Yes! We Have Some Bananas

The public domain gained an entire year of material in 2019 and more is slated to come.

“Whose woods these are, I think I” — whoa! Until January 1, 2019, I couldn’t quote any more of this famous poem’s introduction, because of the dogged defense of copyright that the Robert Frost estate has engaged in for decades. But since that date, me, you, and everyone have been able to quote it at length in any form, set it to music, mash it up with hiphop, or produce inspirational posters.

When the ball touched down in Times Square on New Year’s Eve, so, too, did the copyright expire on nearly all work published in the United States in 1923, and it entered the public domain. It had been 20 years since the last mass expiration due to an extension in already quirky copyright law put into place at the behest of corporate interests, including Disney, back in 1998.

That deluge of works included not just “Stopping by Woods on a Snowy Evening” by Frost, which appeared first in the New Republic in 1923, but hundreds of thousands of books, compositions, paintings, poems, photographs, and film.

Starting January 1, 2019, a major record label could issue a dubstep version of the 1923 hit “Yes! We Have No Bananas,” a middle school could produce George Bernard Shaw’s Saint Joan, or an amateur historian could publish a PDF version of Winston Churchill’s The World Crisis with his or her own extensive annotation.

Modern creators can also remix, quote freely, and transform older works. An artist who wants to create and sell a feminist response to Marcel Duchamp’s seminal Dadaist piece, “The Large Glass (The Bride Stripped Bare by Her Bachelors, Even)” that includes significant elements from the work to which it’s reacting. A student in love with Ralph Vaughn-Williams English Folk Song Suite, but who disliked the arrangement, could create a new one and distribute sheet music and a performance on YouTube.

And this will happen each January 1st until 2073. “We’re going to open these time capsules on a yearly basis, be able to sift through them, and potentially have our understanding of that year and all the contents change,” said Paul Saint-Amour, a professor of English at the University of Pennsylvania, and author of Modernism and Copyright.

The impact on culture and creativity is impossible to predict, because we haven’t seen such a mass entry into the public domain in the digital age. The last such was January 1, 1998, when 1922 slipped its copyright bonds and became freely available.

The past does offer a little guidance. Frost’s poem, “The Road Not Taken,” left copyright protection in 1992, which led to decades of divergent paths. “The Road” has appeared in recent years as the voiceover for a gory videogame, a New Zealand car advertisement, and a gritty black-and-white Super Bowl spot for monster.com, a job-matching service.

Works in the public domain require no license or permission to use. Anyone can chop up “Stopping by Woods,” rewrite parts of it, sell dorm-room posters with its verses, set it to music, or stage it as a play, without fee or permission. It is one of Frost’s best-known poems, the words of which were read haltingly as a radio announcer tearfully described the passing JFK’s funeral cortege in 1963. (There’s a small dispute that the Frost poem didn’t file properly for copyright renewal in 1951, then a requirement after 28 years, and later expanded to the current 95 years, so it was arguably in the public domain since 1952 — but no one ever tested this point in court.)

His publishing house is in the village, though

The legal woods, dark and deep as they may be, are rarely lovely, and the story of “Stopping by Woods” shows its winding path and roots that trip.

Twenty years ago, the now widely performed composed Eric Whitacre was early in his career. He said he thought “Stopping by Woods” had entered the public domain, and accepted a commission to set the poem to music for a choral piece. After two performances, Whitacre said Frost’s publisher, Henry Holt and Company, and the Frost estate shut him down, refused to license the work, and threatened to sue. (Henry Holt and the Frost estate trustee didn’t agree to comment after multiple requests by this reporter in late 2018.)

Whitacre said, “For years and years, I wouldn’t say I was bitter about it, but I let people know how I felt about it.” He put the work on ice, but in 2015, he released a version with words written by his best friend, the poet Charles Anthony Silvestri , and renamed the work “Sleep.”

But Whitacre, learning that Frost’s poem will enter the U.S. public domain in 2019 — not 2035, as he had believed — is reconsidered a previous pledge to never re-release the original form. “I was just so upset from before,” he said. “Now, I’m really torn.” (As of January 2019, Whitacre notes on his web site that he doesn’t — yet — plan to re-release the original version.)

It’s no wonder Whitacre was confused in 1999. That was the year “Stopping by Woods” should have entered the public domain were it not for a last-minute change to federal copyright law that put a 20-year gap between works published in 1922 and 1923.

I have promises to keep

Snap a picture with your smartphone or scratch out the first lines of a poem on a napkin and you’ve created an original work with an inherent copyright. Under U.S. law today, the act of making something confers ownership, and only the creator may publish, perform, adapt or, crucially, sell the work.

The drafters of the U.S. Constitution thought copyright so important that they included the protection in that founding document, granting writers exclusive rights to their work for “limited times” — a period which, of course, the drafters left undefined, leading to centuries of lobbying. The first copyright laws, enacted in the early 1790s, offered up to 28 years protection to the creator. Through fits and starts, the duration was lengthened by the 1970s to 75 years, and the protection was extended to other creative efforts as such paintings, sheet music and movies.

The biggest change to copyright law in the United States came in 1978, when the country switched from a fixed copyright term to the “life plus” approach: a creator’s works are under copyright for the duration of his or her life and for a set period after death. This had already been the standard in much of the rest of the world.

At first, the United States set this term at 50 years. That meant all work published in the United States in 1978 and after would remain under copyright for a half century following the creator’s death. Everything under copyright from 1923 to 1977 would keep a fixed term, set at 75 years from publication. Under the 1978 law, then, Frost’s “Stopping by Woods on a Snowy Evening” should have entered the public domain in 1999. (Frost died in 1963, so in parts of the world, his entire body of work remained protected until 2014 or is still under copyright through 2034.)

Gatekeeper Willie

But in 1998, a coalition of large media companies and organizations representing creators advocated for another copyright extension. One of the loudest voices was Disney; under the 1978 law, the copyright for Steamboat Willie, Mickey Mouse’s first primitive appearance on screen — one that resembles a minstrel performer to an alarming degree — was set to expire in 2004. Congress passed a 20-year extension known as the Sonny Bono Copyright Term Extension Act.

Now works published after 1977 would remain under copyright until 70 years after the creator’s death and those under copyright from 1923 to 1977 would have a fixed term of 95 years. “Stopping by Woods on a Snowy Evening” was now scheduled to enter the public domain in 2019. (In Canada and New Zealand, which opted for life plus 50 years, Frost’s oeuvre left the copyrighted state in 2014.)

At the time, Jack Valenti, then the powerful head of the movie industry lobby MPAA, argued for even longer copyright protections. He believed that the term should be “forever less one day.” But others countered that 95 years was far beyond the constitution’s “limited terms.” In 2002, the Supreme Court weighed in.

James Boyle and Eric Eldred (photo by Joi Ito)

The plaintiff in the case, Eric Eldred, wanted to make a collection of Frost’s poems, including — you guessed it — “Stopping By Woods,” freely available online. Eldred told me via email that he wanted to use digital tools to expand the readership of Frost’s poems, not make a profit. He admired Frost, lived near his historic home, and heard Frost speak late in his life. Eldred said he even “bribed” his triplet daughters, who attended Frost Elementary School, to memorize some of the New Hampshire poems. Eldred wrote, “It’s possible to adapt the work to a digital age and return it to the common heritage.” But the court found that the meaning of “limited terms” was up to Congress, and the 95-year wait continued.

Eldred long ago stopped publishing, and thinks nonprofits and companies that host scanned books will fill the need. The Hathi Trust, a consortium of academic and other institutions that has nearly 17 million scanned volumes in the public domain and under copyright, shifted New Hampshire to publicly on January 1 of this year.

Today, advocates for extending copyright further are seemingly non-existent. Estates known to be bellicose defenders of literary copyright didn’t reply to queries for a version of this article that appeared in late 2018, and copyright experts aren’t aware of any such efforts. Nothing since has materialized in 2019.

The MPAA and RIAA, which represents the music labels, said publicly in 2018 that they weren’t working on the issue. Even the Authors Guild, known as a fierce advocate for authors’ rights, says 95 years is long enough. “There comes a point when a creative work belongs to history as much as to its author and her heirs,” said executive director Mary Rasenberger.

The words are lovely, dark and deep

Author Willa Cather called 1922 the year “the world broke in two.” She was talking about a change in literary and cultural expression broadly labeled “modernity,” that broke from more realistic and sedate books, artwork, and other media that preceded it. But the words can also apply to the public domain divide. In 1922, Ulysses by James Joyce and T.S. Eliot’s The Waste Land were published. Howard Carter opened Tutankhamen’s tomb. The Harlem Renaissance continued to blossom with the publication of Claude McKay’s novel Harlem Shadows. For the last 20 years, these works — and every other book, article, movie, and photograph — has been in the public domain, free for academics to quote, publishers to reproduce and artists to sample. That availability has burnished the already notable year to a high gloss in our historical memory. In comparison, 1923 feels dull.

But that was the year “The Charleston” kicked off an eponymous dance craze. Howard Carter’s first volume about his Tutankhamen tomb raiding appeared. Noël Coward had a hit with his first musical, London Calling, and Cecile B. DeMille took his first pass at The Ten Commandments, albeit silent and in black and white, and Kahil Gibran’s The Prophet came out. Many works from the Harlem Renaissance, such as Jean Toomer’s Cane, published in 1923, lay on far side of the far side of the public domain divide, which split the flowering era almost in two. Earlier works are well explored but only a few later ones are widely known. Which is to say, there may be much more to discover about 1923.

What we remember of any age are the “early, beautiful, and damned books from that period,” said Michael North, an English professor at UCLA. North knows this intimately. For his book Reading 1922, which tried to gain insight into the tumult of change as the world shifted from old modes to ones we consider “modern,” he assembled a reading list comprising tens of thousands of books, movies, and other works from every contemporary source he could find. “I wanted to figure out how to get around the filter that tells you what’s already important,” he said.

North’s process for Reading 1922, which was published in 1999. was tediously analog, and the works were often hidden away in academic archives. But on January 1, the year 1923 will come online for everyone to explore without a filter. The Internet Archive, which acts as a nonprofit global memory of web pages, the public domain, and much more, along with Google Books and Hathi Trust will make tens of thousands of books available that day, with more to follow. They and others will also add heaps of newspapers, magazines, stories, artwork, compositions, plays, and movies.

It will be an unprecedented expansion of freely available historical materials.“We can’t predict what uses people are going to make of the work we make available,” said Mike Furlough, executive director of Hathi Trust, “and that’s what makes that so exciting,”

“We have shortchanged a generation,” says Brewster Kahle, founder of the Internet Archive. “The 20th century is largely missing from the Internet.” This restoration of missing history didn’t bring back the last two decades, but it tears down a wall from past and present one year at a time as the forest admits new passersby.

Coda 1: 2020 published works and 2022 audio works

On January 1, 2020, all works published in the U.S. in 1924 will join their compatriots of 1923 and previous years. That will include the composition (but not recordings) of George Gershwin’s “Rhapsody in Blue,” the first MGM films, E.M. Forster’s A Passage to India, Thomas Mann’s Magic Mountain, Seán O’Casey’s play Juno and the Paycock, and Mark Twain’s autobiography, as well as an ocean of artwork, photographs, poems, and newspaper and magazine articles.

In 2018, another remarkable change occurred in copyright, much less heralded and still a few years away from fruition. Agreement was reached among parties in the music industry and with Congress for legislation enacted October 2018 that rationalized a lot of law about copyright and recorded music — music dating back to the dawn of recorded sound in the 1870s.

Because of that new law, all recorded audio in any medium through 1922 enters the public domain on January 1, 2022. There’s a gap of a year, and then recorded work from 1923 joins the public domain on January 1, 2024. This will continue for about 50 years, through work recorded in 1972, at which point a modern regime kicks in. It represents a huge treasure trove of audio locked away at the Library of Congress and other institutions that was nearly impossible to get legal clearance to release freely for study or enjoyment.

Coda 2: Yes! We are bananas about copyright

On December 31, 2018, when the clock flipped to midnight Eastern time, a group I’d gathered in my house for a New Year’s celebration sang, “Yes! We Have No Bananas” and then I uploaded it to YouTube to celebrate that song’s entry into the public domain.

On November 13, 2019, YouTube sent me email indicating a claim against the song. Now, this wasn’t a takedown, in which the video was removed. It wasn’t a “strike,” or a violation of YouTube policies, which can add up eventually to a suspension or ban. Rather, it was a weird conditional claim of potential ownership that might lead to ads placed on the video from which I could potentially receive some income.

YouTube says a public-domain composition “may” have material owned by another party. Nice try!

There was no way to respond to this that I could find. While entirely inaccurate, it didn’t seem to affect me, except that a third-party with no interest could potentially earn income from views of ads placed on my personally owned video that contained a performance of a public-domain composition.

I notified the usual suspects via Twitter: Cory Doctorow of Boing Boing, Mike Masnick of the electronic rights editorial site TechDirt, and the Duke Center for the Study of the Public Domain. TechDirt published an article examining some of the underlying issues.

I’m not sure if someone at YouTube read it or another process that was opaque to me was followed, but on November 18, I was informed that my short long nightmare was over.

Coda 3: Whose Words These Are

This article appeared in a slightly different and shorter form originally in Smithsonian magazine in the January/February 2019 issue. While writing that article, I wound up with a lot of alternative verses stuck in my head, leading to this bit of doggerel—a parody of “Stopping By Woods.”

Stopping By Words
on a New Year’s Evening

BY REVERT FRAUGHTS

Whose words these are it’s clear to see,
He wrote them back in ’twenty-three.
His reps have never stopped the fight
To limit use by copyright.

James Madison would think it queer
That rights this long could stay so dear,
But courts have let extensions be
Despite the case of Eldred v.

The house of publication shakes
Off questions that renewal breaks
In ’fifty-one, a form not sent —
No one tried to show dissent.

The words are lovely, free and clear,
With oceans more that will appear.
And years to go before release,
And years to go before release.

Poem copyright ©2018 Glenn Fleishman under Creative Commons CC-BY-ND.

Coda 4: 16 December 2021

January 1, 2021, approaches rapidly as I write this! The Center for the Study of the Public Domain at the Duke University law school has posted its latest update about what—from its ongoing research—will enter the public domain on that date. This includes seminal works like The Great Gatsby and Mrs Dalloway, the iconic song “Sweet Georgia Brown,” the movies Go West (Buster Keaton) and The Freshman (Harold Lloyd).

The Mickeypocalypse approaches, too, in 2024, when Steamboat Willie enters the public domain.

Technology journalist, editor, letterpress printer, and two-time Jeopardy! champion. I seem to know everyone #glenning