The Public Domain Shakedown: Paying for Rights No One Owns
The idea that creative works eventually enter the public domain isn't a modern invention—it's how copyright has always worked, at least in the United States. The U.S. Constitution itself provides that copyright protection will last only "for limited Times." This means that creators can enjoy exclusive rights in their work for some number of years, and then those rights expire. When that happens, the work becomes part of the public domain in the U.S., free for anyone to use and adapt. (Note that the public domain varies from country to country; a work can be in the public domain in one country and still be protected by copyright in another. This article discusses the public domain in the U.S.)
Of course, rightsholders are rarely happy to let go of valuable properties. Some rightsholders have strong arguments that aspects of their rights may continue on. Others, without such arguments, sometimes rely on cease-and-desist letters or other demands that lack any legal support, but make clear that they will assert their "rights" through expensive and burdensome litigation. Even when the grounds are questionable, many simply agree to pay a license fee even if the "rightsholder" doesn't have any rights at all, just to avoid litigation. Some targets resist, but the economics of litigation make this resistance rarer than one might think—especially for independent creators and distributors.
Rightsholders pushing against the public domain often rely on a handful of arguments. First, certain rightsholders may claim that they don't just own a copyright in their work, but they own trademarks in the work. That distinction is important because trademark law doesn't have the equivalent of the public domain—those rights can be perpetual. But trademark protection is not designed as a backdoor to prevent a copyrighted work from entering the public domain. It's meant to avoid consumer confusion about the source of goods and services. Often there's a legitimate need to protect the marks associated with a particular work, but sometimes trademark law is used as part of an improper attempt to extend copyright protection for a work that's fallen into the public domain.
Second, when multiple works feature particular plotlines or characters, the earlier published works will fall into the public domain before the later ones. (Note: this doesn't happen when all of the works were published on or after January 1, 1978, when the U.S. moved to a life plus 70 years regime of copyright protection.) Rightsholders may claim that a third party using or adapting the public domain work is actually using character traits, plotlines, or other elements from later works that are still copyright protected. Once again, this argument sometimes has merit, but often it doesn't. In a dispute over the film Enola Holmes, the estate of Sir Arthur Conan Doyle argued that while most of the Sherlock Holmes stories were in the public domain, the few final stories then still under copyright first introduced traits like Sherlock expressing emotion, respecting women, and exhibiting an affection for dogs, which it claimed were copyright protected. (Disclosure: DWT handled this case.)
Third, rightsholders sometimes claim that an older work's digital restoration or remastering restarts the copyright clock. It's possible that the restoration or remastering is so original and new that it can create a new term of protection. But that protection would extend only to the elements that are new to the remastered or restored version. It would not restart the clock on the preexisting work. Even so, there are several examples of rightsholders threatening independent theaters and others over showing restored or remastered works or even threatening suit for showing the original pre-restoration work that is clearly in the public domain.
It's important to note that asserting these arguments can be absolutely warranted. There's nothing wrong with any of these arguments when used in the appropriate circumstances, and their misuse by some shouldn't put a cloud over their application when correctly asserted. But the unfortunate reality is that these arguments are being misused by certain bad-faith entities. And many of their targets make the rational economic decision that paying an illegitimate purported rightsholder a small license fee is easier and less expensive than litigation. Those "rightsholders" then use these payments to show other targets that their claims are legitimate: after all, all of these people wouldn't pay these "rightsholders" for rights they didn't have, right? But often, that is exactly what's happening.
While easier said than done, this dynamic makes it even more important to defend against frivolous arguments from bad actors attempting to forestall the expiration of their rights. Regardless of what decision is ultimately made in response to receiving a threatening letter in these circumstances, be sure you understand your rights and the status of the work at issue before deciding on your next steps.
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The authors are founding members of the firm's copyright litigation team. They also write for the Generative Slate article series, about the use of AI in content production and distribution.