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Public Domain and Derivative Works

This blog has discussed ongoing litigation concerning the song “We Shall Overcome.”  

Yesterday, Above The Law posted about this litigation, and put it in a slightly different context:

Everyone’s heard of the popular Christmas carol, “Jingle Bells,” right? “Jingle Bells” is in the public domain, meaning it is no longer under copyright protection and I can play it, modify it, use it in my music video, or do anything else to it without having to get a license. So here are my changes, for which I’m going to claim new copyright protection:

Ringing bells, ringing bells

Ringing all the way

Oh what a joy it is to ride

In a one-horse open sleigh


Now say this version suddenly becomes a hit. People love this version of this old Christmas carol (yes, I know, “ringing bells” doesn’t have the same, ahem, ring as “jingle bells,” but just go with me here). Ringing bells replaces jingle bells in caroling, and twenty years from now people barely even remember a time when we said “jingle” instead.

Movie directors want to use the song in their movies because it has become a Christmas classic. Ah, but wait! They can’t without getting a license, which I’m going to charge $100,000 for them to use. Sure, the directors could use the old “Jingle Bells” instead, but that no longer has the same recognizable quality now that everyone is singing “Ringing Bells.” And, because copyright terms are now so long—extending 70 years after an author’s death—“Ringing Bells” might reasonably remain under copyright for the next 120 years. Crazy, right?

Check out the rest of the article as it explores the challenges of balancing the permissive use of public domain materials with the more restrictive doctrine of derivative works.

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