Works from 1926 (and sound recordings prior to 1923) enter the public domain in the United States

On January 1, 2022, all literary works, compositions and films first published in 1926, and all the pre-1923 sound recordings, will enter the public domain in the United States.

This is the fourth year in a row that work has been published under the administration of Calvin Coolidge – who, according to presidential historians interviewed by C-SPAN, ranked 23rd out of our 46 Presidents (earning him a “Gentleman’s C”) – have become accessible to the public to tear, mix and burn. Lists of works that will soon fall into the public domain have been published by various sources (including Examination of the public domain, Duke 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 the highlights. (Warning: I have not personally confirmed any of these.)

Books:

  • Ernest Hemingway, The sun is also rising and Spring streams
  • Langston Hughes, The tired blues
  • TE Laurent, The Seven Pillars of Wisdom
  • AA Milne, Winnie the Pooh
  • Dorothée Parker, Enough rope

Movies:

  • Combat butler (with Buster Keaton)
  • The son of the sheikh (with Rudolph Valentino)
  • The temptress (with Greta Garbo)

Compositions:

  • “Bye Bye Black Bird” (Ray Henderson, Mort Dixon)
  • “Men prefer blondes” (Irving Berlin)
  • “Nessun Dorma” by Turandot (Giacomo Puccini, Franco Alfano, Giusseppe Adami, Renato Simoni)
  • “Someone to watch over me” (George Gershwin, Ira Gershwin)
  • “When red, Red Robin comes Bob, Bob, Bobbin ‘Along” (Harry Woods)

Sound recordings

However, the big story this year is that, for the first time, a cache of sound recordings (over 400,000, according to an estimation) – in particular all recordings that have been 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 more will be available for others to play and remix. If anyone is listening out there, I am begging for Megan Thee Stallion to sample the recording which will soon be in the public domain of The interpretation of “My Man” by Fanny Brice (which recording is radically different – in such an interesting way – from Streisand’s version of Funny girl).

Why will this happen in 2022 (and why has it not happened before)? The copyright status of sound recordings is complicated. But here’s a primer:

  • Sound recordings after 1972: Sound recordings were not protected by federal copyright law until February 15, 1972. This means that currently all sound recordings after 1972 are probably protected by federal copyright law. . (Caveat: a sound recording released in the United States without notice between February 15, 1972 and March 1, 1989 would be in the public domain, subject to limited exceptions.)
  • Sound recordings before 1972: 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), recordings prior to 1972 were protected by state copyright (“common law”) and not by federal copyright law. The scope of this protection was extremely obscure (to say the least). The CPA Act, under the terms of the Copyright Office, “brings sound recordings prior to 1972 partially in 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 redress under the PCA Act for unauthorized use (referred to as the “blackout period”). In law) is different from the term of copyright protection for works fully covered by the Copyright Act. The details, which are set out in 17 USC §1401 (a) (2) (B), are summarized in this graph:
  • 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 PCA Act, for unauthorized use of this recording until January 1, 2026.

A few caveats

However, as we have warned in the past (here, here and here), there are a few important limitations to keep in mind before using a 1926 work. Here is an updated version of what we have been writing in recent years:

1. The law is different outside of the United States:

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 of protection for older works in many other countries is the life of the author plus 50 years (eg Canada) or 70 years (eg many countries in Europe). (In the United States, we did not adopt a term of copyright protection “for life plus” until the Copyright Act of 1976.) As a result, a work originally published in United States in 1926 by an Italian author who died in 1975 probably remains protected by copyright. law in Italy and other countries that use a service life over 70.

So, if you are planning to use a particular work around the world, you should do more research to determine if you still need a license. here is a listing (which I haven’t verified) of authors whose works may enter the public domain in 2022 outside the United States depending on the year of the authors’ death.

2. Derivative works can still benefit from copyright protection:

Only the version of the work, as originally published in 1926, is in the public domain in the United States.

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 United States. However, an original arrangement of this song that was created later may include elements that continue to enjoy copyright protection in the United States.

3. Beware of 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 by law. (See discussion above.)

4. Some works from 1926 were already in the public domain:

Some works published in 1926 were already in the public domain because copyright owners failed to comply with formalities required by earlier law. For example, subject to certain exceptions, a work published in the United States before March 1, 1989 without copyright notice would be in the public domain. In addition, under the 1909 law, a work would fall into the public domain if the owner did not renew the copyright after an initial term of protection of 28 years; as a result, any work originally published between 1925 and 1963 and not renewed has long since fallen into the public domain.

5. Other laws may offer some protection:

We can foresee that some rightholders, in some cases, may try to use trademark law to prevent (or at least limit) the use of their works even after the copyright expires – at least within cases where they believe consumer confusion is likely such as whether the rights holder was the source of the work or products in question. Mickey Mouse is protected not only by copyright, but also by trademark law. Disney has several registrations including for the word mark MICKEY MOUSE and various versions of the mouse character, including this one which shows the evolution of Mickey from the iteration of the 1928 short “Steamboat Willie” until today :

When the copyright on the “Steamboat Willie” version of the character expires (January 1, 2024), Disney will be armed with these trademark registrations. It remains to be seen to what extent the successful efforts of Disney and others to use trademark law as a sword, especially in light of the Supreme Court’s decision in Dastar Corp. vs. Twentieth Century Fox. See also EMI Catalog Partnership v. Hill, Holliday, Connors, Cosmopulos Inc.

Determining the public domain status of a work can be a bit tricky. This practice graphic is a good starting point to begin any investigation.