News & Insights

Each January 1 is Public Domain Day, which marks the entry of a fresh batch of copyrighted creative works into the United States public domain. Several prominent works will enter the public domain on Public Domain Day 2023, including the last of Sir Arthur Conan Doyle’s Sherlock Holmes stories and select literary works by Agatha Christie, Hermann Hesse, Ernest Hemmingway, and Virginia Wolff (to name just a few), as well as a number of notable film and musical compositions.

But what does that mean for people and businesses interested in using these works? As a starting point, copyright durations vary from country to country, so works copyrighted under the laws of different jurisdictions may be subject to different parameters for when a work enters the public domain. Looking specifically at the United States, entering the public domain generally means that the work is no longer protected by copyright.

However, that doesn’t mean that all aspects of the creative work are unprotected and free to use without permission. For example, although a 1927 work may enter the public domain, the rights holder may still retain certain rights to that work, including:

• Rights in additional material created after the publication date, such as annotations, bonus or supplementary materials, and other updates, additions, and changes to the works, including to their characters; and
• Other intellectual property rights, like trademark rights, which may survive long after the expiration of the copyright and may protect certain aspects of the works, like the name of a titular or recognizable character. A popular example is Tarzan, wherein the books published before 1924 are in the public domain, but the term TARZAN is a trademark of Edgar Rice Burroughs, Inc.

Rights holders have employed these and other inventive methods to try to extend their rights in their creative works, many of which remain largely untested in the courts. This, in turn, raises the question: Exactly how much of a work in the public domain, is actually in the public domain? While the answer’s not quite elementary, we can expect to see more discussions of these and other copyright topics as more and more notable works approach their own Public Domain Days.