How Copyrights Become Public Domain

How Copyrights Become Public Domain
Image credit: Horia Varlan | Flickr

Grab a slice of cake. You can now sing "Happy Birthday" without risking a lawsuit.

A U.S. federal judge dismissed Warner/Chappell Music's copyright claim of the birthday tune and placed "Happy Birthday to You" into public domain on Tuesday.

The company has been enforcing the copyright since 1988, when it bought Birch Tree Group, a company that supposedly held the initial copyright, for $15 million, according to Billboard.

The lengthy court case was brought forth in 2013 by musician Rupa Marya and filmmaker Robert Siegel, who argued that the company was wrongly asserting copyright ownership.

Judge George H. King ruled that Warner/Chappell Music did not own the rights to the lyrics of the song but rather the copyright to a specific piano arrangement in the melody.

This is not the first copyright to come under scrutiny in recent years and it will likely not be the last. Copyright law is complicated. So, how does it really work? CNBC explains.

What is public domain?

Public domain encompasses all works that are not restricted by copyright and do not require a license or a fee in order to be used. These works fall into this domain for three reasons:

  1. The work is not considered copyrightable by law.
  2. The works have been given to public domain by the author.
  3. The copyright of the work has expired.

What can be copyrighted?

  • Literary works: Traditionally, novels, stories, essays, etc., but has since been expanded to include computer programs.
  • Musical compositions: This copyright includes both the lyrics and the tune.
  • Dramatic works: Plays, screenplays and TV scripts are included in this category.
  • Pantomimes and choreographic works: This includes ballets, dances or mime routines.
  • Artwork: This category encompasses paintings and drawing as well as sculptures, maps, diagrams and blueprints.
  • Audio-visual works: Movies, film strips and even slideshow presentations are included in this copyright.
  • Sound recordings: Different from a musical composition, a sound recording copyright goes beyond the sheet music and copyrights the sounds on the recording as separate entities.
  • Architectural works: Similar to artwork, architectural works can be copyrighted by their blueprints, but they can also be copyrighted by their physical structure and design.

What cannot be copyrighted?

  • Ideas or facts
  • Expired copyrights
  • Works of the United States government
  • Laws or regulations
  • Works authors have dedicated to the public domain

When does a work become public domain?

All works published in the United States prior to 1923 are considered public domain. Why 1923? Because of the Sonny Bono Copyright Term Extension Act and Disney's mascot Mickey Mouse.

The Copyright Act of 1909 initially stipulated that all works were granted protection for 28 years, with the option to renew for an additional 28 years. After that 56-year period, the work would enter the public domain, according to the United State Copyright Office.

"Steamboat Willie," the very first Mickey Mouse cartoon was published in 1928 and thus was slated to become public domain in 1984. However, Disney lobbied Congress in 1976 to extend copyright law to a term of 75 years. With that extension, the company's copyright would expire in 2003.

This wasn't the only time that Disney advocated for a copyright extension. In the late '90s, the company once again lobbied congress and in 1998 the Sonny Bono Act was signed into effect by President Bill Clinton. This act extended all existing copyrighted material by an additional 20 years.

Works that had been published in 1922 were unaffected because their 75-year copyrights had already expired by the time the extension was enacted. Works published in 1923, which had not expired in 1998, were granted the 20-year extension.

If Congress does not elect to extend the length of copyright, these works will begin to enter public domain in 2018. However, it would not be unexpected for Disney to seek another copyright extension for their famous rodent. In fact, brand experts in 2008 valued Disney's mouse at more than $3 billion, according to the Los Angeles Times. No doubt that number has only increased in the last seven years. (Disney didn't respond to a request for comment.)

According to the United States Copyright Office, copyright protection for all works created after Jan. 1, 1978, lasts for the life of the author plus an additional 70 years.

For any work made for hire, published under a pseudonym or anonymously, the copyright is set for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

Unpublished works are a bit different, however. Works that were never formally published become part of the public domain 70 years after the author's death. In contrast, anonymously unpublished works are incorporated into public domain 120 years from the date of creation.

To make things even more complicated, copyrighted works can enter the public domain if they are not published with a copyright notice or haven't been registered for copyright within five years of publication.

These rules change depending on what year the work was published. Cornell University broke down the specific copyright and public domain terms in a timeline on its website.

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