Beatrix Potter’s work is now in the public domain
Authors write to make a living. Eventually, authors get old and die, but their work lives on. Books, paintings, even movies — all become part of our historical and cultural heritage. Imagine how we’d all lose if someone still held a copyright on Shakespeare’s plays, or Beethoven’s music, or the paintings in the Louvre.
But how long should an author’s heirs be allowed to profit from an author’s work? On that there is no agreement. In past years, it is profit that has been winning, and copyrights have been extended for longer and longer.
This year, the work of artists and writers who died in 1943 came into the public domain. That included the work of Beatrix Potter. Current copyright law in the U.S. keeps copyrights alive for 70 years after the author’s death. Peter Rabbit was first published in 1902, so that means that Peter Rabbit was private property for about 112 years. That’s a long time.
Copyrights were extended again (by the U.S. Congress) as recently as 1998. Mickey Mouse, Gone With the Wind, and Gershwin’s Rhapsody in Blue are still private property. Those who opposed copyright extension complained that the intent of the law was to protect lucrative franchises such as Mickey Mouse that corporate owners want to keep locked down.
This is a major conflict in our culture at present — the conflict between private property and “the commons.” For example, owners of beachfront property are in conflict with those who maintain that beaches are a natural resource that belong to all of us. For years and years, defenders of the commons have been losing. This means that a few people are much richer. But the rest of us are poorer.
Why is this on my mind at present? Partly because I wanted to use an excerpt from a poem by Edna St. Vincent Millay after the title page of Fugue in Ursa Major. I waited too long to check on the rights to Millay’s work, assuming that her work was now in the public domain. I was wrong. A foundation owns the rights to Millay’s work. To avoid any pesky legal risk, I had to apply to the foundation for permission, and I had to include a special credit line on my book’s ISBN page. This held up the publication of Fugue in Ursa Major. If I’m doing the math right, I believe we have to wait seven more years for Millay’s work to enter the public domain.
However, the publication of Fugue in Ursa Major is getting close, and I will be able to keep to the July 14 release date. The revisions are done, the type is set. Everything is in the pipeline. I’ll have much more to say about Fugue in Ursa Major as July 14 approaches.
P.S. If you haven’t seen the 2006 film “Miss Potter,” about the life of Beatrix Potter, I encourage you to put it on your must-see list.
5 Comments
You are right about the general direction of copyright law, and that has been so for at least 30 years. This is why scholars such as Jamie Boyle and Arti Rai at Duke Law have begun talking about it as the enclosure movement in copyright and patent law.
You did the right thing by checking with the estate of the late poetess — consent is the strongest defense in any copyright dispute. But really, if you were going to use only a sentence or two, it would have been fine. Also, generally speaking, the Copyright Act of 1976 said that works created before 1923 are in the public domain unless they’ve already been registered.
The irony is that Walt Disney gamed copyright law to make his fortune. He based his most famous animated movies on old fairy tales and fables for which he owed no one a dime. It was all cream for him. But when the Disney Corp.’s copyrights were set to expire on key properties, they spent millions lobbying Congress to pass the Copyright Term Extension Act of 1998, stretching it to life plus 70 years for single authors and up to 120 years for corporate authors. In practical terms, that means forever. But the Supreme Court upheld that dramatic change in the Eldred v. Ashcroft case of 2002. Larry Lessig argued that case on First Amendment grounds and lost.
Anyway, the upshot was that it emboldened corporate copyright holders to use the law as a weapon with increasing aggression. The key battleground these days is online, of course, and corporations — with the cooperation of evil giants like Google — use the law as a weapon to silence critics. Hence the spate of litigation against commenters on Angie’s List and other consumer rating sites. It’s an outrageous abuse of the law, of course, but there you have it.
I will post a review of “Fugue” on Amazon.com in the coming week. I hope all of your Into the Woods readers will pick up a copy when it comes out. It’s a wonderful read!
Can you comment on Frederick Warne and company’s vehement insistence that they hold all exclusive copyrights and trademarks to Beatrix Potter’s illustrations? Even now after she is officially by UK law in the public domain, their web site still has copyright notices everywhere. Do they have a leg to stand on if people wish to use Beatrix Potter’s illustrations for commercial use?
Very interesting, Sara. I’m not a lawyer and wouldn’t venture an opinion. All Frederick Warne can do is sue someone, I suppose, and see how it turns out. I can’t imagine what legal grounds Warne would claim.
A note of caution about assuming works to be in the public domain: You can’t just look at the calender and start counting from the publication date of the original. The works of Beatrix Potter provide a cautionary tale.
As Sarah suggested, the publisher Frederick Warne has been a fierce copyright litigator when it comes to claims on Potter’s works, especially the illustrations. That is because the oh-so-familiar color illustrations we all grew up with did not exist with the original publication. They came later, when the Warne brothers published an expanded version of the original Peter Rabbit. And that publisher and various copyright holders that bought the Potter properties in later years have been very aggressive in using the courts to protect their financial interests.
Here is a good article about it:
http://www.hbook.com/2013/05/choosing-books/horn-book-magazine/peter-rabbit-and-the-tale-of-a-fierce-bad-publisher/#_
In answer to Sarah’s question more specifically: It is always problematic to try to claim “fair use” when the use is a money-making commercial one. That’s because two of the four “fair use factors” that courts use to determine fair use touch on whether the new use is commercial or non-commercial. Thus, using Potter’s characters and ideas in, say, a lesson for students in a classroom setting would be seen in a very different light than using the illustrations in a new book for sale on Amazon.
The thing to remember is that every copyright case is different, every one contingent upon the specific circumstances surrounding — especially, the “purpose and character of the use,” which is the most important of the four factors courts consider when determining whether a use is “fair” under the statutory guidelines of the Copyright Act of 1976. For example, there are specific exceptions for educational uses in the preamble to Section 107 that trump even the four fair use factors laid out in that section of the U.S. code. It is at 17 U.S.C. Sec. 107.
You can read the text here:
http://www.law.cornell.edu/uscode/text/17/107
And so to take this blog as an example: The use of the Potter illustration with this post would be covered as a “fair use” by both the language of the preamble (news and commentary) and upon weighing under the four “fair use factors” (you would argue for fairness under the first and fourth factors).
If Sarah has a specific use in mind, I’d be happy to advise her.
DCS, thank you for this excellent information. Sara, fyi, DCS is a professor of law.
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