On January 1, 2022, all literary works, compositions, and films first published in 1926, and all pre-1923 sound recordings, will enter into the public domain in the United States.
This is the fourth year in a row that works published during the administration of Calvin Coolidge - who, according to presidential historians surveyed by C-SPAN, ranked 23rd among our 46 presidents (earning him a "Gentleman's C") - have become available to the public to rip, mix and burn. Lists of soon-to-enter-the-public-domain works have been published by various sources (including The Public Domain Review, Duke's Center for the Study of the Public Domain, The Association for Recorded Sound Collections, and Creative Commons), and There are some big names and titles this year. Below are highlights. (Disclaimer: I haven't personally confirmed any of these.)
- Ernest Hemingway, The Sun Also Rises and Torrents of Spring
- Langston Hughes, The Weary Blues
- T. E. Lawrence, The Seven Pillars of Wisdom
- A. A. Milne, Winnie-the-Pooh
- Dorothy Parker, Enough Rope
- Battling Butler (starring Buster Keaton)?
- The Son of the Sheik (starring Rudolph Valentino)
- The Temptress (starring Greta Garbo)
- "Bye Bye Black Bird" (Ray Henderson, Mort Dixon)
- "Gentlemen Prefer Blondes" (Irving Berlin)
- "Nessun Dorma" from Turandot (Giacomo Puccini, Franco Alfano, Giusseppe Adami, Renato Simoni)
- "Someone To Watch Over Me" (George Gershwin, Ira Gershwin)
- "When the Red, Red Robin Comes Bob, Bob, Bobbin' Along" (Harry Woods)
However, the big story this year is that, for the first time, a cache of sound recordings (more than 400,000, according to one estimate) - specifically all recordings that were published before 1923 - will enter the public domain. Exciting! This means that old recordings embodying performances by Fanny Brice, Sophie Tucker, Mamie Smith, Ethel Waters, Enrico Caruso, Pablo Casalis and so many others will be available for others to reproduce and remix. If anyone is listening out there, I am begging for Megan Thee Stallion to sample the soon-to-be-public-domain recording of Fanny Brice's rendition of "My Man" (which recording is starkly different - in such an interesting way - from Streisand's version from Funny Girl).
Why will this happen in 2022 (and why didn't it happen before)? 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:
|Publication Date of Recording||Term of Prohibition|
|Before 1923||Ends December 31, 2021|
|Between 1923 and 1946||100 years from publication|
|Between 1947 and 1956||110 years from publication|
|Between 1957 - February 14, 1972||Ends on February 15, 2067|
- For example, while (as noted above) the composition ""Someone To Watch Over Me" will be in the public domain on January 1, 2022, the owner of a 1926 recording of that composition would still have a remedy, under the CPA Act, for the unauthorized use of that recording until January 1, 2026.
Some Cautionary Notes
However, as we have cautioned in the past ( here, here and here), there are some important limitations to bear in mind before you use a work from 1926. Here's a refreshed version of what we have written in past years:
1. The Law is Different Outside the U.S.:
While works published in 1926 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 1926 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 still need a license. Here is a list (which I have not verified) of authors whose works may be entering the public domain in 2022 outside the United States based on the year of the authors' deaths.
2. Derivative Works May Still Enjoy Copyright Protection:
Only the version of the work, as originally published in 1926, 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, the composition "Someone to Watch Over Me" (by the Gershwins) was first published in 1926 and is now in the public domain in the U.S.. However, an original arrangement of that song that was created later may include elements that continue to enjoy protection under copyright in the U.S.
3. Watch Out for Sound Recordings:
As noted above, even if a composition is in the public domain, sound recordings of that composition (if published after 1923) potentially remain protected under the law. (See discussion above.)
4. Some Works from 1926 Already Were in the Public Domain:
Some works published in 1926 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; accordingly, any work that was initially published between 1925 and 1963 and not renewed fell into the public domain long ago.
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 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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.