“I Have A Dream”

"I Have a Dream" by Martin Luther King Jr ©1963

“I Have a Dream” by Martin Luther King Jr ©1963

Martin Luther King Jr’s famous “I have a dream” speech is protected by copyright.  Because it is only 50 years old, it would not be in the Public Domain today, even under PD56 rules, so I’m cheating a little by including it here.  But it is an interesting example of how copyright works … or arguably doesn’t.

Shortly after delivering the speech from the steps of the Lincoln Memorial, King filed for copyright on the speech, and his heirs have enforced it.  Excerpts from it are routinely used under “fair use” provisions that allow reproduction of a portion of a copyrighted word for the purpose of commentary.  But not the entire speech.

You can buy an authorized DVD of it for $20 from the King Center, which goes to support a worthy organization, I’m sure.  But it still seems … problematic that such a culturally and historically important speech is not available to the public.

Under PD56, the speech would enter the Public Domain at the end of 2019.  Under current US law, it won’t be until 2038.

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Batman

Batman by Bob Kane and Bill Finger ©1939

Batman, by Bob Kane and Bill Finger ©1939

Despite what the official credits say, Batman was the creation of Bob Kane and Bill Finger.  Kane was assigned by his editor to come up with another character in the vein of their hit “Superman” hero, and with substantial input from Finger (who steered him from a bird to a bat, and suggested a gray costume instead of red), came up with “the Batman”. (Finger also created important elements of the Batman franchise, including “Gotham City”, the Joker, and Robin.)

Batman was the cover feature in issue #27 of the anthology Detective Comics (May 1939), which he went on to take over completely.  His publisher even changed their name to “DC” to take advantage of the brand recognition.  A whole family of characters grew around him, including some of the most memorable villains of the 20th century, making him a ripe subject for numerous TV series and feature films.  He’s arguably more successful, more popular, and more widely recognized than that guy with an “S” on his chest.

He should have entered the Public Domain at the end of 1995.  That wouldn’t have prevented the dreadful Batman and Robin movie from coming out a year and a half later, nor the critically acclaimed and highly profitable Nolan/Bale movies in the early 2000s: Warner (which now owns the character) would still have the right to use the character, and has all of the key elements of him protected by trademarks: the distinctive profile, the chest emblem (and its variations), and of course the name and nicknames such as “the Dark Knight”.

But if Finger and Kane’s character was in the Public Domain, it would leave an opening for other filmmakers to do their own interpretation of the character.  They could file off just the trademarks and create a film about the orphaned son of gunshot victims, who uses his inheritance to become a shadowy vigilante in a cape and cowl, without fear of copyright lawsuits. They wouldn’t have to hide behind a “parody” defense by making it satirical.  They could just “do it right (in their opinion)”.  So fans who groove on the campy fun of the 1960s TV series could have their caped crusader, fans who like the raspy darkness of the Nolan/Bale movies could have their dark knight, and both people who liked the Schumacher/Clooney version could have their sculpted-nipple chest armor.

And instead of online petitions about the casting of Ben Affleck (or whoever), the question of “who’s right” to play Batman could instead be settled at the box office.  Or in each fan’s heart.

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Captain America

Captain America by Joe Simon and Jack Kirby, ©1941

Captain America by Joe Simon and Jack Kirby, ©1941

Captain America was created by Joe Simon and Jack Kirby, in the early years of World War 2, before the U.S. formally entered the war.

The character is a study in irony.  His creators were Jewish, but Steve Rogers and his sidekick Bucky Barnes were WASPs, indistinguishable from the Aryans they fought. They served as cheerleaders for America to get involved in – and then help win – the fight against the Nazis.  After the War, Cap was recast as a “Commie smasher”.  Following a hiatus during the 1950s when superheroes had fallen out of popularity, he was brought back as part of the genre’s revival in the 1960s, again serving in the decades since then as an icon for whatever the prevailing notion of “patriotism” has been.

When copyright terms were extended in the 1970s, Congress acknowledged (on some level) that this was a free windfall to copyright holders, and included a provision to allow the original creators of works sold to corporations to reclaim them when the original 56-year term expired.  Kirby had already died by that time (Simon asserted that Kirby, then a Marvel employee, had little involvement in creating the character), but Simon filed to reclaim the copyright in 1999.  Eventually Simon – old and in poor health – settled out of court for royalty payments.

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The Jazz Singer

The Jazz Singer

The Jazz Singer

The Jazz Singer is a landmark of cinematic history, as the first feature-length film with synchronized dialog.  Directed by Alan Crosland, it’s the story of a Jewish musician (played by Al Jolson) who defies his father’s wishes for him to carry on the family tradition of serving as cantor (liturgical singer) in their synagogue, instead defiling his God-given voice by performing secular music.

The film is somewhat controversial today for the fact that Jolson’s character performs in blackface, a racial caricature that was commonplace in popular entertainment of the day.

Released in 1927, The Jazz Singer should have entered the Public Domain at the end of 1983 (a few years after the release of the remake starring Neil Diamond and Laurence Olivier).  Likewise, all of the songs in it would be PD, including “Blue Skies”.  Some of the songs, including the traditional pieces, “Waiting for the Robert E. Lee”, and “My Mammy” are in the Public Domain because they were composed and published before 1923.

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Popeye

Popeye by Elsie Segar ©1929

Popeye by Elzie Segar ©1929

The comic strip known today as Popeye began in 1919 under the name Thimble Theatre. The character of Popeye wasn’t a member of the original cast, which included Olive Oyl, her brother Castor Oyl, and Olive’s boyfriend Ham Gravy; all of those characters are in the Public Domain.  Popeye the Sailor, however, was introduced in January 1929, and should have joined them at the end of 1985.

He was supposed to be a temporary character, part of a storyline in which Ham and Castor hire him as part of a get-rich scheme.  He was apparently killed off at the end of the story, but readers like him, so he got better.

Not only did Popeye take over Thimble Theatre, he quickly became a pop culture hit.  Fleischer Studios started producing animated shorts in 1932, and he was the star of a radio series in the mid 1930s. He has since appeared in comic books, original-for-TV animated stories, and a love-it/hate-it live-action film starring Robin Williams.

Another copyright-related wrinkle to the Popeye story involves his nemesis Bluto. Or is it Brutus? When production of the TV shorts began, they producers thought that they didn’t have the rights to use Popeye’s barrel-chested rival Bluto (thinking that he had been created for the theatrical shorts), so they created an essentially identical character with his chest lowered to his belly, and called him “Brutus”. In fact, Bluto originated in the comic strip, so Brutus was just as available for the TV cartoons as Olive Oyl and Swee’pea.

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“The Big Rock Candy Mountain”

"The Big Rock Candy Mountain" by Harry McClintock, ©1928

“The Big Rock Candy Mountain” by Harry McClintock, ©1928

“The Big Rock Candy Mountain” might not actually be under copyright; it’s complicated. It was recorded and published in 1928 by Harry “Haywire Mac” McClintock, but a prior copyright by another party was filed in 1906. McClintock managed to find proof that he’d been singing it for years before that, asserting that he wrote it in the 1890s. And it’s based on material that goes back centuries. But even if Haywire’s 1928 copyright was valid, it should have entered the Public Domain no later than the end of 1984.

The lyrics were bowdlerized in 1949 by Burl Ives to make it suitable for children (the “cigarette trees” became “peppermint trees”), which is how many people know it today.  But in its “original” form, it was substantially darker. It’s a tale spun about a hobo’s paradise, where cigarettes grow on trees, lakes are filled with liquor, jails are made of easily-broken tin, and the police are too disabled to chase those caught breaking the law … as hobos routinely did. The story is being told by an adult hobo trying to lure a boy to go with him; the rarely-sung closing verse reveals that the hobo wants the boy for sexual purposes.

Particularly in its original version, it’s an important piece of Americana, as demonstrated by its inclusion – presumably with royalties paid to someone (McClintock died in 1957) – in the 2000 film “O Brother, Where Art Thou?”

Listen to “The Big Rock Candy Mountain”.

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Frankenstein

Frankenstein directed by James Whale, ©1931

Frankenstein directed by , ©1931

One of the reasons that Frankenstein’s monster is one of the best-known horror characters is the classic film adaptation of Mary Shelley’s novel directed by James Whale, simply called Frankenstein. Another reason is the fact that the character has been so long in the Public Domain. The film, however, is not.

The characters of Victor Frankenstein and his unnamed monster were created in 1818, and entered the Public Domain in the US by the mid-1800s.  This made it a great option for Universal Pictures when they decided to expand on the success of their Dracula movie.

The fact that the film is still under copyright is important, because it effectively reinvented “Frankenstein”.  Even though the novel had already been adapted as a stage play, James Whale and makeup artist Jack Pierce invented the look that everyone today associates with the monster, and the movie created elements such as Kenneth Strickfaden’s electrical effects for his “birth” scene. None of these can be used today without permission, despite the fact that the copyright was supposed to expire at the end of 1987.  So when Tri-Star adapted the novel as a film in 1994, they had to tread very very carefully to avoid lawsuits from Universal.

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Mickey Mouse

Mickey Mouse by Walt Disney and Ub Iwerks, ©1928

Mickey Mouse by Walt Disney and Ub Iwerks, ©1928

Mickey Mouse has arguably been the driving force behind the ongoing extension of copyright over the past 40 years. He was created in 1928, and it was the impending expiration of the Mickey Mouse copyright (among others) that prompted Disney (and others) to start pushing Congress for longer terms. They got it for Mickey’s 50th birthday.

Ironically, they never really needed it.  Mickey as a character is practically a non-entity.  He has no personality, and no memorable stories about him (the closest being his appearance in Fantasia, where’s essentially an actor playing the role of the Sorceror’s Apprentice).  Although Disney is making some moves lately to (re)establish him as a character, pretty much the only purpose he serves for Disney is as a trademark for the company.  And you don’t need copyright for that.

If Mickey had entered the Public Domain at the end of 1984 like he was supposed to, it would have allowed other people to use the character in their own cartoons, comics, etc.  But they wouldn’t be able to use the name “Mickey Mouse” (a trademark of the Walt Disney Company) anywhere on the packaging or promotional materials for it, and they wouldn’t be able to use the distinctive likeness of the character (also a registered trademark) for that either.  They’d effectively have to keep his presence in the story a secret, or risk the legal might of one of the most powerful media conglomerates ever.

So in the same sense, Mickey is really more a symbol of something larger: characters owned by corporations and other heirs of their creators, who represent potential property for the holders of their copyrights.

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