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Newly Public Domain Works 2023

Thousands of books, movies, songs and other creative works entered the public domain in the United States in 2023. Here is a partial list compiled by Cokato Minnesota attorney Thomas James.

Thousands of books, movies, songs and other creative works enter the public domain in the United States this year. Here is a partial list. (Click here for last year’s list).

Sherlock Holmes

Last year, it was Winnie the Pooh. This year, Sherlock Holmes officially enters the public domain. Pooh’s release from copyright protection sparked some creative uses of A. Milne’s fictional bear, from a comic strip in which Pooh Bear appears completely naked (i.e., without his red shirt on) to a slasher film called Winnie the Pooh: Blood and Honey, coming soon to a theater near you.

Sherlock Holmes and his sidekick, Dr. Watson, have actually been in the public domain for a long time, since Arthur Conan Doyle began publishing stories about them in the late nineteenth century. The copyrights in those works had already expired when Congress extended copyright terms in 1998. Legal controversies continued to arise, however, over which elements of those characters were still protected by copyright. New elements that were added in later stories potentially could still be protected by copyright even if the copyrights in previous stories in the series had expired. Now, however, the copyright in the last two Sherlock Holmes stories Doyle wrote have expired. Therefore, it appears that all elements of Doyle’s Sherlock Holmes stories are in the public domain now.

One can only imagine what creative uses people will make of the Holmes and Watson characters now that they are officially in the public domain, too.

Sherlock Holmes, public domain character in attorney Tom James article

The Tower Treasure (Hardy Boys)

The Tower Treasure is the first book in the Hardy Boys series of mystery books that Franklin W. Dixon wrote. As of this year, it is in the public domain.

Again, however, only the elements of the characters and the story in that particular book are in the public domain now. Elements that appeared only in later volumes in the series might still be protected by copyright.

Steppenwolf

Herman Hesse’s Der Steppenwolf, in the original German, is now in the public domain. This version is to be distinguished from English translations of the work, which might still be protected by copyright as derivative works. It is also to be distinguished from the classic rock band by the same name. It is always important to distinguish between trademark and other kinds of uses of a term.

The Bridge of San Luis Rey

Thornton Wilder’s Pulitzer Prize winning novel about an investigation into the lives and deaths of people involved in the collapse of a Peruvian rope bridge has now entered the public domain.

Mosquitoes

William Faulkner’s satiric novel enters the public domain this year. This work is to be distinguished from the insect by the same name. The insect, annoyingly, has been in the public domain for centuries.

The Gangs of New York

Herbert Asbury’s The Gangs of New York is now in the public domain.

Amerika

Franz Kafka’s Amerika (also known as Lost In America) — was published posthumously in 1927. It is now in the public domain.

The Jazz Singer

The Jazz Singer is a 1927 American film and one of the first to feature sound. Warner Brothers produced it using the Vitaphone sound-on-disc system and it featured six songs performed by Al Jolson. The short story on which it is based, “The Day of Atonement,” has already been in the public domain for some time. Now the film is, too.

The Battle of the Century

The Laurel and Hardy film, The Battle of the Century, is now in the public domain. Other Laurel and Hardy films, however, may still be protected by copyright.

Metropolis

Science fiction fans are most likely familiar with this 1927 German science fiction silent movie written by Thea von Harbou and Fritz Lang based on von Harbou’s 1925 novel. It was one of the first feature-length movies in that genre. The film is also famous for the phrase, “The Mediator Between the Head and the Hands Must Be the Heart.”

The Lodger

Alfred Hitchcock’s first thriller has entered the public domain.

“We All Scream for Ice Cream”

The song, “I Scream; You Scream; We All Scream for Ice Cream” is now in the public domain. Don’t worry if you uttered this phrase prior to January 1, 2023. Titles and short phrases are not protected by copyright. Now, it would be a different story if you’ve publicly performed the song, or published or recorded the song and/or the lyrics. Merely uttering those words, however, is not a crime.

“Puttin’ on the Ritz”

This song was originally written by Irving Berlin in 1927. Therefore it is now in the public domain. Taco released a performance of a cover version of this song in 1982. This version of the song made it all the way to number 53 in VH1’s 100 Greatest One-Hit Wonders of the 80’s special. Note that even if the original musical composition and lyrics are in the public domain now, recorded performances of the song by particular artists may still be protected. The copyrights in a musical composition and a recording of a performance of it are separate and distinct things. Don’t go copying Taco’s recorded performance of the song without permission. Please.

“My Blue Heaven”

This song, written by Walter Donaldson and George Whiting, is now in the public domain. It was used in the Ziegfeld Follies and was a big hit for crooner Gene Austin. It is not to be confused with the 1990 Steve Martin film with that name, which is still protected by copyright.

“The Best Things In Life Are Free”

This song was written by Buddy DeSylva, Lew Brown and Ray Henderson for the 1927 musical Good News. Many performers have covered it since then. The (ahem) good news is that it is now in the public domain.

Caveats

The works described in this blog post have entered the public domain under U.S. copyright law. The terms of copyrights in other countries are not the same. In the European Union, for example, Herman Hesse’s Der Steppenwolf is still protected by copyright as of January 1, 2023.

And again, remember that even if a work has entered the public domain, new elements first appearing in a derivative work based on it might still be protected by copyright.

The featured image in this article is “The Man with the Twisted Lip.” It appeared in The Strand Magazine in December, 1891. The original caption was “The pipe was still between his lips.” The drawing is in the public domain.

Dune It Wrong

The crypto group Spice DAO shelled out €2.66 million – about $3 million – for a rare book. The group announced that it had plans to digitize the book and distribute it to the public, produce an animated series based on the book for a streaming service, “support derivative projects,” and burn the book as an “incredible marketing stunt.” What could possibly go wrong?

by Thomas James Minnesota attorney

Dune is a widely-acclaimed 1965 science fiction novel by Frank Herbert. It is set in the future, at a time when feudalism exists on an interstellar scale. A wildly popular novel, Herbert wrote five sequels to it.

In 1974, director Alexander Jodorowsky resolved to adapt the book to film. The plan, however, ultimately was scrapped for lack of funds. It is not hard to see why. Jodorowsky envisioned an hours-long film with a score by Pink Floyd and appearances by such luminaries as Orson Welles and Mick Jagger. Weird artist Salvador Dali signed on to play a part, reportedly asking to be paid $100,000 per minute of screen time.

Before the project was scrapped, however, Jodorowsky compiled a book of concept art to present to studio executives. It included a storyboard sketched by the famous French cartoonist Moebius, along with set and character designs. Only a limited number of copies of it were made, and it is believed that only ten copies still exist today.

In November, one of these copies went up for auction at Christie’s. Appraisers expected it to sell for around $40,000. In the past, a copy of the book sold for $28,000 at auction. The crypto group Spice DAO, however, shelled out €2.66 million – about $3 million – for it. The group announced that it had plans to digitize the book and distribute it to the public, produce an animated series based on the book for a streaming service, “support derivative projects,” and burn the book as an “incredible marketing stunt.”

What could possibly go wrong?

It was a grand plan, except for one thing: Buying a copy of a book does not transfer the copyright along with it.

In general, you are free to do anything with the physical copy of a work you purchase – read it, decorate your restaurant or coffee shop with it, shred it, let your children color it. You are not free, however, to do anything you want with the intangible property embodied in it. When you buy a book, you do not acquire a right to make copies and distribute them to the public. You also do not acquire the right to make derivative works (new works based on the original work) or the right to “support derivative projects.” For these things, you would need to acquire either a license or outright ownership of the copyright from the copyright owner. If you don’t, then you may be liable for copyright infringement.

What about burning the book?

As I said, buying a copy of a book generally gives you the right to do whatever you want with the physical copy (as distinguished from the intangible property embodied in it.) I imagine many college students and zealous guardians of public morals will be delighted with this news, if they do not already know it.

There is an important exception to this rule, however. The Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (“VARA”), is a U.S. law that gives the author of a work of the visual arts the rights to (a) claim authorship of the work; and (b) prevent the use of his or her name as the author of any work of visual art which he or she did not create. In addition, the author of a work of the visual arts has the right to prevent the use of his or her name as the author of the work in the event of a distortion, mutilation, or other modification of the work. Further, the author has a right to “prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.” Id.

VARA is clear that these rights are personal to the author. Even if you acquire both a physical copy and ownership of the copyright, you do not acquire the right to destroy a work of visual art, if it is protected by VARA.

For purposes of VARA, a protected “work of visual art” is a drawing, painting, print or sculpture existing either in a single copy or in a limited edition of 200 or fewer copies that are signed and consecutively numbered by the author.

If the copy at issue here falls into this category – if it is was signed and consecutively numbered by the author – then burning the book would be unlawful.

Conclusion

Consulting with an attorney before making a significant purchase of intellectual property – or what you think is intellectual property – can be worthwhile at times.

Contact Thomas James, Minnesota attorney

Need help with a copyright matter? Contact Cokato, Minnesota attorney Thomas James at the Law Office of Tom James.

The Trademark Modernization Act

Not many people are aware that tucked into the 5,593-page Act are two major pieces of intellectual property legislation: the Copyright Alternative in Small-Claims Enforcement Act and the Trademark Modernization Act. Since the TM Act just went into effect, it seems appropriate to address it first.

By Tom James, Minnesota attorney

The Consolidated Appropriations Act of 2021 was signed into law on December 27, 2020. Most people have heard of the provisions relating to COVID-19, such as rental and other kinds of financial assistance, and Title XIV of Division FF of Section 2 (COVID-19 Consumer Protection Act). Most people are probably also aware that it contains the usual annual appropriations for things like the promotion of women’s interests. Not as many people are aware, however, that tucked into the 5,593-page Act are two major pieces of intellectual property legislation: the Copyright Alternative in Small-Claims Enforcement Act (“the CASE Act of 2020”) and the Trademark Modernization Act (“the TM Act of 2020.”) I will be talking about the CASE Act in later articles. Since the TM Act just went into effect, it seems appropriate to address it first.

Injunctions against infringement

In order to obtain an injunction, it is necessary to convince a court that you will suffer irreparable harm unless the court issues one. That can be difficult – and expensive – to do.

Historically, courts relieved some of the burden on trademark owners by applying a rebuttable presumption of irreparable harm upon a showing of likelihood of confusion. The United States Supreme Court, however, disrupted that practice in some circuits in 2006. In eBay, Inc. v. MercExchange, 547 U.S. 388 (2006), the Court held that an injunction against patent infringement cannot be granted unless the plaintiff makes an evidentiary showing that irreparable harm will ensue unless an injunction is granted. A split in the circuits resulted with respect to the question whether the requirement also applies to injunctions against trademark infringement. Some courts continued to apply the presumption; others did not.

The TM Act resolves the split. Now, 15 U.S.C. § 1116(a) requires courts in all jurisdictions to apply a rebuttable presumption of irreparable harm upon a finding of likelihood of confusion with a federally registered trademark, when an injunction is sought under the Lanham Act. In the case of a motion for a preliminary injunction or TRO, the presumption arises upon a showing of likelihood of success on the merits of an infringement claim brought under the Lanham Act.

The rebuttable presumption applies not only to infringement claims, but also to claims for injunctive relief with respect to false advertising, unfair competition, trademark dilution, or cyberpiracy under Section 43 of the Lanham Act.

By codifying this rebuttable presumption in the Lanham Act, the TMA removes uncertainty in the law and makes it easier for trademark owners to establish entitlement to injunctive relief.

Throwing out unused trademarks

If you’ve ever conducted a trademark search at the USPTO website, you’ve probably noticed an overabundance of registrations. In many cases, a trademark is registered in more categories of products and services than is really needed. Trademarks are often registered for good or services that either never have been used, or are not current being used, in connection with the mark. The TM Act provides new ways of clearing some of them out.

Expungement

The TM Act makes non-use a grounds for cancellation of a trademark registration. Cancellation of a trademark upon proof of abandonment is not new. The ability to remove unused goods or services from the coverage of the registration is. Moreover, an expungement does not require proof that the registrant has stopped using the mark since it was registered. To the contrary, it allows claims that a trademark has never been used (or has never been used for specified goods or services) to be made.

It is now possible to initiate a proceeding (called an “expungement”) to cancel a registration or narrow the categories of goods and services on the grounds of non-use.

Anyone may file an expungement petition. It may be brought between three and ten years after the registration. Until December 27, 2023, petitions to expunge trademarks may be brought with respect to registrations that are more than three years old, even if they are more than 10 years old. Thereafter, a petition may be brought only if the registration is between three and 10 years old.

Reexamination

The TM Act also makes it possible to petition the Trademark Office to reexamine the registration of a trademark. Under the TM Act, it will now be possible to seek the cancellation of a trademark on the grounds of that it was not actually used in commerce prior to the registration date. There is a 5-year limitations period for filing such a petition, measured from the date of issuance of the registration.

Who may initiate a proceeding

Anyone may initiate a proceeding. In addition, the USPTO may commence one on its own initiative. The filing fee is $400 per class of goods or services.

Appeals

The director’s determination with respect to an expungement or reexamination petition may be appealed. A party seeking to challenge the determination must first seek review from the Trademark Trials and Appeals Board (TTAB). Further review may then be sought from the Federal Circuit court of appeals.

Madrid Protocol registrations

A foreign or Madrid Protocol registration under Sections 44(e) or 66 cannot be cancelled on this new ground of non-use if the nonuse was due to special circumstances excusing the non-use.

Office Action response deadlines

Currently, trademark applicants have six months to respond to an Office Action. The TM Act authorizes the USPTO to specify a shorter time period.

The USPTO has announced that people (other than Madrid Section 66(a) applicants) will have three months, instead of six, to respond to office actions. For $125, you can request a 3-month extension. This shorter time period, however, will not be implemented until December 1, 2022.

Third-party evidence in examinations

Finally, the Act facilitates the submission and consideration of evidence submitted by third parties during the examination process. In the past, opponents of an application for registration typically initiated an opposition proceeding to contest a registration application. Under the new provisions, we are likely to see more attempts to forestall registration even before the application is published for opposition.

The Law Office of Tom James

Need help with a trademark matter? Whether it’s an application to register a trademark, an expungement or re-examination petition, an opposition proceeding, or an appeal, Cokato Minnesota attorney Thomas James at the Tom James Law Office can help you.

Take my course on Trademark Law

Enroll in attorney Tom James’s 90-minute on-demand course, “Trademark Law: Key Concepts” at Udemy to learn the basics of U.S. trademark law.

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