaspoon of the works that we would have had available. The copyright term used to be 28 years. So just think about that. Eighty-five percent of works from 1990 would be entering the public domain right now because the owner said it’s not worth it to me to renew my copyright, which is fairly strong evidence that it wasn’t actually worthwhile. So we get this, which is great. But it’s bittersweet because it reminds us of what could have been.
JENKINS: I should add to that, Leila, that one of the true tragedies of the long copyright term is that many of the works literally didn’t make it. Films, for example, news reels, documentaries have literally rotted in their cans. They’ve disintegrated because preservationists have been waiting for their copyrights to expire before they can legally digitize them.
FADEL: Wow.
JENKINS: So we’ve actually lost a huge swath of culture from the ’20s, from the ’30s because of the Copyright Term Extension.
FADEL: James, Jennifer, you two are actually married. So…
JENKINS: (Laughter).
FADEL: …What do you have planned for January 1 – lots of – are you watching? Are you reading? Are you listening?
BOYLE: It’s embarrassing. We sit around and drink champagne and talk about intellectual property. We have no life. But we will raise our glass to the works that are emerging into the public domain.
FADEL: Jennifer Jenkins and James Boyle are co-directors of the Center for the Study of the Public Domain at Duke University. Thanks so much. Happy New Year to you both.
JENKINS: Happy New Year to you, Leila. Thanks so much for talking with us.
BOYLE: Happy New Year. Thanks so much.
(SOUNDBITE OF GEORGE BRUNIES’ “TIN ROOF BLUES (VERSION 1)”)
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