Your Copyright Won't Last Forever: Unlocking the Mysteries of Public Domain Works
#publicdomain #intellectualproperty #copyright #publicdomainday2025 #copyrightterm #Popeye #Tintin
Happy New Year to all my IPFRIENDS,
Welcome to the first edition of the #IPSERIES newsletter for January. I am Rita Anwiri Chindah, a legal advisor and consultant on intellectual property, information technology, and arbitration based in Rivers State, Nigeria, and the host of the IPSERIES podcast. I provide updates on trending global issues with an African bias and forward-looking opportunities.
I’m glad to be back with another edition. If you have yet to read the previous editions and are wondering how you can access them, kindly click here.
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What does this mean to creative
Before I delve into today’s story, It is important to state that every eligible literary and artistic work, runs on its own copyright based on territorial provisions. While this newsletter will focus on answering frequently asked questions about what happens to intellectual property works whose term of duration has elapsed, the works entering the public domain for 2025 are all in the United States and not Nigeria.
What is Public Domain?
To put it simply, public domain encompasses works that are no longer protected or subject to intellectual property laws that give its owners the exclusive rights to commercialize and protect their intellectual output such as copyright, trademark, or patent. This means that these works can be used, copied, modified, distributed, or performed by anyone without permission or payment as a result of its term of duration elapsing as provided territorially.
Did you know that French copyright law was the first to adopt the idea of the public domain as a domain of works whose copyrights have expired and are now regarded as public property ("propriété publique”)? Moreover, the word "public domain" was initially used in the international copyright system in Article 14 of the 1886 Berne Convention.
Interestingly, the Nigerian Copyright Act doesn’t have a definition for what a public domain is but it can be inferred from the duration of copyright provided in section 19.
These works can become public domain in the following ways:
1. The fact that 1929 works are free to be used in the United States without permission once their term of duration has passed is the most evident example that served as the inspiration for this article. A work that is protected by copyright, for example, expires at the end of the year in which it is scheduled to do so. This means that any work's copyright protection expires on December 31. For instance, the works would remain protected until December 31, 2024, even if the author passed away on June 1, 1954.
2. If the work was originally dedicated to the public domain, then it is free for you to use.
3. Section 3 of the Nigerian Copyright Act provides guidance on works that are not eligible for copyright protection. Examples of such works include titles of books or films, short phrases in an overlapping intellectual property right that can enjoy protection as a trademark, concepts, facts, ideas, or processes, discoveries, official text of legislative legislation, official state symbols, and insignia. It is free for anyone to use these without permission.
This is because, regardless of quality, they fail to meet the fundamental test of originality and being fixed in a material form required of a qualifying work.
Copyright Term and How to Identify Works in the Public Domain in Nigeria
Section 19 of the Nigerian Copyright Act lists the term of duration for every eligible work in Nigeria which provides that
• Literary, musical, or artistic works other than photographs enjoy protection for the life of the author plus 70 years after the author dies; while
• Works belonging to government, state authorities, and international bodies last for a term of 50 years after the end of the year it was first made available to the public or 50 years
• Audiovisual works and photographs last for the life of the author plus 50 years after the end of the year in which the work was first made available to the public with the consent of the author or 50 years after the work was created if it wasn’t made available to the public.
• Sound recordings are for the life of the author plus 50 years after the end of the year the recording was first made available to the public with the consent of the author or 50 years after the work was created if it wasn’t made available.
• Broadcast lasts for 50 years after the end of the year the first broadcast took place.
• In the case of an anonymous or pseudonymous literary, musical, or artistic work, its 70 years after the year the work was first made available to the public with the author’s consent or 70 years after the work was created if it wasn’t made available to the public within that time, provided that when the author becomes known it shall be life plus 70 years after the end of the year the author dies.
• In the event of two or more authors (joint authorship) the reference to the author shall be when the last author dies.
In contrast, copyrighted works in the United States that were protected were either secured prior to, on, or following January 1, 1978, when the current law went into effect. This Act grants authors a term that lasts for the duration of their life plus an additional 70 years. The phrase applies to a "joint work prepared by two or more authors who did not work for hire" for 70 years following the passing of the last living author. Except in cases where the identity of the author is later discovered in Copyright Office records, in which case the term becomes the author's life plus 70 years, the copyright period for works created for hire, anonymous, and pseudonymous works is 120 years from creation or 95 years from first publication, whichever is shorter.
What Can You Do with Public Domain Works?
With a lot of works going into the public domain this year, it creates an opportunity for new works and versions just like we saw with the wave of horror films starring Mickey Mouse and Winnie the Pooh. These characters entered the public domain in 2024 and 2023 respectively. There are already three Popeye slasher flicks in the works, anyone can use a public domain work without obtaining permission and without citing the original author. Still, no one can ever own it there is the possibility to intellectually enjoy the content of a work, to have knowledge of its meaning and content is, as a rule, not constrained by copyright, and finally to enhance the access of the public to culture and creative expressions.
Common Misconceptions
Due to the territorial nature of copyright, here are a few misconceptions that can get a user in legal trouble:
• That a work is not protected by copyright unless there is a copyright notice indicated on the face of the work, such as the word “copyright,” or the “©” mark: this is false because copyright is the only form of intellectual property that grants an eligible work protection automatic protection to a work fixed in a tangible medium of expression. The notice adds nothing.
• The fact that an edition of a literary or artistic work went out of print or that copies are not available means it’s now in the public domain: this is also false because section 32 of the Nigerian Copyright Act makes provision for a compulsory license to be obtained from the Nigerian Copyright Commission by way of an application to reproduce or publish the works in any form for certain purposes (systematic instructional activities) at the price for which it was sold or a lower price.
Take note that the application for this compulsory license is done for a fee which is prescribed by the Nigerian Copyright Commission which will grant the applicant a non-exclusive license to produce and publish a reproduction of the work (literary or artistic). The applicant shall pay royalties to the copyright owner for the copies of the reproduction which is calculated at the rate decided by the Commission or consistent with the standards for licenses freely negotiated between persons in Nigeria and owners of reproduction rights in their country.
Furthermore, section 35 of the Nigerian Copyright Act provides that the Nigerian Copyright Commission may authorize the use of a work by any person for the purpose of rectifying the abuse of a dominant market position or to promote public interest. An application for the license, evidence of payment for this license, and a good cause for the grant of this license is still required to be shown to the commission.
Afterwards, the Commission may authorize the use of the work as long as:
i. The User shows that they had made efforts to obtain permission from the owner of the copyright on reasonable commercial terms and conditions which was not successful,
ii. The scope, medium, and duration of the use shall be limited to the purpose it was authorized,
iii. The use shall be non-exclusive and non-assignable
iv. The use shall be exclusively for Nigeria’s domestic market
v. Finally, the copyright owner will receive payment of adequate remuneration based on the economic value of the work authorized to be used.
Note also that this right may be withdrawn if it is discovered that the circumstances that led to it being granted no longer exist. Furthermore, the Commission may waive the above stated conditions where there is a national emergency and would notify the copyright owner of this development. If a user is unsatisfied with the Commission’s decision, they may apply to the Court for a review.
• That the use of works made available to the public are public domain works and so serves as a defense to an infringement claim.
Examples of Public Domain Works
Here are a few lists of works going into the public domain but you can find the rest from the US Copyright Registration And Renewal Records :
• Murder at Sea by Richard Connel
• William Faulkner, The Sound and the Fury
• Ernest Hemingway, A Farewell to Arms
• Virginia Woolf, A Room of One's Own
• A dozen more Mickey Mouse animations (including Mickey’s first talking appearance in The Karnival Kid)
• The Cocoanuts, directed by Robert Florey and Joseph Santley (the first Marx Brothers feature film)
• The Broadway Melody, directed by Harry Beaumont (winner of the Academy Award for Best Picture)
• Happy Days Are Here Again, lyrics by Jack Yellen, music by Milton Ager (the theme song for Franklin D. Roosevelt’s 1932 presidential campaign)
• What Is This Thing Called Love? by Cole Porter (from Porter’s musical Wake Up and Dream)
• Am I Blue? lyrics by Grant Clarke, music by Harry Akst
• You Were Meant for Me, lyrics by Arthur Freed, music by Nacio Herb Brown
• Sound recordings from 1924 such as Mama’s Gone, Good Bye, recorded by Ray Miller and his Orchestra
• It Had To Be You, recorded by the Isham Jones Orchestra and by Marion Harris
• California Here I Come, recorded by Al Jolson
How to Find Public Domain Works
“Online repositories such as the Internet Archive, HathiTrust, Google Books, and the New York Public Library can make works fully available online. This helps enable both access to and preservation of cultural materials that might otherwise be lost to history. For instance, the film Wicked in 2024. Like many of its predecessors, it is based on L. Frank Baum’s The Wonderful Wizard of Oz books, and it offers origin stories for the Wicked Witch of the West and Glinda the Good.
Legal Considerations When Using Public Domain Works
1. Ensure that the work is truly in the public domain by verifying the status of the work and if a chain of title exist.
2. Anyone can use a public domain work such as Popeye the Sailor without obtaining permission, as no one can ever own it.
3. You do not need to credit the author as they don’t exist anymore.
4. Just because a work is freely available to view, read, or listen to on the internet, does NOT mean it is in the public domain.
5. Verify and double-check that the work you seek to use does not have an overlapping right whose scope of protection still exists. For instance, copyright protection for software which offers a time-bound protection whereas in the case of trade secret protection for that same software, as long as the author takes the necessary steps to prevent unauthorized access to the confidential information, then it can last in perpetuity.
Finally, that the public domain work is not protected by any form of IP.
Conclusion
1 January, 2019 saw the implementation of two major revisions to the copyright length chart in the United States. Published works became public domain for the first time in more than two decades. The public domain deadline was 1924, and 1923 eventually arrived. Second, the calculus for published sound recordings prior to 1972 underwent a significant transformation with the passage of the Orrin G. Hatch-Bob Goodlatte Music Modernisation Act in 2018.
Finally, if there are obligations or restriction that must be observed, its important you comply.
You can also read my post about Walt Disney's Mickey Mouse becoming part of the public domain via this link which also provided valuable insights and practical information for anyone interested in using public domain works. What do you think?
To find out more about the issues raised in this newsletter including copyright, public domain, and intellectual property such as the one discussed in today’s IPSERIES, please share this email with your friends and contact groups if you enjoyed reading it. You can also contact me at ipseriesinfo@gmail.com.
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