In 1927, Calvin Coolidge was president, the first commercial flight of Pan American Airways took off (leaving Key West bound for Havana), the Academy of Motion Picture Arts and Sciences was founded, singer Eartha Kitt was born, and artist Juan Gris died. And on January 1, 2023, all literary works, compositions, and films that were first published in that year will enter the public domain in the United States. This will be the fifth year in a row – after a twenty-year hiatus (see this post) – that the public domain has been enriched with a cache of works.
As we do every year, we picked a handful of the noteworthy books, films and compositions that were published in 1927 and that now are available for use in the U.S. free of copyright restrictions. For more extensive lists, check out this list, and this one, and this one. (Disclaimer: I haven't personally confirmed the publication dates of any of the works.)
Books
- Virginia Woolf, To the Lighthouse
- Willa Cather, Death Comes for the Archbishop
- Thornton Wilder, The Bridge of San Luis Rey
- Ernest Hemingway, Men Without Women
- William Faulkner, Mosquitoes
- Agatha Christie, The Big Four
- Edith Wharton, Twilight Sleep
- Franklin W. Dixon, The Tower Treasure (the first book featuring the Hardy Boys, published under the pseudonym Franklin W. Dixon)
Films
- Metropolis (directed by Fritz Lang)
- The Jazz Singer (directed by Alan Crosland)
- Wings (directed by William A. Wellman)
- The Lodger: A Story of the London Fog (directed by Alfred Hitchcock)
- The King of Kings (directed by Cecil B. DeMille)
Compositions
- “The Best Things in Life Are Free” (George Gard De Sylva, Lew Brown, and Ray Henderson)
- “(I Scream You Scream, We All Scream for) Ice Cream” (Howard Johnson, Billy Moll, and Robert A. King)
- "Puttin’ on the Ritz" (Irving Berlin)
- “Can’t Help Lovin’ Dat Man” and “Ol’ Man River” (Oscar Hammerstein II and Jerome Kern)
Some Cautionary Notes
However, as we have cautioned in the past (here, here, here and here), there are some important limitations to bear in mind before you use a work from 1927.
1. The Law is Different Outside the U.S.:
While works published in 1927 may be in the public domain in the United States, the same works may be subject to copyright protection in other countries. The term for protection for older works in many other countries is the life of the author plus 50 years (e.g., Canada) or 70 years (e.g., many countries in Europe). (In the U.S., we didn't adopt a "life plus" term of copyright protection until the 1976 Copyright Act.) Accordingly, a work originally published in the U.S. in 1927 by an Italian author who died in 1975 likely remains protected by copyright law in Italy and other countries that use a life plus 70 term of protection.
So, if you are planning to use a particular work worldwide, you should do more research to determine whether you need a license.
2. Derivative Works May Still Enjoy Copyright Protection:
Only the version of the work, as originally published in 1927, is in the public domain in the U.S. Subsequent adaptations, editions and arrangements by later authors may include original content that is independently protected under copyright law.
For example, Irving Berlin's composition "Puttin' on the Ritz" is, according to many lists, now in the public domain in the U.S.. However, an original arrangement of that song that was created later – I'm thinking of (but refuse to listen again to) the one-hit wonder Taco's cover version from 1982 – may include elements that continue to enjoy protection under copyright in the U.S.
3. Watch Out for Sound Recordings:
As noted in this post, even if a composition is in the public domain, sound recordings of that composition published in 1923 or later potentially remain protected under the law.
The copyright status of sound recordings is complicated. But here is a primer:
Post-1972 Sound Recordings: Sound recordings were not protected under federal copyright law until February 15, 1972. This means that, currently, all post-1972 sound recordings are likely protected under federal copyright law. (Caveat: a sound recording published in the U.S. without proper notice between February 15, 1972 and March 1, 1989 would be in the public domain, subject to limited exceptions.)
Pre-1972 Sound Recordings: Until the passage (in 2018) of the The Classics Protection and Access Act (the "CPA Act") (enacted as Title II of the Music Modernization Act), pre-1972 recordings were subject to protection under state ("common law") copyright, not federal copyright law. The scope of that protection was extremely murky (to say the least). The CPA Act, in the words of the Copyright Office, "brings pre-1972 sound recordings partially into the federal copyright system" by providing a federal remedy for certain unauthorized use of pre-1972 sound recordings. However, the period during which an owner of a pre-1972 sound recording can seek a remedy under the CPA Act for unauthorized uses (referred to as the "term of prohibition" in the statute) is different from the term of copyright protection for works fully covered by the Copyright Act. The details, which are spelled out in 17 U.S.C. §1401(a)(2)(B), are summarized in this chart:
For example, while (as noted above) the composition "Ol' Man River" will be in the public domain on January 1, 2023, the owner of a 1927 recording of that composition would still have a remedy, under the CPA Act, for the unauthorized use of that recording until January 1, 2028.
One other quirk to note: although all pre-1923 sound recordings went into the public domain on January 1st of this year, under the CPA Act, no sound recordings will go into the public domain in 2023. We will need to wait until January 1, 2024 for sound recordings first published in 2023 to enter the public domain.
4. Some Works from 1927 Already Were in the Public Domain:
Some works published in 1927 already were in the public domain because the copyright owners did not comply with the formalities that were necessary under prior law. For example, subject to certain exceptions, a work published in the U.S. prior to March 1, 1989 without a copyright notice would be in the public domain. Also, under the 1909 Act, a work would fall into the public domain if the owner did not renew the copyright after an initial 28-year term of protection.
5. Other Laws May Provide Some Protection:
We can anticipate that certain rights holders, in certain instances, may try to use trademark law to prevent (or at least limit) the use of their works even after copyright has expired – at least in cases where they believe that consumer confusion is likely as to whether the rights holder was the source of the work or goods in question. Mickey Mouse is protected not only by copyright law, but also by trademark law. Disney has multiple registrations, including for the word mark MICKEY MOUSE and various versions of the mouse character, including this one which shows Mickey's evolution from the iteration in the 1928 short "Steamboat Willie" through today:
When the copyright in the "Steamboat Willie" version of the character expires (on January 1, 2024), Disney not only will be able to argue that original elements added to the Mickey character after 1928 are entitled to copyright protection (see point 2 above), but also will be armed with these trademark registrations. How successful efforts by Disney and others to use trademark law as a sword remains to be seen, especially in light of the Supreme Court’s decision in Dastar Corp. v. Twentieth Century Fox. See also EMI Catalogue Partnership v. Hill, Holliday, Connors, Cosmopulos Inc.
Figuring out the public domain status of a work can be a little tricky. This handy chart is a good starting place to begin any inquiry.
Brian G. Murphy is Partner at Frankfurt Kurnit Klein & Selz where he counsels advertising agencies, advertisers, and entertainment companies as they develop and produce advertising and entertainment properties across all media. Mr. Murphy was named 2018 Attorney of the year for Advertising and Entertainment Law by Best Lawyers.
This column presents a general discussion of legal issues, but is not legal advice and may not be applicable in all situations. Consult your attorney. To contact Brian G. Murphy ESQ click here.
