Why Can’t You Copyright a Chicken Sandwich?

a broom. But my favorite one is from China where Harry has to chase down Baltimore's protege Dmort, who apparently used to work for the circus under the name Naughty Bubble. And there's also kind of into this check this out for some reason. There's also a character named Big Spinach

in it, but none of it makes any sense. And can you imagine, like how bummed you'd be if you ask for a Harry Potter book from your parents and instead they brought you one of these knock on I'm kind of these, but you know, seeing all these crazy titles, maybe wonder how does copyright work? Like why can you remix of Sherlock Home Story, but not use Felix the Cat to advertise your work, Like, why are people so excited about two thou nineteens public domain day? We're gonna

get into all of this. Let's dig in either podcast listeners, Welcome to Part Time Genius. I'm Will Pearson and as always I'm joined by my good friend Man Guesh how Ticketer and on the other side of the soundproof class celebrating the demise of copyright by eating or those those Charleston June they are and dancing the Charleston that's our friend and producer Tristan McNeil. All right, so just explain

a little bit. I have to point out that part of the reason Tristan is doing this is because he's laring the Charleston song. It took me a minute to uh figure this out. You could probably hear this in the background now. The song itself was written to accompany the dance back when it debuted back in nineteen three, and it kicked off this national craze. What's notable about this is that two thousand nineteen actually marks the end

of the Charleston's Songs copyright protection. I don't know if you knew this, if you've been following this, but that is the case. So now anyone can make a new recording of the song or play a nineteen twenty three performance of it on a podcast, all without having to pay a dime or worry about getting sued, at least I hope that, which is obviously great news for any listeners who are into the Charleston or at least as

into it as Tristan is. Apparently I guess so. But you know, it turns out there's a lot of reasons the party like it's nineteen twenty three this month, even if you're not a Charleston fan, and that's because the slew of works from this year have just entered the public domain for the very first time, I believe it or not. This is actually the first mass influx of public domain material in the US in twenty years, I think.

So we'll get exactly why this is and how it involves Mickey Mouse a little bit later, but the main takeaway is that thousands of classic books and movies and songs and other works of art they are now free to use, remix, sell all without any legal restriction around them, which is why we're marking the occasion with an episode

all about the ins and outs of copyright. So we'll talk a little bit about the history of copyright law, including why the terms have been extended in the US, and also what makes this year so different from others. Plus we'll take a closer look at the public domain class of two nineteen to see exactly what sort of hidden treasures just fell into our laps. But you know, well, where do you want to start off here? Alright? Well, I thought we should give our listeners a little bit

of context to all of this. So for starters, January one is recognized all around the world is Public Domain Day, and actually didn't know that until we were doing our research for this episode. But the way that it works is that at the stroke of midnight on New Year's Eve, older works automatically enter the public domain as they age out of their copyright terms. But this is where things

get a little bit tricky. So different countries have their own rules for how long a work can remain under copyright, So most countries will provide copyright protection for the life of their author, plus a certain set number of years beyond that, like the author's life plus fifty or seventy or whatever it may be. But in the US things have traditionally worked a little bit differently. So here copyrights made prior to night have nothing to do with the

lifespan of the works author. Instead, these copyright materials are protected for a flat ninety five years after their first publication. It always makes you wonder, like where they come up with the number. But so, just as an example, the Grapes of Wrath won't enter the U S public domain until January of two thousand thirty five, because that will

be ninety five years after it was first published. Now, on the other hand, readers in places like Canada and New Zealand can ead and rework the text for free starting this year, and that's because two thousand nineteen is fifty years after the death of the book's author, John Steinbeck. Isn't that weird? Like something about that like feels so

off to me. I mean, it's this like quintessential American novel and people in other countries actually get to do whatever they want with it first, I know, three decades before Americans get to It's super weird that it actually reminds you. I was reading about the rights to the song this Land Is Your Land, which, of course you know what he got through wrote the lyrics too, and that's a piece of music that just feels inseparable from the American identity, and it's kind of become this great

American almost like an anthem. Ever since it was published back in but again for Canada and other countries with copyright terms of life plus fifty years, that song ended in the public domain last year, whereas in the US you'll actually have to wait till one to be able to use it. And that's when you're planning to put out a dub step reminder. That's right, absolutely, But before we move on, I do want to mention that this Land is Your Land is kind of a fun a

case to look at. So the lyrics plain that the land belongs to you and me, and that was actually got Three's intention for the song to in He published the song with a copyright notice that read quote, this song is copyrighted in the US for a period of twenty eight years, and anybody caught singing it without our permission will be mighty good friends of our because we don't give it, durn publish it, write it, sing it, swing to it. Yodel it. We wrote it, that's all

we wanted to do. That's hilarious. I'm curious that, like, why didn't the song under the public domain in the seventies,

you know, like what he wanted it to. Well, apparently the publisher renewed the copyright at some point without gut Thrie's input, So the song's copyright status wound up being extended and now it's covered by the current ninety five year term we have in the U. S Alright, well in that case, I mean, now seems like a good time to break down the key changes to the copyright law that have taken place here in the US over

you know, over several decades. But don't worry about your eyes glazing over because I'm going to try to keep this short and sweet good. So they basically American copyright law began with the Constitution with grants Congress the power to bestow exclusive rights to the author of a work for quote limited times. So at first that limited time meant fourteen years, with the option to renew for another

fourteen years, making the max possible twenty eight years. Those rules were mended over time that went by nineteen o nine, both copyright terms had doubled to twenty eight years or fifty six total, I guess, got it. So that's where would you would have gotten that twenty eight year term he claimed, you know, for the copyright he was talking about. But you know, I'm sure he never intended to renew the song for that second twenty eight year period, that's right.

So then you fast forward to nineteen seventy six and the extension started getting kind of out of hand. So the fifty six year period was bumped up to a full seventy five years, meaning that any work produced through nineteen twenty two would be copyright protected until nineteen. Then, in just as the nineteen twenty three copyrights were about to expire for the next year, a new piece of

legislation was passed. It makes you wonder why people were so interested in changing the legislation, But the new law attacked on another twenty years for the copyright of any work made between nineteen twenty three and nineteen seventy seven. And that's actually why there's this big twenty year gap that we're just coming out of right now. That is exactly right. So those extra two decades added in, you know, was when this happened, it basically put a freeze on

the public domain editions. So the works that were scheduled inner the public domain were suddenly off the table for another twenty years. And so that's what made New Years

of nineteen such a big deal. I mean, the drought is finally and I'm guessing that's for the foreseevil future to right, like, like like a whole year's worth of work should end of the public domain every year now, ongoing, right, right, And this really just the beginning of like four decades worth of annual time capsules, you know, so you know, long as corporations don't succeed in extending the copyright terms

even further. Although if we're being fair, it's not like the last twenty years haven't brought any new additions to the public domain from this era, because plenty of works from the nineteen twenties through the nineteen seventies have already entered the public domain because their copyrights were never renewed

for one reason or another. And in fact, one study from two thousand eleven suggested that as many as nine of works published in the nineteen twenties were never renewed at all, and the same is true for roughly sixty of the works from the nineteen forties, so there were a ton of them that were out there. So basically that extension in nine only applied to the works whose copyrights were still active at that time, and so anything that hadn't been previously renewed was already fair game for

public use. Of course, the tricky part has been determining whether an old copyright has lapsed or not. Yeah, I'm guessing that's a pretty murky business trying to figure all that out, it is, And you know, so in the past that's been safer to air on the side of caution and just kind of steer clear of any work whose status was in question, of course, to avoid getting sued.

But now the concerns are out the window, at least as far as works from three go, and now that they passed the year mark, we know for certain that they're in the public domain. So I know there's probably some folks listening or thinking, okay, but who cares about all this old timey stuff anyway. You know, it's not like I'm gonna start listening to chart toppers from the nineteen twenties or whatever. But you know, that's totally fair. But here's the thing that Gabe was pointing out to me.

Most of us honestly don't know what we've been missing out on. Like the public domain provides this great chance for overlooked works to find a second lease on life. And if you look at what happened to It's a Wonderful Life. You know, that movie actually flopped when it was first released, but once it entered the public domain, it slowly became a holiday classic. And that success only happened because TV networks were actually able to play the

movie for free year after year. So in this weird way, it's like cultural worth is actually greater today than it would have been had it remained under a copyright. You know this this author Glenn Fleishman, and he had this great quote in this article for The Atlantic, and and he said, quote, only so much that's created has room

to persist in memory, culture and scholarship. Some works may have been forgotten because they were simply terrible or perishable, but it's also the case that a lack of access to these works and digital forms limits whether they get considered at all. I mean, it's a good point and actually reminds me of something I came across this week from the American novelist Willi Cather, And you know, she once called nineteen twenty two the year the world broke in two, and that was because of all the big

literary and cultural shakeups that took place that year. It was the start of the Harlem Renaissance, plus the publication of works like Ulysses by James Joyce and The Waste Land by T. S. Eliott. So to her, nineteen twenty two was this turning point, like there was a world before that year, and then there was a world after it. And it, strangely enough, that's also how things broke down

in terms of US copyright law. So everything up through nine is now part of the public domain, but it's a different story for works from nineteen twenty three and beyond on. So hundreds of thousands of songs and movies and books and newspapers, magazines, like so many different things of that era had been held back for decades, longer than they should have been. And so as a result, you figure there have to be a lot of blind

spots in our understanding of that period in American history. Yeah, like even things we know about like the Harlem Renaissance, the Great Depression, or World War Two. Like, we should get like a fuller picture once we get access to these materials. And also it'll be so fun to see them show up in memes and music and things. All right, well, I'm excited to hear what you think should make the cut this year. But before we share our favorites, let's

take a quick break. You're listening to Part Time Genius, so we're talking about the giant wave of classic art that just entered the public domain this month. All right, Megan, So I'm curious which works are you most excited to have free of their copyrights this year. So I'm just gonna go ahead and get the literature picks out of the way first, because that's where you find a lot of the heavy hitters, and honestly, it's too many to

go through. So for fiction, we've got stories from authors like Virginia Wolfe, Altice Huxley, Jane Austin Hemingway, and and then in terms of poetry, there's work from E. Cummings, William Carlos, Williams, Wallace Stevens, Pablo Neruda, Robert Frost, including one of his most famous poems, Stopping by Woods on a snowy evening like, which is just cool that these texts are out there and easier to explore and play

with them before. But but what about you, Like, are are there any books you're happy to see in the public domain that was amazing to hear? Like all those heavy hitters? Yeah? Here, But I always like it when famous literary characters make their way into the public domain because you get a whole bunch of new takes on them, like that's what happened with Robin Hood or Sherlock Holmes. You know, I didn't think of that. So so what

new characters are we getting to play with now? Alright? Well, two thousand nineteen is giving us access to new Tarzan stories from Edgar Rice Burrows, but also two of Agatha Christie's mystery novels star Belgian detective Hercule Paro, The Murder of Roger Ackroyd and The Murder on the Links. Wait, wasn't Tarzan already in the public domain? Though? Yeah, that's right, there's a story from nineteen ten that's been in the public domain. And actually there's one earlier poor Oh novel

that's already there too. So how do the laws work with characters like that. I mean, can people just write their own new Tarzan stories or can they only publish and rework the existing books? Like is the copyright on the character or just the stories he appears in. Well, you can't actually copyright a name or a phrase or anything like that. But what you can do is get your character trademarked while it's still under copyright. So if you take the case of Tarzan, that's what the author's

airs did. So even though the original Tarzan stories can be freely published and adapted for movies or comics or whatever else, you still can't publish your own original Tarzan books without receiving permission. And of course to do that you have to pay a fee to the Boroughs Estate. And so things are a little more I see when it comes to Poor Oh, and well, not all copyrighted characters qualify for trademark protection, and and some people you know,

maintain that poor O does not qualify. So for reasons that they're they're a little too complicated to get into here. But until someone is willing to gamble, you know, a potential lawsuit to publish their own unauthorized story, the character's

legal status is kind of in limb. So the new public domain additions for those characters are mostly exciting because it means there are new Tarzan stories or poor Oh mysteries that can be safely adapted are altered by anyone, even if the characters themselves are still otherwise off limits.

So I am a little worried about what that might mean for my next pick here, because even though two nine frees up the rights to a bunch of classic silent films from people like Buster Keaton, Charlie Chaplain, Laurel, and Hardy, which is awesome, by the way, because like it would be so amazing to start seeing these movies

on late night TV. But you know, the one I was most personally excited about was the Felix the Cat cartoons, which just hit the public domain, and I was kind of hoping we could add it to the PTG logo or just make him like the official show mascot or something, but I'm guessing that's not the case if he's still trademark, right, you know, Felix was the one that stood out to me too, So I actually did a little bit of digging on this, and it turns out that even though

the character is still technically trademarked by DreamWorks. They only control his use in certain instances, and and you know, of course that's really around advertising, So how does that work exactly? So you could actually publish your own Felix the cat comic strips and even adapt those new stories into animated shorts, but weirdly, you just can't include Felix

himself and any of the advertising for that. Apparently DreamWorks also owns the Felix trademark for quote life saving instruments, so I guess a line of Felix branded fire extinguishers is totally off. I feel like that's exactly where I was going with us, like Felix EpiPens and detectors. But you know, if cartoons aren't your thing, we've also got plenty of new public domain songs to keep us busy.

And there's some real chestnuts here, uh tunes like Dizzy Fingers Horsey keep your tail up, I know that's a favorite, the Pierson household raft and that timeless romantic valid o g Oh gosh, oh golly, I'm in love. I think these are probably in that collection of that old amberola, like the house that's all those wax cylinders. That's pretty cool to listen to, but you know it truly was

a different time. I was actually listening to a few songs from our list this week, and I was struck by how many of them were just kind of wide eyed, upbeat nonsense. Like there was this one that was basically about how strange it is that the earth rotates and that it can be daytime in one part of the world at nighttime, and another was riveting song, but and I guess for fun, they just throw in a bunch of gibbers that doesn't rhyme or fit the meter or anything.

So there's this one line that goes, when it's nighttime in Italy, it's Wednesday over here, when it's fish day in Germany, you can't get shaved in Massachusetts. And the whole thing is just so bizarre, and I'm really hoping this catches on again. That is amazing and in the same vein if that old timy nonsense songs, I'm pretty pumped at the copyright finally expired on Yes we Have No Bananas Today, which is actually one of the songs I know. I would definitely leave it to you to

zero in on the banana song. And a bunch of these. But weirdly, it turns out there's actually a sequel song called the um. It's called I've Got the Yes, we Have No Banana Blues and uh. Since it was released the same year as the originally, it's now in the public domain as well. So why did they do a follow up song? Was just that popular? It's basically a response to how popular the first song was and how

sick everyone was of hearing it all the time. And so one of the line says, quote, it hasn't got a bit of sense, and I go wild when they commenced bananas bananas. I wish I could break up a million pianos. I get it. I kind of love that this song is going to start annoying everyone all over again with back out there, And I was I guess that's kind of the scenario that these annual copyright expirations allow for. So it's nice to have them back in

the mix. Yeah, I guess that's true. But you know, we can probably make a more compelling case for them than that, I'm guessing. I mean, the public domain is good for lots of stuff beyond just annoying your friends with weird old songs, No, no question, it's just fun to read all those lyrics and everything. But all right, well, now that we've checked out some of the most notable inductees for this year, I do think we should take a closer look at the benefits that come from having

the growing catalog of public domain works. Yeah, it sounds great, but before we get into that, let's take another quick break. All right, So we spent a lot of time to day singing the praises of the public domain and kind of lamenting all the extensions that certain copyrights have been granted over the years. And honestly, at this point, I'm a little bit worried that people might get the impression

that we are anti copyright. Well, I mean, I do think we could survive that sort of scandal, But let's go ahead and make the case for copyrights anyway, just to be safe. It's actually something we're doing because even though copyrights can feel annoying or restrictive, the core idea makes a lot of sense granting creators the right to control how their work is used, and in its purest form, copyright protections benefit not just creators but society as a whole.

So the idea is like, that's how copyrights were framed in the U S Constitution. It was kind of this way to promote the progress of science and useful arts, and again in the first copyright law of sev. Nine, it was thought of as a way to further the encouragement of learning. I mean, it's interesting, was you almost guess that we're talking about the public domain again and not copyrights? I mean, how does restricting access to a

work encourage learning or promote science and art? So the idea is that it isn't like a short term fix it, it's one for the long run. So the basic idea is that copyright protection offers an incentive for people to create new works. I mean, why go to the trouble of writing a book or making a movie if anyone can just copy it right after it's made public? Right. So, one way I've seen it described is that copyright is

basically a contract between creators and society. They continue making new stuff and in return, we promised not to rip it off for muck with it for about twenty eight years or however long, at which point the work belongs to everyone. I mean, I get that the premises sound, but it does it feels like these copyright terms have kind of balloons so much that we've we've kind of

lost sight of their original purpose. Yeah, I mean, the trouble is that there's always someone arguing that the length of the copyright is too short to make a profit. And back in the days of fourteen and twenty eight year terms, content creators may have had a point. But you know, now that we're up to ninety five years or a lifetime plus seventy years, the terms they really

start to seem excessive. So the contract we start with has gotten a lot more one sided over the last century, which is of course an intentional move on the part of copyright holders, or more specifically, the part of companies that hold those copyrights, because the ones making money on the ninety five year copyrights or lifetime plus copyrights aren't the authors or really even their families in most cases. Instead,

it's the companies that control the rights. Once the creator is gone, like the what he got three example you gave earlier, his descendants aren't cashing in from licensing deals. It's the publisher that is sure. I mean that that's a great point, and and corporations definitely played a huge role in the twentieth century extensions to copyright terms. I mean, the most famous example is probably the extension we mentioned earlier, the one that raised the term for older US copyrights

from seventy five to ninety five years. And the law was called the Sonny Bono Copyright Term Extension Act, and the Disney Corporation was actually his biggest and most vocal champion, and that's because they wanted to keep the first Mickey Mouse cartoon ever released, which is Steamboat Willie, from entering the public domain in two thousand three. So what did Sonny Bono have to do with this? Like, shouldn't have been called the Mickey Mouse Act? Yeah, I mean, that

might have been more accurate. And actually Disney lobbied so hard for the legislation that some people actually do refer to it as the Mickey Mouse Protection Act. But in reality, the nine Bill was named as a way to honor Sonny Bono, who had passed away in January of that year. And if that sounds kind of random, it isn't just

that he was an entertainer. It's also that he was a congressman in California, and during his tenure, Bono had actually pushed hard for better copyright protection, So the gesture kind of made a lot of sense if you, you know, knew all that. Yeah, But I mean, you know, what it still strikes me about this whole thing is how ironic it is that a company build on adaptations of public domain fairy tales. They're the ones that wound up

fighting to keep all those adaptations under wraps. Yeah, and the ironies don't end there either, because disney Steamboat Willie cartoon was itself a parody of Buster Keaton's short called Steamboat Bill Jr. It actually premiered the same year. So yeah, and so while the Keaton shore entered the public domain years ago, the cartoon inspired is still under lock and Key it's kind of his ar but you know, just

like with Felix the Cat, Mickey Mouice his trademark. So when the copyright on his debut cartoon expires, the short itself can be bought or sold or given away or remixed by anyone, but the Mickey character will still belong to the Disney Company for as long as it continues to you know, use his likeness and continuity. And so one of the things you hope doesn't happen is that

someone makes an adult version of Steamboat Willie. Actually, one of the main arguments you hear from staunch copyright defenders like the ideas that when work slip into the public domain, they will be abused their tarning in some way. So for instance, the book could be published with errors, or film could be released in low quality. Yeah, or someone could replace every other line in your poem with Beyonce lyrics, which might be an improvement depending on how bad the

poetry is. But I mean, you get the point. The worry is that a public domain work will be over exploited and that it's cultural or artistic worth, you know, by because of that, it will be diminished in the process. I mean that sounds like a legit concern doesn't have But you know, like I love the idea of Pride,

Prejudice and zombies. You know, like Jane Austin might not have wanted that when she wrote it, but it's a pretty great thing for all of us, and probably more people went back and actually read Pride and Prejudice when

that Yeah, that's true. And for the most part, I'm not sure the argument holds that much water, you know, because, for instance, There was a study back in two thousand twelve where researchers took a bunch of different audio books, some of the public domains, some under copyright, and they had listeners provide feedback on the quality of each one and just actually, I'll just read here what they found.

So our data provided almost no support for the arguments made by proponents of copyright term extension that once works fall into the public domain, they will be produced in poor quality versions that will undermine their cultural or economic value. Our data indicate no statistically significant difference, for example, between the listeners judgments of the quality of the professional audiobook

readers or copyrighted and public domain texts. So it sounds like we're saying, even though there could be downsides to a work entering the public domain, those drawbacks tend to be heavily outweighed by the benefits of open access. I mean, teachers can make photo copies without breaking the law, artists can pay tribute to and and even build off the worst that inspire them, and the rest of us can kick back and listen to Yes, we have no Bananas

on loop completely free of charge. I was I was there with you until that last part but I do agree the public domain is a win for society and it's exciting to see how it, you know, it can grow substantially again after a twenty year hiatus. But before we go exploring into that treasure trove once again, I know we still have a bunch of weird copyright facts to share, So let's get into the fact off all. Well, here's something I think is pretty cool. There's this little

village in England called Wookie Hole. That's already cool. Yeah, And there are over three eggs painted with clown faces on them. And this collection is known as the Clown Register. And while it started as a hobby where one individual was cataloging these clowns just for fun, the collection grew into a way for professional clowns to basically copyright the way they make up their faces, you know, to protect

from imitators. And so the tradition actually continues today. If you register with the Clowns International, they will have your makeup painted on a ceramic. That's crazy. There's one thing I learned this week that you can't copyright, and that's a chicken sandwich. And I know this because a man named Nolberto Cologne Lorenzana tried to do this in the nineteen eighties. Apparently, Norberto added a simple chicken sandwich to the menu at Church's Chicken in Puerto Rico, and the

company made millions of it. They even used the name he gave it, the Paytree Sandwich. But when he tried to sue for intellectual property theft, the judge sternly rebuked and letting him know that while films, books, music, and architecture and even some art are all protected, culinary inventions are kind of a gray area, especially chicken sandwiches are well. Speaking of architecture, it is interesting to note that Hershey's has a trademark for the structural design of their chocolate bar,

and apparently it took a ton of work to get that. Basically, they were trying to protect the fact that you can snap those little rectangles off to fit perfectly on a smorn. If you think about like, everyone can imagine those exact rectangles. But as Smithsonian notes, functionality is not a qualifying feature when registering a product design for trademark, so to win the case, they basically had to show that the ridges

were more than just utility. The architectural design was something that people associated with Hershey Bars, even when the brand name was absent from the chocolate, and I would completely agree with Yeah, that's really interesting. Well, here's a funny one for mental class. Apparently the nineteen three Beach Boys hit Surf in USA is a complete knockoff of a Chuck Berry song called Sweet Little sixteen. I had never

heard of that. When very accused Brian Wilson of steel in the song without telling anyone, Wilson's dad, who also happened to be the band's manager, gave Barry the copyright to the tune, but he didn't tell anyone in the band, so the band actually only learned that they weren't getting royalties from the song twenty five years after it was released, Like, why are we not getting any money on this song? Well, speaking of wild, did you know that animals can't own

copyrights manga? I don't even know how that could be an issue. Well, in two thousand eleven, this photographer named David Slater went to Indonesia and he had this brilliant idea, like what if he set up a tripod and tried to get the monkeys to take selfies of themselves and somehow this one female macaque named Naruto went crazy, and of course the photos went viral. The Wikipedia put them up claiming no one could own the copyright, and David Slater assumed that he owned the rights. It was his

camera and idea after all. But Peter and their ethical treatment of all animals decided to sue on a monkey's behalf, claiming that this female should get the royalties on the photos. So far, the U S Copyright Office has taken a firm line that quote, the office will not register works produced by nature, animals or plants, and it's put the photos in the public domain. But PETA is still fighting

for its social media star client. That's pretty crazy. I mean, I think monkeys are a great way to end the show. Clown eggs, monkey selfies. I do think you deserve today's trophy and to celebrate your victory at Tristan, will you please queue up. Yes, we have no more bananas. That

is it for today's show. I do want to give a special shout out to our listener Savantha, who tipped us off on some Brady Bunch spinoffs from our last nine things that we did, our our favorite of which is the Brady Brides where Marcia and Jen have a double wedding to their boyfriends and then have to live in the same house because they can't afford to move out. Unfortunately, the Hijinks only lasted six episodes, which sounds great and terrible but yeah, but thank you so much for that, Sabantha.

But that's it for today's show. If you want to send us facts where part time genius at House start works dot com and from Gabe, Tristan Will and me. Thank you so much for listening. M M.