By Jennifer Jenkins, Director of Duke’s Center for the Study of the Public Domain
January 1, 2022, is Public Domain Day: Works from 1926 are open to all, as is acornucopia of recorded music: an estimated 400,000 sound recordings from before1923!
On January 1, 2022, copyrighted works from 1926 will enter the US public domain, 1 where they will be free for all to copy, share, and build upon. The line-up this year is stunning. It includes books such as A. A. Milne’s Winnie-the-Pooh, Felix Salten’s Bambi, Ernest Hemingway’s The Sun Also Rises, Langston Hughes’ The Weary Blues, and Dorothy Parker’s Enough Rope. There are scores of silent films—including titles featuring Harold Lloyd, Buster Keaton, and Greta Garbo, famous Broadway songs, and well-known jazz standards. But that’s not all. In 2022 we get a bonus: an estimated 400,000 sound recordings from before 1923 2 will be entering the public domain too! (Please note that this site is only about US law; the copyright terms in other countries are different.)
In 2022, the public domain will welcome a lot of “firsts”: the first Winnie-the-Pooh book from A. A. Milne, the first published novels from Ernest Hemingway and William Faulkner, the first books of poems from Langston Hughes and Dorothy Parker. What’s more, for the first time ever, thanks to a 2018 law called the Music Modernization Act, a special category of works—sound recordings—will finally begin to join other works in the public domain. On January 1 2022, the gates will open for all of the recordings that have been waiting in the wings. Decades of recordings made from the advent of sound recording technology through the end of 1922—estimated at some 400,000 works—will be open for legal reuse.
Why celebrate the public domain? When works go into the public domain, they can legally be shared, without permission or fee. That is something Winnie-the-Pooh would appreciate. Community theaters can screen the films. Youth orchestras can perform the music publicly, without paying licensing fees. Online repositories such as the Internet Archive, HathiTrust, and Google Books can make works fully available online. This helps enable access to cultural materials that might otherwise be lost to history. 1926 was a long time ago. The vast majority of works from 1926 are out of circulation. When they enter the public domain in 2022, anyone can rescue them from obscurity and make them available, where we can all discover, enjoy, and breathe new life into them.
The public domain is also a wellspring for creativity. The whole point of copyright is to promote creativity, and the public domain plays a central role in doing so. Copyright law gives authors important rights that encourage creativity and distribution—this is a very good thing. But it also ensures that those rights last for a “limited time,” so that when they expire, works go into the public domain, where future authors can legally build on the past—reimagining the books, making them into films, adapting the songs and movies. That’s a good thing too! As explained in a New York Times editorial:
When a work enters the public domain it means the public can afford to use it freely, to give it new currency ... [public domain works] are an essential part of every artist’s sustenance, of every person’s sustenance. 3
Just as Shakespeare’s works have given us everything from 10 Things I Hate About You and Kiss Me Kate (from The Taming of the Shrew) to West Side Story (from Romeo and Juliet), who knows what the works entering the public domain in 2022 might inspire? As with Shakespeare, the ability to freely reimagine these works may spur a range of creativity, from the serious to the whimsical, and in doing so allow the original artists’ legacies to endure.
Here is a more detailed snapshot of just a few of the books, sound recordings, movies, and musical compositions that will be in the public domain in 2022. 4 They were supposed to go into the public domain in 2002, after being copyrighted for 75 years. But before this could happen, Congress hit a 20-year pause button and extended their copyright term to 95 years. Now the wait is over. (To find more material from 1926, you can visit the Catalogue of Copyright Entries.) 5 You can click on some of the titles below to get the newly public domain works.
Every piece of recorded music is covered by two distinct copyrights, one over the original composition—the words and music—and the second over the actual recording of the song. Earlier we listed sound recordings from before 1923 entering the public domain. Here are some of the compositions from 1926 that will be joining them.
- Bye Bye Black Bird (Ray Henderson, Mort Dixon)
- Snag It (Joseph ‘King’ Oliver)
- Gentlemen Prefer Blondes (Irving Berlin)
- Black Bottom Stomp (Ferd ‘Jelly Roll’ Morton)
- Someone To Watch Over Me (George Gershwin, Ira Gershwin)
- Nessun Dorma from Turandot (Giacomo Puccini, Franco Alfano, Giusseppe Adami, Renato Simoni)
- Are You Lonesome To-Night (Roy Turk, Lou Handman)
- When the Red, Red Robin Comes Bob, Bob, Bobbin’ Along (Harry Woods)
- Ke Kali Nei Au (“Waiting For Thee”) (Charles E. King), in 1958 renamed Hawaiian Wedding Song with new lyrics (English) by Hoffman & Manning
- Cossack Love Song (Otto Harbach, Oscar Hammerstein II, George Gershwin, Herbert Stothart)
The Tip of the (Melting) Iceberg
Many of the works featured above are famous; that is why we included them. Their copyright holders benefitted from 20 more years of copyright because the works had enduring popularity and were still earning royalties. But when Congress extended the copyright term for works like The Sun Also Rises, it also did so for all of the works whose commercial viability had long subsided. For the vast majority—probably 99%—of works from 1926, no copyright holder financially benefited from continued copyright. Yet they remained off limits, for no good reason. (A Congressional Research Service report indicated that only around 2% of copyrights between 55 and 75 years old retain commercial value. After 75 years, that percentage is even lower. Most older works are “orphan works,” where the copyright owner cannot be found at all.)
Now that these works are in the public domain, anyone can make them available to the public. This enables access to our cultural heritage—access to materials that might otherwise be forgotten. As mentioned earlier, 1926 was a long time ago and the majority of works from that year are out of circulation. When they enter the public domain in 2022, anyone can republish or post them online. (Empirical studies have shown that public domain books are less expensive, available in more editions and formats, and more likely to be in print—see here, here, and here.) The works listed above are just the tip of the iceberg. Many more works are waiting to be rediscovered.
Unfortunately, part of this iceberg has already melted. The fact that works from 1926 are legally available does not mean they are actually available. After 95 years, many of these works are already lost or literally disintegrating (as with old films and recordings 13 ), evidence of what long copyright terms do to the conservation of cultural artifacts. One of the films from 1926 we considered featuring was The Great Gatsby, an adaptation of the 1925 novel. But that film has reportedly been lost to history. 14 For the material that has survived, however, the long-awaited entry into the public domain is still something to celebrate.
Another part of the iceberg includes works from 1926 and later that may already be in the public domain because the copyright owners did not comply with the “formalities” that used to be necessary for copyright protection. 15 Back then, your work went into the public domain if you did not include a copyright notice—e.g. “Copyright 1926 Ernest Hemingway”—when publishing it, or if you did not renew the copyright after 28 years. Current copyright law no longer has these requirements. But, even though those works might technically be in the public domain, as a practical matter the public often has to assume they’re still copyrighted (or risk a lawsuit) because the relevant copyright information is difficult to find—older records can be fragmentary, confused, or lost. That’s why Public Domain Day is so significant. On January 1, 2022, the public will know that works published in 1926 are free for use without tedious or inconclusive research.
In an abundance of caution, our lists of works form 1926 include only works where we were able to track down the renewal data indicating that they are still in-copyright through the end of 2021, and affirmatively entering the public domain in 2022. However, there were many exciting works from 1926 for which we could not locate renewals. They will also be in the public domain in 2022 but may have entered the public domain decades ago due to lack of renewal.
So ... No One Would Be Silly Enough to Keep Extending Copyright, Right?
So ... No One Would Be Silly Enough to Keep Extending Copyright, Right?Wrong! Despite overwhelming evidence that term extension does more harm than good, countries are still extending their copyrights. The public domain remains under threat. This makes an understanding of its vital contributions—to creativity, access, education, history—all the more important.
The verdict is in: adding an extra 20 years to the US copyright term was a “big mistake.” This is not a quote from someone who is equivocal about copyright; it is a quote from the former head of our Copyright Office. Indeed, there is a consensus among policymakers, economists, and academics that lengthy copyright extensions impose costs that far outweigh their benefits. Why? The benefits are minuscule—economists (including five Nobel laureates) have shown that term extension does not spur additional creativity. At the same time, it causes enormous harm, locking away millions of older works that are no longer generating any revenue for the copyright holders. Films are literally disintegrating because preservationists can’t digitize them. The works of historians and journalists are incomplete. Artists find their cultural heritage off limits. (See studies like the Hargreaves Review commissioned by the UK government, empirical comparisons of the availability of copyrighted works and public domain works and economic studies of the effects of copyright (other articles are here and here).)
Yet, incredibly, countries are lengthening their copyright terms—not as a result of reasoned debate, but to comply with trade deals that require harmonization of copyright terms. With harmonization, there is a catch: countries are always made to harmonize with the longer term, never the shorter term, even if the shorter term is a better choice for both economic and policy reasons. At the moment, because of such trade agreements, Canada and New Zealand have both agreed to extend their copyright terms from an already long life-plus-50 to a longer life-plus-70 years, even though the Canadian term extension would “cost Canadian education millions of dollars and would delay works entering the public domain for an entire generation” and the New Zealand extension “would cost around $55m [NZ dollars] annually” without “any compelling evidence that it would provide a public benefit.” 16 This is irrational. It would be more efficient to simply levy a new tax on the public and give the proceeds to the small percentage of copyright holders whose works are still making money after a life-plus-50 term. The term extensions not only transfer wealth to a tiny subset of rights owners, but also threaten to lock away the remaining works from future creators and the public.
What Could Have Been
Works from 1926 are finally entering the public domain, after a 95-year copyright term. However, under the laws that were in effect until 1978, thousands of works from 1965 would be entering the public domain this year. In fact, since copyright used to come in renewable terms of 28 years, and 85% of authors did not renew, 85% of the works from 1993 might be entering the public domain! Imagine what the great libraries of the world—or just internet hobbyists—could do: digitizing those holdings, making them available for education and research, for pleasure and for creative reuse. Under current copyright terms we will have to wait until 2061.
Want to learn more about the public domain? Here is the legal background on how we got our current copyright terms (including summaries of recent court cases), why the public domain matters, and answers to Frequently Asked Questions. You can also read James Boyle’s book The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008)—naturally, you can read the full text of The Public Domain online at no cost and you are free to copy and redistribute it for non-commercial purposes. You can also read “In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day,” an article by Center Director Jennifer Jenkins revealing the promise and the limits of various attempts to reverse the erosion of the public domain, and a short article in the Huffington Post, both referring toa previous Public Domain Day.
1Only works from 1926 that were published with the authorization of the author are entering the public domain. Copyright law used to treat "published" and "unpublished" works differently. In 2019, published works entered the US public domain for the first time since 1998. However, in the interim, a small subset of works—unpublished works that were not registered with the Copyright Office before 1978—had been entering the public domain after a life plus 70 copyright term, while other unpublished works whose authors died more recently have remained under copyright. In 2022, unpublished works from authors who died in 1951 will go into the public domain. But, because these works were never published, potential users are much less likely to encounter them. In addition, it is difficult to determine whether works were “published” for copyright purposes. Therefore, this site focuses on the thousands of published works that are finally entering the public domain. Please note that unpublished works that were properly registered with the Copyright Office in 1926 are also entering the public domain after a 20 year wait—for those works, copyright was secured on the date of registration.
The copyright term for older works is different in other countries. In the EU, works from authors who died in 1951—including Mohammad-Taqi Bahar, Jorgen Bentzon, Johanna C.H. “Nelly” Bodenheim, Mikhail Markovich Borodin, James Bridie, Amy Carmichael, John Alden Carpenter, Rafael Altamira Crevea, Dorothy Dix, Eddy Duchin, John Erskine, Max Ettinger, Robert Flaherty, Andre Gide, Cecil Gray ,Maria Grever, René Guénon, Jacinto Guerrero, James Norman Hall, Fumiko Hayashi, William Randolph Hearst, Sadiq Hidajat, Josef Hüttel, Jens Jansen, Robert Kahn, Václav Kálik, Alfrēds Kalniņš, Serge Koussevitzky, Harry Sinclair Lewis, J. C. Leyendecker, Tom MacInnes, Kathleen Lockhart Manning, Resurreccion Maria de Azkue, Nellie McClung, Ivor Novello, Athos Palma, Selim Palmgren, Andrei P. Platonov, Paula von Preradović, Sigmund Romberg, Harold Ross, Artur Schnabel, Arnold Schoenberg, Alfred Otto Wolfgang Schulze, John French Sloan, Raden Mas Noto Soeroto, Rabanindranath Tagore, Vsevolod Vishnevsky, and Ludwig Wittgenstein—will go into the public domain in 2022 after a life-plus-70 year term. In Canada, works of authors who died in 1971—including Diane Arbus, Louis Armstrong, Leah Baird, Josef Berg, Hugo Black, Margaret Bourke-White, Emma Lucy Braun, E. Simms Campbell, Gabrielle "Coco" Chanel, Munier Choudhury, Walter Van Tilburg Clark, King Curtis (stage name of Curtis Ousley), August Derleth, Marcel Dupré, Lloyd Hall, John Marshall Harlan II, Raoul Hausmann, Ub Iwerks, Rockwell Kent, Marian Viktorovich Koval, George Lukács, Guru Prasad Mainali, Jim Morrison, Ogden Nash, Reinhold Niebuhr, Bola de Nieve (stage name of Ignacio Jacinto Villa Fernández), Jalkishan Dayabhal Pancal, Irene Rice Pereira, Ellery Queen (pseud. of Manfred Bonnington), John Charles Walsham Reith, William David Ross, Naoya Shiga, Stevie Smith, Max Steiner, Igor Stravinsky, Shunryu Suzuki, and Bill W. (AA co-founder)—will enter the public domain after a life-plus-50 year term because they have not yet lengthened their term.
2This estimate comes from experts on early recordings at the Association for Recorded Sound Collections: Tim Brooks, David Seubert and Sam Brylawski, “based in part on an analysis of the pre-1923 contents of the Discography of American Historical Recordings.” Their website on pre-1923 sound recordings is here.
3See Keeping Copyright in Balance, (February 21, 1998).
4There are also other creative works entering the public domain, including drawings, paintings, and photography. We have not listed them here because it was more difficult to track down complete copyright information for them.
5The 1998 Copyright Term Extension Act gave works published from 1923 through 1977 a 95-year term. They enter the public domain on January 1 after the conclusion of the 95th year, so as of 2022, works from 1926 and before are in the public domain. Works published through 1977 had to meet certain requirements to be eligible for the 95-year term—they all had to be published with a copyright notice, and works from before 1964 also had to have their copyrights renewed after the initial 28-year term. Foreign works from 1926 were still copyrighted in the US until 2022 if 1) they complied with US notice and renewal formalities, 2) they were published in the US within 30 days of publication abroad, or 3) if neither of these are true, they were still copyrighted in their home country as of 1/1/96.
6In 2022, the public domain will welcome the first Winnie-the-Pooh book, including the great original illustrations by E. H. Shepard. Not all of the Winnie-the-Pooh stories or films will be in the public domain, just the 1926 book—for later Pooh stories to enter the public domain, you will have to wait a few more years. The 1926 book features the original iterations of Winnie-the-Pooh and some of his friends in the Hundred Acre Wood, including Piglet, Eeyore, Rabbit, Kanga, Roo, Owl, and Christopher Robin. However, Tigger was not introduced until 1928 in The House at Pooh Corner and that book does not enter the public domain until 2024.
7Sometimes a composition or song is in the public domain but the sound recording is still copyrighted—even though the song Yes, We Have No Bananas is in the public domain, a later recording of that song could still be copyrighted. You are free to copy, perform, record, or adapt the underlying song, but may need permission to use a specific recording of it. Sound recording rights are more limited than composition rights—you can legally imitate a sound recording, even if your imitation sounds exactly the same, you just cannot copy from the actual recording.
8A series of lawsuits confirmed that these state laws were of indefinite duration, scope, and validity.
9Here is the timeline for recordings entering the public domain:
Recordings first published before 1923 –> January 1, 2022
[One-year pause in 2023]
Recordings first published between 1923–1946 –> January 2024–2047 (after a 100-year term)
[Ten-year pause from 2048–2058]
Recordings first published between 1947–1956 –> January 2058–2067 (after a 110-year term)
All remaining recordings first fixed from 1957 until February 15, 1972 –> the term for all of these “shall end on February 15, 2067”
Note that many sites say that sound recordings from 1923 enter the public domain in 2023—adding 100 years to the date of publication—but they actually go into the public domain on January 1 of the subsequent year, so that’s why sound recordings from 1923 are public domain in 2024. In addition, note that the term of protection for sound recordings in other countries is different from the one in the US: in the EU it is 70 years, and elsewhere it is 50 years.
10Beginning in the 1920s there was also a market-based segregation that took the form of so-called “race records”—subsidiary imprints that isolated Black music from mainstream popular music.
11To learn more about the unequal treatment of Black artists, you can read the excellent scholarship of Professor Kevin J. Greene, including Copyright, Culture & (and) Black Music: A Legacy of Unequal Protection and “Copynorms,” Black Cultural Production, and the Debate over African-American Reparations; Professor Olufunmilayo Arewa, including From J.C. Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context, Blues Lives: Promise and Perils of Musical Copyright and Writing Rights: Copyright’s Visual Bias and African American Music; and Professor Lateef Mtima, including Intellectual Property, Entrepreneurship and Social Justice: From Swords to Ploughshares.
12Another famous Buster Keaton film from 1926, The General, is not on this list because its copyright apparently was not renewed after the first 28-year term, meaning it entered the public domain in 1954.
13Many silent films were intentionally destroyed by the studios because they no longer had apparent value. Other older films have disintegrated while preservationists waited for them to enter the public domain, so that they could legally digitize them. (There is a narrow provision allowing some restorations, but it is extremely limited.) The Librarian of Congress estimates that more than 80% of films from the 1920s has already decayed beyond repair. Endangered film footage includes not only studio productions, but also works of historical value, such as newsreels, anthropological and regional films, rare footage documenting daily life for ethnic minorities, and advertising and corporate shorts. (For more information see here.) Like old films, old sound recordings also deteriorate. This makes their entry into the public domain an extra cause for celebration because it will allow anyone to preserve them.
14See Wheeler Winston Dixon, “The Three Film Versions of The Great Gatsby: A Vision Deferred,” Literature Film Quarterly (2003). Sadly, however, one of the filmic versions of the novel has been lost to us forever; and in many respects, it seems that this first version, made in 1926, might have been the most authentic adaptation the novel received.
15Millions of books published from 1926–1963 are actually in the public domain because the copyright owners did not renew the rights. Efforts have been underway to unlock this “secret” public domain, but compiling a definitive list of those titles is a daunting task. The relevant registration and renewal information is in the 450,000-page Catalog of Copyright Entries (“CCE”). Currently there is no way to reliably search the entire CCE, but thankfully, the New York Public Library is in the midst of converting the CCE into a machine-searchable format. Even after this is complete, however, confirming that works without apparent renewals are in the public domain involves additional complexities. As of September 2019, the HathiTrust Copyright Review Program had completed this process with 506,989 US publications, and determined that 302,915 (59.7%) are in the public domain, and can therefore be made available online. The work of the New York Public Library, HathiTrust, and other groups continues, with the goal of opening these public domain books to the public.
16These quotes are from Professor Michael Geist and Michael Wolfe, respectively. At the time of writing, the Canadian term extension is poised to go forward as part of the United States–Mexico–Canada Agreement unless it gets stopped by an unrelated trade dispute. New Zealand’s term extension is a concession to the UK in a newer trade agreement.
Written by Jennifer Jenkins. Special thanks to our tireless and talented research maven and website guru BalfourSmith for building this site and compiling the list of works from 1926.
Public Domain Day 2022 by Duke Law School’s Center for the Study of the Public Domain is licensed under a Creative Commons Attribution 3.0 Unported License.
