“You are all a lost generation”
Gertrude Stein, quoted in preface to Hemingway’s Sun Also Rises (1926)

Welcome to 1922! Welcome to 1922!

You know about that year, don’t you?

Groundhog Day, Bill MurrayIn January 1 1998, films and literary works from 1922 went into the public domain. This New Year’s ritual was something that been happening for decades. But in 1999 everything stopped. Every New Year’s Eve, we go to sleep awaiting the next batch of public domain releases available for free sharing and distribution. And on New Year’s Day, 2000, audiences find that the latest public domain works released are once again…1922. And in 2001, once again, the latest public domain works are… 1922. And in 2002, and so on all the way until the year 2018. Extending public domain by 20 years means that for 20 years (until the year 2018) Americans must live without any new creative works added to the public domain.

I’m reminded of Bill Murray in Groundhog Day who wakes up and finds the same song repeating over and over again, the same Sonny and Cher song on the clock radio, I’ve got you babe. Who would have ever thought that Sonny Bono, the man who sings this song (and whose voice signals to Bill Murray that he is stuck in that same time-frozen lunatic universe) would be the same man whose legislation would keep American public culture frozen in a perpetual state of 1922?

Welcome to 1922! You’re better get used to it, because we have 12 more years to enjoy that damn year.

One concrete consequence of the 1998 Copyright Extension Act is to keep the costs of various schoolbooks expensive. When books and movies go into the public domain, they immediately become cheaper and easier to distribute. When this doesn’t happen, that means increased costs for parents, schools, libraries.

The Ghost of Dorothy Scarborough

Dorothy Scarborough, Texas writerBut there are not-so-obvious costs. Consider the case of Dorothy Scarborough. Dorothy Scarborough is unknown to most people now, but in the mid-twenties she was hot stuff in the American literary world. She was teaching creative writing at Columbia (influencing students like Carson McCullers), editing anthologies of ghost stories, writing literary criticism about British fiction and Texas folklore, publishing poetry and novels. Her most famous novel, The Wind, caused quite a stir. It told the story of a woman who moved from Virginia to Sweetwater, Texas, enduring the boredom and isolation of life in a small town during a drought, eventually driving her crazy. Stylistically, the novel’s depiction of how the wind drove her crazy was reminiscient of Poe or Russian ghost stories. It is a haunting, claustrophobic work. It was one of the first works to puncture the romanticized views of Western frontier life. It caused an outcry in Texas and the South when first published anonymously. Critics around the region excoriated the novel; people claimed she knew next to nothing about life in Texas. The New York times wrote:

Now comes an anonymous writer with a story, “The Wind,” to chronicle the havoc wrought on a sensitive soul by the Texas winds. . . . The narrative culminates in a tragic episode of considerable force, though not without its savor of the melodramatic. The grim inevitability of the whole thing runs through each chapter.

Eventually word came out that it was written by one of Texas’ most esteemed literary figures. Book sales soared, and the novel was quickly adapted into a 1928 movie starring Lilian Gish (many described it as “the last great silent movie”).

Eventually it went out of print until it was “resurrected” by University of Texas press in 1979 with a new critical introduction. The book stayed in print for a few years, only to go out of print in the mid 1992.

When Scarborough wrote the work, copyright lasted for 28 years, with the possibility of a renewal for 28 more years. In other words, Scarborough wrote the book with the expectation it would go into the public domain in 1981 (and possibly 1953 if her publisher didn’t renew). What she didn’t expect is that copyright durations would be extended, first to 75 years and then to 95.

So now, instead of going into the public domain in 2001, the Wind will go into the public domain in 2020. Creators create not only for the money but for the long term exposure. In 1925, publishing was a method to achieve this exposure…at least in the short term. But 75 years later, it is clear that the copyright duration is impeding this exposure. Scarborough could never have anticipated this; Congress essentially deprived Scarborough of the exposure that comes with falling into the public domain. But Scarborough is not around to complain, and although scholars and historians have complained, the Supreme Court has essentially upheld Congress’s right to extend copyright all it wants.

It’s bad enough that the book is out of print. Because copies are so limited on the used market, prices fluctuate between $20 and $60 on amazon (and honestly, I fear that calling any more attention to it would only raise the price even more). When I talked briefly to a rep at University of Texas press, she conveyed both her enthusiasm for this novel and a futile sense that it will never be reprinted. And even if that did happen, it would be as a limited-run trade paperback (although the 1980 critical edition–containing an essay by Sylvia Ann Grider– was certainly first-rate).

Because it was published in 1925, the work was due to go into the public domain in 2001 (the 1928 film would go into the public domain in 2004). After that point, low-cost presses like Dover Editions could have produced this book for affordable prices (probably 1/5 of the price it’s fetching on the used book market). Also, Project Gutenberg could have had it scanned and OCR’ed in no time at all. It could easily be taught in high school classes via ebooks.

Instead, we have students reading Great Gatsby (also published in 1925). I’m not knocking Great Gatsby; they’re both masterpieces. But what high school teacher could get away with assigning a book costing between 20 to 50 dollars? Great Gatsby is the easy choice; it is mass produced; it is assigned simply because it is popular and easily available. Compare that to the Wind; according to WorldCat library catalog, there are less than 700 extant library copies circulating in the whole world. Because of this scarcity (induced by copyright extension), keeping public domain stuck at 1922 limits the choices of what teachers can use in the classroom;

Dorothy Scarborough spent all of her life writing. I’m in the process of scanning her pre-1923 works for Project Gutenberg(and I see that Google Book Search lists several of these ) , but for now the only digitalized work by Scarborough we have is a critical introduction to a collection of ghost stories (free ebook here). She wrote:

Ghosts are the true immortals, and the dead grow more alive all the time. Wraiths have a greater vitality to-day than ever before. They are far more numerous than at any time in the past, and people are more interested in them. There are persons that claim to be acquainted with specific spirits, to speak with them, to carry on correspondence with them, and even some who insist that they are private secretaries to the dead. Others of us mortals, more reserved, are content to keep such distance as we may from even the shadow of a shade. But there’s no getting away from ghosts nowadays, for even if you shut your eyes to them in actual life, you stumble over them in the books you read

Intellectually, people realize that the Copyright Extension Act of 1998 is causing us to miss certain aspects of our culture, but what exactly are we missing? Works produced during that period are essentially invisible to us….like ghosts.

Over the next nine days, I will highlight works that should have been in the public domain, but are not–thanks to corporate lobbying, voice votes and a recalcitrant Supreme Court. Each day I will provide a sketch of what works were being produced during each year from the years 1923 through 1931…and what works are now hard-to-find or ridiculously expensive as a result of the Copyright Extension Act of 1998.

compiled by Robert Nagle (aka idiotprogrammer).

Coming January 2: The Ghosts of 1923


  1. There are so many great books that are locked up because of the copyright extensions. But it just becomes an effort in futility in thinking of this. May I make sugestion or two. First of all there are countries in thye world with only a 50 year copyright. Australia and Canada come to mind. Both have Gutenberg sites. I have also found that many famous novels were serialized and thus the time clock might start much eariler as prior art. Often these were not copyrighted at all or were not renewed in time. I might mention that there are 5 L’Amour novels and stories in the public domain. Often the worst thing from our perspective is that a novel or story be republished in the ’60’s an ’70’s or made into a movie.
    There are other option as well. There are many text books published for and by the U.S. Federal government for the U.S. military and DOE.

  2. […] At the Teleread blog (where I also blog), Robert Nagle is talking about works that did not enter the public domain in the USA when they should have, thanks to Walt Disney and other publishers buying legislation to shrink the public domain. His series is called The Copyright Ghosts Of…, discusses actual works (today amongst others: Billy Bud, written in 1891 by Herman Melville), and will run for ten episodes. […]

  3. The whole situation is ridiculous (and here in the EU some books went retroactively back into copyright, as it was extended from life + 50 to life + 70), but I fear you are slightly misleading in what actually keeps books from not being republished because they’re still in copyright.

    As far as I know, it’s not so much that the cost of paying whoever owns the right to a long out of print, old book to republish it, it’s finding out who owns these rights in the first place and then getting them to agree to reasonable terms.

    No publisher is willing to risk a lawsuit by publishing a book to which the rights are unclear if they can help it and at the same time, a lot of people who own the copyrights of out of print books are people unfamiliar with the book business, so clueless as to what a good price is….

  4. By: Tamera H. Bennett

    While I appreciate the loss of access to many great works because of high costs or fear of litigation, I respectfully ask that you not forgot those individuals who benefit from the extension. There are many creative folks who were/are able to leave a legacy and retirement to their family because of the protections under the copyright act and the extensions to the copyright act.

    blog: http://www.ipandentertainmentlaw.wordpress.com
    website: http://www.tbennettlaw.com

  5. TAMERA: The problem is that the relatives/descendants benefit nothing from being out of print. Ebooks should make it possible to make available works with limited market value at a small price. Neither party is served by having it out of print; ultra-low cost ebooks of these books should be available. They are not.

  6. I think a distinction needs to be made between Orphan Works and works that are out of print because the copyright owner makes a choice not to print.

    In the Orphan Works case, there is an inability after proper due diligence to locate the copyright owner. One of the biggest points of disagreement in the Orphan Works Act of 2006 (now part of the Copyright Modernization Act of 2006) is developing criteria for a diligent search of a copyright owner. Under the Orphan Work revisions to the Copyright Act, there would be safe harbors for reproducing works that have truly been orphaned.

    Whether we like it or not, the copyright owner can choose not to license or reproduce a work. It is that simple.

    Also, I think assumptions are being made in many of the posts that an unrelated third party (like a behemoth corporation) owns the copyright and not the actual author of the work. You really cannot make that assumption. For many of the older works, the heirs of the author have (or could have) claimed the ownership under the termination provisions in the 1909 Copyright Act and either control the rights directly or have chosen to enter into new licensing arrangements.

    I appreciate everyone’s point of view.


  7. Tamera: First, re: orphaned works, I covered the Kahle vs. Gonzales case a few days ago .

    Maybe this sounds paternalistic, but I don’t think descendants of writers always make decisions that are in keeping with the author’s desires if were they alive. For example, the Joyce estate is notorious for impeding scholarship (see this New Yorker profile). That’s why the decision to extend copyright is worrisome; the relatives really have no idea what the author would have wanted; maybe they are hostile to the very idea of propagation of the original artefact in the public sphere. Maybe they are motivated solely by the desire to monetize intellectual property. Sonny Bono’s extension only increases the distance between the author (and those who came in contact with the author) and those who hold the rights today.

    It is reasonable to insist upon minimum re-registration fees if the public has an interest in copyrighted works becoming publicly available. The rights of ownership should entail some maintenance and responsibility if they are going to last as long as 95 years or 70+ author’s life.

    Finally, I am concerned that media companies have taken more control of rights for many entertainment properties than is reasonable. Perhaps this is more likely to happen in music or film than in publishing; also, if rights are ceded to companies in such a fashion, one has to assume that artists realized the implications of the contracts they signed. But when Time-Warner starts sending out cease-and-desist letters to mp3 sharers, I have to wonder whether they can have ANY concept of fair use or common culture if they insist on retaining ownership rights to Happy Birthday and sound recordings made during Edison’s day. They are a profit-seeking business, more disposed to forbidding than allowing when it comes to derivative works, clearance, republishing and digitalization.

    Fortunately, 21nd century writers and artists are more attuned to the implications of signing away digital rights. Then again, could Dorothy Scarborough ever have anticipated that The Wind would be completely unavailable in 2007 when she published her novel in 1925?

  8. To make a trivial point: a year and a half ago, I wrote Time/Warner/ & Warner/Chappell Music & ASCAP with a formal request for permission to have “Happy Birthday” sung to me at a public venue. To this date, I have not received a reply. Answering requests is an example of what I consider to be the “maintenance and responsibility” that accompanies the right of ownership.

    Apparently, Larry Lessig had difficulties too.

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