Why the Public Domain is Important

Article / 03 November 2020

Though you may have heard talk of the public domain and possibly even public domain reform, many people aren't sure exactly what the term Public Domain means and what it entails. I'm going to take this opportunity to attempt my own explanation, as accurate to my knowledge as possible. 

Most often, the idea of Public Domain is demonstrated with the idea that when a creative work or artistic production has existed for a given period of time, that it becomes entrenched in the very fabric of cultural identity and considered a "public property" that anyone can use as they wish. Reprint, remix, redesign, revamp, reuse, reboot, reinterpret freely and without any need to pay royalties or licensing fees to someone. 

Some prime examples are this short list of characters that I'm sure most, if not all, of you have heard of:

Dracula

Peter Pan

Frankenstein

Sherlock Holmes

Dr. Jekyll and Mr. Hyde

Alice in Wonderland

Snow White

The Wizard of Oz

and many more. 

The issues facing modern public domain are mostly political. 

Large corporations that own vast libraries of intellectual properties don't want to risk their profit potential by allowing the characters that they currently control to enter the public domain. 

So, these large entertainment conglomerates like Disney, Marvel, Warner Bros., Sony, etc. Hire lobbyist. These lobbyists publicly claim to be fighting for the IMPORIVEMENT of public domain laws and claim to be pushing for changes that will improve the rights of artists and creators, when in reality it is a smoke screen to push through changes that continue to protect the interests of corporate America and keep moving the goal-post as to what criteria have to be met in order for a property to enter the public domain. 

The prime culprit is the public domain calculation that looks like this: Life of artist + 70 years = Entry into public domain. So in this case, as the current law stands, a work cannot enter the public domain until after the creator has been dead for 70 years. In the last hundred years, corporate lobbyists have pushed to extend this term from 50 years and before that, 30, and they will keep pushing to extend that term as long as possible, because entertainment media wants to have full control of an intellectual property without allowing anyone else to use it as long as possible. 

The biggest and most glaringly hypocritical abuser of this is Disney. A company that built it's empire on public domain characters and refuses to allow it's few original creations to enter the public domain. 

The reasons that people accept and go along with this, even get duped into believing that these corporate interests are the same as theirs are two-fold. The first idea is that by creating an original character, you can provide a life of idle luxury to your descendants (This is a rare enough occurrence to be considered delusional). The other is that when a character enters the public domain, it is no longer profitable and its potential value drops. 

Has there been any shortage of successful and profitable movies, shows, games and books based on Dracula, Robin Hood, Frankenstein, Sherlock Holmes, Alice in Wonderland and more? No. In fact, these projects are technically cheaper to produce because they don't need to pay royalties to the original creators. 

Public domain properties are experiencing more popularity and profitability for major studios than ever before, but they want you to believe that your characters will be worthless if they enter the public domain. 

On top of that, the machinations of corporate legal teams are not above filing trademark claims on public domain characters, just to tie up the character in legal knots and allow their corporate clients to control it and milk profits a little bit longer. These and other dishonest deeds keep some characters tied up that should already be in the public domain such as:

Winnie the Pooh

Batman

Superman

Bugs Bunny

Mickey Mouse

The Human Torch

The Lone Ranger

Zorro

The Phantom

and many more. 

The hypocrisy of these studios that build castles on public domain characters and use that money to keep their own characters out of the public domain is glaring. 

In all honesty, I don't believe any corporate entity should be able to buy intellectual property or use work-for-hire contracts. They should have to license the property from an original creator, a person, who gets royalties. I elaborate on this a bit more in my blog about copyright.

As a creator, I don't think I need 70 years of protection after I die. I don't have children (because I wouldn't sentence another soul to living in this purgatory), but if I did, I would expect that kid to do a little work to support themselves. Even if they capitalized on my name to get attention for their own creative work. We've been seduced into this idea that we can create a character that will keep our decedents living in luxury for generations, which is so unfathomably rare as to be delusional. In most cases, if a property is worth anything it is purchased and then controlled and kept out of the public domain by entertainment companies

For me personally, I think an idea or project that is unsuccessful is perfect for the public domain. Why not let someone else see if they can do something with the idea and build on it?

I for one am looking forward to taking part in Public Domain day, celebrated on January 1st. On this day people celebrate the properties whose 70 year protection has expired and enter the public domain and artists all over the world choose to donate works and characters into the public domain for others to use. 

I also made some art:


Thanks for reading,

Mike