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| 6 minutes read

What do John Cage, Zippy and Mr Humphries have in common?

Here's wishing you a belated Happy New Year from three of DLA Piper’s copyright enthusiasts. As many readers of this blog will know, 1 January marks the day each year when copyright in various categories of work expire. As a result, those who love intellectual property celebrate New Year’s Day as Public Domain Day. But why 1 January? Because UK legislation provides for a certain number of years of protection from the end of the calendar year in which specified events took place. While it may no longer be acceptable to wish someone "Happy New Year," this is the week of 'Blue Monday'.[1] So, to lift your spirits: we’re sharing our table that simplifies key provisions from the UK’s Copyright Designs and Patents Act 1988 (CDPA) to help you to determine which works are now in the public domain (what could be better?).

But before you delve into the table, here are some of our favourite works whose status changed on Public Domain Day 2023.

Sound Recordings – John Cage’s 4.33. Often misattributed as a "piece of silence," [2] Cage’s piece celebrates the aleatoric sounds that accompany a live performance. While the performers are instructed not to play their instruments, the audience is invited to listen for shuffles, creaking chairs, sneezes and revving engines that may sound while the instruments rest. You may have heard that Cage’s publishers “sued” another musician who had composed a piece of music entitled A One Minute Silence [3] and read the resulting articles decrying “copyrighting of silence.” But you may have missed that the dispute was a mischievous set-up to generate publicity and that Cage had not sought “ownership of silence.”

Now for the big question: can you go ahead and copy sound recordings of 4:33? We’re sorry to say that you can’t. While the recordings are in the public domain, Cage died in 1992, so the copyright in the underlying musical composition will not lapse until Public Domain Day 2063. But you may be bold enough to claim that 4.33, as "merely silence," doesn’t deserve copyright protection at all because it doesn’t express the "authors' own intellectual creation."[4] If you did argue this, you’d be on uncertain ground, given that the piece was composed with a full musical score [5] and English law has historically set a low bar for originality.[6] We would certainly advise debating this issue over a drink, rather than copying the recording and debating whether it merits copyright protection in court.

Broadcasts – pilot episode of Are you being served? Often misattributed as merely a popular 1970s sitcom, Are you being served? is, in fact, the greatest TV series ever to grace our screens.[7] Between 1972 and 1985 the show overflowed with actual humour,[8] abundant innuendo,[9] levels of misunderstanding on a par with the fantastic Curb your enthusiasm and sharp class commentary beating anything found in six seasons of Downton Abbey

Now for the big question: can you copy the pilot broadcast of Are you being served? You might see a pattern emerging… again we’re sorry to tell you that you can’t (turns out copyright is a complex beast). While a recording of the broadcast is in the public domain, the show’s creator and main writer, David Croft, died in 2011. Copyright in the broadcast’s underlying scripts and theme music (joint authored with Ronald Hazlehurst 1928-2007) won’t be in the public domain until 2082.

Broadcasts (again) - first series of RainbowOften misattributed as a children's show, this... ok, it is a children's show, but it's an downright amazing children's show. While George the shy Hippo did not appear in this first series (we had Duffy the Dog instead), the antics of Bungle and Zippy [10] brought joy and hilarity into many of our childhoods in an utterly charming way.[11]  

Now for the big question - can you... ok, we already know we can't use it, for the same reason as Are you being served? (Pamela Lonsdale died in 2018, meaning her copyright in the underlying scripts will not be in the public domain until 2088). But the broadcast also contains the Rainbow logo, which would pose significant issues to anyone attempting to use old Rainbow recordings. Particularly as the owner of the trade mark, registered in Class 28, would be able to bring a passing off action against anyone attempting to use the recording. For a reminder on passing off actions, see this MSE Today blog post.

So, what the heck can you use? Fortunately, things are relatively simple for the following:

  • Poets and authors who died in 1952 - so you might want to copy George Santayana’s or Cicely Hamilton's work, making sure you’re not copying a typographical arrangement from the last 25 years. [11]  However, beware translations; Paul Éluard, the great surrealist poet, died in 1952, but there will be separate copyright in the translation of his work which may not have expired. 
  • Authors who died in 1952 – you’d be fine to perform and copy the original sheet music of compositions by Georg Alfred Schumann; and
  • Artists who died in 1952 – meaning that should you be skilled enough to copy the sculptures of Caroline Risque, you can go right ahead!

As we noted above, copyright is a complicated protection. Therefore, prior to reading the table below, we want to flag that copyright varies in each territory and the duration of copyright protection for a work depends, amongst other things, on the country you're in (the table and the contents of this article relates to UK copyright protection under CDPA, US works have a different system as do works in other jurisdictions) and there will be quirks for older UK works under older UK copyright legislation as well as other general legislative quirks (such as exceptions for Peter Pan in the UK and work from the Uffuzi in Italy)...

UK CDPA Copyright Duration Table

Article Footnotes

[1] We do appreciate that the scientific basis for 'Blue Monday' is questionable at best, but heartily endorse this endeavour - Brew Monday 2023 | #BrewMonday |There's always time for a cuppa and a catch-up (samaritans.org).

[1] Individuals of an anti-avant garde persuasion sometimes replace "silence" with a four-letter word beginning with "s". This, in our view, would also be a misattribution.

[2] Mike Batt, the musician in question, evidently opted for the ‘Ronseal approach’ to naming.

[3] Although at the time the piece was written the test was whether the work original was if it was the result of the “author’s own skill, labour, judgment and effort” - University of London Press v University Tutorial Press [1916] 2 Ch 601.

[4] Of which various versions penned by Cage exist variously indicating tempo, notes of performers, the piece’s three movements and so on.

[5] For example, in Kenrick v Lawrence (1890) 25 Q.B.D. 25, a simple drawing of a hand, a pencil and a ballot box was sufficient to warrant protection.

[6] Move over, The Sopranos.

[7] As opposed to “the only people laughing are just trying to make sure everyone knows they get the joke” humour. Looking at you, Shakespeare.

[8] What has Mrs Slocomb’s cat been up to this week?

[9] One of this article's authors wonders if it is their own affiliation bias that has led him to have a soft-spot for Zippy the "boastful know it all" and now wonders how many of his friends and family wish such author's own mouth came with a closable zip.  

[10] The infamous "plucking" episode (Google it), never actually aired. It was a spoof, created for the crew's Christmas party; which sounds like it would have been a blast.

[11] And take care not to copy any copyright protected elements that may also comprise new editions, such as any new forward, table of contents, bibliography or cover artwork and so on.

Tags

intellectual property, copyright, film & tv, media, music, publishing, tv, uk
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