What will enter the public domain in 2023

Cover art for the first edition of F. Scott Fitzgerald’s “The Great Gastby” by Fancis Cugat. Public domain.

The American public domain is about to get very interesting over the next couple of years, as well as legally contentious. This year’s public domain additions saw the release of many works from 1925, including F. Scott Fitzgerald’s The Great Gatsby, Virginia Woolf’s Mrs. Dalloway, Harold Lloyd’s The Freshman, and works of many great musicians, including Fats Waller, Duke Ellington, and Gertrude “Ma” Rainey. While these works are important to our heritage, their release is no threat to the corporations making millions off of popular intellectual properties. That will change, however, when the original incarnations of Winnie-the-Pooh, Mickey Mouse, Superman, and Bugs Bunny are set to be freed from copyright.

In 1998, copyright terms for works published between 1923 to 1977 in the United States were retroactively extended from 75 to 95 years. This effectively put a twenty year freeze on the American public domain, which did not see new works added until 2019. The Walt Disney Company famously lobbied for the extension to protect the copyrights of its iconic characters, such as Mickey Mouse, whose copyrights were then set to expire in 2004. Now that the public domain has reopened, we will start to see why Disney and other corporations lobbied so hard. You need only take a look at some of the popular IPs that will be up for grabs from 2022 to 2040:

Winnie-the-Pooh in 2022, Buck Rogers in 2023, Mickey Mouse in 2024, Popeye in 2024, Frankenstein (film) in 2026, Conan the Barbarian in 2027, King Kong in 2028, Donald Duck in 2029, Flash Gordon in 2029, Porky Pig in 2030, Daffy Duck in 2032, Snow White and the Seven Dwarfs (film) in 2032, Superman in 2033, The Hobbit in 2033, Batman in 2034, Captain Marvel (Shazam) in 2034, The Wizard of Oz (film) in 2034, Bugs Bunny in 2035, Tom and Jerry in 2035, Catwoman in 2035, The Joker in 2035, Wonder Woman in 2036, and Captain America in 2036, Fantasia (film) in 2036, and Casablanca (film) in 2037.

Now don’t get too excited. When the characters depicted in these works fall into the public domain, only the version as depicted in their debut appearance is free. This means that if you were to reuse Mickey Mouse, he must be the black and white version without gloves. If you were to reuse Superman, he cannot fly or use heat vision. If you were to reuse Batman, he cannot drive in the Batmobile. To use these latter and more familiar additions, you would need to wait for them to fall into the public domain. I can imagine advocates will put out helpful guides to protect eager creators from getting sued, but it will still be a tricky situation. Let’s say someone wanted to do a Batman story set in feudal Japan. Considering that there already is such a story, Batman Ninja, they would need to be careful not to imitate that copyrighted work.

When it comes to future legal challenges, I predict that corporations will only fight to protect the IPs that still rake in money. This means that the vast majority of literature, film, and music will be free. I very much doubt that the estate of John Steinbeck will put up a fight over The Grapes of Wrath falling into public hands in 2034 to stop some future bestseller. Nor do I suspect that Warner Bros will prevent the expiration of the Gone with the Wind movie in 2034 due to how politically untenable it is. While these works are important to our cultural heritage, they don’t currently have the same weight in the public consciousness that a superhero movie does. To protect the works which do hold that weight, however, many corporations will inevitably turn to trademark laws.

For while Mickey’s copyrights are set to expire in 2024, his trademark will not. Timothy B. Lee of Ars Technicanotes that trademark laws exist to prevent consumers from being confused about the origin of a product, or with regards to Mickey, “whether they believe a product is official Disney merchandise.” For example, if company sells peanut butter with Mickey’s face on the jar, it could fool consumers into thinking that their peanut butter is sponsored by Disney. Most people, I imagine, have no issue with this, but the question is whether or not this trademark protection would be extended to new creative works, like new Mickey Mouse cartoons.

Copyright scholar James Grimmelmann of Cornell Law School does not seem to think so. Speaking to Ars Technica, he cites the 2003 Supreme Court case Dastar v Twentieth Century Fox. Dastar republishedportions of a public domain documentary whose copyright was originally owned by 20th Century Fox. Dastar, however, edited out the original credits to present it as their own product. Fox, sued them in response, arguing that this was a violation of their trademark. SCOTUS, however, ruled against Fox, saying: “We have been careful to caution against misuse or overextension of trademark and related protections into areas traditionally occupied by patent or copyright.” One might think that after this ruling, Mickey Mouse and Superman would be fair game so long as the new works aren’t presented as Disney or DC Comics productions, (in the form of a disclaimer perhaps), but I have three reasons to not be so confident: Tarzan, John Carter, and Zorro.

The first Tarzannovel, Tarzan and the Apes by Edgar Rice Burroughs, was published in 1912, making the character 108 years old. The first John Carter story, A Princess of Mars also by Burroughs, was serialized that same year, making that character the same age as Tarzan. The first Zorro novel, The Curse of Capistrano by Jonathan McCulley, was published in 1919, making Zorro 101 years old. These works have all been in the public domain for some time, as are some of the films based on these stories: Tarzan of the Apes (1918), The Son of Tarzan (1920), and The Mark of Zorro (1920). In spite of this, Edgar Rice Burroughs Inc (ERB) and Zorro Productions Inc (ZPI) have used trademark laws to try to stop new works with these characters.

Since Tarzan and John Carter were published before 1923, they did not benefit from the 1998 extension, meaning that their earliest copyrights expired in 1988. In 2012, however, ERB sued Dynamite Entertainment for trademark infringement after they made the comics Warlord of Mars and Lord of the Jungle, which were based off of the Tarzan and John Carter stories. ERB argued that the comics would deceive readers into thinking that the content, such as the risque covers, was endorsed by them. To my non-legal mind, I find this argument silly. Most people understand that anyone can re-use a public domain work without permission. Nobody assumes that Wicked was endorsed by the L. Frank Baum Family Trust. Regardless, ERB settled with Dynamite and partnered with them to publish the comics. The fact that a court has not ruled on this means that ERB could still threaten future lawsuits to scare creators, which is exactly what they did in 2004 to stop the publication of Tarzan Presley in New Zealand (where Tarzan was already public domain).

Since Zorro was also created before 1923, it also did not benefit from the extension and was public domain by 1995. Again, as with ERB, ZPI has proven very litigious. In 2001, they joined a lawsuit with Sony and TriStar (who had released The Mask of Zorro film in 1998) against Fireworks Entertainment for their 2000 television show, The Queen of Swords, which they claimed infringed on their trademarks and copyrights. The court, however, ruled in favor of Fireworks, stating that Zorro was in the public domain. Nevertheless, ZPI sued Mars Inc in 2010 for a M&M Halloween commercial in which one of the characters was dressed like Zorro. Robert Cabell, the author of Z - The Musical of Zorro, sued ZPI for still claiming copyrights and trademarks on the character; this eventually led to the European Union declaring the “Zorro” trademark invalid. That ruling, however, is out of the jurisdiction of the United States, where Zorro’s public domain status is still an open question.

While Disney and others may choose not to use trademark law to maintain a perpetual copyright over these characters, they’d be foolish not to try. The absurdity of abusing trademark laws in this way speaks for itself. People will start to wonder why they should be barred from using works that are over a century old. Some owners do see this absurdity and stop fighting. Peter Pan’s copyright owner, Great Ormond Street Hospital, who settled with Emily Somma for her own 2002 Peter Pan novel, has recently acknowledged that they only own the rights to the 1928 play (which expires in 2023) and not the 1911 novel (which expired in 1986).

The first shots in this fight will be fired over A.A. Milne’s Winnie the Pooh, which is set to fall into the public domain next year. The lawsuits will probably be fought by Disney, who bought the rights to Pooh in 2001. Who will be the first to attempt a new Pooh book or cartoon? Will a court ruling be enough to settle the matter, or will the threat of lawsuits chill would-be creators? Will Tarzan, John Carter, and Zorro ever be secured for the public? Should Superman be as free to use as Cinderella? Should corporations have the right to permanently lock up the works of the 20th century? Do we need an ACLU for the public domain? These are the sorts of questions that will change the shape of the public domain in the coming years and it is a battle for which we must all prepare.

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What will public domain be 2025?

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What will enter the public domain in 2022?

Movies Entering the Public Domain.
For Heaven's Sake (starring Harold Lloyd).
Battling Butler (starring Buster Keaton) 12..
The Son of the Sheik (starring Rudolph Valentino).
The Temptress (starring Greta Garbo).
Moana (docufiction filmed in Samoa).
Faust (German expressionist classic).

What is the next thing to enter the public domain?

Ernest Hemingway's novel “The Sun Also Rises” is one of many to enter the Public Domain in 2022. Each year on January 1, a collection of copyrighted work loses their protected status and enters into the Public Domain. This is marked with the celebration of Public Domain Day.